Criminal and juvenile records
Model Law on Non-Conviction Records (2019)
Model legislation with reporters from the Collateral Consequences Resource Center and an advisory group of lawyers, judicial officials, lawmakers, academics, policy experts, and advocates.
ABA Model Act Governing the Confidentiality and Expungement of Juvenile Delinquency Records (2015)
Model legislation from the American Bar Association
Collateral consequences
Model Penal Code: Sentencing, §§ 6.03, 6.04 (“Deferred Prosecution” and “Deferred Adjudication”) Article 7 (“Collateral Consequences of Criminal Conviction”) (2017)
Model legislation from the American Law Institute
Uniform Collateral Consequences of Conviction Act (2010)
Model legislation from the Uniform Law Commission
Standards for attorneys and the judiciary published by the American Bar Association
Employment and occupational licensing
Model Collateral Consequences in Occupational Licensing Act (2018)
Model legislation from the Institute for Justice
Model State Law (Removing Barriers to State Occupational Licenses for People with Records) (2016)
Model Legislation from the National Employment Law Project
Best Practices and Model Fair-Chance Policies (including “ban the box”) (2015)
Model Legislation from the National Employment Law Project
Beyond the Box: Increasing Access to Higher Education for Justice-Involved Individuals (2016)
2016 report and guidance from the U.S. Department of Education
What Employment Background Screening Companies Need to Know About the Fair Credit Reporting Act (2016)
2016 guidance from the Federal Trade Commission
EEOC Enforcement Guidance (2012)
Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964
Housing
2016 guidance from the U.S. Department of Housing and Urban Development
Related blog posts:
- Clean slate expungement bill passes in Missouri (5/19/2026) - On May 15, the Missouri legislature gave bipartisan approval to a measure mandating automatic expungement of felony and misdemeanor drug possession convictions, and convictions for unlawful use of drug paraphernalia. If SB 1421 is approved by the governor, felonies will be expunged after three years without a new conviction, and misdemeanors will be expunged after one year. A person is limited to three misdemeanor and two felony expungements under the bill, combined with existing expungement laws. The bill sets forth detailed provisions for its administration, both by the courts and by the state highway patrol. It is to be effective "when technically feasible," but "no later than January 1, 2027." Since 2018, Missouri has provided for expungement by petition for a wide range of convictions, with some of the shortest waiting periods in the country. In addition, in 2022 Missouri voters approved by ballot initiative one of the broadest marijuana relief laws in the Nation, legalizing possession of up to three ounces of marijuana, and at the same time authorizing expungement of more serious marijuana convictions and commutation of prison sentences imposed for crimes involving marijuana. Missouri's record clearing laws, including those approved in the 2022 balllot initiative, are described in detail in the Missouri profile from our Restoration of Rights Project. We will be back with further news when the governor takes action.
- Update on federal firearms restoration program (11/4/2025) - Last spring, the Department of Justice (DOJ) announced its intention to revive a long-dormant program to remove federal restrictions on firearm possession, including for those with a criminal record. In July DOJ published for comment a proposed rule that would, when finalized, accomplish this for people who are determined to pose no public safety risk. See 18 U.S.C. § 925(c). See Trump's Justice Department aims to restore gun rights for nonviolent offenders. The comment period closed on October 20, and it is therefore possible that a final rule will be published at any time to launch the revived program. This will open the door, for the first time in more than 30 years, to many individuals who have been unable to regain their firearm rights because of their criminal record. It is anticipated that thousands of people will want to apply for this relief, which will be administered by the Justice Department's Office of the Pardon Attorney. We have some concerns about whether the demanding § 925(c) application process described in the proposed rule will deliver on its promise. For example, the document production requirements may be challenging for many people, especially those with dated minor convictions. See proposed 28 CFR § 107.1(d). Hopefully, the final rule will facilitate application rather than discourage it for those unable to hire counsel. At a minimum, the revived § 925(c) process will provide an alternative to presidential pardon for people dispossessed because of a federal conviction. But relief under § 925(c) affects only restrictions on firearm possession arising under federal law, and will not affect analogous restrictions in the laws of most states. As a result, individuals who benefit from the federal restoration program will need to determine what their rights are under state law. In all likelihood, states will also want to determine whether restrictions in their own laws should conform to or outlive federal ones. While the new federal restoration program may be good news for people who can successfully navigate it, the not-so-good news is that many of these same people (including those with federal convictions) will remain frustrated by restrictive state laws that permanently prohibit their possession of any firearm without regard to public safety risk. In June of 2025, CCRC published a report on state law firearm restrictions that will inform these determinations. CCRC’s report, Restoration of Firearm Rights After Conviction: A National Survey and Suggestions for Reform, offers a comprehensive picture of the differing ways states restrict and restore the right to possess a firearm for those dispossessed because of a criminal record, including relevant sections of statutory text to facilitate analysis and comparison. CCRC's report concluded that most states restrict firearm rights too broadly and make restoration difficult, in potential violation of the Second Amendment. Our report found that only 13 states limit dispossession to violent crimes, and 34 states offer no route to firearm relief to residents convicted in another state or in federal court. Sixteen (16) states make pardon the exclusive way to regain state firearm rights, and not all of those states offer pardon as a reliable remedy. Even in those states where pardoning is frequent and regular, those with out of state or federal convictions may be out of luck (unless the state gives effect to pardons issued by other jurisdictions). Our research revealed that only 16 states provide a way to regain lost rights that is easily accessible to all state residents wherever they were convicted, usually from an administrative agency or a court in the county of their residence. That is the kind of relief system we recommend. We are in the process of updating our report on state firearms dispossession laws to reflect new enactments in a dozen states since June, and we expect to republish it before Thanksgiving. NOTE: One interesting additional development since June is that the Supreme Court has agreed to hear a case that could add to our understanding of how the Second Amendment applies to federal firearm restrictions. The case, United States v. Hemani, involves the federal prosecution of a Texas man for violating the prohibition on gun possession by anyone who is "an unlawful user of" any controlled substance. 18 U.S.C. § 922(g)(3). The district court found § 922(g)(3) unconstitutional as applied to Mr. Hemani, and the court of appeals agreed. The Justice Department has urged the Supreme Court to find § 922(g)(3) constitutional as analogous to Founding Era gun laws applicable to "habitual drunkards," despite the absence of any record facts to support such a finding in Mr. Hemani's case. It has also argued that the impending revival of the § 925(c) relief program obviates any constitutional problem with this provision, which the proposed regulation explains applies only to those currently using drugs in violation of the law. The Court's willingness to hear the case suggests an openness to curbing aggressive federal firearm prosecution policies in cases implicating the Second Amendment.
- New report: Most states restrict firearm rights too broadly and make restoration difficult (6/6/2025) - Most states restrict firearm rights too broadly and make restoration difficult, in potential violation of the Second Amendment, according to new report FOR IMMEDIATE RELEASE June 5, 2025 Media Contact: Margaret Love Margaretlove@pardonlaw.com Loss of firearm rights after a felony conviction extends well beyond what is necessary to advance public safety objectives, according to a study released today by the Collateral Consequences Resource Center. The loss of rights is permanent in most states, and under federal law. The study shows that each state operates under its own complex legal framework with overlapping federal requirements that create the possibility of further criminal jeopardy for inadvertent violations. Only 13 states limit dispossession to violent crimes, and more than two-thirds of the states offer no route to firearm relief to residents convicted in another state or in federal court. Only 16 states provide a way to regain lost rights that is easily accessible to all state residents. CCRC’s report, Restoration of Firearm Rights After Conviction: A National Survey and Suggestions for Reform, offers a comprehensive and up-to-date picture of the differing ways states restrict and restore the right to possess a firearm, including relevant sections of statutory text to facilitate analysis and comparison. This detailed information on state laws has not been made previously available, and is timely in light of impending changes to federal firearm restoration. In almost every state, the process for regaining firearm rights is complex and difficult to navigate. Restoration of federal rights currently depends on restoration under state law, which means that restoration is effectively unavailable to many people, notably including those convicted in federal court whose only remedy is a presidential pardon. It also means that federal firearms restrictions are unevenly applied across the country. Broad categorical dispossession laws like those in most states are more vulnerable to constitutional challenge under the Second Amendment when there is no individualized assessment of public safety risk, according to Margaret Love, one of the co-authors of the report. "There is no empirical research that would support restricting firearm rights for those convicted of non-violent offenses." Love said that “A close look at how firearm rights are restored in states across the country is important because of prospective changes to federal restoration procedures announced in March by the Department of Justice.” She pointed out that “The revival of an alternate way of avoiding federal restrictions means that federal rights will no longer depend on how states restore rights. At the same time, it will leave applicable state restrictions in place, and challenge states to consider whether any analogous state restrictions should remain after federal rights have been restored.” The change in federal firearm restoration procedures under consideration by the Department of Justice should encourage states to look carefully at restoration provisions in their own laws to determine whether more restrictive state provisions should outlive federal ones. States will also have to consider whether to offer opportunities for restoration of rights to all state residents rather than restricting them to people convicted in their own state courts. Beth Johnson, the other co-author of the report, said that facilitating relief from felony dispossession has not been a focus of organizations seeking to remove criminal record restrictions on basic needs such as housing, employment, and access to social supports. It has also not been a familiar part of the advocacy program of organizations dedicated to challenging other types of restrictions on firearm possession. “Gun violence has been too volatile an issue on the national scene to make support for restoring firearm rights to ‘convicted felons’ anything but a political third rail,” Johnson said. "Lost in the debate is what should be common ground: treating people fairly and supporting their reintegration includes restoring, with appropriate safeguards, their full access to housing, jobs, credit, and yes, also firearm rights." The report recommends that the federal government should make relief from federal felony dispossession under the proposed new restoration program broadly available to those who present no public safety risk. It also recommends that states should narrow the scope of their felony dispossession laws, and provide a procedure for regaining firearm rights that incorporates a public safety determination and is easily accessible to all residents. Both of the report’s authors have each spent decades representing people seeking to regain their firearm rights, Love in the Federal system through the presidential pardon process, and Johnson in the State of Illinois through the various relief mechanisms that state provides. “We are convinced that the time is right for a serious and open-minded effort to reform the law applicable to a collateral consequence of conviction that is in many ways unreasonable and unfair,” they said. “We are optimistic that the proposed changes to federal restoration will encourage states to reform their unduly restrictive laws.” ### ABOUT CCRC The Collateral Consequences Resource Center is a non-profit organization that researches laws and policies relating to restoration of rights and criminal record relief throughout the country, whose work makes it possible to see national patterns and emerging trends in efforts to mitigate the adverse impact of a criminal record. For more information visit https://ccresourcecenter.org/.
- Study: Texas diversion provides dramatic benefits for people facing their first felony (4/3/2025) - NOTE: In light of renewed interest in state legislatures in judicially-administered diversion and deferred adjudication programs, we are re-publishing our 2021 report on a remarkable study of deferred adjudication in Texas by researchers Michael Mueller-Smith and Kevin Schnepel. We noted at the time that "The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction. by Margaret Love and David Schlussel (Feb 23, 2021). Increased use of diversion is a key feature of America’s new age of criminal justice reform. Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record. Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior. Until now. By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants. A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect. Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists. Michael Mueller-Smith and Kevin Schnepel (2020) use detailed administrative data from Harris County (which covers the Houston area) to estimate the first causal impacts of a diversion program available to a large fraction of felony defendants in the state. Texas’ “deferred adjudication community supervision” allows defendants to plead guilty but have entry of a conviction deferred during a period of community supervision, with the case dismissed without a conviction upon successful completion. The arrangement must be approved by the judge. This diversion program is comparable to numerous programs administered by prosecutors and judges across the U.S., Europe, and several other countries—although many programs do not necessarily require a guilty plea. At the same time, Texas law has broad eligibility for its program compared to many otherwise-comparable American programs, making deferred adjudication potentially available to all defendants except those charged with DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, and murder. The Mueller-Smith and Schnepel study finds that defendants without a prior felony conviction who participated in Texas’ deferred adjudication program experienced an immediate and dramatic reduction in subsequent offending. The total number of future convictions fell by 75% over a 10-year follow-up period, compared to similarly situated defendants who did not receive diversion. The results also suggest large improvements in labor market outcomes, including a 50% increase in formal employment rates. For the cohort studied over the longest period, “these positive effects persisted and expanded even 20 years out,” leading the authors to conclude that “diversion, at least at the critical juncture of someone’s first felony charge, has the potential to fundamentally alter an individual’s trajectory in life.” The circumstances that produced the subject data are somewhat unique: To measure the causal impacts of diversion, the analysis leverages two sudden lasting shifts in the use of diversion options (one in September 1994, another in November 2007) that each approximate an experiment where the treatment is randomly assigned to eligible felony defendants. The research design focuses on first-time felony defendants who are charged in the months preceding or following these abrupt changes, subjecting them almost arbitrarily to dramatically different case dispositions. As the study notes, “the main difference from the defendant’s perspective was that before the cut-off one could avoid a felony conviction, whereas afterwards a felony conviction was non-negotiable.” Defendants who, by chance, ended up charged at the “wrong” time and received a formal felony conviction for their first offense, went on to receive 1.6 to 1.7 additional criminal convictions and 50% lower employment rates during a 10-year follow-up period relative to their diverted peers. Perhaps the study’s most remarkable finding is that those who are often considered the most over-policed—young Black men with one or more misdemeanor convictions—gained the most from diversion. The results indicate that intervening for such individuals at a critical moment (when charged with a first felony offense) could significantly improve their life course. Interviewed for this post, one of the study authors commented about its potential impact for criminal justice policymakers: Given the trajectory toward more leniency in the U.S. criminal justice system, the results suggest that increases in diversion options may lead to lower rates of reoffending and higher rates of rehabilitation in the coming years. While much has been written about what doesn’t work in criminal justice policy in the U.S., this study provides compelling evidence for a successful intervention that both improves defendant outcomes and saves public resources. Diversion can be implemented without significant investments or changes to current infrastructure, making it a potential solution for U.S. criminal justice reform. The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction. Citation: Michael Mueller-Smith and Kevin T. Schnepel, Diversion in the Criminal Justice System, The Review of Economic Studies 1-54 (2020), accessible at https://academic.oup.com/restud/advance-article-abstract/doi/10.1093/restud/rdaa030/5856753. Note: The co-authors thank Michael Mueller-Smith, Jordan Hyatt, and Emily Greberman for their assistance in helping us understand the technical aspects of the Harris County study.
- SBA finalizes rule limiting consideration of criminal history in loan programs (4/30/2024) - Today, the Small Business Administration's rule removing most criminal history restrictions in its federally guaranteed loan programs will be published in final form. This marks an important step in opening additional sources of business capital to justice-impacted entrepreneurs, and a boon to developing communities that thrive on the success of their small businesses. The final rule makes few changes from the version published last fall for comment, which proposed removing most criminal history restrictions from the SBA's business and disaster loan programs. The proposed rule is described in this post. The only substantive difference in the final rule is that business owners under indictment, along with those actually incarcerated, will remain ineligible for federally guaranteed loans. The SBA noted that of the 19 comments received on the proposed rule, almost all were favorable. It also pointed out, as it did last fall, that there is no data indicating an enhanced risk of default from this population of entrepreneurs. At the same time, the SBA comments that even though it will no longer be conducting extensive criminal records checks on loan applicants, lenders may continue to do so. In describing the background of the now-final rule, the SBA cites some eye-catching statistics indicating that in recent years it has been giving lenders the green light on hundreds of loan applications from business owners with a felony record, while disapproving only a handful. These statistics, which are consistent with the SBA's responses to FOIA requests with which CCRC is familiar, would seem to indicate that the SBA has available to it data that could shed light on actual risk through default rates. We look forward to learning more about this data, which could give banks additional incentives to make loans to justice-impacted entrepreneurs. We have recently attended several programs sponsored by the Treasury Department and its agencies in which the issues raised by "fair chance lending" have been explored, and we expect to be continuing that conversation in weeks to come.
- SBA takes one step toward fair chance lending, but needs to take another (9/7/2023) - The U.S. Small Bujsiness Administration has taken several recent steps that promise to make federally guaranteed loans available to business owners with a criminal history. This is an important policy issue we've been following for several years, and it appears there may at last be a breakthrough. How big a breakthrough remains to be seen. Following up on its omission of "character" and "reputation" as criteria for 7(a) loans, discussed in this post, the U.S. Small Business Administration issued new Standard Operating Procedures (SOP) for its 7(a) small business loan program. Effective August 1, 2023, the new SOP omits all mention of "good character" as a requirement for loan qualification. This means that applicants with a criminal history who apply to a bank for a federally guaranteed loan will no longer be put through the SBA’s onerous "character determination" process. (Applicants on parole or probation, or in prison, remain ineligible to apply under 13 CFR 120.110(n).) At the same time, the issue of prior criminal history appears to remain relevant in deciding whether to make a loan, since applicants for 7(a) loans (including Community Advantage loans) must still complete Form 912, which contains very broad questions asking about an applicant's criminal history. Questions 7 and 8 on this form ask about pending charges and recent arrests, while Question 9 asks whether the applicant has engaged in any criminal conduct at any time in which there was a disposition: Q. 9: For any criminal offense - other than a minor vehicle violation - have you ever: 1) been convicted; 2) pleaded guilty; 3) pleaded nolo contendere; 4) been placed on pretrial diversion; or 5) been placed on any form of parole or probation (including probation before judgment)? Applicants responding affirmatively to any of these questions are instructed to "include dates, location, fines, sentences, misdemeanor or felony, dates of parole/probation, unpaid fines or penalties, name(s) under which charged, and any other pertinent information. . . ." When asked to supply detailed information about such a broad range of criminal matters, no matter how minor or dated, loan applicants may reasonably assume that those matters will be considered - either by the SBA or by the bank that will actually be making the loan -- and may be grounds for declination. The only difference now is that it isn't clear HOW those matters will be considered or by whom, since the new SOP omits the "character determination" process in earlier editions of the SOP. And those in need of business capital will likely still be deterred from applying. We think it fair to assume that, despite the SBA’s amendment of the regulation to omit "character" as a loan criterion, and its amendment of the SOP to omit the "character determination" process, any “criminal offense” reported by an applicant (including misdemeanor convictions and diversions, and unpaid fines or financial penalties) may still be considered in deciding whether to make a loan. Even if the SBA itself doesn't intend to consider an applicant's criminal history, the agency continues to helpfully collect the information so that the lending bank can consider it. As we noted in a post last spring, "the good news is that it appears the SBA will no longer bar banks from making loans to otherwise qualified applicants based on their criminal history. The less good news is that the agency seems to expect banks and other lending institutions to step into the void and apply their own restrictions on loans based on an applicant’s criminal history." Indeed, one can imagine that a bank that otherwise does NOT feel it necessary to inquire into or consider an applicant’s criminal record in its other lending practices, will now feel some obligation to do so because 1) it no longer has the SBA to act as a screen, and 2) the SBA may expect it to use the information it has collected. In short, we are not at all sure how much progress has been made by removing the loan criterion "character" from the regulations, and the character determination process from the SOP, as long as the broad inquiries about criminal history remain as part of the application process. What we really need, therefore, is for the SBA to take another step to limit the criminal matters that will serve as the basis for declining a loan, by simply not asking about them. We believe this next step is most likely the "proposed rule" that is the subject of a letter sent to the SBA Administrator on May 16 by the chairs and ranking members of the small business committees in the House and Senate, asking for a "pause" in issuing the rule. Of course, we are interested in knowing whether the new proposed rule does in fact place limits on inquiry about criminal matters and, if it does, what the reasons are for the requested pause. We are also interested in knowing whether the SBA will simply pass the buck to the lending banks who either already have or who will soon develop their own policies on criminal background checks if the SBA will no longer serve as a screen. The same issues about criminal record restrictions are raised by the 8(a) program administered by the SBA, which unlike 7(a) includes rules on a broad range of criminal matters, but which like 7(a) uses Form 912. We expect we will have a chance to discuss these restrictions before long in the context of the 8(a) program.
- Pending federal reforms promise support for justice-affected entrepreneurs (3/9/2023) - Word is getting around about pending reforms that would make federal support for small businesses more widely available to entrepreneurs with a criminal history. Notably, the U.S. Small Business Administration has recently taken steps to reduce or remove entirely criminal record-related restrictions in its loan and contracting programs. These are steps that CCRC has been urging ever since the SBA's restrictive policies first came to public attention during the pandemic. An article by Michael Friedrich published today by Arnold Ventures (AV) describes a number of reforms recently proposed or adopted by the SBA that will eliminate arbitrary program barriers based on criminal history that are unrelated to any established risk. These reforms should encourage more justice-affected business owners to seek SBA support for their entrepreneurial ventures in the form of federally guaranteed loans or federal contract set-asides for "socially and economically disadvantaged" businesses. The AV article points out that the near-exclusion from these programs based on criminal history "frustrate[s] federal efforts to contribute to economic development in disadvantaged communities, often the same low-income communities of color that have suffered the most during the era of mass incarceration and tough-on-crime policies." The AV article showcases the situation of Sekwan Merritt, whose electrical contracting company has become established in Baltimore since his release from prison five years ago, through small loans from a local community development organization, but which now needs the more substantial financial support provided by SBA loans to expand. "Entrepreneurs like Merritt, who have previously been involved with the justice system, often start small businesses as a response to discrimination and exclusion by traditional employers; around 4% of all small businesses have an owner with a criminal conviction. But they face dire challenges when trying to access capital through the SBA, the federal agency that connects small businesses with lenders to help them launch and develop. Merritt describes coming home from prison with a desire to start his own business and "make things easier for people who have been through the same thing I have” by hiring others reentering the community after a prison term. His business, Lightning Electric, has grown steadily since that time, surpassing $600,000 in revenue last year. But when Merritt tries to take out small business loans, he hits a brick wall because of his criminal record. The Small Business Administration (SBA) and other institutional lenders have routinely denied him, making it difficult to hire and take on larger contracts." Merritt believes that a change in the SBA's policy "would create a seismic shift for his business, and for many others, making it possible to grow larger, take on more business, and contribute to their communities." Carson Whitelemons, director of criminal justice at AV, points out that "t]he SBA guaranteed more than $44.7 billion in loans in 2021 and serves as a particularly important lender for disadvantaged communities." CCRC's Margaret Love notes that the capital controlled by the SBA "is critically important to helping people with a criminal record establish themselves in the community and to closing the racial wealth gap." Shawn Bushway, who has done extensive research on criminal records and employment, argues that “Places that have high crime, poverty, and other issues have fewer businesses than they could, and one reason may be that the people who want to develop businesses can’t get a loan.” Awesta Sarkash of the Small Business Majority adds that "entrepreneurship is a proven pathway to decrease recidivism," and justice-affected business owners "should not be further marginalized or perceived as a credit risk simply because of their past." Research is underway that promises to support and encourage the reforms contemplated by the SBA, reforms that in turn should influence the policies of banks and other lending institutions. A group of researchers at the University of Michigan Law School is currently studying the effects of SBA laws, rules, and regulations on access to capital and entrepreneurship more broadly. They are particularly interested in the willingness of people with criminal records to apply for loans. J.J. Prescott, Henry King Ransom professor of law at the university, notes that such rules are likely to deter people with criminal records from starting businesses and submitting loan applications in the first place. The rules also sway other institutional lenders to employ similar restrictions. “The SBA influences the norms of the industry and gives the broader private market a justification for also looking at criminal records as a way to judge creditworthiness,” Prescott says. “Once you have a policy like this in place, there is a bit of a domino effect.” Prescott further notes that people’s criminal records have no clear impact on whether they repay loans, according to research. We will report in this space on further developments in the various SBA reforms proposed or foreshadowed. We hope that the spirit of reform that is seemingly moving the SBA in connection with its 7(a) loan program will in time be extended to its 8(a) business development and disaster assistance programs, which contain essentially the same criminal history-related restrictions.
- SBA proposes to ease criminal history restrictions in loan programs (1/19/2023) - On October 23, 2022, the U.S. Small Business Administration published for comment a rule that would significantly expand the availability of federally guaranteed loans to entrepreneurs with a criminal history. This rule, if finalized, could also transform the SBA’s role in support of urban community development. The proposed rule, titled ”Affiliation and Lending Criteria for the SBA Business Loan Programs,” 87 FR 64724 (Oct. 23, 2022), eliminates language in the SBA’s formal lending criteria that the agency has relied on for many years to restrict loans to justice-affected business owners. We have written at length over the past several years about the broad record-based restrictions in the SBA's lending and contracting programs, restrictions that first became controversial during the pandemic, and that have never been justified by evidence of a link between criminal history and credit risk. While the proposed SBA rule covers a variety of subjects, its key provision from CCRC's perspective is its omission of the words “character” and “reputation” from the criteria for small business loans in 13 CFR 120.150(a). It is this language that has been relied on for the “good character” policies in the SBA’s operating procedures affecting both business loans and disaster assistance. In turn, these procedures define "good character" exclusively in terms of a person’s criminal history. Our past analyses of the SBA's operating procedures indicates that a potential borrower who reveals any past conviction on loan application forms (including convictions that have been expunged or pardoned) is unlikely to qualify for an SBA-approved bank loan or SBA disaster assistance. Banks are not permitted to proceed with a loan application if an applicant reveals any past felony conviction, no matter how dated and minor, until the SBA launches an extended inquiry to determine whether the applicant has “good character.” applicant. Even if an applicant makes it this far in the loan process (and most are deterred from even applying given the questions on the form), banks may in turn be deterred from proceeding given how long the SBA “good character” process takes. The standards that go into “good character “ determinations are not published anywhere, though we know that they are all made in one regional office. A FOIA request filed by the Washington Lawyer’s Committee revealed that the SBA made over 900 good character determinations in 2020-2021 but did not retain documentation of them. Indeed, the SBA maintained that it was unable even to find a record of 2/3 of these determinations. We recently applauded the SBA’s removal of “good character” from its rule certifying veteran-owned businesses for preferential treatment in contracting, as we had urged in a comment supported by 25 civil rights and advocacy organizations. We think this aspect of the proposed rule on lending criteria would be a similarly positive step to make business capital fairly available to business owners despite their criminal history. The proposed revision of the rule would effectively eliminate the regulatory basis for disqualifying prospective borrowers based solely on their criminal record, and undercut the SBA's ability to consider criminal record as an independent basis for denying credit. Our analysis has identified similar disqualification standards in the SBA's disaster loan program, and the revised rule would apply to those loans as well. As the SBA proposes to revise and simplify the lending criteria, they would focus on objective standards of creditworthiness instead of relying on vague notions of "character" and "reputation" that have made it difficult for justice-affected entrepreneurs to qualify for the SBA's federally guaranteed loans. In describing the purpose of the revised lending criteria, the SBA explains that it hopes to “expand access to capital for small businesses and drive economic recovery,” and that "allowing [lenders] to use credit scoring models for credit underwriting will result in more lenders making more smaller loans because the costs for making the small loans will decrease." The SBA expects that its revised rule will expand the universe of lending institutions that will be authorized to dispense SBA loans, including in particular lenders like fintechs that are not federally regulated. The proposed rule generated over 100 comments, with many SBA-certified lenders objecting to the simplified loan criteria, and specifically to the agency's proposed expansion of the program to non-depository lending institutions (including fintechs) and removal of the "character" test in the current rule. A comment filed by the National Association of Government Guaranteed Lenders expresses concern that the proposed revision of the lending criteria will remove "the historical program guardrails" that have "ensured prudent lending throughout the program’s history." Another by the American Bankers Association states that the revised criteria “may negatively impact the performance of loans made under the 7(a) Program, threaten the integrity of the program, and lead to increased borrower and lender fees.” Senator Benjamin Cardin, who chairs the Senate’s committee on Small Business and Entrepreneurship, and Senator Corey Booker, have together written to the SBA urging the agency to limit its program restrictions based on criminal record — although their letter also recognizes the importance of maintaining the program’s traditional “guardrails.” Their letter was sent before the SBA’s October publication of its revised eligibility standards. We are studying the comments, and hope to be in a position to report further in the near future.
- Oklahoma and California win Reintegration Champion awards for 2022 laws (1/17/2023) - On January 10 we posted our annual report on new laws enacted in 2022 to restore rights and opportunities to people with a record of arrest or conviction. Like our earlier reports, it documents the steady progress of what we characterized two years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. This year’s criminal record reforms bring the total number of separate laws enacted in the past five years to more than 500. Posted below is our fourth annual legislative Report Card recognizing the most productive states in 2022. Reintegration Awards for 2022 While more than a handful of states enacted noteworthy laws in 2022, two states stand out for the quantity and quality of their legislation: California and Oklahoma share our 2022 Reintegration Champion award for their passage of at least two major pieces of record reform legislation. California – Enacted a whopping 11 new laws, including the broadest general record clearing law in the nation, a direction to courts to effectuate clearing of marijuana records, removal of restitution as a bar to clearing criminal records, easing access to judicial certificates of rehabilitation, and simplification of the process for certifying people with criminal records to work in community care. California’s governor also vetoed a bill that would have facilitated background screening by eliminating court-imposed restrictions on online access to personal identifying information. Oklahoma – Enacted a major automatic record clearing law and the most sweeping update to an occupational licensing scheme of any state in the country this year. Oklahoma also passed a significant law allowing young people who successfully complete the state’s youthful offender program to have their charges dismissed and expunged. Another eight states earned an Honorable Mention for their enactment of at least one significant new record reform law: Colorado – Expanded automatic sealing to include all offenses eligible for petition-based sealing, reduced the waiting period for low-level drug possession from three years to two, and enhanced procedural rights of those applying for occupational licenses. Connecticut – Made it easier for people with felony convictions to work in dozens of occupations under the state department of public health and authorized a binding preliminary determination. Delaware – Enacted the “Fair Chance Licensing Act,” establishing a binding preliminary application process, providing that many records may not be grounds for denial (convictions over 10 years old with no intervening convictions; pardoned, sealed, or expunged convictions; non-conviction records; and juvenile adjudications). Even “substantially related” crimes must be given an opportunity for a waiver via a board vote. Delaware also authorized automatic expungement of records of charges lacking a final disposition and prohibited higher education institutions from inquiring into an applicant's criminal history. Indiana – Eliminated the one-year waiting period for sealing non-conviction records, including uncharged arrests, and made this relief automatic. Louisiana – Strengthened and extended its occupational licensing law, by establishing a binding preliminary determination, providing for appeal, bringing many new boards under its general licensing limits, and adopting new factors to be considered in determining “direct relationship.” The state also provided unusually broad record relief for victims of human trafficking. Maryland – Legalized the personal use of up to 1.5 ounces of cannabis for adults 21 and older, authorized resentencing and expungement of marijuana conviction records and established a business assistance fund that prioritizes individuals with cannabis convictions. Maryland also enacted a law removing state authority over the delinquency of children aged 13 and under. Missouri – Missouri voters amended the state constitution to legalize personal use of marijuana, and at the same time authorized release from prison for those serving prison sentences for marijuana trafficking, provided for automatic expungement for numerous marijuana convictions upon completion of sentence, and extended preference in commercial licensure to sell legalized marijuana to those with convictions. In addition, Governor Mike Parson has become the most prolific pardoner in the state in more than 40 years, working efficiently to reduce a case backlog built up over many years. Rhode Island – Legalized adult possession of small amounts of marijuana, provided for automatic expungement of convictions for decriminalized marijuana offenses, and waived costs as a bar to expungement for anyone who has been incarcerated for a marijuana offense. Low marks go to two states that enacted no record reform laws at all in 2022. While there are many other states in this category this year, the legislatures of Alaska and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2021, 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. Wisconsin’s one saving grace is the extensive record of pardoning by Governor Tony Evers in the past 30 months, during which he has pardoned more than 600 individuals, 325 in 2022 alone. Looking ahead to 2023, we expect to see a continuing expansion of eligibility for record clearing, and reduction of access barriers like lengthy waiting periods, outstanding court debt and application-related costs. We also predict efforts to improve records management to accommodate automation of record clearance. We look for extension of state fair employment laws, and further facilitation of occupational licensing, both areas where bipartisan reforms have benefitted from helpful model laws. We are slightly less optimistic about additional progress toward dismantling the structure of felony disenfranchisement, which has become mired in faction looking toward the presidential race in 2024. Hopefully, 2023 will see some record reform action in Congress and federal agencies, including measures to extend access to government-guaranteed loans and contracting opportunities to small businesses owned or managed by people with a criminal history. We have come a long way just in the past five years, but there is still a long way to go.
- The Frontiers of Dignity: Clean Slate and Other Criminal Record Reforms in 2022 (1/10/2023) - At the beginning of each year since 2017, CCRC has issued a report on legislative enactments in the year just ended, new laws aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. These annual reports document the steady progress of what our report two years ago characterized as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. In the three years between 2019 and 2021, more than 400 new criminal record reforms were enacted. Many states enacted new laws every year, and all but two states enacted at least one significant new law during this period. The modern record reform movement reflected in our annual reports is bipartisan, grounded in and inspired by the circumstance that almost a third of adults in the United States now have a criminal record, entangling them in a web of legal restrictions and discrimination that permanently excludes then from full participation in the community. It reflects a public recognition that the “internal exile” of such a significant portion of society is not only unsafe and unfair, but it is also profoundly inefficient. We are pleased to present our report on new laws enacted in 2022, titled The Frontiers of Dignity: Clean Slate and Other Criminal Record Reforms in 2022. While this report shows that the legislative momentum gathering since 2018 slowed somewhat in the past year, there has still been progress, with more new laws enacted this year than in 2018 when the current reform movement took off in earnest. The title of this report is borrowed from the Basic Law adopted by the Federal Republic of Germany after World War II, which declared that “Human dignity shall be inviolable. To respect and protect it shall be the duty of state authority.” Most European countries incorporate this foundational premise, as well as a concern for individual privacy, into their treatment of criminal records, by making them largely unavailable to the public and by limiting how they are used to deny rights and opportunities. In part because American legal systems are not similarly grounded in respect for dignity and privacy, our progress toward a fair and efficient criminal records policy has been slow and uneven. Yet it has been steady, animated in recent years both by a concern for racial justice and by economic self-interest. This report, like our past annual reports, attempts to capture this steady progress toward recognizing the worth and dignity of the millions of Americans whose past includes a record of arrest or conviction. Report Overview This overview highlights key developments in reintegration reforms from the past year. Following it, our fourth annual legislative Report Card recognizes the most productive legislatures in 2022, and notes that there are now only two states have enacted no record reforms since our reporting began in 2016. The body of the report provides topical discussions of last year’s reform measures, followed by an appendix documenting and summarizing the new laws by jurisdiction. More detailed analysis of each state’s laws is available in the state profiles from CCRC’s Restoration of Rights Project, and a national overview is presented in our 50-state comparison charts on various types of record relief. In 2022, 33 states, the District of Columbia, and the federal government enacted 71 separate pieces of legislation, passed two ballot initiatives, and took unprecedented executive actions to restore rights and opportunities to people with an arrest or conviction history. As in past years, more than half of the new authorities involved individual record clearing: 22 states and the federal government enacted 37 measures and took six executive actions that revise, supplement or limit public access to individual criminal records to reduce or eliminate barriers to opportunity. Because of the significant progress on this front in recent years, most of the laws enacted in 2022 represent measured changes to existing record relief schemes rather than radical new reforms. At the same time, three states significantly expanded automatic “clean slate” record relief, a handful of states continued to remove marijuana convictions from public view, and other states trimmed barriers to relief by reducing waiting periods or eliminating obstacles to relief represented by outstanding court debt (fines and fees). Executive actions also continued the momentum, particularly with actions to relieve the consequences of past marijuana convictions. In addition, many of the new laws limited consideration of criminal record in economic settings: 20 states and the federal government enacted 24 new measures regulating employment and occupational licensing, while two more states removed barriers to restoring a driver’s license. A few states made significant improvements in their occupational licensing laws by enacting binding preliminary applications for licensure, and by limiting the types of records that licensing agencies may consider. Arizona is the only state whose legislature took steps this past year to restore civil rights to those with felony convictions, although governors in Missouri, Virginia and Wisconsin used their pardon power to restore civil rights in unprecedented ways. As in the past, the state legislatures that have enacted the most significant reforms span the political spectrum, from California and Maryland to Oklahoma and Utah. The report highlights the renewed interest in executive pardons by both Republican and Democratic governors, notably in Missouri (where large case backlogs invited energetic executive attention), in Wisconsin (where the pardon power had been shelved for almost a decade), and in Oregon (where 45,000 individuals benefitted from pardons in response to marijuana legalization). Overall, while there were fewer record reforms in 2022 than in the three preceding years, it would be a mistake to see this as a flagging of the reform wave we’ve identified in previous reports. In fact, the productivity of state legislatures in 2022 mirrors their performance in 2018, itself a year that broke every record. If 2022 marked a return to pre-2019 productivity levels, several states making significant strides toward restoring rights and clearing records, and many others built on and extended reforms enacted in earlier years. This year’s criminal record reforms bring the total number of separate laws enacted in the past five years to more than 500. Looking ahead to 2023, we expect to see a continuing expansion of eligibility for record clearing, and reduction of access barriers like lengthy waiting periods, outstanding court debt and application-related costs. We also predict efforts to improve records management to accommodate automation of record clearance. We look for extension of state fair employment laws, and further facilitation of occupational licensing, both areas where bipartisan reforms have benefitted from helpful model laws. We are slightly less optimistic about additional progress toward dismantling the structure of felony disenfranchisement, which has become mired in faction looking toward the presidential race in 2024. Hopefully, 2023 will see some record reform action in Congress and federal agencies, including measures to extend access to government-guaranteed loans and contracting opportunities to small businesses owned or managed by people with a criminal history. We have come a long way just in the past five years, but there is still a long way to go.
- Marijuana legalization and record clearing in 2022 (12/20/2022) - CCRC is pleased to announce a new report on recent cannabis-specific record sealing and expungement reforms in the past 18 months. The report, extending CCRC's fruitful collaboration with the Drug Enforcement and Policy Center at The Ohio State University, is available here. An accompanying infographic (reproduced at the end of this postr) summarizes the report’s findings, and includes a color-coded US map showing which states have enacted cannabis-specific record-clearing provisions. To supplement the map, the report includes an appendix classifying and describing marijuana-specific record clearing statutes in all 50 states, based on CCRC's 50-state comparison chart on "Marijuana Legalization, Decriminalization, Expungement and Clemency." To put our new report in context, CCRC and DEPC reported 18 months ago on an “unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform in the first months of 2021,” with four states (New Jersey, New Mexico, New York, and Virginia) legalizing marijuana possession and at the same time providing criminal record relief for past convictions along with a variety of social equity provisions. Our report shows this trend continuing into 2022. Since our 2021 report, four additional states (Connecticut, Maryland, Missouri, and Rhode Island) have adopted similar record-clearing provisions in connection with adult-use cannabis legalization, authorizing sealing and expungement provisions that in most cases extend well beyond convictions for legalized conduct. All four states made at least some relief automatic, removing the burden of a criminal record from many individuals while raising the bar on standards for marijuana record relief nationwide. Like the four states discussed in our earlier report, these four also address racial disparities in marijuana criminalization by directing tax revenue and business opportunities for legal marijuana to individuals and communities disproportionately affected by criminal law enforcement. During this same timeframe, three additional states (California, Colorado, and Massachusetts) enhanced their existing marijuana-specific record sealing statutes. The report summarizes the cannabis-specific record clearing provisions enacted since publication of our earlier report in the spring of 2021 in California, Colorado, Connecticut, Maryland, Massachusetts, Missouri and Rhode Island. Missouri's record-clearing provisions, adopted through a ballot initiative and effective immediately, are particularly impressive: individuals currently incarcerated for possession of up to three pounds of marijuana may petition for release and expungement (with certain offenses excepted), most individuals currently under supervision are automatically released from their sentence and their record expunged, and individuals convicted of all marijuana-related misdemeanors and most felonies have their records automatically expunged upon completion of sentence. See Section III(C) of the Missouri profile from the Restoration of Rights Project for additional information about this extraordinary ballot initiative. As in the 2021 report, we include laws authorizing marijuana-specific automatic record clearing provisions that are not scheduled to be implemented until some future date, with an appropriate notation. We focus exclusively on authorities that specifically expunge or seal marijuana convictions, and do not take into consideration more general record clearing laws that may also apply to marijuana convictions (frequently more broadly). Additional information about state record relief laws, including those that apply specifically to marijuana records, can be found in the state profiles in the Restoration of Rights Project. In addition to the 50-state overview of marijuana-specific record clearing provisions, the appendix also includes a summary of the marijuana-specific pardon initiatives undertaken by several states in recent years. Read the report Explore the infographic (click to enlarge)
- Applying for federal disaster assistance with a criminal record (10/12/2022) - In addition to its lending and other programs in support of small businesses, the U.S. Small Business Administration provides long-term low-interest loans under Section 7(b) of the Small Business Act directly to individuals, businesses, and nonprofits in declared disaster areas. The current devastation wrought by Hurricane Ian in Florida -- the subject of a dedicated new page on the SBA's website -- reminded us of some research we published two years ago, at the height of the pandemic, about how people with a criminal record were faring under the SBA's COVID-related disaster relief program. The answer initially was "not well." Our research indicates that neither FEMA (emergency aid) nor the USDA (farm loans) impose criminal record restrictions on disaster assistance. But the SBA does. What's more, the SBA’s restrictions are not formalized in a regulation but buried in operating procedures. The criminal history restrictions on SBA economic injury disaster loans (EIDL) under the CARES Act were initially even more restrictive than those that applied to its PPP relief, and they too were never formalized in a rule. The PPP restrictions were rolled back in response to public outcry and lawsuits, and the following year the COVID-related EIDL policy was also rolled back to disqualify the same limited population as the PPP itself (people in prison or on probation or parole, with pending felony charges, or with recent financial fraud and related convictions). However, criminal record restrictions in the SBA’s general non-COVID lending programs, including its general disaster assistance programs, were not affected. Now that the SBA's disaster assistance programs are no longer administered under the exceptional and well-publicized approach of the pandemic-related authorities, we thought it would be timely to take another look at how those programs -- presumably including the one that specifically applies to Hurricane Ian relief -- are available to people with a criminal record. At the outset, it is worth noting that the federal government delivers immediate emergency aid to victims of disasters through FEMA, which appears not to ask about criminal record in any of its programs. FEMA refers individuals to the SBA for longer term assistance for physical and economic injury, but will resume some aid if someone is ineligible for an SBA disaster loan. We don’t know how often this occurs, or what the process is for interagency coordination in such cases. A person will seek out an SBA disaster loan after the immediate stages of a disaster, to rebuild property or compensate for lost business income. By statute and rule, SBA is barred from making 7(b) disaster loans to persons who have been “convicted, during the past year, of a felony during and in connection with a riot or civil disorder or other declared disaster.” But the SBA's operating policy on disaster loans is far broader than this narrow formal bar. In addition to barring assistance to anyone on parole or probation, the policy states the general principle that "It is not in the public interest for SBA to extend financial assistance to persons who are not of good character." SOP 50 30 9 (3.6) (effective May 31, 2018) at p. 32. Like its policy on business lending, the SBA’s disaster assistance policy measures a person's "good character" exclusively in terms of whether or not they have a criminal record. The SBA's policy on disaster assistance disqualifies at the outset anyone who is "presently on parole or probation following conviction of a serious criminal offense." Moreover, if an applicant discloses a prior criminal record in response to questions on the obligatory SBA Form 912, "Statement of Personal History”, the SBA must "make a determination as to the applicant’s character before a loan can be approved." A potentially disqualifying record includes not only convictions but also diversions and guilty pleas and any form of probation at any time in the past, as well as unpaid fines and fees. A detailed explanation about the records must be provided, and an application for disaster assistance can be processed without an FBI background check only if the disclosed criminal activity “is both minor in nature and was committed more than 10 years ago.” Otherwise, an FBI background check must be completed. (It is worth noting that the analogous SBA operating policy that applies to bank lending requires a background check only if the disclosed criminal activity is more serious than a misdemeanor.) Finally, after the background check is completed the SBA will make a determination of whether the person is “of good character” and therefore deserving of assistance. The SBA’s practice of conducting background checks more broadly for disaster loans than for general small business loans is notable, especially in light of the lack of specific authority in the applicable authorizing statute. If minor criminal conduct (including misdemeanors and diversions) occurred within the previous ten-year period, or if criminal conduct is judged not to be “minor in nature” (a category not defined in publicly available documents as far as we can tell), it must be the basis of a fingerprint background investigation and may be the occasion for disqualification based on “unsatisfactory character.” That strikes us as a very tough standard to apply to disaster assistance, and will have particular applicability in urban settings that tend to have a large number of people with a criminal record. We plan to conduct further research into how the SBA is currently applying the restrictions in its operating policy on disaster assistance to those with a criminal record, and we welcome communications from anyone who has had relevant experience in this regard.
- A closer look at racial disparities in California’s automatic record clearing (9/19/2022) - Numerous studies have demonstrated how Black Americans are treated more harshly at every stage of the criminal legal system—from over-policing to overcharging to more punitive sentencing. New research from California shows how eligibility limitations on criminal record relief perpetuate racial disparities in the criminal justice system, and have a disproportionately adverse effect on Black Americans. The study, by Alyssa Mooney, Alissa Skog, and Amy Lerman, and published in Law & Society Review, examined recent legislative changes to criminal record relief laws in California, one of the first states to automate relief. The study assessed the equity of California’s existing automatic record relief laws by examining the share of people with criminal records who are presently eligible for automatic record clearing, and variations across racial and ethnic groups. The authors found that 20% of all those convicted of any offense between 2000 and 2016 were eligible for automatic relief. An additional 33% were eligible to petition the court for relief, and 47% were ineligible for any relief at all by virtue of the nature of their conviction or terms of their sentence. But the study also found eligibility was lowest among Black people, with only 15% qualifying for automatic relief, and 29% for petition-based relief. Meanwhile, 21% of White people with convictions qualify for automatic relief, and another 35% are eligible by petition. As in other states, the California legislature has limited the types of convictions that are eligible for record relief, generally excluding those who spent time in state prison for more serious felonies. Because of the state prison limitation, the study shows 30% of Black people in California will never get relief from their records, compared to 15% of White people and 19% of people with convictions overall. In addition, if all ineligible felony convictions are factored in, the ineligibility rate increases to 40% for Black people, 28% for White people and to 32% overall. (Incomplete sentences, pending charges, and variable waiting periods make it hard to calculate eligibility percentages exactly, while missing data creates another set of problems.) The study then considered how several hypothetical changes to current California law would affect racial equity in eligibility for record clearing. First, the authors examined the effect of incorporating convictions currently eligible only by petition into automatic relief. Then the study considered the effects of automatically granting record relief after seven years for convictions now ineligible for any relief. Finally, the study considered the result if both of these changes were enacted. The study found that making relief automatic in cases where it is now "discretionary" (i.e., petition-based) would increase eligibility from 15% to 44% of Black Californians and from 21% to 56% of White Californians—but this would double the racial disparity for automatic relief from 6% to 12%. Enacting a seven-year “sunset” rule (making relief automatic seven years after completion of sentence) for those currently excluded from any record-clearing relief would would reduce disparity slightly by increasing overall eligibility to 58% of Black Californians and 63% of White Californians. If both of these potential reforms were enacted, eligibility for automatic relief would increase to 64% of Black Californians and 70% of White Californians. While some racial disparity remains, it would be no greater than the differential under existing law — and, more significant, the absolute number of people who qualified for automatic record relief would greatly increase. The study’s authors suggest that other states that have automated some record relief likely have similar racially disparate outcomes because felony convictions are largely excluded from eligibility. The study also points out that California also has a particular challenge in effectuating its new provisions for automatic record clearing, since many county agencies do not report the outcomes of criminal cases to the California Department of Justice. Because the DOJ administers automatic record relief by sending lists of eligible cases to courts, people with convictions in counties that do not report disposition data will be left without the relief for which they are legally eligible. Since the initial publication of the study, the California legislature has passed a bill, SB 731, that would incorporate several of the authors’ proposed reforms, which Governor Newsom is expected to sign into law. Another enrolled bill, SB 1106, will make additional cases eligible by removing at least some outstanding court debt as a bar to relief. CCRC will publish a comprehensive review of that legislation when it becomes law. The study’s authors plan to revise their eligibility estimates this fall, based on the new legislation.
- Oklahoma enacts automatic record clearing law (5/4/2022) - On May 2, 2022, Oklahoma Governor Stitt signed into law a comprehensive process making expungement automatic for all otherwise eligible misdemeanors and a range of non-conviction records. See HB 3316, enacting 22 Okla. Stat. Ann. § 18(C). Oklahoma thus becomes the tenth state to join the bipartisan trend toward broadening the availability of record clearing to people with convictions, without requiring them to file a petition and go to court for relief. In addition to these states, another 10 states now make expungement automatic for non-conviction records. The Oklahoman reported that the "clean slate" bill passed the House and Senate with strong bipartisan support, with a combined five votes against, and it was promptly signed into law by Oklahoma's Republican governor. The bill's primary sponsor Rep. Nicole Miller, R-Edmond, said that "There was certainly a general consensus that, you know, this this isn't anything that's partisan related; what it's about is it's about humans. So this is really a measure to help people." Under Oklahoma law expunged records are sealed, but remain available to law enforcement and may be used in subsequent prosecutions. Any record that has been sealed may be ordered “obliterated or destroyed” after an additional 10 years. § 19(K). Oklahoma also authorizes its courts to expunge up to two non-violent felonies, andn also pardoned felonies, but these were not included in the new law (styled "clean slate"). The law is effective November 1, 2022, and the process for automatic expungement is to commence three years after that date. The Oklahoma process for expunging records without a petition is spelled out in a new § 19(B): the Oklahoma Bureau of Criminal Investigation must provide a list of eligible cases to the prosecutor on a monthly basis for a 45-day review. The prosecutor mayh object only for specified reasons: the case does not meet the definition of a clean slate eligible case; the individual has not paid court-ordered restitution to the victim; or "the agency has a reasonable belief, grounded in supporting facts, that an individual with a clean slate eligible case is continuing to engage in criminal activity, whether charged or not charged, within or outside the state." A list of cases as to which there has been no objection is then sent to the court for expungement. The court must expunge all cases on the list sent to it, and notify all agencies holding records directing them to expunge as well. The law does not provide for notifying individuals in case of prosecutor objection, or after their record has been expunged, al though the state supreme court and the BCI are authorized to make rules governing the process. The BCI is required to provide to the legislature a list of individuals whose records have been expunged on an annual basis. Oklahoma is the latest state to enact so-called "clean slate" relief, extending record clearing to all eligible individuals without requjiring them to file a petition and go to court. There are now five states that authorize automatic record clearing for a range of misdemeanor convictions: Oklahoma, Pennsylvania, Utah, South Dakota and Virginia. Five additional states also authorize petition-less record clearing relief for a range of felonies (California, Connecticut, Delaware, Michigan, and New Jersey), though none of these schemes has yet come on line. Five more states authorize record clearing for certain marijuana convictions. Counting Oklahoma, there are now a total of 20 states that clear most non-conviction records without requiring their subject to file a petition, and another nine states that make non-conviction relief mandatory upon request. See the 50-state chart in record-clearing from the Restoration of Rights Project.
- “The Many Roads From Reentry to Reintegration” (3/3/2022) - We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, "The Many Roads from Reentry to Reintegration." Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing. Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20. The legal landscape has been changing rapidly in the 18 months since the first edition of this report was published in September 2020. Substantial progress has been made in a number of states, and in the Nation as a whole, toward devising and implementing an effective and functional system for relieving collateral consequences. The bipartisan public commitment to a reintegration agenda seems more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers, who are essential to rebuilding the small businesses that are the lifeblood of healthy communities. The greatest headway has been made in restoring the vote and broadening workplace opportunities controlled by the state, both areas where there are national models and best practices. The area where there is least consensus, and that remains most challenging to reform advocates, is managing dissemination of criminal record information. Time will tell how the goal of a workable and effective criminal record relief system is achieved in our laboratories of democracy. One area of record relief on which there does appear to be an emerging bipartisan consensus is that non-conviction records should be automatically sealed or expunged on case disposition. We are particularly pleased to see how many states have enacted laws limiting access to the record of cases disposed in favor of the defendant just since publication of our Model Law on Non-Conviction Records in 2019. But despite so much encouraging progress, there is still a long way to go before people with a record are treated fairly in getting a job and supporting a family, securing a place to live, and participating fully in civic affairs. A recent federal agency report noted how the criminal justice system conspires at every step to exacerbate the financially precarious situation in which many entering that system already find themselves.[1] Another recent report, which CCRC co-authored, shows how the "high cost of a fresh start" extends to many if not most of the record relief mechanisms now available.[2] The two sections below describe the contents of the report in greater detail, and explain how we graded and ranked the states. Contents of the Report Gabriel Chin's introduction to the report outlines the features of a functional relief system, and urges "objective time limits on dissemination of criminal justice information, just as there are in other countries with which we compare ourselves." He notes that "lawmakers and policymakers seem to have come to recognize that collateral consequences are, and must be treated as, part of the criminal justice system," as opposed to some separate system of civil regulation. Like criminal sentences themselves, [collateral consequences] should be imposed only when and to the extent necessary, there should be opportunities for case-by-case consideration, and there should be an end to them. Otherwise, collateral consequences, designed to promote public safety, risk undermining it. The executive summary of the report introduces the characteristics of the new "age of reform" that seemingly looks to redress some of the lasting injustices of the 30-year War on Crime, and explains the report's grading and ranking system. The first chapter finds a continuation of the trend toward restricting felony disenfranchisement to those actually incarcerated, a long-time goal of national reform organizations and advocates. Some of these reforms may have been influenced by the high-profile litigation over Florida’s “pay-to-vote” system, which shined a national spotlight on the unfairness of financial barriers to the franchise and their disproportionate exclusion of Black and Brown individuals. This chapter also finds that systems for restoring firearms rights are considerably more varied, with many states providing relief through the courts but others requiring a full pardon. The second chapter deals with laws intended to revise, supplement, or limit public access to criminal records, relief mechanisms that have attracted the most attention in legislatures thanks to vigorous advocacy efforts, but that have benefited the least from national models and generally accepted best practices. This chapter is divided into several parts, based on the type of relief offered (e.g., pardon, expungement, set-aside, certificates, diversion, etc.), and the type of record affected (conviction or non-conviction). It includes a discussion of recent efforts to make record relief automatic, in light of the barriers in petition-based systems that tend to discourage individuals from taking advantage of remedies intended by legislatures to benefit them. The wide variety in eligibility, process, and effect of these record relief laws speaks volumes about how far the Nation is from common ground on which records should be available and at what point, and who they should be available to -- although, as noted above, there appears to be a growing acceptance of the need to limit access to non-conviction records. The third chapter of the report describes the area in which perhaps the most dramatic progress has been made just since 2018: the regulation of how criminal record is considered in the workplace, particularly where the state controls access to employment opportunities. In enacting these “fair chance” laws, legislatures have been guided and encouraged by helpful model laws and policies proposed by two national organizations with differing regulatory philosophies: The Institute for Justice, a libertarian public interest law firm, and the National Employment Law Project, a workers’ rights advocacy organization. Regulation of private employment has also been influenced by national models, although to a lesser extent. Grading and ranking the states In each section of the report, after our discussion of the type of relief, we assign a grade to each state, D.C., and the federal system, and explain the basis for our grading system. In an appendix, we collate these grades to produce a consolidated ranking of states and D.C. in the nine categories that we graded. That ranking is reproduced below. State rankings have changed somewhat since the first edition of this report was published in September 2020. New Jersey and New Mexico moved into the top 10 by virtue of impressive lawmaking in 2021, while the District of Columbia, Michigan, Ohio, and Virginia moved into the top 20 based on laws enacted in the last 18 months. Most encouraging, two of the latter group of movers had been well down toward the bottom of the pack in our earlier report card, with Virginia making a particularly strong showing, moving from #44 place to #16, and D.C. moving from #40 place to #19. Oregon also improved its rank significantly based on an overhaul of its record-clearing law. That Arizona's ranking changed only slightly is deceptive: it got less credit than it deserved for its first-ever record-sealing law, essentially because its parallel set-aside law was credited in our 2020 report. Finally, Indiana would have joined the states ranked in the top 20 had it given final approval to a bill making expungement of non-conviction records automatic, on the governor's desk for signature at the time this report was published. [Indiana's governor signed the bill on March 7, making that state the 19th to make clearance of non-convictions automatic, and the 13th in the past four years.] Illinois retained its top rank, with Connecticut and California close behind. Most of the other states ranked in the top 10 in the 2020 Report Card are still there (or close by), while most of the states ranked in the bottom 10 in the earlier report remained where they were. (Rankings from the 2020 report can be accessed for comparative purposes here.) The record reforms enacted by the District of Columbia in the past few years are worth a separate comment, for they present a remarkable study in contrasts: On the one hand, D.C. has enacted a series of extraordinarily progressive laws to open opportunities for people with a record in civil areas like voting, employment, housing, and occupational licensing. At the same time, D.C.’s laws in every category of criminal record relief have not changed in years and are among the lowest of any U.S. jurisdiction, likely reflecting the heavy hand of federal prosecutors. The grades in each category and overall rankings of the states are collected in a companion report, The Reintegration Report Card, which explains how each state rated in the nine graded categories and proposes specific ways in which each state may strengthen or extend its laws and thus improve its ranking. In some cases, a state’s law is compared to analogous laws in surrounding states with which the state may compare itself. Hopefully, our grades and rankings will challenge, encourage, and inspire additional reforms in the months and years ahead. Our grading and ranking judgments deserve one further comment. Gabriel Chin’s introduction describes the operational features of a desirable relief system: accessible, effective, coordinated, fair, and administrable. Because we have not studied how the relief systems described in this report actually operate, we cannot say for certain whether or to what extent any of them deliver on these five features. Our grades are based solely on the text of each state’s law, and we welcome more nuanced judgments by practitioners, researchers, and the law’s intended beneficiaries. [1] See Consumer Financial Protection Bureau, Justice-Involved Individuals and the Consumer Financial Marketplace (January 2022). [2] See, e.g., Collateral Consequences Resource Center & National Consumer Law Center, The High Cost of a Fresh Start: A State-by-State Analysis of Court Debt as a Bar to Record Clearing (February 2022).
- “The High Cost of a Fresh Start” (2/14/2022) - The High Cost of a Fresh Start: New Report Examines Court Debt as a Barrier to Clearing a Conviction Record BOSTON – A new report from the National Consumer Law Center and the Collateral Consequences Resource Center explores the extent to which court debt—such as criminal fines, fees, costs, and restitution—is a barrier to record clearing that prevents poor and low-income people from getting a second chance. For the nearly one-third of adults in the U.S. with a record of arrest or conviction, their record is not simply part of their past but a continuing condition that impacts nearly every aspect of their life. Their record makes it hard to get a job and support a family, secure a place to live, contribute to the community, and participate fully in civic affairs. “Criminal record clearing must not be reserved only for those who can easily pay for it,” said Margaret Love, executive director of CCRC. “States should ensure people are not being priced out of a chance at a fresh start.” The High Cost of a Fresh Start: A State-by-State Analysis of Court Debt as a Bar to Record Clearing analyzes whether outstanding court debt bars record clearing under the laws of each of the 50 states, the District of Columbia, and the federal system. The report finds that in almost every jurisdiction, outstanding court debt is a barrier to record clearing, either rendering a person entirely ineligible or making it more difficult for them to qualify. In recent years, most states have passed laws aimed at restoring economic opportunity, personal freedoms, and human dignity to millions of people by providing a path to clear their record. But for too many, this relief remains out of reach because of monetary barriers, including not only the cost of applying for record clearing but also requirements in many jurisdictions that applicants pay off debt incurred as part of the underlying criminal case before they can have their record cleared. This debt can include fees imposed for every month someone spends on probation or on GPS monitoring, and for their representation by a public defender—a fee that is levied only on people whom the court has deemed too poor to pay for their own defense. Interest and payment penalties can add to this court debt over time. “The total amount of court debt can run to thousands of dollars for even minor infractions, which presents a high bar to clear,” said Ariel Nelson, staff attorney at NCLC. “Perversely, because a record makes it much harder to get a job, having an open record makes it harder to pay off court debt and therefore harder to qualify for record clearing.” This burden falls especially heavily on Black and Brown communities, which are more likely to have high concentrations of both criminal records and poverty because of long-standing structural racism in criminal law enforcement and in the economy. Based on their research, the authors offer the following recommendations: Court debt should never be a barrier to record clearing.Qualification for record clearing should not be conditioned on payment of court debt, and outstanding court debt should not be a basis for denying relief, regardless of whether record clearing is petition-based or automatic. Costs to apply for record clearing, including filing fees, should never be a barrier to record clearing. States should adopt automatic record-clearing processes that do not require individuals to incur costs to have their records cleared. Jurisdictions should collect and report data on monetary barriers to record clearing.Jurisdictions where record clearing may be denied on the basis of outstanding court debt should collect and report data reflecting the impact of these barriers on record clearing. Download the full report for report findings, recommendations, maps, graphics, and state-by-state analysis: https://bit.ly/lp-high-cost-of-a-fresh-start-22 The report's appendix cointains a state-by-state analysis of the role played by outstanding court debt in qualifying for record clearing. It may be separately downloaded at this link: https://www.nclc.org/images/pdf/criminal-justice/High-Cost-of-Fresh-Start-Appendix.pdf ### The nonprofit National Consumer Law Center® (NCLC®) works for economic justice for low-income and other disadvantaged people in the U.S. through policy analysis and advocacy, publications, litigation, and training. The Collateral Consequences Resource Center (CCRC) works to restore rights and opportunities to people with a history of arrest or conviction through research and policy advocacy. --
- When banks ask loan applicants about their arrest record (2/1/2022) - The National Community Reinvestment Coalition reports that its evaluation of small business loan applications from a sample of seven banks in Washington, DC revealed that "some lenders discriminate against applicants who have been charged at any time in their lives with a criminal offense." A comment on the NCRC website proposes that these banks consider applicants to be "a lending risk for having been 'ever charged' with any crime, other than a minor vehicle violation, no matter when it occurred." It goes on to argue that "[t]his practice is not only factually suspect, it is discriminatory." The comment, written by Anneliese Lederer, the NCRC's Director of Fair Lending, was subsequently republished in The American Banker. The NCRC findings demonstrate that even interactions with the criminal justice system that do not result in a conviction record can have "lasting implications:" It is known that having a criminal record is a barrier to both housing and employment. There are few protections for people with a criminal record. But what about for people who have been charged and found not guilty, or their charges were dropped? What barriers do they face? Unfortunately, they face similar barriers as people who have a criminal record, especially in the small business lending arena. Citing CCRC's analyses of lending policies of the Small Business Administration, the NCRC comment highlights how these policies have given banks cover for their discriminatory practices: Small business loans administered by the Small Business Administration (SBA) have broad criminal history restrictions. Analysis conducted by the Collateral Consequences Resource Center (CCRC) found that no statute requires criminal history to be used as a factor in determining creditworthiness. Instead, the Small Business Act uses the words “may verify the applicant’s criminal background.” Furthermore, many restrictions that the US Small Business Administration (SBA) implements on interactions with the justice system are not codified. These restrictions are “either unannounced or only disclosed through FAQs published on the agency’s website…..[or] through policy statements and application forms.” The NCRC evaluation found that some commercial loan applications "require an applicant to answer yes or no to a question about their criminal history," language that "is too broad and violates the Equal Credit Opportunity Act" for two reasons: It causes a disparate impact based on race It discourages applicants from applying Disparate Impact Disparate impact occurs when a neutral policy has a disproportionately negative effect on a protected class. The disclosure language “ever been charged…for any criminal offense” results in a disparate impact on the protected status of race for Black applicants. Black people are disproportionately charged for crimes at a higher rate than White people. The New York Times highlighted that “African-Americans make up only about 6 percent of San Francisco’s population, [yet] they accounted for 38 percent of cases filed by prosecutors between 2008 and 2014.” This disclosure language includes people who are falsely charged. More Black people are falsely charged than White people. The NAACP found that “[a]s of October 2016, there have been 1900 exonerations of the wrongfully accused, 47% of the exonerated were African American.” Furthermore, the language on these applications does not distinguish between: a felony vs. a misdemeanor; the type of crime committed like a financial crime vs. assault; if the applicant was a minor when the crime was committed; or length of time since the crime was committed. Financial institutions will assert a business justification for criminal history as it can significantly impact a person’s ability to repay the loan. Under the effects test, financial institutions can fulfill this business justification in a less discriminatory manner by adding language that does not leave the time period open-ended, distinguishes between a felony and a misdemeanor, distinguishes if the applicant was a minor at the time the crime was committed, and provides a list of crimes that require disclosures. Discouragement The presence of this question can result in potential applicants being discouraged from applying. Discouragement occurs because applicants believe that answering this question will deny them credit. Therefore, they do not apply. Discouragement is a form of discrimination under ECOA and its implementation of Regulation B, section 1002.4(b). Moving Forward Financial institutions need to review their applications to ensure that they are not violating fair lending laws. But this is only part of the solution. Fair lending compliance programs need to ensure that when criminal history is used for credit decisions, its use is narrowly tailored in both time limit and specific crimes that are connected to financial risk, money laundering or terrorism. Financial institutions should not harm potential applicants who are creditworthy simply because they had some engagement in the past with the criminal justice system. CCRC is continuing to research the history and effect of the SBA's lending policies as part of our Fair Chance Lending project. Among other thgings, we hope to publish a report showing how the SBA's policies compare with analogous policies of other federal and state agencies that guarantee small business loans. We expect to host a series of programs in the spring to explore these issues further, building on the program hosted last November by the Georgetown Center for Business and Public Policy as part of its Georgetown on the Hill series. We were pleased to see that our research on SBA lending restrictions was featured in the recently issued report on of the Consumer Financial Protection Bureau, discussed at this post.
- Reintegration Champion Awards for 2021 (1/27/2022) - Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing. Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords. (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state's reintegration scheme in our Restoration of Rights Project.) Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking: Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation. Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors. Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking. Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Alabama – Enacted first state record-clearing authority applicable to misdemeanor convictions and pardoned felonies, and extended non-conviction sealing. California – Gave retroactive effect to automatic conviction sealing law enacted in 2019. (This new law may be the most consequential of any enacted last year in terms of its impact on criminal records in the state, and it was done without fanfare or publicity.) District of Columbia – Enacted a comprehensive scheme to limit consideration of criminal record in occupational licensing. Illinois – Added employment discrimination based on conviction to the state Human Rights Act, authorized voter education for prisoners. New Jersey – Enacted a landmark fair housing bill; made some improvements to its 1970’s-era occupational licensing law; and, provided for automatic record clearing in connection with marijuana legalization. (New Jersey was our Reintegration Champion for 2019, but evidently is not resting on its laurels.) New Mexico – Improved 1970’s-era public employment and licensing law; authorized expungement of marijuana convictions; and, enacted a substantial part of the Uniform Collateral Consequences of Conviction Act, limiting and providing relief from collateral consequences. Ohio – Expanded eligibility for record-clearing; significantly improved occupational licensing law. Virginia – Authorized petition-based and automated record-clearing of non-convictions and convictions, including convictions for marijuana possession; restored vote upon release by executive order and took steps to amend constitution to this end. Washington – restored vote upon release from prison; amended occupational licensing standards for health professions; repealed driver’s license suspension based on outstanding financial obligations Low marks go to three states that enacted no record reform laws at all in 2021. While there are six other states in this category this year, the legislatures of Alaska, Massachusetts, and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. The profile of each state's restoration of rights scheme from CCRC’s Restoration of Rights Project is linked above (except for the states that made no progress). The profiles contain citations and links to the relevant new laws so that interested individuals can check their specific terms.
- VIDEO: Governmental Barriers to Small Business Financing for People with a Criminal History (11/23/2021) - On November 18, the Georgetown Center for Business & Public Policy hosted an informative and provocative forum on “Understanding Governmental Barriers to Small Business Financing for People With a Criminal History.” A video recording of the program is now available on YouTube. This event marks the first public discussion of our organization's new initiative aimed at illuminating and reducing barriers to small business financing based on criminal history. The panelists were Sekwan Merritt, owner of an electrical contracting business in Baltimore, David Schlussel of CCRC, Awesta Sarkash of the Small Business Majority, and Chris Pilkerton, a former SBA general counsel and acting SBA administrator. Sekwan Merritt, who has built a thriving business and employs several people who also have a record, illuminated the challenges he faces as a justice-affected entrepreneur in gaining access to business capital. Merritt, a graduate of the Georgetown Pivot Program, was one of the plaintiffs in the litigation that led to the SBA's rollback of its PPP restrictions after he was denied this emergency COVID-19 federal relief. He explained that because he is still on parole he is ineligible for the SBA's general loan programs and that the kinds of questions asked on SBA application forms frequently deter people from even applying. Merritt also described the need for a holistic assessment as part of an overall credit evaluation, recognizing achievements such as educational attainment, rather than a frequently-disqualifying early inquiry into criminal record. CCRC's David Schlussel described how the SBA's "broad and blunt" record-related restrictions first came to the public's attention in the early months of the pandemic, when hundreds of thousands of small businesses—a substantial percentage of which were Black-owned—were disqualified from government-supported relief. Schlussel traced the history of the SBA’s restrictive loan policies to the 1950's, noting that they are neither required nor specifically authorized by statute. He quoted from a 1978 SBA statement justifying these policies based on its belief that the SBA "should not be involved in rehabilitation processes," that "good character is essential in any creditworth transaction," and that the possibility of reincarceration creates a risk of absentee management. Schlussel described the conclusion of a 2005 law review article by Taja-Nia Henderson that the SBA restrictions appear to violate civil rights laws in their heavy impact on Black business owners, and he noted that there has been no empirical study linking criminal record with creditworthiness. In any case, the SBA has apparently not attempted to justify its policies since 1978, even as they have become increasingly restrictive in recent years. He noted that the other major federal lending agency, the USDA, has nothing comparable for its rural small business and agricultural lending programs. Awesta Sarkash of the Small Business Majority was effective in describing the difficulties minority- and women-owned small businesses generally have in accessing capital, noting that these difficulties are exacerbated when a business owner or manager has a criminal record. Sarkash also emphasized the importance of resources to support early-stage entrepreneurs, such as her organization's Venturize.org educational portal, and community development financial institutions (like Baltimore Community Lending that helped Sekwan Merritt manage a large contract). Chris Pilkerton, a former SBA general counsel and acting SBA administrator, made a number of very cogent suggestions about how to address this important public policy question through coalition building, message coordination, bipartisanship, and education. Several of the panelists noted that the SBA is by far the country's most influential player in facilitating small business access to capital, and that its policies necessarily influence both private lenders and state legislatures considering analogous state loan programs. The panel was moderated by Dr. Crystal Francis, assistant director of program management of the Georgetown Pivot Program, who engaged with the panelists in a wide-ranging discussion and facilitated audience questions. The video of the event is available here. As CCRC continues to develop our "Fair Chance Lending" project, we are finding that agencies and organizations involved in small business and community financing are eager to extend their agendas to address barriers based on a criminal record. Regular visitors to our website can expect to hear about this issue frequently in the months to come.
- Delaware governor signs automatic record-clearing law (11/10/2021) - Delaware lawmakers passed two bills this year that overhaul access to second chances, making it easier for more than 290,000 people to move beyond the collateral consequences of a criminal record. The two pieces of legislation – Senate Bill 111 and Senate Bill 112 – expand access to Delaware’s mandatory expungement process effective January 1, 2022, and make mandatory expungement automatic (or “Clean Slate”) by August 2024. State Senators passed the bills unanimously in April and the House of Representatives followed suit — approving the bills by an overwhelming majority during the late stages of the legislative session in June. Both bills were signed into law by Governor John Carney on Monday, November 8, 2021 — making Clean Slate a reality in Delaware. (The specific records that will be subject to mandatory expungement starting in 2022 are described later in this post.) Delaware is most recent addition to the growing number of states in the nation to make record clearing automatic for at least some convictions, so that eligible individuals will no longer be required to complete a burdensome and expensive petition-based process to get their record expunged. (Several other states have automated expungement exclusively for marijuana convictions.) Sen. Darius Brown of Wilmington sponsored the bills, and a variety of stakeholders and advocates, including the Office of Defense Services, the Delaware Department of Justice, the ACLU of Delaware, the Delaware Center for Justice, the Game Changers, the Delaware Coalition for Smart Justice, the National Clean Slate Initiative, the Center for American Progress, Code for America, the R Street Institute, and JP Morgan Chase supported the bills’ passage. While the bills were being considered in the General Assembly, many impacted individuals came out to support SB 111 and 112 and provided critical testimony that resonated with lawmakers and pushed the bills forward. Advocates and directly impacted people organized coalitions of leaders in each of Delaware’s three counties in support of the legislation and held events across the state highlighting the collateral consequences faced by the estimated 400,000 Delawareans living with a record. Combined with previous legislative measures, SB 111 and 112 will have an enormous impact on people, families, and communities across the state. In 2018, the General Assembly passed a major juvenile expungement bill, giving Delaware Family Court the option to immediately expunge a felony arrest record if a child’s case is terminated in their favor. Then in 2019, the General Assembly passed a landmark bill expanding access to second chances for adult Delawareans by creating the mandatory and discretionary expungement processes for most misdemeanors and felonies after a 3-7 year waiting period (depending on the underlying crime) without another conviction. Prior to the enactment of the 2019 law, second chance opportunities for adults were very limited. Individuals could only obtain an expungement for an arrest that never resulted in a conviction or a small number of convictions after they received a pardon. The Paper Prisons Initiative estimates that up to 400,000 people in Delaware live with a record. With 9 out of 10 employers, 4 out of five landlords, and 3 out of 5 colleges running background checks, records create obstacles to accessing jobs, housing, and education. Records also prevent people from starting a business because they cannot access credit and impact individuals’ ability to fully participate in social and civic community life. Delaware has greatly expanded avenues to expungement in recent years, but the process is still complicated, time intensive, and cost prohibitive. The State Bureau of Identification, the agency responsible for processing mandatory expungements, states that 281,190 people with a record in Delaware are eligible for a mandatory expungement under the current law, which extends to non-conviction records and less serious misdemeanors. However, only .4 percent of eligible individuals (or just over 1100 individuals) obtained a mandatory expungement in 2020. Clean Slate legislation will eliminate this large gap between eligibility and true access to a second chance by automating the process and ensuring that people have access to the economic opportunities they deserve. Under SB 111 and 112, more than 20 percent of Delaware’s population – and 290,000 people overall – will have access to automatic expungements and Clean Slate. As the state moves forward with implementing SB 111 and 112, organizations such as the Delaware Office of Defense Services, Delaware Center for Justice, ACLU of Delaware, Game Changers and others are focused on community engagement and education. In addition, expungement events are in the works and will be held throughout the state. What the bills do: Senate Bill 111 automates Delaware’s pre-existing mandatory expungement process, making Delaware the most recent addition to the growing number of states in the nation to enact automatic record clearing applicable generally to at least some convictions. (Several other states have automated expungement exclusively for marijuana convictions.) As in other states, the implementing agencies in Delaware have several years to promulgate and establish procedures, with a deadline of August 1, 2024. Upon implementation, Delaware’s State Bureau of Identification must identify qualifying criminal histories for clearance monthly. Eligibility for Clean Slate is based on the state’s mandatory expungement provisions, which allow certain arrests, adjudications, and convictions to be expunged after set periods of time. Senate Bill 112 is a companion bill to Senate Bill 111 and expands the pool of records eligible for mandatory expungement. This bill, which is effective January 1, 2022, authorizes the clearance of certain low-level felony convictions through a mandatory expungement process, a first for Delaware. Previously, Delaware law required individuals seeking expungement of any felony conviction to pursue a more costly, complicated, and court-based discretionary expungement. Specifically, SB 112, amended by Senate Amendment 1, makes these felony convictions eligible after 10 years, unless otherwise noted: Drug possession (after five years have passed) Miscellaneous drug crimes Unlawful dealing in a counterfeit or purported controlled substance Maintaining a drug property Possession of burglar’s tools or instruments facilitating theft Forgery in the second degree Unlawful use of payment card Senate Bill 112 also allows for the expungement of convictions or adjudications for underage possession or consumption of alcohol; possession of marijuana; or possession of drug paraphernalia to be always expunged, regardless of a person’s prior criminal history. SB 112 takes effect on January 1, 2022. The bottom line: After August 1, 2024, every person eligible for mandatory expungement is also eligible for Clean Slate. This means that following the completion of an individual’s case or sentence Delaware will automatically expunge cases terminated in one’s favor, all violation convictions, certain misdemeanor convictions, and certain felony cases with a single conviction after a set period. Most juvenile arrests and adjudications are also eligible for mandatory expungement after certain timeframes. In general, the juvenile expungement statutes are more expansive than the adult statutes. Want to learn more about mandatory expungement? Eligibility for mandatory expungement in Delaware can be difficult to understand. Some general guidelines are below: First, a person needs to go to the State Bureau of Identification to obtain their certified criminal history. This costs $52. There are three locations across Delaware. Next, SBI shares an official determination of eligibility and will contact the individual via mail. If the person is eligible for a mandatory expungement, they must communicate to SBI that they would like to expunge their record within thirty (30) days. This request requires an additional $75. That process is completed by the SBI and the records are expunged. If their record is not eligible for mandatory expungement, they may petition the Court under the discretionary process. The bills passed this year did not change the discretionary expungement process. Generally, a person is only eligible for mandatory expungement in Delaware if the following things are true (new changes made by SB 112 are bolded): Cases terminated in favor of the accused or cases in which a person has not been found guilty or delinquent can always be expunged, regardless of a person’s criminal history. The person has been convicted or adjudicated of a qualifying offense, which are violations, certain misdemeanors, and a select group of felonies. Domestic violence-related offenses and driving offenses, such as DUI, do not qualify for mandatory expungement. Most adult felony convictions, and certain adult misdemeanor convictions are not eligible for mandatory expungement. However, Delaware has a court-based petition system for these offenses known as discretionary expungement. The individual does not have any pending cases. The qualifying conviction or adjudication is the only case on the individual’s criminal history (there are exceptions for non-convictions, violations, underage drinking, and marijuana-related offenses and juvenile adjudications). The person has completed the term of their sentence and paid any fines, fees, and restitution related to the conviction (fines/fees can be converted to a civil judgment). Jon Offredo is the Legislative and Communications Director for the Delaware Office of Defense Services. The ODS is the state agency that represents individuals who cannot afford an attorney. Previously, Jon worked as a reporter with the Delaware News Journal. John Reynolds is with the ACLU of Delaware as the Campaign Manager for Clean Slate Delaware. John is a committed advocate for racial justice and graduate of UCLA School of Law with a specialization in Critical Race Studies.