Restoration of Rights Project – California Profile
Guide to restoration of rights, pardon, sealing & expungement following a California criminal conviction
California Compilation of Collateral Consequences
On-line inventory of California Collateral Consequences (CCRC, 2017)
Jobs for All: The Movement to Restore Employment Rights for Formerly Incarcerated People
2017 report by the Rosenberg Foundation
2015 report by the Renewing Communities Initiative of the The Stanford Criminal Justice Center and the Warren Institute at the UC Berkeley School of Law
2015 report by the National Employment Law Project.
Helping Immigrant Clients with Proposition 47 and Other Post-Conviction Legal Options
2015 guide by Californians for Safety and Justice.
A Cost-Benefit Analysis of Criminal Record Expungement in Santa Clara County
2014 report by the San Jose State University Record Clearance Project
2011 report by the Pacific Juvenile Defender Center
* Be sure to check for changes in the relevant laws since this resource is fairly dated.
Related blog posts:
- 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.
- 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)
- 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.
- Racial disparity in clean slate record clearing? California responds (8/25/2022) - Reproduced below is a press release describing new research by three California scholars published in the Law & Society Review, based on California sentencing data, showing how eligibility criteria for automatic record clearing "can inadvertently perpetuate racial inequity within the criminal justice system." This conclusion seems to us unsurprising, and likely has broader national application for two interrelated reasons: Prosecution policies nationwide have tended to result in more Blacks than Whites being convicted of more serious felonies resulting in prison sentences, while eligibility for automatic record clearance has to date been authorized primarily for non-convictions and misdemeanors (see sections 2 and 3 from the 50-state charts at this link from our Restoration of Rights website: https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside-2/.) The authors recommend that "to reduce the racial gap in criminal records, a change in policy needs to happen to extend record clearance eligibility to a wider range of cases—for example, people with felonies or those sent to prison who are currently excluded." The California legislature seems to have anticipated the recommendations in this report, for on August 18 it enrolled and sent to Governor Newsom's desk a bill that would extend existing automatic record clearing authority to most felonies after four felony-free years, and for the first time to felony non-conviction records. See SB 731. This makes California's "clean slate" law by far the most extensive in the country. While California's broad automatic record-clearing measures may be a hard sell in many other states, hopefully the conclusions of the research will lead other states to take steps to reduce racial inequity in their record clearing laws. The research also points to the need to reexamine prosecution and sentencing policies, which are perhaps inevitably reflected in record clearance laws. All too often White defendants are offered community-based diversionary dispositions aimed at avoiding a conviction record, while Black defendants charged with similar conduct are convicted and sentenced to prison. See, e.g., J.J. Prescott, Benjamin Pyle, and Sonja B. Starr, Understanding Violent-Crime Recidivism, 95 Notre Dame Law Review 1643 (2020). Hopefully this research from California will prompt reconsideration of these front-end prosecution policies, even if reducing racial disparity in record clearing may remain for a time a lagging indicator. The Law & Society article is behind a paywall ($48 for a PDF download), but we expect to post a more extensive discussion of the research and its accompanying policy recommendations shortly. We will update the California profile from the Restoration of Rights Project when Governor Newsom signs the bill into law. AMHERST, Mass. - Although they are well-intentioned, eligibility criteria for recent automatic criminal record relief laws used around the country can inadvertently perpetuate racial inequity within the criminal justice system. The latest issue of the Law & Society Review features innovative research on criminal record relief reform through the publication of “Racial Equity in Eligibility for a Clean Slate Under Automatic Criminal Record Relief Laws” by California-based scholars Alyssa C. Mooney (University of California, San Francisco), Alissa Skog (University of California, Berkeley) and Amy E. Lerman (University of California, Berkeley). Their article sheds light on racial inequities in eligibility among current relief laws in California and identifies two policy amendments that would reduce the share of Black men in California with a conviction record from 22% to 9%. There is currently a 15 percentage point difference between the share of Black men in California who have a conviction record versus white men, and these policy changes would narrow the gap to seven percentage points. “One of the explicit aims of record clearance policies is to undo the lasting stigma of a criminal record, which has been disproportionately harmful to Black Americans,” said Professor Lerman. “In our study, we analyze how different record clearance policies would interact with patterns in criminal records that map on to race, to try to predict in advance whether efforts to remove criminal records could create unintended consequences that actually increase racial inequity.” States have recently started enacting automatic criminal record relief laws. These laws allow authorities to regularly review data systems to provide relief for eligible individuals with arrests that never led to convictions. This includes most misdemeanors and low-level felony convictions. They are designed to take the burden of the court petition process off the shoulders of the person with a record. However, Mooney, Skog and Lerman show how these relief laws can unintentionally maintain racial disparities in criminal records. The authors then suggest ways in which relief laws could instead maximize their potential to reverse these harms. They argue that automating the record clearing process alone is not enough and that in order to reduce the racial gap in criminal records, a change in policy needs to happen to extend record clearance eligibility to a wider range of cases—for example, people with felonies or those sent to prison who are currently excluded. The study could inform future policy efforts, potentially helping policymakers to avoid the unintended consequences that can result from even well-intentioned efforts at reform. “One of the most important aspects of our study is it provides an example of how we can use data to try to predict the consequences of policies for racial equity before we pass those policies and experience their potentially unintended negative consequences or how they inadvertently do harm,” said Lerman. To assess equity in eligibility for criminal record relief, the authors use criminal history data from the California Department of Justice, consisting of 2,246,101 people who were arrested in the years 2000-2016. The authors first assess the share of people who are eligible to clear every conviction on their record under current laws and then examine how this varies across racial and ethnic groups. Next, they evaluate how specific recommended changes to the current eligibility requirements and the implementation of adjusted criminal record relief laws could address these racial inequalities. The authors find that one in five people with convictions in California met criteria for full conviction relief under the state’s automatic relief laws. However, the share of Black Americans eligible for relief was lower than white Americans, reproducing racial disparities in criminal records. This disparity (or difference) resulted from a higher likelihood of felony convictions, and among those, a higher likelihood of cases that were not eligible under current laws, even if the sentence was complete. Hinging eligibility on criminal records produced by historical racial discrimination in policing and prosecution—such as the prison sentence exclusion—confers disproportionate benefits of automatic relief to white people and must be examined and justified as an exclusionary criterion. The article includes a discussion of how its findings can reveal the persistent role of race in criminal justice reform, even in cases where the explicit intent is to reduce the harms of mass incarceration. The adjusted reform measures proposed by the authors aim to widen the criteria for automatic relief. Through these recommendations, relief eligibility would factor in discretionary convictions and include a “seven-year sunset rule,” which would provide relief for any conviction seven years after the sentence is complete. “Black-white and Latino-white disparities would be cut approximately in half, but would persist at 4.0 and 0.5 percentage points, respectively, among all adults, and 6.8 and 1.1 among men,” explained the authors. “The persistent disparities in records of a criminal conviction when both hypothetical reforms were incorporated suggest that Black people are more likely to have charges pending and/or incomplete sentences on a conviction.” The discussion also flags the severity of missing data across counties, and the dangers that criminal records may persist in online databases. Each of these phenomena may affect a significant proportion of those with criminal records, further amplifying racial inequalities when it comes to getting a clean slate. “Under the new law, eligible cases will be granted automatic relief in the state’s database, yet our findings highlight that missing case information from counties is a huge challenge for determining eligibility,” Mooney explained. “There is a need for more work on how administrative data quality affects equitable policy change, and whether county resources for data systems determine local effects of state reforms.” “One perennial challenge is notifying individuals that their records are cleared,” added Skog. “It is incredibly onerous—and often not possible—to locate current contact information for all individuals who will benefit from relief. Plus, there are critical privacy concerns surrounding notification.” Volume 56, Issue 3 is available online here. It includes seven articles and two book reviews. To read this full LSR article, visit the Wiley Online Library here.
- Waiting for Relief: A National Survey of Waiting Periods for Record Clearing (2/23/2022) - Our new report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years. Typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law. These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases. Waiting for Relief: A National Survey of Waiting Periods for Record Clearing The waiting periods for misdemeanor convictions range from a high of 10 or 15 years in Maryland (depending on the nature of the offense) to 0 years in Mississippi (although only first-time offenses are eligible), with most states falling at the lower end of that range. Of the 44 states that authorize clearing of misdemeanor convictions, a near-majority have waiting periods of 3 years or less (19 states) and the vast majority have waiting periods of 5 years or less (35 states). The waiting periods for felony convictions range from as high as 10 or 20 years in North Carolina to as low as 0-2 years in California, with most states falling at the lower end of that range. Of the 35 states that authorize clearing of felony convictions, a near-majority have waiting periods of 7 years or less (17 states). Many waiting periods, notably longer ones, reflect a concept of record clearing via expungement or sealing as “recognition of successful rehabilitation and reason to terminate legal disqualifications and disabilities.”[1] In recent years, however, many states have shortened waiting periods in recognition of the constructive role that record clearance plays in facilitating reentry and rehabilitation, reasoning that individuals “need the most assistance immediately after release from prison or termination of sentence.”[2] The seven (7) states that have enacted a general conviction sealing authority for the first time since 2018 have generally (though not invariably) provided shorter waiting periods than states with more venerable systems.[3] Data on recidivism dating from the 1990s reinforced policy arguments that waiting periods should be long enough to reduce the risk of reoffending after record clearance. But new research on recidivism suggests that shorter waiting periods need not raise public safety concerns. Researchers at the RAND Corporation have raised questions about decades of received truth about the prevalence of reoffending after people leave prison, proposing that the majority of individuals with a conviction do not have a subsequent conviction, and that a person’s likelihood of being convicted again declines rapidly as more time passes.[4] This new research would seem to cast doubt on the legitimacy of concerns that shortening waiting periods necessarily raises public safety concerns. Indeed, to the contrary, it suggests that it may be possible to reconcile the seemingly inconsistent policy goals of facilitating and recognizing rehabilitation through shorter waiting periods. The full report is available here. --- [1] James Jacobs, The Eternal Criminal Record 131 (Harvard Univ. Press 2015). [2] Id. See also Brian M. Murray, Retributive Expungement, 169 U. Pa. L. Rev. 665, 695 (2021); J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harvard L. Rev. 2460, 2479 (2020); Jeffrey Selbin et al., Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Crim. L. Criminology 1, 52 (2018). [3] States that have reduced their eligibility waiting periods since 2016 are Arkansas, Massachusetts, Michigan, Missouri (twice), Nevada, New Jersey (twice), North Carolina, Ohio, Oklahoma (twice), Oregon, South Dakota, Vermont (twice), Washington. States that have enacted a general conviction sealing authority for the first time since 2018 are Alabama, Arizona, Connecticut, New Mexico, North Dakota, Virginia, West Virginia. Additional information about waiting periods in these states can be found in the Restoration of Rights Project. [4] Shawn Bushway et al., Providing Another Chance: Resetting Recidivism Risk in Criminal Background Checks, RAND Corp. (2022), https://doi.org/10.7249/RRA1360-1.
- Illinois set to become fifth state to cover criminal record discrimination in its fair employment law (2/13/2021) - NOTE: Governor Pritzker signed S1480 into law on March 23. In our recent report on criminal record reforms enacted in 2020, we noted that there were only four states that had fully incorporated criminal record into their fair employment law as a prohibited basis of discrimination. These states (New York, Wisconsin, Hawaii, and California) provide that employers can only disqualify a person based on their record if it meets a specific standard, such as being related to the work in question or posing an unreasonable risk to public safety. Illinois will become the fifth state to take this important step as soon as Governor Pritzker signs S1480. Illinois has been working up to this, having amended its Human Rights Act in 2019 to prohibit employment discrimination based on “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.” With S1480, Illinois has now taken the final step of incorporating criminal record fully into the law's structure, which includes authorization to file a lawsuit in the event administrative enforcement is unsatisfactory. A preliminary analysis of the new Illinois law indicates that it now offers more protection for more people with a criminal record in the employment context than any state in the Nation other than California. The provisions of the Illinois bill, enrolled and sent to the governor for signature on February 12, are described below. We then compare them with the laws in the four other states that incorporate criminal record into their fair employment law. This post notes the handful of additional states that have fortified their record-related employment protections in recent years, then summarizes relevant reforms that were enacted in 2020. The new Illinois law makes it unlawful for any employer, employment agency, or labor union to use a conviction record “as a basis to refuse to hire” or to take other employment related adverse action, unless “there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held” or “the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” 775 Ill. Comp. Stat. 5/2-103.1(A). “Substantial relationship” is defined to mean “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur.” In making a determination under subsection (A), the employer must consider a variety of factors including the length of time since conviction, the extent of the record, the nature and severity of the conviction itself and its relationship to the safety and security of others, the age of the employee at the time of the offense, and evidence of “rehabilitation efforts.” 5/2-103.1(B). If the employer reaches a preliminary determination of disqualification or other adverse action, the employer must give written notice and an opportunity for respond, and in the event of a final determination an explanation of the reasons.” 5/2-103.1(C). The new Illinois law compares well with the laws in the four other states that incorporate criminal record into their fair employment law. Although the Illinois “substantial relationship” standard is not as protective as New York’s “direct relationship” standard, Illinois law elaborates the standard with the same public safety emphasis and offers more procedural protections in the form of reasons and an opportunity for reconsideration. Also, unlike New York, it prohibits any consideration of non-conviction records and sealed or expunged convictions. Hawaii has a weaker “rational relationship” standard and also excludes a large number of employments, although it bars inquiry into criminal record until after a conditional offer has been made and thereafter prohibits any consideration of non-conviction records, as well as any conviction more than seven years in the past for felonies and five years for misdemeanors (as reduced in 2020). California also bars inquiry until after a conditional offer has been made, prohibits consideration of non-conviction records and records that have been the subject of judicial relief, provides considerable procedural protections, and has the strongest standard for testing the relevance of a conviction (“direct and adverse relationship”). Wisconsin’s law is the weakest of the five: it applies a “substantial relationship” standard but does not elaborate it, and it offers no procedural protections to applicants or existing employees other than administrative enforcement of this substantive standard. The District of Columbia has also enacted robust fair chance employment protections that apply to both public and many private employers, but its law stops short of authorizing individuals dissatisfied with action by the Office of Human Rights to go to court. Colorado, Connecticut, and Nevada have recently prohibited some employers from considering certain criminal records, but those prohibitions are not fully integrated into a broader nondiscrimination law. Other states are still catching up, with many stalled at the "ban the box" stage. Our report on new legislation in 2020 documented comparatively modest but still noteworthy advances toward fair chance employment in 6 states last year. We reprint the discussion of 2020 reforms from our report below: In 2020, 6 states expanded access to employment for people with a record through 7 bills and one executive order. Two states (New Hampshire and Virginia) enacted a ban-the-box law applicable to public employment, while North Carolina’s governor issued a broad executive order that not only prohibited public employers from making application-stage inquiries, but also established standards for considering criminal record thereafter. Maryland’s legislature overrode a governor’s veto to apply application-stage limits on inquiry to private employers with more than 15 employees. Hawaii amended its venerable fair employment law to reduce the periods after which a conviction may not be considered by any employers. Overall, however, these 2020 laws had limited effect on the fair employment landscape. At the end of 2020, there were still only four states (California, Hawaii, New York, and Wisconsin) that included discrimination based on criminal record as part of their general fair employment scheme, and all but California’s law were enacted many years ago. Colorado, Connecticut, and Nevada have, like Illinois, more recently prohibited some employers from considering certain criminal records, but those prohibitions are not fully integrated into a broader nondiscrimination law. Most of the fair employment laws recently enacted involve fairly modest limits on application stage inquiry. The National Employment Law Project keeps a running tab of new “ban-the-box” laws, and reported in September 2020 that 36 states and more than 150 municipal and county ordinances now require public employers to consider applicants’ qualifications before their criminal histories, with 14 extending these limits to private employers. However, as noted in our Many Roads report, few of these laws include the kind of robust post-inquiry standards that make the 2020 North Carolina Executive Order described below stand out. The new employment laws and orders in 2020 are described briefly below: Hawaii shortened the lookback period in which a person may be disqualified based on conviction under its fair employment law, to seven years for felonies and five years for misdemeanors, excluding periods of incarceration (SB 2193). Hawaii includes discrimination based on conviction record in its more general fair employment practices law, and under preexisting law it is an unlawful employment practice to inquire into arrest and conviction records before the employee receives a conditional offer of employment, and an employer could withdraw an offer only if a conviction within the previous 10 years (exclusive of any period of incarceration) “bears a rational relationship to the duties and responsibilities of the position.” Under this new law, 10-year period is reduced to 7 years for felonies and 5 years for misdemeanors. Maryland enacted a ban-the-box law applicable to private employers with more than 15 employees, overriding Governor Hogan’s veto. The law prohibits inquiry into an applicant’s criminal record until the first interview; and authorizes civil penalties. Certain employment is excepted. The law specifically does not preclude local jurisdictions from imposed stricter standards (HB 994). Md. Code Lab. & Empl. § 3-1403. North Carolina’s governor issued an executive order (EO 158), which directs all state agencies to remove questions about criminal record from employment application forms, and to defer inquiries until “the completion of the initial job interview.” The order further prohibits agencies from considering the following: (i) expunged or pardoned convictions, (ii) charges or convictions that do not relate to the underlying employment matter, (iii) arrests not resulting in a conviction, or (iv) charges resulting in dismissal or not guilty. State employment decisions “shall not be based on the criminal history of an individual unless that criminal history is demonstrably job-related and consistent with business necessity associated with the position, or if state or federal law prohibits hiring an individual convicted of certain crimes for a particular position.” New Hampshire prohibited an application-stage inquiry into criminal record in public employment prior to the initial interview, “unless the public employer is required to screen applications for specific criminal convictions because it is prohibited from hiring those with such convictions under state or federal law” (HB 253). N.H. Rev. Stat. Ann. § 275:37-c(II). Utah removed an absolute barrier based on certain convictions for employment with vulnerable populations, if the applicant will be serving only adults whose only impairment is a mental health diagnosis. In addition, certain convictions cannot be disqualifying after 10 conviction-free years for felonies, and three years for misdemeanors (HB 436). Virginia prohibited inquiry into criminal record by public employers prior to interview. Excepts law enforcement employment and certain other sensitive employments (HB 757). Va. Code Ann. §§ 2.2-2812.1, 15.2-1505.3. Virginia added crimes to the list for which an exception is available for employment with a substance abuse or mental health program at community services boards and private providers of behavioral health services licensed by the Department of Behavioral Health and Developmental Services. This law also allows the Department to hire individuals convicted of various crimes at a state facility if the Department determines the individual has been rehabilitated successfully and is not a risk to those receiving services (HB 1540). Virginia also decriminalizes marijuana possession, restricted public access to records relating to past arrests, charges, or convictions for this offense, prohibited employers and educational institutions from inquiring about them, and prohibited state and local officials from requiring an applicant for a license, permit, registration, or governmental service to disclose information about them (SB 2 / HB 972). Va. Code Ann. §§ 18.2-250.1; 19.2-389.3.
- Momentum grows to restore voting rights to people with a felony (2/3/2021) - Our new report on 2020 legislative reforms shows continued progress in state efforts to expand voting rights for people with a felony conviction. Despite a courtroom setback at the Eleventh Circuit, where a federal appeals court ruled that Florida's landmark 2018 felony re-enfranchisement initiative does not restore the vote to people who owe court debt, two additional states and D.C. took major actions to restore voting rights to people convicted of a felony. Already in 2021, an impressive 19 states are considering bills to ease or eliminate prohibitions on voting based on a past conviction. In 2020, California restored the vote to people on parole, via a ballot initiative amending the state constitution. Iowa's governor issued an executive order restoring voting rights to people convicted of most felonies after completion of incarceration and supervision. And the District of Columbia repealed felony disenfranchisement altogether so that even people in prison may vote. Since 2016, 19 states have taken steps to restore the right to vote for people with a felony and expand awareness about eligibility. In 2021, at least 19 state legislatures are considering bills that would expand the franchise to those with a conviction: 5 states are considering measures to amend their constitutions or statutes to eliminate felony disenfranchisement entirely (Nebraska, Georgia, Massachusetts, Oregon, and Virginia). They would join Maine, Vermont, and D.C., as jurisdictions that have fully abandoned felony disenfranchisement. Connecticut also has a proposed bill that to eliminate disenfranchisement for certain felony offenses and restore the vote after incarceration for the others. 10 states are considering bills to re-enfranchise individuals not presently incarcerated for a felony conviction: Alabama, Minnesota, Missouri, New Mexico, New York, Oklahoma, Washington, Texas, and Virginia (Alabama's bill would do so 5 years after release). The Washington measure is sponsored by newly elected Rep. Tarra Simmons, believed to be the first Washington state lawmaker formerly convicted of felony. The only 4 states remaining without a statutory mechanism for re-enfranchisement (Kentucky, Iowa, Mississippi, Virginia) are considering measures to restore the vote upon completion of incarceration and supervision, or earlier, for a disqualifying offense (in the case of Mississippi, after incarceration and parole only; in the case of Iowa, 5 years after completion of incarceration and supervision; Virginia has proposals to eliminate disenfranchisement completely or restore the vote upon release). These four states currently make re-enfranchisement wholly dependent upon discretionary gubernatorial action (or in Mississippi, discretionary legislative action). In addition, Tennessee has a pending bill that would remove requirements that a person has paid all restitution and court costs, and be current on child support, before voting rights may be restored. Maryland and Missouri are considering bills to facilitate voting in jails for eligible individuals, and Maryland has another bill to require individuals released from correctional facilities and/or on community supervision to be informed that they are eligible to vote. Nebraska also has a pending bill to remove the two-year waiting period after completion of a felony sentence for voting rights restoration. Our full report on 2020 criminal record reforms is available here. For an overview of loss and restoration of voting rights, see our Sept. 2020 national survey and our 50-state comparison chart. In addition, our Nov. 2020 report documents which states treat unpaid court debt as a barrier to regaining the vote.
- Legislative update: third quarter 2019 sees more new licensing and expungement laws (10/11/2019) - In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction. A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions. Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing. In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record. Another area of progress was restoring voting rights. Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions. Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions). (California enacted a "clean slate" law shortly after the beginning of the fourth quarter.) At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.) By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon. All of the laws described briefly below are more fully analyzed in the context of the state's overall restoration scheme, in the detailed profiles of the Restoration of Rights Project. Occupational licensing Florida and North Carolina enacted impressive occupational licensing schemes. Florida's new licensing provisions added by H7125 appear targeted to trades learned in the state prison system, and also provide that: “A conviction, or any other adjudication, for a crime more than 5 years before the date the application is received by the applicable board may not be grounds for denial of a [specified] license.” Boards are permitted to consider violent and sexual offenses but only if they “relate to the practice of the profession.” Starting on October 1, 2019, and updated quarterly thereafter, the boards must compile a list identifying each crime used as a basis for a license denial. North Carolina’s new law prohibits disqualification from licensure unless a crime is “directly related” to the license involved, requires written reasons in the event of denial, and provides for a preliminary determination as to whether an individual will be favorably considered that is binding on the board when the applicant later applies. The new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record. In New Hampshire, HB 637 created two categories of criminal history information to be maintained by the state police records repository, one “confidential” and the other “public.” “Confidential criminal history information” (defined to include non-conviction records and records of convictions that have been annulled) will no longer be disseminated for employment and licensing purposes. Sealing and expungement Florida substantially reorganized its laws relating to sealing and expungement of non-conviction records in H7125, and the Department of Law Enforcement was directed to create an automatic process for sealing eligible non-conviction records. See Fla. Stat. § 943.0595. Four states (DE, HI, NH and NY) passed laws authorizing expungement or sealing of marijuana possession convictions. Of these new laws, New York's law setting up an automated relief system is by far the most significant, because it seals the record without requiring eligible individuals to apply to the court for relief. Individuals whose records are sealed may, further, apply later to have the record destroyed. As an important recent study by JJ Prescott and Sonja Starr established, where laws make relief depend upon a burdensome petition process, few eligible individuals will take advantage of them. (As the third quarter ended, a far broader "clean slate" bill was poised for enactment in California, and was signed on October 7.) Relatedly, in August, New Jersey's governor Phil Murphy refused to sign a bill substantially expanding expungement in that state, which included but was not limited to marijuana convictions, on grounds that its cumbersome petition process did not go far enough in addressing the problem of dated convictions. The governor cited with approval the "clean slate" law enacted by New Jersey's neighboring state Pennsylvania, and proposed a series of measures aimed at developing a similar automated system in his state. As of this writing, the governor has been unable to persuade the legislature to adopt it, but we may expect to see another pass at the problem before year's end. Two more states (HI and NC) expanded their provisions offering record relief to victims of human trafficking convicted of any non-violent offense linked to their victim status. Civil rights Finally, New Hampshire revised its law disqualifying people with a conviction from holding public office, making the restriction applicable only during actual incarceration, so that it is now coincident with the period of felony disenfranchisement (this limit on disenfranchisement to only during actual incarceration has been in place in the Granite State since 1965). Perhaps more significant, HB 486 requires the commissioner of the department of corrections to ensure that probation/parole officers receive instruction on the current state of the law regarding the civil rights of individuals convicted of a felony, and to direct that individuals serving a suspended sentence or on parole receive "written notice that he or she may vote during the period of the suspension or parole." Similar provisions were enacted earlier in the year in Colorado and Washington. In our experience, many people who have been convicted of a felony believe that they cannot vote long after their rights have been restored - and some (like those in New Hampshire not sentenced to prison) never lost the right to vote in the first place.
- California becomes third state to adopt “clean slate” record relief (10/10/2019) - On October 8, Governor Newsom signed into law AB 1076, the so-called "Clean Slate Act," authorizing automatic record relief in the form of set-aside or sealing for individuals with certain convictions and arrests under California law. The new law supplements but does not supplant the existing system of petition-based relief, and applies to convictions and arrests occurring after the bill's effective date of January 1, 2021. Eligibility for automatic relief under the new law is similar to but not precisely coincident with eligibility under existing law. The new law also for the first time prohibits courts and the state repository from disclosing information about conviction records that have been granted relief, except where specifically authorized, whether under the new automatic process or the older petition-based system. California is now the third state to adopt general "clean slate" record relief, after Pennsylvania (2018) and Utah (2019). While the automatic feature of the new law has prospective effect only, its limits on disclosure will, when effective, apply to all conviction records that have at any time been dismissed or set aside, whether automatically or by petition, as well as to all arrests and other non-conviction records that have been sealed. The specific features of AB 1076 are described in detail in the following comment posted on October 3. Governor Newsom also on October 8 signed two other bills that affect collateral consequences: SB 310 amends Section 203 of California’s Code of Civil Procedure to make people convicted of a felony eligible to serve of a trial jury unless incarcerated or under supervision, or required to register as a sex offender based upon a felony conviction; and AB 1394 repeals a law requiring that juveniles pay a fee to have their records sealed. California poised to become third state to adopt “clean slate” record relief October 3, 2019 On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation. If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize “clean slate” record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.) The specific provisions are described generally below, and more fully after the break. AB 1076 would not modify eligibility for relief under California’s existing petition-based scheme of judicial remedies for people with criminal records, primarily via dismissal and set-aside for convictions and sealing for non-conviction records. Rather, effective January 1, 2021, it would create a new automatic process obviating the requirement of an individually-filed petition or motion in most cases. Eligibility for relief under this new automatic process would be similar but not identical to eligibility under the existing petition-based process, both for convictions and for non-convictions. If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession). A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records: it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law. As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository. This would change in 2021, if this law is enacted. (Most non-conviction records are now eligible for sealing by petition under California law.) Note that, like most state repositories, California’s repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users. The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce “barriers to employment and housing opportunities for millions of Californians.” They point to the key findings of J.J. Prescott and Sonja Starr’s 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court. While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan. If California’s new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions. For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic. (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.) For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense. Prosecutors and probation officers may object to automatic conviction relief in individual cases on “based on a showing that granting such relief would pose a substantial threat to the public safety,” and such an objection may be tested in a court hearing. A major shortcoming of AB 1076 — in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only. That is, relief is automatic only for arrests and convictions occurring after the law’s effective date. Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief. Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021. Presumably these changes were based on financial and logistical considerations. The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year. Moreover, the bill’s effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it “would need the implementation date to be delayed to July 1, 2023 for proper implementation.” Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021. Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted. We will now describe in detail California’s clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105. Arrests A person arrested on or after January 1, 2021, is eligible for automatic relief if any of the following is true: The arrest was for a misdemeanor and either the charge was dismissed, the person was acquitted of any charges, or at least 1 year has elapsed since the arrest and there is no indication that criminal proceedings have been initiated; The arrest was for a felony punishable by imprisonment in county jail, and either the person was acquitted of any charges, or at least 3 years have elapsed since the arrest and there is no indication that criminal proceedings have been initiated; or The person successfully completed one of various specified diversion programs. Cal. Penal Code section 851.93. (Note: this excludes an arrest for a felony punishable by imprisonment in state prison and dismissed cases where the arrest was for for a felony punishable by imprisonment, unless the person successfully completed a specified diversion program.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with arrest records that are eligible for relief, and “shall grant relief” if such information is present in the records. On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted. The DOJ must annually publish statistics for each county regarding the total number of arrests granted relief and the percentage of arrests for which the state summary criminal history information does not include a disposition. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “arrest relief granted,” and the date. The arrest “is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to that arrest accordingly,” except that relief does not affect: a person’s obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer; the ability of a criminal justice agency to access and use records, or a district attorney to prosecute an offense within the applicable statute of limitations; a person’s authorization to own or possess a firearm; any prohibition from holding public office; or the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria. Starting on February 1, 2021, courts “shall not” disclose information concerning the arrest or case to any person or entity, in any format, except to the subject of the arrest, a criminal justice agency, or under one of the exceptions above. Convictions A person convicted on or after January 1, 2021, is eligible for automatic relief if otherwise eligible under existing law, and if each of the following conditions are also true: the person is not required to register under the Sex Offender Registration Act; the person does not have an active record for local, state, or federal supervision; based on information in the DOJ record, it does not appear that the person is currently serving a sentence for any offense and there is no indication of pending criminal charges; and there is no indication that the conviction resulted in a sentence of incarceration in state prison, and either: (1) the defendant was sentenced to probation, and, based on DOJ’s records, appears to have completed probation without revocation; or (2) the defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based on DOJ’s records, appears to have completed their sentence, and at least 1 year has elapsed since the judgment. Cal. Penal Code section 1203.425. Nonetheless, even if a person is eligible, the prosecutor or probation department may file a petition to prohibit automatic relief “based on a showing that granting such relief would pose a substantial threat to the public safety.” The petition must be filed by 90 days before eligibility, and the court must give notice to the defendant and conduct a hearing within 45 days. (A person denied automatic relief can still petition for relief under existing law.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with conviction records that are eligible for relief, and “shall grant relief, including dismissal of a conviction,” if such information is present in the records, unless a petition to prohibit relief has been granted. On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted. The DOJ must annually publish statistics for each county regarding the total number of convictions granted and prohibited from automatic relief. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “relief granted” and the date. A person granted relief “shall be released from all penalties and disabilities resulting from the offense of which the person has been convicted,” except that the relief does not affect: the provisions of Section 13555 of the Vehicle Code; the obligation to disclose a criminal conviction in response to a direct question contained in a questionnaire or application for employment as a peace officer, public office, or for contracting with the California State Lottery Commission; the ability of a criminal justice agency to access and use records; the jurisdiction of the court over a subsequently filed motion to amend the record, petition or motion for postconviction relief, or collaterally attack a conviction; a person’s authorization to own or possess any firearm; a prohibition from holding public office; the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria; eligibility to provide, or receive payment for providing, in-home supportive services; or pleading and proof of the prior conviction in any subsequent prosecution of the defendant. Starting on February 1, 2021, courts “shall not” disclose information concerning the conviction to any person or entity, except to the person granted relief, to a criminal justice agency, or under one of the exceptions above. In addition, a sentencing court “shall advise” a defendant of the provisions of this section, as well as the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon. Finally, by amendments to Cal. Penal Code section 11105(p)(2)(A) that are effective January 1, 2021, the state records repository system is prohibited from disclosing conviction records that have been dismissed or set aside, whether automatically or by petition, in response to certain requests for background information to be used for employment, licensing or certification. Exceptions in existing law where background checks are authorized by law apply (including law enforcement employment, health care licensure, and a variety of other authorized situations). When effective, these non-disclosure provisions apply without regard to when or by what process relief was granted. Both sections of the clean slate law make clear that they do not limit any petitions, motions, or orders for relief authorized or required under existing law.
- California poised to become third state to adopt “clean slate” record relief (10/3/2019) - On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation. If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize "clean slate" record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.) AB 1076 creates a parallel eligibility scheme that overlaps but is not exactly coincident with the petition-based system, as well as a new procedure for automatic relief. The specific provisions are described generally below, and more fully after the break. AB 1076 would not modify eligibility for relief under California's existing scheme of judicial remedies for people with criminal records, via sealing as well as dismissal and set-aside. Rather, effective January 1, 2021, it would create a new process obviating the requirement of an individually-filed petition or motion in most cases. If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession). A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records: it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law. As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository. This would change in 2021, if this law is enacted. (Most non-conviction records are now eligible for sealing by petition under California law.) Note that, like most state repositories, California's repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users. The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce "barriers to employment and housing opportunities for millions of Californians." They point to the key findings of J.J. Prescott and Sonja Starr's 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court. While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan. If California's new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions. For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic. (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.) For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense. Prosecutors and probation officers may object to automatic conviction relief in individual cases on "based on a showing that granting such relief would pose a substantial threat to the public safety," and such an objection may be tested in a court hearing. A major shortcoming of AB 1076 -- in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only. That is, relief is automatic only for arrests and convictions occurring after the law’s effective date. Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief. Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021. Presumably these changes were based on financial and logistical considerations. The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year. Moreover, the bill's effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it "would need the implementation date to be delayed to July 1, 2023 for proper implementation." Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021. Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted. We will now describe in detail California's clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105. Arrests A person arrested on or after January 1, 2021, is eligible for automatic relief if any of the following is true: The arrest was for a misdemeanor and either the charge was dismissed, the person was acquitted of any charges, or at least 1 year has elapsed since the arrest and there is no indication that criminal proceedings have been initiated; The arrest was for a felony punishable by imprisonment in county jail, and either the person was acquitted of any charges, or at least 3 years have elapsed since the arrest and there is no indication that criminal proceedings have been initiated; or The person successfully completed one of various specified diversion programs. Cal. Penal Code section 851.93. (Note: this excludes an arrest for a felony punishable by imprisonment in state prison and dismissed cases where the arrest was for a felony punishable by imprisonment, unless the person successfully completed a specified diversion program.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with arrest records that are eligible for relief, and "shall grant relief" if such information is present in the records. On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted. The DOJ must annually publish statistics for each county regarding the total number of arrests granted relief and the percentage of arrests for which the state summary criminal history information does not include a disposition. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases "shall include" next to or below the entry “arrest relief granted,” and the date. The arrest "is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to that arrest accordingly," except that relief does not affect: a person's obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer; the ability of a criminal justice agency to access and use records, or a district attorney to prosecute an offense within the applicable statute of limitations; a person’s authorization to own or possess a firearm; any prohibition from holding public office; or the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria. Starting on February 1, 2021, courts "shall not" disclose information concerning the arrest or case to any person or entity, in any format, except to the subject of the arrest, a criminal justice agency, or under one of the exceptions above. Convictions A person convicted on or after January 1, 2021, is eligible for automatic relief if otherwise eligible under existing law, and if each of the following conditions are also true: the person is not required to register under the Sex Offender Registration Act; the person does not have an active record for local, state, or federal supervision; based on information in the DOJ record, it does not appear that the person is currently serving a sentence for any offense and there is no indication of pending criminal charges; and there is no indication that the conviction resulted in a sentence of incarceration in state prison, and either: (1) the defendant was sentenced to probation, and, based on DOJ’s records, appears to have completed probation without revocation; or (2) the defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based on DOJ’s records, appears to have completed their sentence, and at least 1 year has elapsed since the judgment. Cal. Penal Code section 1203.425. Nonetheless, even if a person is eligible, the prosecutor or probation department may file a petition to prohibit automatic relief "based on a showing that granting such relief would pose a substantial threat to the public safety." The petition must be filed by 90 days before eligibility, and the court must give notice to the defendant and conduct a hearing within 45 days. (A person denied automatic relief can still petition for relief under existing law.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with conviction records that are eligible for relief, and "shall grant relief, including dismissal of a conviction," if such information is present in the records, unless a petition to prohibit relief has been granted. On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted. The DOJ must annually publish statistics for each county regarding the total number of convictions granted and prohibited from automatic relief. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases "shall include" next to or below the entry “relief granted” and the date. A person granted relief "shall be released from all penalties and disabilities resulting from the offense of which the person has been convicted," except that the relief does not affect: the provisions of Section 13555 of the Vehicle Code; the obligation to disclose a criminal conviction in response to a direct question contained in a questionnaire or application for employment as a peace officer, public office, or for contracting with the California State Lottery Commission; the ability of a criminal justice agency to access and use records; the jurisdiction of the court over a subsequently filed motion to amend the record, petition or motion for postconviction relief, or collaterally attack a conviction; a person’s authorization to own or possess any firearm; a prohibition from holding public office; the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria; eligibility to provide, or receive payment for providing, in-home supportive services; or pleading and proof of the prior conviction in any subsequent prosecution of the defendant. Starting on February 1, 2021, courts "shall not" disclose information concerning the conviction to any person or entity, except to the person granted relief, to a criminal justice agency, or under one of the exceptions above. In addition, a sentencing court "shall advise" a defendant of the provisions of this section, as well as the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon. Finally, by amendments to Cal. Penal Code section 11105(p)(2)(A) that are effective January 1, 2021, the state records repository system is prohibited from disclosing conviction records that have been dismissed or set aside, whether automatically or by petition, in response to certain requests for background information to be used for employment, licensing or certification. Exceptions in existing law where background checks are authorized by law apply (including law enforcement employment, health care licensure, and a variety of other authorized situations). When effective, these non-disclosure provisions apply without regard to when or by what process relief was granted. Both sections of the clean slate law make clear that they do not limit any petitions, motions, or orders for relief authorized or required under existing law.