Restoration of Rights Project – Colorado Profile
Guide to restoration of rights, pardon, sealing & expungement following a Colorado criminal conviction
The Consequences of Conviction – Sanctions Beyond the Sentence Under Colorado Law
Guide to collateral consequences under Colorado law by the Colorado State Public Defender (2014)
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- 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)
- Dozens of new expungement laws already enacted in 2021 (7/7/2021) - This year is turning out to be another remarkable year for new record relief enactments. In just the first six months of 2021, 25 states enacted no fewer than 51 laws authorizing sealing or expungement of criminal records, with another 5 states enrolling 11 bills that await a governor's signature. Three of these states authorized sealing of convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing, and a number of additional states substantially expanded the reach of their existing expungement laws. This post hits the highlights of what may well be the most extraordinary six-month period in the extraordinary modern period of criminal record reform that begin in 2013. The only closely comparable period is the first six months of 2018, when 11 states enacted major reforms limiting consideration of criminal records in occupational licensing. Further details of the laws mentioned below can be found in the relevant state profiles from the Restoration of Rights Project. (An earlier post noted new occupational licensing laws in 2021, and subsequent ones will describe significant extensions of the right to vote so far this year, and summarize the more than 100 record reforms enacted to date.) New Laws Three states enacted particularly significant new record relief schemes. Alabama and Virginia both authorized petition-based expungement of adult conviction records for the first time, with Virginia making relief for some misdemeanors and non-convictions automatic. Continuing the trend toward automatic expungement, Connecticut enacted a major "clean slate" bill authorizing automatic "erasure" of most misdemeanors and many felonies. All three of these important new laws are described in greater detail later in this post. In other legislative developments, Maryland authorized automatic expungement of non-conviction records after a three-year waiting period, and established a work group to study partial expungement of charges not resulting in conviction. Vermont took another step toward automation following last year's automatic marijuana expungement law, by authorizing automatic expungement of motor vehicle-related violations. At the same time, Vermont authorized a broad legislative study of its expungement laws, including the prospects for automation, to be completed by the beginning of the next legislative session. (This study follows on the heels of an inconclusive report from an executive working group charged with a similar study task in 2018.) South Dakota reduced the waiting period of its automatic sealing law (applicable to non-conviction records and some misdemeanors) from ten years to five. Tennessee expanded eligibility for petition-based expungement from misdemeanors and Class E felonies to include Class D and C felonies. It also made the filing fee discretionary with the court clerk, and required courts to both notify defendants of the availability of expungement and give reasons in writing if they deny this relief. Washington rewrote its laws applicable to victims of sex trafficking and related sexual abuses, authorizing vacatur for both B and C felonies and misdemeanors, and providing that a petition may be filed either by the victim or by the prosecutor. Four additional states made more modest improvements in their existing petition-based expungement schemes: Arkansas repealed an exclusion for anyone sentenced to prison; Nevada limited the power of the prosecutor to object to expungement, and facilitated expungement of pardoned convictions; North Dakota changed the condition of its waiting period from "no arrest" to "no conviction," and authorized sealing of DUI convictions; and Utah provided that restitution ordered by the parole board would no longer bar eligibility for expungement. Eight additional states extended their juvenile record expungement laws, and four states broadened authorities for diversion leading to expungement. New Mexico added to its significant 2019 expungement scheme by enacting most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), giving its courts authority to relieve mandatory collateral consequences as early as sentencing (New York, Vermont, and New Jersey are the only other states with such authority). This same law not only offered this relief to those with convictions from other jurisdictions, it also gave effect to relief granted by other jurisdictions, the only state other than Vermont that has done this (also through its enactment of the UCCCA). Enrolled bills As of the end of June, four states had enrolled major record relief laws awaiting the governor's signature, two of which provided for automatic record sealing. The Delaware legislature passed Clean Slate legislation, automating sealing for most of the offenses that had been authorized for petition-based mandatory and discretionary sealing in 2019. The bill is to be effective in 2021, but sealing is to begin in August 2024. The Oregon legislature made substantial changes to eligibility criteria under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. Colorado expanded eligibility for petition-based sealing and made sealing of non-conviction records automatic. The Michigan legislature send to the governor two bills providing for expungement of first DUI convictions, a category omitted from their 2020 package of record relief legislation. Finally, and perhaps most surprisingly, on the final day of its session the Arizona legislature for the first time ever passed a record-sealing bill and it is quite broad, applicable to most misdemeanors and felonies. Earlier in the session, the governor signed a bill authorizing courts to issue a "Certificate of Second Chance" when setting aside a conviction, which lifts mandatory bars to licensure and offers employers and landlords protection from liability. Marijuana expungement The first half of 2021 was also an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana. In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms—including the automatic expungement of an exceptionally broad array of past marijuana convictions—along with a variety of social equity provisions. These laws are described in our report on Marijuana Legalization and Expungement in Early 2021. Since that report was published, Connecticut authorized petition-based marijuana expungement for a range of misdemeanors and felonies as well as limited automatic relief for some misdemeanors. Colorado also expanded petition-based marijuana expungement eligibility. The particularly significant relief schemes enacted in Alabama, Virginia and Connecticut are described in greater detail below. We will provide further details on the Arizona, Colorado, and Delaware laws when they are signed into law, as appears likely. Alabama: Until 2021, Alabama courts had no statutory authority to expunge or seal adult conviction records, with the exception of a narrowly drawn exception for victims of human trafficking. With enactment of Act No. 2021-286 (SB117), the so-called REDEEMER Act, Alabama courts were authorized to expunge non-violent misdemeanors and violations, and pardoned felonies. Eligible misdemeanors and violations may apply three years after conviction if “all probation or parole requirements have been completed, including payment of all fines, costs, restitution, and other court-ordered amounts, and are evidenced by the applicable court or agency.” Pardoned felonies are eligible 180 days after the pardon was granted. Convictions for violent and sexual offenses and “serious traffic offenses” are not eligible. Nor are the dozens of crimes of “moral turpitude” that are grounds for felony disenfranchisement, unless the crime was reclassified as a misdemeanor. There is also an administrative filing fee of $500, which may be waived under with a finding of indigency. Expunged records must remain available to law enforcement and prosecutors, utilities, the agency engaged in protecting children and vulnerable adults, and “any entities or services providing information to banking, insurance, and other financial institutions as required for various requirements as provided in state and federal law.” The REDEEMER Act also expanded the laws governing expungement of non-conviction records to cover violent felony charges that were dismissed with prejudice, nol prossed or indictment quashed (after limitation period has run or prosecutor confirms charges will not be refiled), and reduced the waiting period for expungement after diversion of misdemeanor charges to one year. A five-year waiting period was retained for felony charges dismissed without prejudice Virginia Until 2021, Virginia law made no provision for expunging or sealing conviction records, except those that have been vacated pursuant to a writ of actual innocence, or those which were the subject of an absolute pardon (for innocence). With enactment of HB 2113 and SB 1406, Virginia gained one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically. The general record relief legislation (HB 2113) includes five key provisions: Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession. Allows for sealing of felony acquittals and dismissals at disposition with the consent of the prosecuting attorney. Provides for sealing a broad range of misdemeanor and low-level felony convictions and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process. Requires private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so. The provisions of HB 2113 are scheduled to go into effect in 2025 (or earlier). A separate bill providing for marijuana legalization and expungement (SB 1406) authorized the automatic expungement of records related to certain misdemeanor marijuana offenses along with petition-based expungement of all other misdemeanor and many felony marijuana offenses. With the exception of the sealing of certain police records, these provisions are also scheduled to go into effect by 2025. Connecticut Public Act 21-42, Connecticut's "Clean Slate" law, establishes a process to automatically erase records of most misdemeanor convictions and certain felony convictions entered after January 1, 2000, after a specified period following the person’s most recent conviction for any crime (with an exception for certain drug possession crimes). Class C, D, or E felonies are covered, as are unclassified felonies with up to 10-year prison terms. The bill excludes family violence crimes and offenses requiring sex offender registration. Under the bill, misdemeanors are eligible for erasure seven years after the person’s most recent conviction for any crime; class D or E felonies or unclassified felonies with prison terms of five years or less are eligible after 10 years; and class C felonies or unclassified felonies with prison terms greater than five years but no more than 10 years are eligible after 15 years. For offenses before January 1, 2000, the records are erased when the person files a petition on a form prescribed by the Office of the Chief Court Administrator. Various provisions that now apply to erasure of non-conviction records also apply to erasure under this bill: no fee is charged, and partial expungement is available. That is, if the case contained multiple charges and only some are entitled to erasure, electronic records released to the public must be erased to the extent they reference charges entitled to erasure. The law requires all purchasers of court records, including background screening providers, to update their records on a regular basis. It extends these provisions to records of other agencies (State Police, DMV, Department of Correction). The bill prohibits various forms of discrimination based on someone’s erased criminal history record information, such as in employment, public accommodations, the sale or rental of housing, the granting of credit, and several other areas. In several cases, it classifies discrimination based on these erased records as a “discriminatory practice” under the state human rights laws. The automatic erasure provisions of the law take effect on January 1, 2023. This year is turning out to be another extraordinary year for new record relief enactments. In just the first six months of 2021, 22 states enacted no fewer than 47 separate laws authorizing sealing or expungement of criminal records, with another 5 states having enrolled 11 bills from awaiting the governor's signature. Three states authorized sealing for adult convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing of convictions, and several additional states substantially expanded the reach of their existing expungement laws. This post hits the highlights of what may well be the most extraordinary single 6-month period in this extraordinary modern period of criminal record reform. (The only one that comes close is the first six months of 2018, when 10 states enacted major reforms to their occupational licensing schemes.) (An earlier post noted new occupational licensing laws in 2021, and a subsequent one will describe significant extensions of the right to vote so far this year.) New Laws Three states enacted significant new record relief schemes. Alabama and Virginia both authorized petition-based expungement of adult conviction records for the first time, with Virginia making some misdemeanors and non-convictions automatic. Continuing the trend toward automatic expungement, Connecticut enacted a major "clean slate" bill authorizing automatic "erasure" of most misdemeanors and many felonies. All three of these important new laws are described in greater detail later in this post. In other legislative developments, Maryland authorized automatic expungement of non-conviction records after a three-year waiting period, and established a work group to study partial expungement of charges not resulting in conviction. Vermont took another step toward automation following last year's marijuana expungement law, by authorizing automatic expungement of motor vehicle-related violations. At the same time, Vermont also authorized a broad legislative study of its expungement laws, including the prospects for automation, to be completed by the beginning of the next session. (This study follows on the heels of an inconclusive report from an executive working group charged with a similar study task in 2018.) Tennessee expanded eligibility for petition-based expungement from misdemeanors and Class E felonies to Class D and C felonies, made the filing fee was made discretionary with the court, and required courts to notify defendants of the availability of expungement and give reasons in writing for denying this relief. Four additional states made more modest improvements in their existing petition-based expungement scheme: Arkansas repealed an exclusion for anyone sentenced to prison; Nevada limited the power of the prosecutor to object to expungement, and facilitated expungement of pardoned convictions; North Dakota changed the condition of its waiting period from "no arrest" to "no conviction," and authorized sealing of DUI convictions; and Utah provided that restitution ordered by the parole board would no longer bar eligibility for expungement. Seven additional states extended their juvenile record expungement laws, and four states broadened authorities for diversion leading to expungement. Enrolled bills As of the end of June, four states had enrolled major record relief laws awaiting the governor's signature, two of which provided for automatic record sealing. The Delaware legislature passed its Clean Slate Act, automating sealing for most of the offenses that had been authorized for petition-based mandatory and discretionary sealing in 2019. The bill was to be effective in 2021, but sealing was to begin in August 2024. The Colorado legislature sent to the governor a bill expanding eligibility for petition-based sealing and making sealing of non-conviction records automatic. The Oregon legislature made substantial changes to eligibility criteria under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. Finally, and perhaps most surprisingly, the Arizona legislature for the first time passed a broad record-sealing bill applicable to most misdemeanors and felonies; it also authorized its courts to issue a "Certificate of Second Chance" when setting aside a conviction, which lifts mandatory bars to licensure and offers employers and landlords protection from liability. The Michigan legislature send to the governor two bills providing for expungement of first DUI convictions, a category omitted from their 2019 clean slate law. Marijuana expungement The first half of 2021 was also an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana. In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms—including the automatic expungement of an exceptionally broad array of past marijuana convictions—along with a variety of social equity provisions. These laws are described in our report on Marijuana Legalization and Expungement in Early 2021. Connecticut also automated marijuana expungement but at a more modest level. Colorado and Montana both enacted petition-based marijuana expungement laws The important record relief schemes enacted in Alabama, Virginia and Connecticut are described in greater detail below. We will provide further details on the Arizona, Colorado, and Delaware laws when they are signed into law, as appears likely. Alabama: Until 2021, Alabama courts had no statutory authority to expunge or seal adult conviction records, with the exception of a narrowly drawn exception for victims of human trafficking. With enactment of Act No. 2021-286 (SB117), the so-called REDEEMER Act, Alabama courts were authorized to expunge non-violent misdemeanors and violations, and pardoned felonies. Eligible misdemeanors and violations may apply three years after conviction if “all probation or parole requirements have been completed, including payment of all fines, costs, restitution, and other court-ordered amounts, and are evidenced by the applicable court or agency.” Pardoned felonies are eligible 180 days after the pardon was granted. Convictions for violent and sexual offenses and “serious traffic offenses” are not eligible. Nor are the dozens of crimes of “moral turpitude” that are grounds for felony disenfranchisement, unless the crime was reclassified as a misdemeanor. There is also an administrative filing fee of $500, which may be waived under with a finding of indigency. Expunged records must remain available to law enforcement and prosecutors, utilities, the agency engaged in protecting children and vulnerable adults, and “any entities or services providing information to banking, insurance, and other financial institutions as required for various requirements as provided in state and federal law.” The REDEEMER Act also expanded the laws governing expungement of non-conviction records to cover violent felony charges that were dismissed with prejudice, nol prossed or indictment quashed (after limitation period has run or prosecutor confirms charges will not be refiled), and reduced the waiting period for expungement after diversion of misdemeanor charges to one year. A five-year waiting period was retained for felony charges dismissed without prejudice. Virginia Until 2021, Virginia law made no provision for expunging or sealing adult conviction records, except those that have been vacated pursuant to a writ of actual innocence, or those which were the subject of an absolute pardon (for innocence). With enactment of HB 2113 and SB 1406, Virginia gained one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically. The general record relief legislation (HB 2113) includes five key provisions: Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession. Allows for sealing of felony acquittals and dismissals at disposition with the consent of the prosecuting attorney. Provides for sealing a broad range of misdemeanor and low-level felony convictions and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process. Requires private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so. The provisions of HB 2113 are scheduled to go into effect in 2025 (or earlier). A separate bill providing for marijuana legalization and expungement (SB 1406) authorized the automatic expungement of records related to certain misdemeanor marijuana offenses along with petition-based expungement of all other misdemeanor and many felony marijuana offenses. With one exception, these provisions are also scheduled to go into effect by 2025. Connecticut Public Act 21-42, Connecticut's "Clean Slate" law, establishes a process to automatically erase records of most misdemeanor convictions and certain felony convictions entered after January 1, 2000, after a specified period following the person’s most recent conviction for any crime (with an exception for certain drug possession crimes). Class C, D, or E felonies are covered, as are unclassified felonies with up to 10-year prison terms. The bill excludes family violence crimes and offenses requiring sex offender registration. Under the bill, misdemeanors are eligible for erasure seven years after the person’s most recent conviction for any crime; class D or E felonies or unclassified felonies with prison terms of five years or less are eligible after 10 years; and class C felonies or unclassified felonies with prison terms greater than five years but no more than 10 years are eligible after 15 years. For offenses before January 1, 2000, the records are erased when the person files a petition on a form prescribed by the Office of the Chief Court Administrator. Various provisions that now apply to erasure of non-conviction records also apply to erasure under this bill: no fee is charged, and partial expungement is available. That is, if the case contained multiple charges and only some are entitled to erasure, electronic records released to the public must be erased to the extent they reference charges entitled to erasure. The law requires all purchasers of court records, including background screening providers, to update their records on a regular basis. It extends these provisions to records of other agencies (State Police, DMV, Department of Correction). The bill prohibits various forms of discrimination based on someone’s erased criminal history record information, such as in employment, public accommodations, the sale or rental of housing, the granting of credit, and several other areas. In several cases, it classifies discrimination based on these erased records as a “discriminatory practice” under the state human rights laws. The automatic erasure provisions of the law take effect on January 1, 2023.
- New Jersey puts “fair chance housing” on the national agenda (6/22/2021) - People with a record frequently experience challenges in obtaining or maintaining housing. For those who have been incarcerated, on supervision, charged, and/or arrested, the background check for rental applications can be a persistent obstacle. Lack of stable housing is a major roadblock to successful reintegration into the community or the pursuit of social and economic opportunities. It is therefore encouraging that states have begun to enact laws limiting record-based disqualifications in housing decisions. On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The NAACP New Jersey State Conference, Latino Action Network, Fair Share Housing Center, and New Jersey Religious Action Center of Reform Judaism led organizational advocacy for the measure. Senator Troy Singleton, one of the bill’s primary sponsors, cited the “staggering amount of data on the national level that shows securing housing is one of the key barriers to reducing recidivism,” according to the New York Times. “This measure will allow those who have paid their debt to society to move forward with their lives in a productive manner.” Another sponsor, Assemblyman Benjie Wimberly, noted that “We’re fighting generational poverty, homelessness, and hopelessness through social justice reform measures such as this one.” With New Jersey's legislation—following on the heels of laws enacted in 2019 in Colorado, Illinois, and New York, legislation in D.C. in 2017, and a slew of local ordinances since 2016— "fair chance housing" has arrived on the national reintegration agenda. While many states have adopted reforms that limit the use of criminal records in employment and occupational licensing, until these recent developments housing does not appear to have been a priority for lawmakers, at least at the state level. In the last five years, a policy movement has emerged in favor of "fair chance housing" policies, which regulate and limit the consideration of criminal records by housing providers. Toolkits have been published by the National Housing Law Project and Root & Rebound, and advocacy campaigns have been led by groups such as Just Cities, Fair Chance Housing Coalition, and many others. In some cases, these policies broadly prohibit the use of criminal history, with limited exceptions for certain serious convictions or recent convictions or pending cases. In others, policies also delay criminal history checks until after a conditional lease is provided, importing the "ban-the-box" approach pioneered in connection with fair employment laws, often with standards for when a conditional lease may be withdrawn based on criminal history, and enforcement mechanisms. Federal regulatory guidance issued in 2016 by the Department of Housing and Urban Development (HUD) has also played a part. This post summarizes the new housing reforms at the local level, in D.C. and three states, describes in detail the groundbreaking New Jersey legislation, and summarizes relevant federal law. Local Ordinances Since 2016, fair chance housing ordinances have been adopted in several major U.S. cities, with expansive provisions adopted in Oakland, Berkeley, Seattle, and Portland, and more modest provisions in cities such as Richmond (CA), Urbana, Madison (WI), San Francisco, and Newark (NJ), according to the Fair Chance Housing Coalition. For example, Seattle prohibits requiring disclosure of, inquiring into, or taking adverse action based on the criminal history of a prospective tenant or occupant, except if needed to comply with federal or state law, and requires adverse action based on information from the adult sex offender registry have a “legitimate business reason”—with exceptions for certain types of dwellings. Similarly, Oakland prohibits rental housing providers from inquiring about or taking adverse action based on criminal history, except to comply with federal or state law, or to review the lifetime registry to protect a person at risk, again with exceptions for certain types of dwellings. District of Columbia In 2017, D.C. enacted the Fair Criminal Record Screening for Housing Act, which requires housing providers reviewing tenant applications to make a conditional offer before making a criminal history inquiry. Once inquiry is made, the law prohibits housing providers from considering arrests that did not result in conviction, or from considering convictions or pending accusations other than for 48 listed offenses. Moreover, the conditional offer may be withdrawn only by providing specific reasons in writing for why doing so "achieves a substantial, legitimate, nondiscriminatory interest." Other procedural protections apply, and violations may lead to fines via complaints to the Office of Human Rights (OHR). In turn, the OHR must report to the D.C. Council on an annual basis about complaints and investigations and must also provide a public education curriculum. Certain housing is excepted. More details are available in the D.C. profile of our Restoration of Rights Project. State laws In 2019, three states joined the action, adopting laws limiting criminal history inquiries in connection with housing: Colorado enacted the Rental Application Fairness Act, which provides that a landlord considering a rental application may not consider any arrest records or records of convictions that occurred more than five years before the application. However, a landlord may consider any conviction or deferred judgment for specified methamphetamine and amphetamine offenses, offenses requiring sex offender registration, homicides and related offenses, and stalking offenses. Civil actions may be brought to remedy violations for treble the amount of the application fee, plus court costs and attorney fees. See the Colorado profile for more details. Illinois extended its Human Rights Act to cover “real estate transactions,” prohibiting inquiries about or discrimination based on arrests not leading to a conviction, juvenile records, or records ordered expunged, sealed, or impounded. See the Illinois profile for more details. New York prohibited, in connection with providing housing, asking about or acting adversely based on records from an arrest or case terminated in favor of the individual, certain marijuana offenses, cases terminated as a youthful offender adjudication, and cases that resulted in a sealed conviction, including those sealed under the 2009 Drug Law Reform Act. See the New York profile for more details. New Jersey New Jersey's Fair Chance in Housing Act is the most extensive state-level regulation of housing to date, applying to all rental housing providers except owner-occupied premises of four units or less. The law prohibits consideration of any criminal record at the initial rental application stage, allows only certain records to be considered after a conditional offer is made, and imposes substantive and procedural standards for withdrawal of a conditional offer. Violations may be sanctioned with up to $10,000 in fines and other compliance measures, civil immunity is provided for landlords from claims based on decisions to rent to individuals with a record, and reporting requirements are included. The following paragraphs summarize the provisions of the bill. Initial rental application: Under the bill, prior to accepting an application fee, a housing provider must disclose in writing whether they review and consider criminal history and state that an applicant may provide evidence demonstrating inaccuracies with the criminal record, evidence of rehabilitation, and other mitigating factors. Housing providers may not inquire into or ask about a rental applicant's criminal history prior to making a conditional offer, except they may consider whether an applicant has ever been convicted of manufacturing or producing methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement (both grounds for exclusion from public housing under federal law). Records that may be considered: Even after making a conditional rental offer, housing providers may not consider arrests or charges that have not resulted in conviction, expunged convictions, convictions erased through executive pardon, convictions that have been vacated and otherwise legally nullified, juvenile adjudications, and sealed records. Housing providers also may not require an applicant to submit to a drug or alcohol test, or request consent to obtain information from a drug treatment facility. After a conditional offer, the following records may be considered: convictions for certain listed violent and sex offenses; a pending indictable offense (felony); a conviction for a fourth degree indictable offense if the prison sentence concluded within the previous year; a conviction for a second or third degree indictable offense if the prison sentence concluded within the previous four years; a conviction for a first degree indictable offense if the prison sentence concluded within the previous six years. Withdrawal of conditional offer: A housing provider may withdraw a conditional offer based on criminal history only if they determine "by preponderance of the evidence, that the withdrawal is necessary to fulfill a substantial, legitimate, and nondiscriminatory interest." The reasons must be provided "with specificity" in writing, with an opportunity to appeal by providing evidence of inaccuracies within the record, rehabilitation, or other mitigation. The housing provider must perform an individualized assessment in light of six factors relating to the offense, the applicant, and rental safety. The applicant may request, within 30 days of notice of a withdrawal, a copy of all information relied on in considering the applicant, which must be provided within 10 days of a request, free of charge. As previously noted, the applicant must be given an opportunity to present evidence of inaccuracies in the record relied upon, and of mitigating factors. Model forms: The Division of Civil Rights is directed to prepare for housing providers model forms for initial disclosures and notice of withdrawal of a conditional offer, in English, Spanish, and any other language deemed appropriate. Advertising: Housing providers may not publish an advertisement that it will not consider an applicant who has been arrested or convicted, except for an applicant convicted of manufacture or production of methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement. Civil immunity: To encourage landlords to provide housing to formerly incarcerated individuals, landlords subject to the law are immune from civil liability arising for a decision to rent to individuals with a record, except for a person with convictions for specified violent and sex offenses. Enforcement: An applicant or prospective applicant may file a complaint with the Division of Civil Rights of the Department of Law and Public Safety, which shall make an effort to notify the housing provider and provide 14 days to mediate and address the issue. The division itself may also file complaints, without the requirement of mediation, including for retaliations against a complainant. After an investigation, if the complaint is substantiated, the division "shall" issue monetary penalties of $1,000 to $10,000, depending on whether there are previous violations (up to $1,000 may be assigned to the complainant), and the division may issue other non-monetary remedies, including in some circumstances requiring the provision of the rental unit to the complainant. Final decisions on an investigation may be appealed by the housing provider or complainant. Reporting: The law also requires the Division of Civil Rights to collect data on complaints and investigations and to report annually on its website information about substantiated complaints that have resulted in monetary penalties. Federal law In addition, federal regulatory guidance issued by the Department of Housing and Urban Development (HUD) in 2016 limits the use of criminal records by housing providers and realtors pursuant to the federal Fair Housing Act. The HUD guidance provides that: where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider. The guidance indicates that because "[n]ationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration," use of criminal history is likely to trigger the “non-discriminatory interest” requirement. The guidance further suggests that arrest records should not used as a basis for exclusion, that the nature, severity, and recency of a conviction must be considered, and that “ensuring resident safety and protecting property” are the only interests that can justify criminal history exclusions. Finally, federal law imposes mandatory and discretionary bars on residency in public and federally-assisted housing. Mandatory exclusions apply to people who are subject to a lifetime sex offender registration requirement or have been convicted of producing methamphetamine on the premises of federally-assisted housing. A variety of discretionary grounds are provided for denial of public and federally-assisted housing based on criminal records or engagement in criminal activity, including for drug activity or activity that would adversely affect other tenants. Such adverse actions may also result in eviction of other members of a person's household. For more information on federal exclusions, see National Housing Law Project, An Affordable Home on Re-entry: Federally Assisted Housing and Previously Incarcerated Individuals (2018). (The introduction to this document is an instructive reminder of how HUD guidance has evolved where criminal records are concerned, from the focus on avoiding violent crimes in the 1970s, to the draconian “one strike and you’re out” rules applied in the 1990s, to today’s comparatively more nuanced policies.) *** Note: With four states having enacted laws limiting consideration of criminal records in housing, we are expanding our 50-state Restoration of Rights Project to cover housing in addition to employment and licensing (along with restoration of civil rights and record relief).
- 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.
- New 2019 laws restore voting rights in 11 states (1/22/2020) - This is the first in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief in various ways. The full report on 2019 laws is available here. Restoration of Civil Rights Voting In 2019, eleven states took steps to restore the right to vote and to expand awareness of voting eligibility. Our experience is that many people convicted of a felony believe they are disqualified from voting when they are not: almost every state restores voting rights automatically to most convicted individuals at some point, if they are even disenfranchised to begin with. The most significant new re-enfranchisement laws were enacted in Colorado, Nevada and New Jersey, where convicted individuals are now eligible to vote except when actually incarcerated. Colorado restored the vote to persons on parole supervision, while Nevada revised its complex system for restoring civil rights so that all people with felony convictions may now vote except while in prison. In one of the final legislative acts of 2019, New Jersey’s governor signed a law limiting disenfranchisement to a period of actual incarceration, even in cases where a court has ordered loss of the vote for election law violations, immediately restoring the vote to 80,000 people. These three states joined the two states (New York and Louisiana) that in 2018 took steps to limit disenfranchisement to a period of incarceration: New York’s governor issued the first of a series of executive orders under his pardon power restoring the vote to individuals on parole, and Louisiana passed a law allowing people to register if they have been out of prison for at least five years. Now, only three of the 19 states that disenfranchise only those sentenced to prison still extend ineligibility through completion of parole: California, Connecticut, and Idaho. Bills under consideration in 2019 in both California and Connecticut would allow people to vote once they leave prison, though in California this will require a constitutional amendment. Kentucky saw perhaps the most dramatic extension of the franchise in 2019, when its incoming governor Andy Beshear issued an executive order restoring the vote and eligibility for office to an estimated 140,000 individuals convicted of non-violent felonies who had completed their sentences. Before the order, individuals were required to petition the governor individually to obtain restoration of their voting rights. (Governor Beshear’s father had issued a similar order in 2015 at the end of his own term as governor, but it was revoked by his successor.) Iowa is now the only state that does not restore the vote automatically to most convicted individuals at some point. Other states took less dramatic but nonetheless significant steps in 2019 to expand the franchise. Arizona repealed its law making automatic restoration of the vote to those with no more than one felony conviction depend on payment of fines and fees (those who owe restitution must still apply to the court, like recidivists, to regain their voting rights). (See below for Arizona's revision of its firearms restoration laws.) Arkansas corrected an unintended gap in its election law that made it hard for juveniles prosecuted as adults to regain the right to vote. Oklahoma revised its laws to clarify that voting rights are lost upon conviction of a felony and are restored upon completion of sentence. Four states (Colorado, Illinois, New Hampshire, and Washington) enacted laws directing corrections officials to inform people leaving custody of their eligibility to register, addressing the pervasive public misunderstanding that the right to vote is permanently lost by conviction. Illinois' two new laws on this subject also facilitate voting by mail for eligible persons detained in county jails, and provide for peer-led programs to teach civics to prisoners who are soon to be released. Florida is the only state that took steps during the year to restrict rather than enlarge the franchise, in the wake of that state’s restoration of the franchise in 2018, by ballot initiative, to more than a million state residents who had completed their court-imposed sentences. That ballot initiative automatically restored the right to vote for people convicted of felonies, other than murder or sexual offenses, upon “completion of all terms of sentence including parole or probation.” In 2019, the Florida legislature passed a law interpreting “completion of sentence” to include payment of fines, fees, and court costs. The 2019 legislation defines “completion of all terms of sentence” to include all legal financial obligations (LFOs). The Florida Supreme Court recently agreed in an advisory opinion that Amendment 4's reference to “completion of all terms of sentence” does include all legal financial obligation imposed in conjunction with a sentence. Nonetheless, individuals and supporters of Amendment 4 have brought several federal court challenges to the legislation as violating the U.S. constitution, arguing that by disqualifying persons with outstanding LFOs, even if a person has no ability to pay and even if the court has converted an LFO to a civil lien, the law violates the Equal Protection and Due Process guarantees of the Fourteenth Amendment. They also argue that the law burdens the fundamental right to vote, is an unconstitutional poll tax, infringes on free speech and association, and was enacted with a racially discriminatory purpose. In October, a federal judge issued a preliminary injunction, holding that Florida cannot deny the plaintiffs their "right to vote so long as the state’s only reason for denying the vote is failure to pay an amount the plaintiff is genuinely unable to pay." However, that ruling only applies to 17 plaintiffs in the case, and the judge deferred addressing a number of other issues until after trial later this year, giving the legislature an opportunity to address inability to pay. The coalition behind Amendment 4 is also raising money to help people pay off their debts. One of the knotty problems associated with efforts to re-enfranchise Florida residents is the uneven state of court records in the state, such that inconsistent and missing records can make it difficult for individuals to show that they have in fact fully satisfied financial penalties associated with criminal cases. In the broader national picture, at the conclusion of 2019 almost half the states allow people with a felony conviction to vote if they are living in the free community. A total of 18 states and the District of Columbia now allow people to vote unless in prison, Louisiana allows voting five years after release, and Maine and Vermont do not disenfranchise anyone based on conviction. Of the remaining states, a majority restore the vote automatically upon completion of sentence, which may or may not also require payment of court debt. However, a significant minority of states require at least some individuals (recidivists, persons convicted of specific offenses, or those who owe court debt) to file individual petitions with the governor or a court to regain the right to vote. The coming year should see additional developments in Florida regarding restoration for those with unpaid fines, fees, or restitution. This is turn could have ramifications for the half dozen additional states that impose similar financial barriers to the franchise. 2. Jury eligibility and public office Three other measures to restore civil rights for jury service and public office are worth mentioning. California passed a statute restoring eligibility for trial jury service upon completion of sentence (previously a pardon was necessary). Maryland also lowered its conviction-related bar to jury eligibility. Previously, people were ineligible to serve on a jury if they had received a sentence of more than six months of imprisonment, and were not pardoned, or had a pending charge for an offense punishable by more than six months imprisonment; under the new law, these six-month periods are extended to one year. 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). 3. Firearms restoration Arizona revised its law on firearms restoration to authorize the sentencing court to restore rights to most people with felony offenses two years after completion of sentence. (Note that the automatic restoration of civil rights for offenses does not include restoration of firearms rights.) People convicted of “serious” offenses must wait 10 years, and those convicted of “dangerous” offenses are ineligible for restoration. SB 2080.
- UPDATED: 50-State Chart on Relief from Sex Offender Registration (11/21/2019) - We have completed an overhaul of our 50-State chart on relief from sex offender registration obligations, to bring it up to date and ensure that it is thorough and accurate. This chart documents the duration of sex offender registration requirements, as well as legal mechanisms for early termination from such requirements. In conducting this review, we have identified a handful of states that have, since the chart was last revised in November 2017, expanded the availability of relief from sex offender registration requirements, including for people who have successfully completed diversionary dispositions, people with serious disabilities, and people who are registered based on out-of-state offenses. These recent changes in the law, incorporated in the chart, are summarized below. In 2018, Missouri enacted SB 655, substantially revising its sex offender registration scheme in a manner expected to reduce the number of people who are required to register. Previously, all sex offender registrants were required to register for life, and the only mechanisms for relief were either: 1) a petition to the court 10 years after registration for people with certain non-violent offenses, or 2) a petition 2 years after a guilty finding for certain consensual youthful sex offenses. Under the new scheme, which follows federal guidance, registrants are classified as tier I, II, or III, with Tier I requiring 15 years of registration, Tier II requiring 25 years, and Tier III requiring life. Mo. Rev. Stat. §§ 589.400, .401. Tier I registrants may petition for a 5-year reduction of their 15-year registration obligation after 10 years with a "clean record," and Tier III registrants for a juvenile adjudication may petition for removal after 25 years with a "clean record." Id. One reason the new law is seen as likely to reduce the number of registrants in the state is that Tier I registrants under the new scheme comprise a substantially larger number of offenses than those authorized to petition for 10-year removal under the old law. (One puzzling provision of the new § 589.401 is one that authorizes Tier II registrants to petition for relief after 25 years, the point at which their registration obligation would otherwise expire automatically. §§ 589.400(4)(2), 589.401(4)(2). We must assume this is a drafting error.) In 2019, Tennessee enacted HB 624, which allows a person who is required to register due to a diversionary plea, to obtain termination of registration requirements upon successful completion of the term of judicial diversion and dismissal of the charges. §§ 40-39-207(a)(1) and (c). Also in 2019, Utah enacted HB 298, which adds a new provision authorizing people who are currently required to register for a period of 10 years after termination of sentence to petition the court for an order to be removed from the registry as early as 10 years after being sentenced to probation or committed to a community-based residential program, or 10 years after release from incarceration to parole, as long as the person commits no further serious offense, completes treatment, pays restitution, and otherwise complies with the terms of registration. Compare § 77-41-105(3)(a) with § 77-41-112(1)(b). This law, effective in May 2019, is likely to result in earlier termination of a registration obligation for people convicted of less serious offenses. In 2018, Colorado enacted SB 26, which allows a registrant who suffers from a severe disability that is permanently incapacitating, to petition to discontinue registration. § 16-22-113(2.5). Georgia and Virginia have similar laws. SB 26 also authorizes Colorado residents who are required to register because of an out of state conviction (which requires registration in the jurisdiction of conviction), to petition a Colorado court to discontinue the registration requirement if the person would not be required to register had the conviction occurred in Colorado. § 16-22-103(3).
- Colorado limits immigration consequences of a criminal record (7/2/2019) - Colorado joins other states this session that passed legislation to avoid federal immigration consequences of state criminal matters. The new Colorado laws—SB 30 and HB 1148—work at different stages of criminal proceedings to protect people from possible deportation: SB 30 remedies past wrongs by vacating unconstitutional guilty pleas, and SB 1148 will prevent future deportations resulting from potential one-year sentences. On May 28, Colorado enacted SB 30, which went into effect immediately and helps ensure that when a person is offered a non-conviction diversion, it is not treated as a conviction for immigration purposes. In many states, people facing criminal charges are offered the chance to avoid a conviction by agreeing to a type of diversion called deferred adjudication. They plead guilty and complete a period of probation, after which the plea is withdrawn and charges are dismissed. Sounds good right? Not for a non-citizen. In that case, federal law treats this arrangement as a conviction—sufficient to initiate deportation proceedings. See 8 U.S.C. § 1101(a)(48)(A); § 1227(a)(2). However, such a plea may be unconstitutional if a person was not properly advised of these immigration consequences. See Padilla v. Kentucky, 559 U.S. 356 (2010). The new Colorado law provides procedures for courts to vacate an unconstitutional guilty plea where it has already been withdrawn and the charges dismissed. See Colo. Rev. Stat. § 18-1-410.5. (The law applies to pleas that have been withdrawn in connection with a deferred judgment agreement, or dismissal of drug charges under a since repealed law. It applies to both past and future cases.) Defendants must submit a motion to the court alleging that: (1) the defendant “has suffered, is currently suffering, or will suffer” adverse immigration consequences, and (2) the defendant was not informed or adequately advised of the immigration consequences resulting from the guilty plea, or that the plea was otherwise “constitutionally infirm.” Colo. Rev. Stat. § 18-1-410.5(2), (3). The court “shall” grant a motion to vacate if the prosecutor does not oppose it within 21 days. Colo. Rev. Stat. § 18-1-410.5(4)(a). If the prosecutor objects, the court holds an evidentiary hearing. Id. Notably, the law prevents prosecutors from relying on a deferred judgment agreement, plea paperwork, or court transcript to oppose the motion, unless the documents “clearly” show that defendant was informed that immigration consequences would persist after withdrawing the guilty plea. Colo. Rev. Stat. § 18-1-410.5(4)(c). The second Colorado bill, HB 1148, enacted on March 28, reduces the maximum sentence for certain low-level convictions to 364 days. (The bill will go into effect on August 2, unless a referendum petition is filed.) When it comes to immigration, federal law ties judges’ hands. They often have little to no discretion to prevent deportation if a conviction meets certain criteria. One example is mandatory deportation for state misdemeanors carrying a potential one-year sentence. See 8 U.S.C. § 1227(a)(2). It does not matter that a judge may actually give a five-day prison sentence or probation. Once convicted of a crime carrying a one-year maximum sentence, a person faces potential immigration consequences. Colorado’s new law amends the maximum sentence allowed for certain drug misdemeanors, drug petty offenses, violations of municipal ordinances, and other misdemeanors with sentences undetermined by statute. See Colo. Rev. Stat. § 13-10-113; § 18-1.3-501; § 18-1.3-505. Previous law provided a statutory maximum sentence of one year; the new law reduces that maximum by one day. Anyone convicted under these statutes will be subject only to a potential 364-day sentence and will avoid immigration consequences. Colorado becomes the seventh state to adopt 364-day legislation, joining Washington, Nevada, California, Oregon, New York, and Utah. These two bills are part of a surge of new state legislation aiming to reduce collateral consequences and other barriers to successful reintegration for individuals with a criminal record. So far this year, state legislatures have enacted an astonishing 88 bills in this area (dwarfing 2018's 61 new laws, which itself was unprecedented). We reported on some of these laws in our first quarter update, and look forward to reporting more for our second quarter update in July. This post is part of a series for CCRC’s non-conviction records project, a study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals.
- More states enact major “second chance” reforms (6/11/2018) - In recent weeks, three more states -- Colorado, Louisiana and Vermont -- have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status. We are just now noting Wyoming's enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws. In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way. States have enacted several different types of "second chance" laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing. On May 25, Vermont Governor Phil Scott signed into law an expansion of the state's expungement authority for both adult and juvenile offenders, reducing waiting periods and other eligibility criteria for qualifying felony and misdemeanor convictions. The new law also authorizes courts to expunge non-conviction records 12 months after the conclusion of the case, without need for a petition from the defendant, and without regard to the nature of the offense. This is the third time in recent years that Vermont has extended eligibility for expungement. On May 29, Colorado Governor Hickenlooper signed a bill extending the state's existing authority for sentencing courts to waive application of collateral consequences affecting employment, licensing, and other opportunities and benefits, to make this relief available in all cases regardless of sentence. Previously this waiver authority was available only in cases involving a community-based penalty. Courts are authorized to take action as early as sentencing and throughout the period an individual is under sentence. In this respect, the law resembles the authority proposed by the American Law Institute in the collateral consequences provisions of its new Mode Penal Code: Sentencing. The Colorado law is described in detail in the Colorado profile from the Restoration of Rights Project. At the end of May, Louisiana Governor John Bel Edwards approved several "second chance" bills: One new law extends voting rights to anyone under sentence for a felony who has not been actually incarcerated in the past five years; two additional laws make minor adjustments to the state expungement law, to exempt deferred adjudication cases from the 15-year eligibility waiting period for a second expungement, and to add to the requirements for filing an expungement motion. Another new law requires the governor to conduct regular periodic reviews of the standards applied by occupational licensing agencies. As finally enacted, this last-mentioned law substantially watered down provisions in earlier versions of the legislation that would have limited agency consideration of criminal records in licensing actions. Earlier this spring, Wyoming enacted a new provision of its general state licensing code establishing a "direct relationship" standard for consideration of conviction by all licensing agencies not otherwise subject to a specific contrary statutory standard. See Wyo. Stat. § 33-1-304. See Enrolled Act 63 (March 2018), available at http://www.wyoleg.gov/2018/Enroll/SF0042.pdf. This provision prohibits consideration of prior convictions that are more than 20 years old, except where the person is still under sentence or the sentence was completed fewer than 10 years ago, and unless the elements of the offense are "directly related to the specific duties and responsibilities of that profession or occupation." Among the new law's policies is that agencies should ensure that applicants have an adequate opportunity to appeal a denial. Wyoming also amended more than a dozen specific professional and occupational licensing statutes to rescind vague qualifications like "good moral character," and to substitute functional criteria specifically tying the nature of a particular crime to the licensed activity pursuant to a direct relationship standard. Licensing schemes affected include those regulating teachers, guides and outfitters, engineers, veterinarians, and nursing home administrators. Licensing standards for chiropractors, nurses, optometrists, dental hygienists, social workers, and marriage and family counselors and substance abuse counselors were also amended. Securities dealers and investment advisers, insurance agents, and athlete agents are covered by the reforms. Legislatures in several other states have passed bills that are currently awaiting approval of the governor, including Illinois, New Hampshire, and Tennessee. The only "second chance" legislation we know of that was disapproved by the governor is the South Carolina legislature's unsuccessful attempt to authorize expungement of drug convictions. We expect again to provide a summary of all new laws enacted in 2018 toward the end of the year, and we will also be keeping the state profiles and other resources in the Restoration of Rights Project up to date in real time.
- New research report: Four Years of Second Chance Reforms, 2013-2016 (2/8/2017) - Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types. The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process. Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time. Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible. Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado's new "order of collateral relief" provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction. The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority. These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<