Restoration of Rights Project – North Carolina Profile

Guide to restoration of rights, pardon, sealing & expungement following a North Carolina criminal conviction

Collateral Consequences Assessment Tool (C-CAT) Database

Searchable online inventory of collateral consequences under North Carolina law maintained by the University of North Carolina School of Government

Relief from a Criminal Conviction: A Digital Guide to Expunctions, Certificates of Relief, and Other Procedures in North Carolina (2017 edition)

John Rubin, University of North Carolina, School of Government

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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.
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.
Two Southern states enact impressive occupational licensing reforms (9/18/2019) - The 2019 legislative session saw two Southern states enact impressive new laws limiting the ability of occupational licensing boards to exclude qualified applicants based on their criminal record. North Carolina and Mississippi each passed strong new substantive and procedural licensing rules, and both of the new laws show the influence of the Model Law developed by the Institute for Justice. Both states have now eliminated vague "good moral character" criteria, and extended procedural protections that should make it substantially harder for boards to deny licenses based on criminal history. As a result of these bills, both states now prohibit disqualification from licensure unless a crime is "directly related" to the license involved, both require written reasons in the event of denial, and both provide for a preliminary determination as to whether an individual will be favorably considered. In North Carolina's case, this "predetermination" is binding on the board when the applicant later applies. North Carolina’s new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record. In 2019, the following additional states have enacted new restrictions on the occupational licensing process: Arizona, Arkansas, Florida, Nevada, Ohio, Texas, Utah and West Virginia. All told, in the past eight months 14 states have enacted 18 laws regulating occupational licensing in one form or another, with Texas accounting for five of the 18. These new laws are described in the relevant state profiles of the RRP, and they will be discussed in greater detail in our year-end report. They will also be incorporated into the updating of our general survey of U.S. relief and restoration mechanisms ("Forgiving and Forgetting in American Justice"), which is now underway. The provisions of the new North Carolina and Mississippi laws are summarized below, and are set forth in detail in the respective state profiles from the Restoration of Rights Project. North Carolina first imposed general restrictions on its occupational licensing boards in 2013, and the new law substantially strengthens the earlier law, notably in its procedural protections for applicants. Mississippi's Fresh Start Act of 2019 represents that state's first effort to regulate licensing boards in the State, and so one would not necessarily expect its law to be quite as strong as North Carolina's – though it is very close. In summary, both states have taken important new steps to improve employment opportunities and life prospects for people with a criminal record in their states. North Carolina: North Carolina first enacted general licensing non-discrimination law in 2013, and its law then prohibited occupational licensing boards from "automatically" disqualifying an individual based on a criminal record unless the board was "otherwise authorized by law" to do so. The law specified certain factors that agencies could consider in determining whether a license should be granted, but its protections were admittedly quite weak. The State has now substantially strengthened the law to enhance both substantive and procedural protections for people with a record, and extended its provisions to "state agency licensing boards" as well as "occupational licensing boards." Specifically, HB770 amends N.C. Gen. Stat. § 93B-8.1 to impose a "direct relationship standard" for all licenses; to require a board to consider certain factors that before were discretionary, giving effect for the first time to participation in a substance abuse treatment program and to a Certificate of Relief awarded by a court. It exempts only licenses governed by federal law. § 93B-8.1(b)-(b3). The new North Carolina law also provides for robust procedural protections for applicants, including written reasons in the event of a denial and an appeal procedure. § 93B-1(b4)-(b5). It also specifies that individuals may at any time apply for a "predetermination" as to whether their record is "likely" to be disqualifying, a determination that is "binding" on the board in the event of a subsequent application. § 93B-8.1(b6) though (b7). Finally, it amends § 93B-2(a) to requires each board to report annually to the legislature on how many applications it has received from people with a record, and how many were granted and denied. For further details, see the North Carolina profile from the RRP. Mississippi: Until 2019, Mississippi also had no general law regulating consideration of conviction in connection with occupational licensing, although it applied a direct relationship test in connection with some licenses. Under the Fresh Start Act of 2019, no one may be disqualified from engaging in any licensed occupation “solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation.” Section 3 of SB2781 (not yet codified). Only law licensure is excepted. Under Section 4, licensing authorities shall not include in their rulemaking “vague or generic terms including, but not limited to, ‘moral turpitude,’ ‘any felony,’ and ‘good character.'” Absent applicable state law, licensing authorities “may only consider criminal records that are specific and directly related to the duties and responsibilities for the licensed occupation when evaluating applicants.” In determining whether a conviction is “directly related,” the licensing authority shall make its determination by a clear and convincing standard of proof based on several specified factors, including the nature and seriousness of the crime and the passage of time since its commission, and any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a direct relation. Under Section 5, an individual with a criminal record may petition a licensing authority at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. The licensing authority must inform the individual of his standing within thirty (30) days of receiving the petition, and may charge a fee not to exceed $25.00. If a licensing authority denies an individual a license solely or in part because of the individual’s prior conviction of a crime, the licensing authority shall notify the individual in writing of the following of the grounds and reasons for the denial, that the individual has the right to a hearing to challenge the licensing authority’s decision. In any administrative hearing or civil litigation, “the licensing authority shall carry the burden of proof on the question of whether the applicant’s criminal conviction directly relates to the occupation for which the license is sought.” For further details, see the Mississippi profile from the RRP.
Searchable on-line inventories of collateral consequences: How they operate and how they are maintained (4/12/2019) - There are currently only three on-line collections of collateral consequences, one national and two state-specific (Ohio and North Carolina). All three can be searched and sorted, and all three are regularly updated, making them indispensable practice tools for lawyers and essential guides for advocates and people with a criminal record. Each of these inventories is described below by the individuals who helped create them and now administer them. They explain how the inventories were created and how they are maintained, and how they operate to inform and assist people interested in understanding the legal and regulatory restrictions that affect people with a criminal record, as well as the lawyers and other advocates who assist them. Note that the three inventories each deal differently with the problem of linking specific consequences with the crimes that trigger them. Ohio’s CIVICC inventory has the greatest granularity, allowing searches by specific provision of the state criminal code. North Carolina’s C-CAT inventory is somewhat less specific, linking specific collateral consequences with the “crime characteristics” that make the consequence applicable, including the type and degree of crime. The national inventory (NICCC) is less specific still, stating triggering offenses for each consequence in terms of broad categories of crimes (e.g., "any felony" or "crimes of moral turpitude"). This approach not only reflects the way most state laws imposing collateral consequences are drafted (Ohio consequences are a conspicuous exception), but it also has the advantage of allowing cross-jurisdictional comparisons and analysis. The descriptions that follow confirm that a great deal of time and money, not to mention the commitment of dedicated and skilled professionals, goes into keeping the inventories current, given the passage of new laws every year. Thankfully, much legislating nowadays is in the direction of helping people avoid or mitigate these consequences, through judicial certificates and record-sealing mechanisms, rather than imposing further burdens and restrictions. (See the CCRC report on 2018 laws, and its recent interim survey of laws enacted already in 2019.) NATIONAL INVENTORY OF COLLATERAL CONSEQUENCES (NICCC) by Josh Gaines (CSG) The National Inventory of Collateral Consequences of Conviction (NICCC) is a searchable online database that catalogs collateral consequences imposed by the statutes and regulations of all 50 states, the federal system, Puerto Rico, and the District of Columbia and U.S. Virgin Islands. The NICCC was originally commissioned by Congress in 2007, and compiled over a four-year period by the American Bar Association’s Criminal Justice Section. In 2017 the Council of State Governments Justice Center took charge of the project’s maintenance under the National Reentry Resource Center, a project of the Bureau of Justice Assistance. In 2018, after updating content and reformatting the original structure to facilitate access and use, the Justice Center re-launched the NICCC. Based on lessons learned from the project’s earliest years, the 2018 overhaul rebuilt the NICCC website by significantly revising the database’s structure and functionality. The new format improves the NICCC in two major ways: 1) It expands access to a broader audience of criminal justice stakeholders, particularly reentry service providers and justice-involved individuals, and 2) it helps promote the future viability and sustainability of the NICCC. The first improvement was a response to the growing demand for collateral consequences information from stakeholders with less formal legal knowledge than the policy-makers and legal practitioners that the NICCC was originally designed to serve. The solution was to identify each consequence in the database through a set of searchable plain-language keywords that point to the various rights, benefits, opportunities, and fields of employment the consequence impacts. More intuitive search features were also added to make it easier for users to find relevant consequences regardless of their level of technical expertise. Additionally, the way that consequences are described in the database was significantly revised to support the new search features and make the information easier to understand. The second improvement was a response to the realities of maintaining a database as enormous and complex as the NICCC, which catalogs over 40,000 provisions of law that are always changing from year to year. The challenge was to organize the data in a way that would create an efficient review and updating process, without significantly compromising the utility of the database or its content. The addition of keywords and other ease-of-use features went a long way toward making this possible. But the biggest obstacle to efficient maintenance was determining how to maintain the statutory and regulatory text accompanying each entry that would need to be updated as the laws change. That challenge was resolved by eliminating statutory text and instead providing direct links to state or trusted sources of law. In addition to solving a major maintenance hurdle, this approach has the added benefit of presenting users with the most current version of the law rather than a potentially out-of-date statutory excerpt. Over a year’s worth of work went into implementing these changes and initial reactions have been overwhelmingly positive. The NICCC is receiving increased attention from both policymakers and the reentry community, and improvements to accessibility have positioned the Justice Center to provide effective outreach and training about the NICCC and collateral consequences to a far broader audience. The improvements will also allow the NICCC, going forward, to remain as current as states’ legislative schedules permit. Work on the NICCC, and the engagement surrounding it, has demonstrated the continued need for reliable, current, and accessible information about collateral consequences. The number of collateral consequences, and of people subject to them, continues to grow even as states take steps to mitigate the negative effects of a criminal record. Inventories like the NICCC shine a spotlight on these barriers, increasing their profile in policy discussions, and providing various users with critical information that was largely unavailable before. The continued maintenance and refinement of the NICCC aims to build on these achievements with aid and input from stakeholders across the criminal justice community. NORTH CAROLINA's C-CAT by John Rubin (UNC-SOG) In 2012, the Indigent Defense Education Program at the School of Government, The University of North Carolina-Chapel Hill, launched the Collateral Consequences Assessment Tool, which we call C-CAT for short. C-CAT is a searchable database, accessible online at no charge, of formal collateral consequences imposed or authorized by North Carolina law. Each entry includes a description of a specific consequence, such as revocation or suspension of a job license, along with the characteristics of the crimes that trigger the consequence, whether the consequence is mandatory or discretionary, and the duration of the consequence, among other information. Initially, we thought the tool would be of greatest use prospectively, helping criminal defense attorneys, judges, prosecutors, and others in the criminal justice system understand the potential repercussions of criminal convictions of different offenses. We learned that many others use the tool, including professionals assisting with reentry of people who already have a criminal conviction. The tool also has helped policy makers understand the magnitude of the barriers that collateral consequences pose. An important takeaway for a resource like C-CAT is that it requires ongoing work and funding. We developed C-CAT with financial support from the Z. Smith Reynolds Foundation for legal research and technical assistance. Individual donations have so far enabled us to maintain the database and employ a research attorney to keep the law up to date. Based on feedback from reentry professionals and other users who are not lawyers, we also believe it would be worthwhile to develop a more user-friendly “C-CAT 2.0.” The strength of C-CAT is that it accurately and thoroughly untangles the extensive, complicated, and sometimes bewildering tangle of laws that impose collateral consequences. To develop, maintain, and improve a tool such as C-CAT, ongoing funding is essential. Fortunately, the Indigent Defense Education Program at the School of Government is currently able to handle the load. Given the importance of understanding the impact of collateral consequences for justice-involved individuals, we continue to believe the end-product is worth the effort. OHIO's CIVICC by Pamela Thurston (OJPC) The Ohio CIVICC database is an ongoing project of the Ohio Justice and Policy Center (OJPC, which provides database content) in partnership with the Ohio Public Defender’s office (OPD, supplying the technical infrastructure). The work began in March 2010, and the experimental CIVICC website first went online about a year later. Currently CIVICC contains 1092 “civil impacts” of conviction, of which 684 have been newly enacted and/or amended since March 2011. CIVICC is an online public resource, anonymous and free of charge. Its “relational database” structure enables users to see which collateral consequences are linked to which specific offenses under Ohio law. This approach has been both necessary and possible in Ohio, in part because consequences that affect wide swaths of business activity and employment are triggered by specific offenses listed in the relevant statutes (in some cases more than 100 offenses per consequence). CIVICC’s two-way search capability adds complexity to the database design and the labor of building it, but the feature is also much in demand. Currently, more than half of all searches on CIVICC begin with an Offense search. For each offense that can be either a felony or a misdemeanor depending on the facts, CIVICC displays two lists of related consequences: one set likely to apply after a misdemeanor conviction for the offense, and the much longer list of impacts that may follow a felony conviction for the same offense. For each civil impact in the database, CIVICC supplies a context and summary name, a note about its duration, whether it is mandatory or discretionary, and a link to the official text of the operative statute or rule. A detail page for each impact also provides a searchable narrative description, a list of triggering offenses or offense types, and the type of case outcome that will cause it to apply. Users need to know that many collateral consequences in Ohio can be triggered by events well short of a conviction: some by a conviction that has been officially “sealed” or “expunged,” some by successful completion of a diversion program, and some by mere arrest or indictment. CIVICC was originally intended to be (1) a criminal defense tool, (2) a reentry resource, and (3) an instrument for analyzing and shaping public policy. Experience has shown that it is in fact used for all these purposes. System reports show that online queries come from community organizations, employers, courts, government agencies, public library users, public defenders, treatment providers, law firms and academic institutions, both within and outside Ohio. OJPC’s own use of CIVICC has included helping individuals with criminal record to obtain record sealing, expungement and/or certificates of relief from Ohio courts; helping community colleges align their course offerings and career guidance with the needs of individual students; helping employers and workforce agencies avoid the twin hazards of over- and under-inclusion; and supporting constructive policy change through public reporting,[1] amicus briefs and legislative testimony. Capacity limits, both financial and human, present the greatest challenges to CIVICC’s ideal completion and vitality. OPD consistently devotes tremendous electronic resources to hosting CIVICC and keeping it sound; but ever-tighter budget restrictions limit its capacity to make technical improvements in logic and interface. For OJPC, project grants funded CIVICC’s initial design and construction but could not sustain it as a public utility. Current funding for database content comes from a publicly-bid contract with the Ohio Department of Rehabilitation and Corrections – a sensible approach because that agency leads the statewide Ex-offender Reentry Coalition, whose public members are among CIVICC’s most constant users. The state contract funds about 1100 hours of work on CIVICC per year. In a state with a less active legislature and a less complex agency infrastructure, 1100 hours of qualified attorney time might well keep CIVICC accurate and up to date. Ohio, however, proliferates new and amended laws and rules at a dizzying pace. CIVICC presently contains 1149 criminal offenses and 1092 civil impacts, embodied today in 43,677 database records. With this many records and the rapid pace of legislative and regulatory change, 1100 attorney-hours are not enough to complete the database expansion still needed and also ensure the timely updating of its existing content. This tension could evaporate if the Ohio legislature and regulatory agencies were to heed the voices calling for a reduction in collateral consequences in lieu of their continual expansion. I don’t anticipate that happening soon, but several legislative changes in recent years have diminished CIVICC’s website traffic by reducing the number of people who need to use it – a positive sign. Further changes in law might address concerns about the proliferation of “informal” collateral consequences. New laws providing for automatic expungement of many convictions after a specified number of years – a change consistent with research findings – would greatly restrict the opportunities for excluding workers based on a criminal record, whether formally or informally. Until such changes occur, however, I believe CIVICC will be a needed resource in Ohio. [1] A recent example is the report Wasted Assets: the cost of excluding Ohioans with a record from work,” by Michael Shields of Policy Matters Ohio and Pamela Thurston of Ohio Justice and Policy Center, http://bit.ly/WastedAssets.
Sex offender consequences in the Supreme Court – what’s ahead? (7/18/2017) - "The Supreme Court’s Mixed Signals in Packingham" is the title of a thoughtful comment by Bidish Sarma analyzing the Supreme Court's recent decision in Packingham v. North Carolina, recently published on the American Constitution Society website. (An early analysis of the Packingham decision by Wayne Logan appeared on this site on June 20.) Mr. Sarma proposes that "the time has come to ask whether society’s 'war' on sex offenders who have already completed criminal sentences has gone too far." While the Packingham holding is confined to the First Amendment issues raised by North Carolina's broad restrictions on access to "an astounding range of websites (including news websites, WebMD and Amazon)," Sarma singles out a sentence in Justice Kennedy's opinion suggesting a broader underlying concern about the constitutionality of sex offender consequences: Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.” One of the "troubling" things about the "severe restrictions" imposed on sex offenders is that "they ensnare far more people than most of us realize." Even setting aside this serious problem of the legal conflation of child molesters with teenage pranksters—a problem that poses a real public safety concern by undermining the utility of registries—state laws dealing with sex offenders who have already served time curtail liberty to an extreme degree. A subset of these offenders are subjected to civil commitment, meaning the state detains them in prison-like conditions (where they are theoretically treated for mental health problems that make them dangerous). In several states, this involuntary detention is indefinite. These people will die in state custody. Many states and localities also impose severe residency and travel restrictions on released sex offenders, making it so difficult to find living arrangements in some places that affected citizens are forced to live on the streets and under bridges. Research suggests that such laws may actually increase the odds that these individuals will commit crimes again. An amicus brief filed by several highly-respected law professors in a recent case dealing with Michigan’s sex offender laws summarizes how the panoply of restrictions imposed by registration and notification requirements "effectively banishes sex offenders from society." The state has retroactively placed punitive and highly burdensome restrictions on those convicted of sex offenses, including extensive requirements to appear frequently in person at police departments, as well as restrictions on their movement, residency, and place of work. These restrictions stem automatically from their convictions, with no individualized determinations. These regulations are . . . punitive rather than regulatory in their effect. At the same time, Sarma points out how several Justices evidently remain persuaded by now-discredited statistics showing "abnormally high" sex offender recidivism. Packingham was not an all-around win for those disturbed by how we treat these people. In that case, we can see two indications that the Court continues to propagate the myth at the core of our nation’s moral panic: that individuals convicted of sex offenses are almost certain to commit more sex crimes if they are released. The first flare came during the oral argument. At one point, Justice Sotomayor seemed to accept the basic claim that the sex offender recidivism rate is abnormally high. According to the argument transcript, she said “Yes. There’s a high statistical inference that recidivism will follow with one sexual crime to another . . . .” The second signal appeared in Justice Alito’s concurring opinion. In it, he wrote that “[r]epeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’ McKune, supra, at 33 (plurality opinion) . . . .” If the Court is looking to its own past for its understanding of sex offender recidivism, it is no wonder that the justices continue to embrace the myth that the recidivism rate is alarming. In 2002, in McKune v. Lile, the Court described the risk of sex offender recidivism as “frightening and high.” It went further, citing a Department of Justice publication for the proposition that “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” This astronomical number is certainly frightening. But, it is also blatantly wrong. A number of experts, researchers and journalists have stepped forward in recent months to illuminate the Court’s profound misstep in McKune. In the New York Times in March, Supreme Court reporter Adam Liptak pointed out that the lawyer for North Carolina in Packingham stated during the oral argument that “[t]his court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again.” Liptak explains that “there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.” Professor Ira Mark Ellman and Tara Ellman excavated the truth about the source Justice Kennedy relied upon in McKune: the DOJ publication cited one source for the 80 percent figure, “an article published in 1986 in Psychology Today, a mass market magazine . . . [that used 80% as] a bare assertion: the article contains no supporting reference for it.” In reality, Sarma reports that David Feige recently compiled the real statistics: The recidivism statistics the court cites are dead wrong as a matter of social scientific fact. In reality, sex offenders have among the lowest same-crime recidivism rates of any category of offender. Indeed, in the most comprehensive single study on reoffense rates to date, the U.S. Department of Justice followed every sex offender released in almost 15 states for three years. The recidivism rate? Just 3.5 percent. These numbers have been subsequently verified in study after study. The state of Connecticut Criminal Justice Policy and Planning Division did a five-year study that found a recidivism rate of 3.6 percent. A Maine study found that released sex offenders were arrested for a new sex crime at a rate of 3.9 percent. Government studies in Alaska, Delaware, Iowa, and South Carolina have also replicated these results—all finding same-crime recidivism rates of between 3.5 and 4 percent. While the 80 percent number has been shown to be "pure rubbish," North Carolina (and other states) relied on it to justify its broad internet restrictions. And, "rather than seize the chance to clear things up, the Court continued down the trodden path." At oral argument, Justice Sotomayor appeared to agree with the claim of a “high statistical inference” of recidivism. And, though Justice Alito was careful not to cite directly the debunked 80 percent figure, the concurring opinion relied on McKune to emphasize the notion that sex offenders are uniquely dangerous. (A dispute about Alito’s factual claims arose when the Washington Post ran a fact-check that was subsequently challenged by the National Review. Professor Carissa Byrne Hessick best clears up the confusion when she explains that Alito’s opinion is misleading, but not for the reason the Washington Post identified: “Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate. The problem with this paragraph is . . . the claim ‘[r]epeat sex offenders pose an especially grave risk to children.’ . . . [T]he facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.”) Alito’s opinion is not misleading on the scale of the “frightening and high” farce, but it certainly pours more fuel on the fire that is the myth that sex offenders are bound to commit more offenses, particularly against our children. Even if the Court is not yet ready to question the constitutional legitimacy of legal restrictions imposed on persons who are "subject to the supervision of the criminal justice system," or who have been found to be dangerous, there is some reason for new optimism that the Court will take a closer look at the constitutionality of such restrictions imposed "on persons who already have served their sentence" when this is "an issue before the Court.” And, as Sarma helpfully points out, "more cases are coming" in the Court's next term: The Court recently asked the solicitor general to weigh in on a petition emerging from a Sixth Circuit opinion that actually struck down the Michigan laws mentioned earlier. . . .* And, when the Court comes back to session after the summer recess, it will decide whether to review a case involving the Minnesota Sex Offender Program—a civil commitment scheme that confines over 700 individuals, and at the time of the class-action trial, had never released a single individual in two decades even though the state concedes that many offenders are no longer dangerous (the case materials can be found here). If the Court is genuinely concerned—and it should be—it can soon address the severe restrictions that dominate the legal landscape. Standing up for constitutional rights—even of very unpopular groups—is critical at a time when it looks like our nation could easily begin to tumble down the slippery slope of abridging them. * The Solicitor General's brief in Snyder v. Does, filed on July 7, recommended against certiorari, pointing out that the court of appeals had applied the correct legal standard to strike down, on ex post facto grounds, registration requirements that were substantially harsher that those involved in the Court's 2003 decision approving Alaska's registration scheme.
SCOTUS invalidates law criminalizing sex offender access to social media (6/20/2017) - Departing from its customary reluctance to find fault with laws singling out convicted sex offenders for harsh treatment, after they have completed their sentences, the Supreme Court in Packingham v. North Carolina yesterday struck down a state law making it a felony for registered sex offenders to access commercial social networking websites. The petitioner in Packingham, a registered sex offender, violated the North Carolina law when after learning that a traffic ticket against him had been dismissed in court he posted the following message on his Facebook.com personal profile: Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent….Praise be to GOD, WOW! Thanks JESUS! Packingham was convicted and thereafter challenged his conviction on First Amendment grounds, arguing that the law violated his right to free speech. After a spirited oral argument in late February, the Court today unanimously concluded that the North Carolina law violated the First Amendment. In an opinion authored by Justice Kennedy, the Court was especially troubled by the breadth of the challenged law, noting that its reach could extend well beyond social media websites, such as Facebook.com, LinkedIn, and Twitter, to encompass websites such as Amazon.com and Webmd.com. The law, the Court reasoned, enacts a prohibition unprecedented in the scope of First Amendment speech it burdens…North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. In reaching its decision, the Court assumed that the challenged law was content neutral and was therefore subject to intermediate constitutional scrutiny, yet found that it was not sufficiently narrowly tailored to serve the significant governmental interest involved. Identification of the stringency of the constitutional test to be applied in litigation is of course of paramount importance, but so is how the governmental interest is characterized. And here is where the significance of Packingham might well lie. Whereas in multiple prior decisions the Court characterized the governmental interest in combatting sexual offending against children as very significant, and invoked dramatic rhetoric of recidivism risk of sex offenders as a whole as “frightening and high” and the like, Justice Kennedy’s opinion for the Court refrained from such language; it simply emphasized the seriousness of preventing sexual offenses directed at children. The absence of such inflammatory rhetoric about recidivism risk perhaps reflects awareness of recent scholarship making clear that inflated empirical assessments of risk, repeatedly invoked as justification by courts and legislatures to justify expansive and often draconian sex offender-related policies, are well off the mark. (Indeed, it is worth noting that Justice Kennedy himself has used such language in the past.) Second, and no less important, is language in Packingham suggesting a possible softening of the Court’s customary unequivocal backing of laws imposing harsh sanctions on convicted sex offenders, which the Court acknowledged as numbering among the array of collateral consequences experienced by individuals. After noting that the First Amendment would permit a more narrowly tailored law, such as one that prohibited contacting a minor or using a website to gather information about a minor, the Court stated: Specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes can inflict. (Of importance, the troubling fact that the law imposed severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.) Later, after expressing its concern that the challenged law foreclosed access to social media altogether, the Court stated that [i]t is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. Such sensitivity from a Court that has repeatedly rejected challenges to collateral consequences imposed on sex offenders is noteworthy and perhaps signals change ahead. To be sure, two the foremost government strategies upheld to date, involuntary civil commitment (Kansas v. Hendricks, 1997), and registration and community notification (Smith v. Doe and Connecticut Dept. of Public Safety v. Doe, both 2003), entail different liberty infringements and implicate distinct constitutional provisions from Packingham. It could be, however, that Packingham is suggestive of a willingness to engage in greater critical scrutiny. Whether this comes to fruition may be clarified soon as the Court has before it a petition for certiorari asking review of the Sixth Circuit’s invalidation of Michigan’s multi-pronged approach, including registration and notification as well as a law prohibiting registrants from living, working or loitering near schools. Also, it must be acknowledged that while Justice Kennedy’s opinion was joined by four colleagues (Justice Gorsuch did not take part), the three-member concurrence authored by Justice Alito (joined by Chief Justice Roberts and Justice Thomas) contains some of the hyperbolic recidivism-related rhetoric found in prior opinions. The concurrence, though, was prompted by what the Justices perceived as “undisciplined dicta” in Justice Kennedy’s opinion, which they worried that would “equate the entirety of the internet with public streets and parks.” Yet, for the Court’s most conservative Justices to endorse an outcome limiting government power to negatively affect the lives of registered sex offenders is itself a significant development, one that perhaps reflects a coming shift in the Court’s heretofore uncritical endorsement of collateral consequences imposed on sex offenders.
Court rules sex offenders cannot be barred from social media (6/20/2017) - The Supreme Court ruled on June 19, without dissent, that sex offenders cannot constitutionally be barred from social-networking sites. SCOTUSblog's Amy Howe introduced the Court's 's holding in Packingham v. North Carolina as follows: In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation, because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech. Justice Kennedy, in an opinion joined in full by Justices Ginsburg, Breyer, Sotomayor and Kagan, stated the “fundamental principle of the First Amendment” that everyone should “have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” By barring sex offenders from using social-networking sites, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” Noting that the issue was not before the Court, Justice Kennedy assumed that the First Amendment may permit a State to enact "specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor." However, "specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes inflict." But North Carolina’s law goes too far, because it stifles “lawful speech as the means to suppress unlawful speech.” Justice Kennedy also noted the "important" and "troubling" fact that "the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system," though this was also not an issue before the Court. He went so far as to suggest that access to the internet may contribute to rehabilitation: It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. Justice Alito, in a concurring opinion joined by Chief Justice Roberts and Justice Thomas, emphasized the state's interest in protecting children from abuse: "it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.” But he agreed that the North Carolina law under which Packingham was convicted must be deemed unconstitutionally overbroad because it also bars sex offenders from gaining access to “a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child," "including, but not limited to, Amazon, The Washington Post, and WebMD." We expect to post additional commentary on the Packingham decision soon.
Supreme Court considers restrictions on sex offender access to internet (2/27/2017) - This morning the Supreme Court considered whether sex offenders may constitutionally be barred from internet access to social networking sites like Facebook and Twitter. Lester Packingham, who was required to register as a sex offender after pleading guilty to taking “indecent liberties” with a minor when he was a 21-year-old college student, ran afoul of a North Carolina criminal statute when he praised God on Facebook for the dismissal of his traffic tickets. At least five Justices expressed some degree of skepticism over broad restrictions on what Justice Elena Kagan called “incredibly important parts” of the country’s political and religious culture, some questioning the premise that the law is necessary to prevent sexual abuse of minors. Justice Kennedy noted the many ways in which the North Carolina statute seems to violate the First Amendment. "Let me count the ways," he said, invoking Elizabeth Barrett Browning. Some justices noted that criminal convictions can have lasting consequences. “Some states prohibit ex-felons from voting,” Justice Ruth Bader Ginsburg said. “Some states and the federal government prohibit keeping and bearing arms. Those are constitutional rights.” David T. Goldberg, a lawyer for Mr. Packingham, said those restrictions had a basis in history and logic. They were nothing like “taking away people’s First Amendment rights,” he said. In this early post from SCOTUSblog, Amy Howe notes high points of the argument, whose full transcript of the argument is posted here. Adam Liptak predicted at the New York Times that the North Carolina law will be found unconstitutional before the end of the Court's Term in June. What this might portend for other restrictions on sex offenders' constitutional rights - like the exclusionary zones, also imposed by North Carolina, and also held unconstitutional on First Amendment grounds by the Fourth Circuit in December - remains to be seen.
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<<