Restoration of Rights Project – Ohio Profile
Guide to restoration of rights, pardon, sealing & expungement following an Ohio criminal conviction
Civil Impacts of Criminal Convictions under Ohio Law (CIVICC) Database
Ohio Justice & Policy Center; Office of the Ohio Public Defender
Related blog posts:
- Reintegration Champion Awards for 2021 (1/27/2022) - Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing. Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords. (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state's reintegration scheme in our Restoration of Rights Project.) Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking: Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation. Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors. Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking. Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Alabama – Enacted first state record-clearing authority applicable to misdemeanor convictions and pardoned felonies, and extended non-conviction sealing. California – Gave retroactive effect to automatic conviction sealing law enacted in 2019. (This new law may be the most consequential of any enacted last year in terms of its impact on criminal records in the state, and it was done without fanfare or publicity.) District of Columbia – Enacted a comprehensive scheme to limit consideration of criminal record in occupational licensing. Illinois – Added employment discrimination based on conviction to the state Human Rights Act, authorized voter education for prisoners. New Jersey – Enacted a landmark fair housing bill; made some improvements to its 1970’s-era occupational licensing law; and, provided for automatic record clearing in connection with marijuana legalization. (New Jersey was our Reintegration Champion for 2019, but evidently is not resting on its laurels.) New Mexico – Improved 1970’s-era public employment and licensing law; authorized expungement of marijuana convictions; and, enacted a substantial part of the Uniform Collateral Consequences of Conviction Act, limiting and providing relief from collateral consequences. Ohio – Expanded eligibility for record-clearing; significantly improved occupational licensing law. Virginia – Authorized petition-based and automated record-clearing of non-convictions and convictions, including convictions for marijuana possession; restored vote upon release by executive order and took steps to amend constitution to this end. Washington – restored vote upon release from prison; amended occupational licensing standards for health professions; repealed driver’s license suspension based on outstanding financial obligations Low marks go to three states that enacted no record reform laws at all in 2021. While there are six other states in this category this year, the legislatures of Alaska, Massachusetts, and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. The profile of each state's restoration of rights scheme from CCRC’s Restoration of Rights Project is linked above (except for the states that made no progress). The profiles contain citations and links to the relevant new laws so that interested individuals can check their specific terms.
- New occupational licensing laws in 2021 (6/10/2021) - In the first five months of 2021, seven states and the District of Columbia enacted nine separate laws improving opportunities for people with a criminal record to obtain occupational licenses. This continues a four-year trend begun in 2017 that has seen 33 states and the District of Columbia enact 54 separate laws regulating consideration of criminal record in the licensing process. Our report on new legislation in 2020 noted that “[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy.” Laws enacted during this four-year period have "transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people." The only period of law reform that rivals the present one came during the early 1970s, when many of the laws now being revised and extended were first enacted. The effectiveness of advocacy efforts by the Institute for Justice and National Employment Law Project in influencing this trend cannot be overstated. So far during 2021, the U.S. jurisdiction to have enacted the most ambitious and comprehensive licensing scheme is the District of Columbia, and its new law (described in detail below) is one of the most progressive in the nation. New Jersey, New Mexico and Washington had not previously legislated in this area for many years, and all three extended and improved laws first enacted in the 1970s. Arizona, Georgia, Ohio, and Tennessee extended recently enacted laws, with Arizona legislating for the fourth time in this area in as many years! The nine new laws are described below, and have been added to the state profiles and 50-state charts of the Restoration of Rights Project. Comprehensive licensing scheme enacted by the District of Columbia Act A23-0561, signed by Mayor Muriel Bowser on January 15, 2021, imposed a detailed regulatory scheme on many occupational licenses issued by the District of Columbia, including health-related professions. The new law is one of the broadest and most comprehensive in the country in the judgment of both CCRC and the Institute for Justice. The 2021 law provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the occupation for which the license is sought. (Under prior law a license could be denied if a conviction “bears directly upon the fitness” of the person to be licensed.) References to “good moral character” in prior law were struck. The new law also prohibits a board from inquiring into or considering an applicant’s criminal conviction until after the applicant is found to be otherwise qualified. After such inquiry, it may not consider a conviction that has been sealed, expunged, vacated, or pardoned, a juvenile adjudication, or non-conviction information, or one that whose elements are not found by “clear and convincing evidence” to be “directly related” to the occupation. In making this determination, a board must consider specific factors relating to the circumstances of the offense, the individual’s other record, evidence of rehabilitation, and “the District’s interest in promoting employment opportunities for individuals with criminal records.” Before denying a license based on a conviction a board must notify the applicant about the reasons for denial and offer a hearing, describe the information that may be provided to demonstrate rehabilitation and fitness, give the applicant an opportunity to respond, and issue a final decision within 45 business days after it receives a response. The board must also provide information on legal resources along with a hearing notice. The 2021 law also establishes a pre-application petition process for individuals to determine their eligibility based on a criminal conviction, which must be completed within 90 days. (The law does not state whether an affirmative conclusion at this preliminary stage is binding on the board.) This law applies to licenses issued by D.C.'s Department of Consumer and Regulatory Affairs and Department Health, but not occupations regulated outside of these agencies, including attorneys, teachers, notaries, taxi drivers, funeral directors, boxers, commercial drivers, and insurance agents. The Mayor must submit a report to the Council by January 1, 2022, identifying the statutory and regulatory collateral consequences of criminal records and recommendations for their mitigation or elimination. And, by January 1 of each year, the Mayor must submit to the Council a report with data relating to each board regulating health-related and non-health-related occupations. Significant revisions of existing general licensing laws 1. Arizona As modified in 2021 by HB 2787 (the fourth licensing law in three years), standards for disqualification now provide that an agency may refuse licensure to a person based on their criminal record only if a conviction “specifically and directly relates to the duties and responsibilities of the occupation” (except for offenses involving moral turpitude defined to include serious and violent offenses) and “the person, based on the nature of the specific offense that the person was convicted of and the person’s current circumstances, including the passage of time since commission of the crime, “is more likely to reoffend by virtue of having” the license than not. The 2021 amendments also require that certain records may not be considered: non-conviction records, including record of participation in a diversion program; a conviction that was sealed, expunged or pardoned; a juvenile adjudication; and a non-violent misdemeanor. 2. Georgia Existing law allowed licensing boards to deny licensure where a person was on community supervision, without requiring the person’s crime to be “directly related” to the occupation for which licensure was sought. SB-114 added supervision status to list of dispositions for which direct relationship is required. The new law does not apply to those on supervision for a felony crime against a person, including battery or assault, or for a crime requiring sex offense registration. 3. New Jersey Until 2021, New Jersey’s 1970’s-era law governing licensure by dozens of state licensing boards (most health-related licenses, accountants, architects, engineers, cosmetology, and many others) provided that boards could deny or suspend licensure upon conviction "of a crime of involving moral turpitude or relating adversely" to the regulated occupation. P.L.2021, c.81 (S942), modified the standard for denial or suspension of licensure by these state licensing agencies to "a direct or substantial relationship to the activity regulated by the board or is of a nature such that certification, registration or licensure of the person would be inconsistent with the public's health, safety, or welfare . . . ." 4. New Mexico The 1974 Criminal Record Employment Act in force prior to the 2021 amendments prohibited licensing boards from considering non-conviction records. As amended in 2021 by SB2, NM’s licensing agencies are precluded from considering convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.” In addition, while "misdemeanors not involving moral turpitude" were omitted from the list of crimes that may never be considered, misdemeanors were also omitted from the provision allowing convictions to be considered if "directly related" to the license in question. The revisions leave open the possibility that a misdemeanor could be grounds for denying licensure as a teacher or child care provider only if they involved drug trafficking or child abuse. The 2021 amendments also omitted an alternative basis for disqualification based on insufficient rehabilitation. 5. Ohio Ohio’s existing law required licensing agencies to list crimes that mandate disqualification. As further amended in 2021 by HB 263, boards must list convictions that "may" be disqualifying, and other convictions and non-conviction records may not be grounds for denying a license. Vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those “directly related,” the board must still consider certain standards linked to an applicant’s overall record that are linked to public safety and may not deny after a period of either five or 10 years depending on the offense. In the event of denial, a board must provide procedural protections including written reasons and a hearing. These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019. 6. Tennessee The 2018 Fresh Start Act was amended in 2021 by SB768 to provide specific criteria governing a licensing board in determining the fitness of a person for licensure based on their criminal record, including the relationship of the crime to the ability performs the duties of the occupation, and evidence of the person’s rehabilitation. (The FSA already included a “direct relationship” standard.) The 2021 Act also deleted “a rebuttable presumption that the prior conviction relates to the fitness of the applicant or licensee” if the conviction was for a Class A, Class B, or certain Class C felonies, or if the felony conviction required registration as a sex offender or animal abuser. 7. Washington A 2021 law provides that each licensing agency shall allow potential applicants for a license to receive a "preliminary determination" as to whether their criminal record will be disqualifying. See 2021, ch. 194 (HB1399). No fee may be charged. This determination must be made within two months, and if it is negative must be accompanied by a statement of reasons. Another provision of HB1399 states that a licensing agency "may disqualify an individual from obtaining a professional license, government certification, or state recognition if it determines the individual's conviction is related to the occupation or profession unless the individual has requested and received a [Certificate of Restoration of Opportunity (CROP)]." See Section 3 of 2021, ch. 194 (HB 1399). It is not clear whether this law was intended to lower the "direct relationship" standard in § 9.96A.020(2). Another 2021 law gave new protections to employees of long-term care facilities, setting forth time limits beyond which certain theft and assault convictions will not be disqualifying. See 2021 Ch. 219 (HB1411). The CROP law was also amended to give protection to these employees.
- Two significant new occupational licensing laws enacted in 2021 (2/4/2021) - After 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies last year, the first significant record reforms of 2021 are occupational licensing laws enacted by Ohio and the District of Columbia. D.C.'s new law is particularly comprehensive, and applies both to health-related and other licensed professions in the District. The new District of Columbia law, Act A23-0561, is described in detail in the DC profile from the Restoration of Rights Project. It provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the licensed occupation, as determined by a detailed set of standards; prohibits inquiry about a record until an applicant has been found otherwise qualified and then prohibits consideration of certain records (including non-conviction and sealed convictions); and provides procedural protections in the event of denial. The new law also establishes a pre-application petition process for individuals with a record to determine their eligibility, and requires the Mayor to report annually to the Council on each board's record. The Institute for Justice has described the "landmark" new D.C. law as "the best in the nation, second only to Indiana." The new Ohio law, HB 263, is more complex and less protective than DC's, requiring licensing boards to publish lists of two types of convictions: those that "shall" be disqualifying (overcome only by a court-ordered certificate) and those that "may" be found disqualify based on their "direct relationship" to the licensed occupation. Other convictions and non-conviction records may not be grounds for denying a license, and vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those "directly related," the board must still consider certain standards linked to an applicants overall record that are linked to public safety, and may not deny after a period of either five or 10 years depending on the offense. In the event of denial, a board must provide procedural protections including written reasons and a hearing. These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019. Michigan's governor also signed a series of bills regulating occupational licensure on the last day of 2020, which include some of the features of the schemes described above but retain the unfortunate disqualification standard of "good moral character." While Michigan's licensing law could use improvement, it contributed to the state's earning the title of Reintegration Champion of 2020. Our report on new legislation in 2020, documenting that 11 states enacted 19 licensing reform laws, noted that "[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy." We reprint the discussion of 2020 licensing reform from our report here: In 2020, 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies. Four states (Idaho, Iowa, Missouri, and Rhode Island) regulated licensing agencies statewide for the very first time; two other states (Utah and West Virginia) improved upon their first venture into licensing regulation in 2019; and Pennsylvania made improvements in licensing standards originally adopted in an earlier era of reform in the 1970s. These enactments continue a trend begun in 2017 that has transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people. As explained in our national report The Many Roads to Reintegration, these licensing reforms are particularly important in supporting reintegration, since studies have shown that more than 25% of all jobs in the United States require a government-issued license. Occupational licenses offer a gateway to the middle class, particularly for people who may have learned a trade or gained a skill while in prison. The new wave of licensing reforms resurrects a progressive approach to occupational opportunity that dates from the 1970s. In recent years it has been strongly influenced by model legislation developed by the Institute of Justice (IJ), a libertarian public interest law firm, and the National Employment Law Project (NELP), a workers’ rights research and advocacy group. Despite their origin in differing regulatory philosophies, the IJ and NELP model laws reflect a similar approach: they 1) limit the kinds of records that may result in disqualification, rejecting vague “good moral character” and other criteria irrelevant to competence; and 2) insist that individual denials be grounded in findings of rehabilitation and public safety with rigorous due process guarantees, making agency procedures more transparent and accountable. In the IJ model, applicants may seek binding preliminary determinations of qualification, and agency compliance is monitored by disclosure and reporting requirements. Some of the more familiar provisions of these new laws are drawn from the IJ or NELP models: Preliminary determination: Providing for a preliminary determination of qualification, for a small fee with quick turnaround and written reasons Relevant standards: Deleting vague standards like “good moral character” in favor of standards likely to evidence low risk and rehabilitation Prohibited considerations: Barring consideration of certain types of records and other types after a specified time Transparency: Requiring agencies to publish a list of disqualifying convictions and to provide written reasons for rejection in individual cases Accountability: Including reporting requirements intended to monitor agency compliance. The new occupational licensing laws in 2020 are summarized below: Colorado enacted the "Occupational Credential Portability Program," which authorizes approval of an application for reciprocal licensure by anyone licensed in another jurisdiction, apparently without regard to whether they meet Colorado's standards for licensure that relate to consideration of criminal record, unless they have committed an act that would be grounds for disciplinary action in Colorado (HB 20-1326). Colo. Rev. Stat. §§ 12-20-202(3)(a), (b), (f)(III). In addition, HB 20-1424 creates "social equity licenses" to operate legal marijuana businesses, available to people who: (1) themselves or their family members were arrested, convicted, or subject to a civil forfeiture for a marijuana offense; (2) have a low income; or (3) live in an "opportunity zone" or "disproportionate impacted area.” Iowa had no general law regulating consideration of criminal record in occupational licensing prior to 2020. HF 2627 adds a new section to Chapter 272C of the Iowa Code to impose an unusually robust and license-specific “direct relationship” test on all but a few health-related licenses. Each covered board must provide a list of offenses that “directly relate[] to the duties and responsibilities of the profession,” and may not deny a license based on non-conviction records or any finding that an applicant “lacks good character” or “suffers from moral turpitude.” Iowa Code Ann. §272C.15. Under the new section, an agency “shall grant” an exception to an individual “who would otherwise be denied a license due to a criminal conviction” if the individual is determined to be rehabilitated and an “appropriate candidate for licensure” based on a list of factors that include the nature and seriousness of the crime, the passage of time, and other mitigating or aggravating factors. There is a rebuttable presumption that an applicant is “rehabilitated” five years after release from incarceration unless the conviction was for certain violent or sexual crimes. The board shall consider whether a “certification of employability” has been issued and any letters of reference. A prospective applicant may petition for a preliminary determination, for which a board may charge a fee of $25. Grounds for denial must be in writing, and the applicant must be given an opportunity to appeal and informed that evidence of rehabilitation will be considered on reapplication. The board’s findings on each criterion specified must be “sufficient for review by a court.” The board has the burden of proving direct relationship. An individual may be requested to submit a “complete criminal record,” which includes the complaint and judgment for each conviction. Idaho had no general law regulating consideration of criminal record in occupational licensing, prior to 2020. SB 1351 adds a new chapter 94 to Title 67 of the Idaho Code, inter alia establishing a committee "to study and review occupational licensing and certification laws in general in order to determine, as applicable, how the legislature may be able to ease occupational licensing barriers while still protecting the public health and safety." The new law authorizes a non-binding preliminary determination as to whether a person's conviction would be disqualifying, and establishes a multi-factor test to determine whether a person's criminal record is "currently relevant to the applicant's fitness" to engage in the occupation. A license may not be denied on the basis of "vague or generic terminology related to a criminal conviction, including but not limited to 'moral turpitude' or 'moral character.'" "Where such terms appear in code or rule with respect to a criminal conviction, a licensing authority shall conduct a relevancy evaluation pursuant to subsection (1) of this section." The "relevancy" standard was inserted in a variety of licensing chapters as a basis for denial or revocation of a license, replacing a formulation that permitted adverse action based on "conviction of any felony, or conviction of any other crime involving moral turpitude." It was also inserted into the rules of the division of human resources and the personnel commission that regulate public employment in the state. Louisiana’s SB 354 provides for issuing a card to individuals leaving prison that includes a list of all vocational licensing and certification programs completed while incarcerated. Michigan enacted a series of bills applicable to occupational licensure to limit agency consideration of certain types of criminal record. HB 4488 and related bills retained the standard of “good moral character” as a basis for restricting licenses to those with a criminal record but limited it for most licenses to exclude non-convictions, misdemeanors that do not carry a prison term, and convictions “unrelated to an individual’s capacity to serve the public.” The new law requires each licensing agency to specify the crimes that are likely to fall into the last-mentioned category. They must also provide a statement of reasons in the event of denial (“including a complete record of the evidence upon which the determination was based”), an opportunity to appeal, and judicial review. An annual report must be submitted with the number of applications denied because of lack of good moral character and a summary of the convictions on which denials were based. Missouri provided very little protection to a person with a criminal record in the licensing process prior to 2020. The Fresh Start Act (HB 2046) requires that a disqualifying criminal record must be "directly related" to the license, also specifying that certain violent crimes “shall” be considered “directly related” to whatever license is involved even if sentence is not imposed. Drug crimes “may” be disqualifying for certain occupations, while fraud offenses “may” be disqualifying for other occupations. If convicted of a lesser included offense, the period of disqualification as “directly related” lasts only for four years after release from incarceration. “Direct relationship” is determined by a multi-factor test. Applicants may apply for a preliminary determination that is binding on the agency. If a person is denied a license, they have a right to a hearing, as well as written findings addressing each factor on which the agency relied sufficient for a reviewing court. “In any administrative hearing or civil litigation authorized under this subsection, 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.” The new law does not apply to significant classes of licenses, including teachers, various health professionals, accountants, real estate brokers and agents, and peace officers. Pennsylvania enacted SB 637 to bolster its weak occupational licensing law dating from the 1970s. SB637 supersedes any law that disqualifies an individual for a license or provides for “good moral character” findings, requires that there be a “direct relationship” between the crime and the profession and whether licensing the individual poses a public safety risk, as determined by an “individualized assessment” under a long list of specified factors. It excludes those convicted of sexual offenses from health care licensure and establishes a separate set of standards for those convicted of violent crimes. Prohibits consideration of juvenile adjudications, non-conviction records, and records of convictions that have been expunged or sealed). It also authorizes restricted licenses for applicants who cannot immediately demonstrate fitness due to a criminal conviction, and it provides for a “preliminary determination” for applicants considering undergoing training for a license, which is binding unless the crime is one on the list of crimes “directly related,” in which case it may be subject to further inquiry when a formal application is filed. The law falls short in not ruling out consideration of dated or minor convictions, although it does rely on a public safety standard for denial of a license and gives those recently released from prison a chance to demonstrate their abilities. While existing law requires boards to defend record-related denials with written reasons, neither old nor new law provides an opportunity for an administrative appeal, requiring a disappointed applicant to file a lawsuit. Rhode Island enacted its first generally applicable law regulating the occupational licensing process, extending it as well to professional and business licenses issued by state agencies. S 2824 applies a “substantial relationship” standard to licensing boards under most departments of state government, establishes standards for determining substantial relationship, excludes certain records from consideration, allows applicants to establish rehabilitation by detailed standards, provides detailed procedures in the event of denial, suspension or revocation, and includes accountability standards. Records that may not be considered include non-conviction records, juvenile records, expunged records, records of misdemeanors that may not be punished by incarceration, and any crime that is not substantially related. If a licensing authority intends to deny, suspend, or revoke an occupational license solely or in part because of a conviction, the person must be given reasons in writing, and if the conviction is “substantially related” an analysis under each of the criteria. The person must be permitted to respond and given an opportunity to appeal. Every agency must post on its website each year a report with “(1) the number of applicants granted licenses, the number of applicants denied licenses for any reason, and, to the extent available, the demographic breakdown of the applicants, including race, ethnicity, and gender, and city or town of residence; and (2) The number of applicants denied solely, or in part, because of a criminal conviction. The law took effect on January 1, 2021. Utah’s legislature acted to enhance a 2019 law that provided for a preliminary determination of qualification for licensure applicable to many state licensing boards, upgrading its standard for decision-making from "reasonable relationship” to "substantial relationship.” SB 201 takes regulation of licensing a step further, establishing heightened standards for consideration of licensure of applicants with criminal records. Licensing boards must “provide individualized consideration to the applicant or licensee,” and “determine whether the criminal conviction bears a substantial relationship to the applicant’s or licensee’s ability to safely or competently practice the occupation or profession.” In this determination the board will “consider the applicant’s or licensee’s current circumstances” measured by a number of the customary factors such as age when offense committed, time since conviction, and various indicia of rehabilitation. Applicants are provided an opportunity to appeal a denial. § 58-1-402. Certain convictions are per se “not evidence of unprofessional conduct,” including non-convictions, and convictions where seven years have passed since release from incarceration without a conviction or guilty plea. Convictions for violent and sexual crimes, and for fraud or embezzlement are excepted. § 58-1-501(4). Vermont has very weak regulation of occupational licensing agencies, allowing denial or discipline for “unprofessional conduct” based on “[c]onviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession.” 233 did nothing to tighten this standard, providing only that its licensing boards must offer interested persons a pre-application determination regarding whether their criminal background will be disqualifying. This request shall provide documentation related to the individual’s conviction or convictions, evidence of rehabilitation, and identification of the profession or professions for which the individual seeks licensure. An applicant would pay a $25 fee for this so-called “second chance determination,” and this fee would be deducted from the license application fee if the applicant does thereafter seek licensure. The new law applies to the professions and occupations regulated by the Office of Professional Regulation, the Department of Environmental Conservation (for well drillers), the Standards Board for Professional Educators, the Board of Medical Practice, the Electricians’ Licensing Board, and the Plumbers’ Examining Board. Washington enacted HB 2870 to create a “social equity program” to reduce barriers to entry to the cannabis industry for individuals and communities most adversely impacted by the enforcement of cannabis-related laws. West Virginia enacted two laws (HR4352 and HR4353) extending regulation enacted in 2019 to a variety of different licenses, applying a "rational nexus" standard for denial, lifting mandatory bars after five years, and authorizing a preliminary determination.
- 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.
- Bumper crop of new expungement laws expected in 2019 (4/9/2019) - Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record. (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.) The first quarter of 2019 has already produced a baker's dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last. The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency. Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature's accession to Governor Ralph Northam's request that it "eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees," which will immediately reinstate driving privileges to more than 627,000 Virginians. This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures. The two most significant new laws were enacted in Western states. Utah's HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records. When it takes effect on May 1, 2020, it will be the nation's second "clean slate" law in operation (Pennsylvania's first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019). Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment). New Mexico's Criminal Records Expungement Act (CREA) for the first time authorizes courts in that state, upon application, to limit public access to adult records, including both felonies and misdemeanors, as well as non-conviction records. HB 370, signed by the governor on April 3 and effective January 1, 2020, provides graduated eligibility waiting periods depending upon the seriousness of the offense, and applies to all but a handful of crimes. Other highlights from the new record-closing laws include expanded sealing eligibility for adults in Kentucky and West Virginia, and for juveniles in Nebraska and Wyoming. Occupational licensing reforms were enacted in Ohio and Utah that regulate how licensing boards may consider criminal records, continuing a recent push for reform in this area. Both states will now allow individuals to request at any time a preliminary determination whether their record would disqualify them from holding a license. Ohio will also require licensing boards to publish on the internet a list of all criminal offenses for which a conviction would disqualify a person. In addition, New Mexico extended its "ban-the-box" law to private employment, requiring employers to delay consideration of an applicant's criminal history in the hiring process. Finally, South Dakota streamlined its clemency process by allowing two members of the pardon and parole board to make clemency recommendations to the governor (rather than a majority of the nine-member board). The 13 new laws enacted to date in 2019 are described in further detail below, and have been added to the state profiles in the Restoration of Rights Project. We will be tracking restoration bills throughout the year, and will report periodically in this space - particularly when a significant new law is enacted. RECORD-CLEARING RELIEF Utah - Clean slate; effect of expungement On March 28, 2019, Utah Governor Gary Herbert signed HB 431, a highly significant "clean slate" law that will automate expungement or deletion of a variety of criminal records when it takes effect on May 1, 2020. Acquittals and dismissals with prejudice are eligible. Certain infractions, misdemeanor convictions, and pleas in abeyance are eligible under a complex set of criteria. Automated relief will apply both to cases adjudicated on or after May 1, 2020, and to cases adjudicated before that date, with separate procedures for each category. 77-40-116(1)(a) and (1)(b). A more detailed explanation of this new law can be found in the Restoration of Rights Project, Utah profile. On March 25, 2019, Governor Herbert signed HB 90 (effective May 14, 2019) that makes clear that an applicant with an expunged criminal record seeking employment from a private employer “may answer a question related to an expunged criminal record as though the action underlying the expunged criminal record never occurred.” § 34-52-301. The new law also clarifies that a public employer may not make an inquiry related to expunged criminal history—and an applicant may answer such a question “as though the action underlying the expunged criminal record never occurred,” except for preexisting exemptions for certain types of public employers, volunteer work, or when consideration of criminal history is required by law. § 34-52-201. More information can be found in the Restoration of Rights Project, Utah profile. New Mexico - First general authority to expunge adult records In 2019, New Mexico enacted a comprehensive law authorizing expungement (sealing) of most non-conviction records, and of conviction records for all but a limited number of crimes, including those involving serious violence and sexual assault. See HB 370, signed into law not yet codified. Effective January 1, 2020, the Criminal Record Expungement Act (CREA) authorizes courts to limit public access to most non-conviction records after a one-year waiting period, as long as no charges are pending against the individual. Courts are also authorized to limit public access to the record of most convictions after waiting periods ranging from two to ten years, depending upon the seriousness of the offense, with no intervening convictions. The court must find that “justice will be served by an order to expunge,” applying a multi-factor test. Under current law, New Mexico law contains no judicial authority to seal adult records, and an administrative authority to seal non-conviction records applies only to some misdemeanors. Upon taking effect, CREA will give New Mexico one of the broadest record-closing authorities in the Nation. More information about this important new law can be found in the Restoration of Rights Project, New Mexico profile. West Virginia - Expanded eligibility for expungement to some felonies On March 25, 2019, West Virginia Governor Jim Justice signed into law SB 152, which will significantly expand the availability of expungement when it becomes effective on June 7, 2019. The law extends eligibility for expungement beyond the limited class of youthful misdemeanants that benefit under existing law, and also makes certain felonies eligible for expungement relief for the first time. (It repeals a 2017 law that authorized reduction of these felonies to misdemeanors, but withheld expungement.) Violent and sexual crimes are ineligible. Under the new law, persons convicted of eligible misdemeanors may petition for expungement one year after conviction, or completion of incarceration or supervision if later. The waiting period is extended to two years for persons convicted of more than one eligible misdemeanor, and to five years for eligible felonies. Persons who have completed substance abuse treatment or graduated from a state-approved job training program may seek relief after an abbreviated waiting period (90 days for a single misdemeanor; one year for multiple misdemeanors; three years for felonies). Employers required by state or federal law to conduct a background check may access expunged convictions. More information can be found in the Restoration of Rights Project, West Virginia profile. Kentucky - Expanded expungement eligibility and procedural reforms On March 26, 2019, Kentucky Governor Matt Bevin signed SB 57 (effective June 26, 2019), which makes several changes to Kentucky's expungement law, expanding non-conviction and felony eligibility. First, the new law will make charges dismissed without prejudice eligible for expungement after a 5-year waiting period (under current law, such charges cannot be expunged). § 431.076. Second, certificates of eligibility will no longer need to be sought prior to a petition to expunge a non-conviction record (but are still required for a conviction record). Third, the new law expands eligibility to vacate, dismiss, and expunge class D felony convictions. A 2016 law had made a specific list of class D felony offenses eligible (or multiple eligible felonies stemming from a single incident). Prior to that, Class D felonies were only eligible if adjudication was deferred. Under SB 57, any Class D felony or a "series" of such felonies will be eligible, except for violations of Ky. Rev. Stat. Ann. §§ 189A.010 (DUI), 508.032 (domestic assault), or 519.055 (impersonating a peace officer), abuse of public office, a sex offense, an offense committed against a child, or an offense that resulted in serious bodily injury or death. § 431.073. If a prosecutor objects to expunging a Class D felony from this expanded set of offenses, the applicant must show by clear and convincing evidence at a hearing that vacating the judgment and expunging the record is consistent with public welfare and safety, supported by the applicant's behavior since conviction, and warranted by the interests of justice. Id. More details about this law can be found in the Restoration of Rights Project, Kentucky profile. Nebraska - Automatic sealing of juvenile records expanded On March 27, 2019, Nebraska Governor Pete Ricketts signed LB 354 (effective three months after the legislature adjourns in 2019), which makes a host of changes to facilitate the sealing of juvenile records. Most notably, this new law expands automatic juvenile sealing (which already covers non-conviction dispositions) to include satisfactory completion of juvenile probation, supervision, or other treatment or rehabilitation program or a county court probation or sentence. Neb. Rev. Stat. § 43-2,108.03. More details about this law can be found in the Restoration of Rights Project, Nebraska profile. Wyoming - Juvenile expungement procedures strengthened On February 15, 2019, Wyoming Governor Mark Gordon signed HB 44, which makes several changes to strengthen Wyoming's juvenile expungement laws, effective effective July 1, 2019. These changes include the following. No filing fee may be charged for a petition to expunge juvenile records. A state or municipality may petition to expunge juvenile records. Prosecutors have 20 days to object to a petition for juvenile expungement, after which the court may summarily grant the request. A minor admitted to a diversion program or granted a deferral, or whose arrest, charges, or disposition do not result in conviction or adjudication, may petition to expunge municipal and circuit court records in the same manner as juvenile records. Expungement of juvenile records (and certain municipal and circuit court records involving minors) is defined to mean destruction of records. More details can be found in the Restoration of Rights Project, Wyoming profile. Virginia - Automatic expungement for absolute pardons On February 27, 2019, Governor Ralph Northam signed HB 2278, which takes effect on July 1, 2019. This new law will entitle a person who receives an “absolute” pardon to automatic judicial expungement—no petition need be filed with the court. Va. Code Ann. § 19.2-392.2(I). (Absolute pardons are generally granted only for innocence.) More details can be found in the Restoration of Rights Project, Virginia profile. OCCUPATIONAL LICENSING Ohio - Preliminary determination of whether record disqualifies from occupational licensure; publication of disqualifying convictions On December 27, 2018, the Ohio Legislature enrolled SB 225, which became law 10 days later without action by the governor. Effective April 5, 2019, anyone who has a conviction may request at any time that a licensing authority determine whether the conviction disqualifies the person from obtaining an occupational or professional license. Ohio Rev. Code Ann. § 9.78(B). A fee of no more than $25 may be charged. Id. Within thirty days of receiving a request, the licensing authority must inform the person of its decision (the decision is not binding if the licensing authority determines that the person's convictions differ from what was included in the request). Id. In addition, licensing authorities must make available on the internet a list of all criminal offenses for which a conviction would disqualify a person from obtaining a license. § 9.78(C). More details can be found in the Restoration of Rights Project, Ohio profile. Utah - Preliminary determination of whether record disqualifies from occupational licensure On March 25, 2019, Utah Governor Gary Herbert signed a law that will allow a person with a criminal record to apply at any time for a determination of whether their record would disqualify them from obtaining a license in an occupation or profession regulated by Title 58 of the Utah code, when it takes effect on May 14, 2019. See HB 90; Utah Code Ann. § 58-1-310. A fee may be charged. Within 30 days of receipt of a completed application, the Division of Occupational and Professional Licensing must make a written determination, and the decision may include additional steps the individual could take to qualify for a license. Id. This new law also amends the definition of "unprofessional conduct" in § 58-1-501(2), based on which a license may be denied or restricted. Existing law defines "unprofessional conduct" to include, among other things, a plea or conviction for a crime of moral turpitude or a crime that bears a "reasonable relationship" to safe or competent performance of the occupation. § 58-1-501(2). The new law replaces "reasonable relationship" with "substantial relationship." See id; HB 90. More details can be found in the Restoration of Rights Project, Utah profile. EMPLOYMENT New Mexico - Ban-the-box in the private employment On April 3, 2019, New Mexico Governor Michelle Lujan Grisham signed SB 96, which will extend "ban-the-box" to include private employers when it goes into effect. Under the new law, if a private employer uses an employment application, the employer may not make an inquiry regarding an applicant's criminal history. (Enacted as new section of N.M. Stat. Ann. § 28-2-1, et seq.) Nonetheless, an employer "may take into consideration an applicant's conviction after review of the applicant's application and upon discussion of employment with the applicant." And an employer may notify the public or an applicant that the law or the employer's policy could disqualify an applicant with a certain criminal history from particular positions. Id. More details can be found in the Restoration of Rights Project, New Mexico profile. (Note that the ban-the-box law applicable to public employers in New Mexico is considerably more protective of individuals with a record, prohibiting inquiries until the applicant has been selected as a finalist, and disallowing consideration of non-conviction records and misdemeanors not involving "moral turpitude.") CLEMENCY South Dakota - Streamlined clemency process On February 5, 2019, South Dakota Governor Kristi Noem signed HB 1005, which authorizes a hearing panel of two Board members appointed by the chair to make clemency recommendations to the governor. See HB 1005 (repealing the requirement in S.D. Codified Laws § 24-13-4.6 that commutation and pardon recommendations be made by a majority of the nine-member board, and making conforming amendments to §§ 24-15A-10 and 24-15A-11). A new provision of § 24-15A provides for review of a panel’s decision to deny a pardon recommendation by the full Board, which may “adopt, modify, or reject the panel’s denial and recommend a pardon.” More details can be found in the Restoration of Rights Project, South Dakota profile. MISCELLANEOUS Virginia - Reinstatement of drivers' licenses An amendment to Virginia's 2019 budget bill specifically requested by Governor Ralph Northam to "eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees," was accepted by the legislature on April 3, 2019. See HB 1700. When this law becomes effective on July 1, it will immediately reinstate driving privileges to more than 627,000 Virginians.
- How effective are judicial certificates in relieving collateral consequences? (3/14/2017) - An empirical study of Ohio's judicial "certificate of qualification for employment" finds that it is "an effective avenue for lessening the stigma of a criminal record" in the context of employment and licensing. The certificate, authorized in 2012, lifts mandatory legal restrictions and limits employer liability for negligent hiring claims, with the goal of ensuring that employment and licensing decisions about certificate holders are on a case-by-case basis, on the merits. The court-issued certificate is available to anyone with any Ohio conviction, no matter how serious, as long as they have completed their sentence and can show that they are barred from employment or licensure by a "collateral sanction." There is a short waiting period, and applicants must show that they pose no public safety risk. The Ohio certificates are part of a recent trend toward authorizing courts to grant certificates of restoration of rights to people with conviction records. It seems that states are far more likely to authorize this more transparent form of relief for those convicted of felonies, reserving record-sealing to misdemeanor or non-conviction records. Peter Leasure and Tia Stevens Anderson of the University of South Carolina studied the effectiveness of the Ohio certificates by measuring the call-back rate of applicants for employment with and without a criminal record, and found that "certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer." Their article, published by the Yale Law & Policy Review, is titled "The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study." In a post in May, we analyzed what were then said to be "preliminary" study results, and described the research methods used to test certificates' effectiveness. Here is the abstract of the Leasure/Stevens Anderson article: Obtaining employment is difficult for ex-offenders due to the stigma of having a criminal record. In recognition of this difficulty, some state legislatures have created certificates of relief (also known as certificates of recovery), which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure that employment decisions about certificate holders are made on a case-by-case basis. The current study, which examines Ohio’s program for certificates of relief, presents the results of the first empirical test of the effectiveness of such certificates. This test indicates that having a certificate of relief increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment. In 2015, we republished a thought-provoking piece by Eli Hager of The Marshall Project on "forgiving v. forgetting," in which he surveyed the growing number of state laws authorizing courts to certify a convictd individual's rehabilitation rather than restrict public access to their record. North Carolina, New Jersey, Tennessee, Vermont and Washington have all adopted judicial certificate laws in the past half dozen years, joining California, Illinois, New Jersey and New York in choosing this more transparent form of relief over expungement. Indiana chose a two-tiered relief system, authorizing courts to limit consideration of almost any conviction, but reserving sealing to misdemeanors and non-conviction records. Court-ordered certificates of relief are also recommended by the Uniform Collateral Consequences of Conviction Act, and the Model Penal Code: Sentencing. An additional number of states have recently authorized correctional authorities to grant certificates to facilitate employment opportunities: Georgia, Maryland, Michigan and Rhode Island fall into this category, and the Connecticut Pardon Board has restyled its "Provisional Pardon" as a "Certificate of Rehabilitation." More detail about these certificate authorities may be found in the state profiles in our Restoration of Rights Resource, and in our recently updated 50-state chart on judicial relief mechanisms. The Ohio certificates have their limitations, largely in their eligibility criteria. Unlike the New York certificates, petitioners must show that they are being held back by a specific legal restriction that the court can remove (that is, a state law bar), and people with out-of-state convictions may not apply. We have been informed by the Ohio Justice and Policy Center that only about six hundred people have applied for and received certificates since the law was enacted five years ago, perhaps because their availability has not been widely advertised. Ohio advocates might consider the steps Indiana courts have taken to ensure that eligible individuals are aware of and can easily take advantage of that state's new "expungement" program. In the near future we plan to update our survey of state relief mechanisms that take a "forgiving" (as opposed to "forgetting") approach to dealing with collateral consequences, including both judicial certificates and executive pardon.
- 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<<
- Study shows certificates work to create job opportunities (5/25/2016) - A new empirical study provides important evidence that “certificates of recovery/relief” can be effective in facilitating employment opportunities for people with a criminal record. Two University of South Carolina criminologists have concluded that employers in Ohio are willing to look beyond the criminal histories of job applicants who have been issued a Certificate of Qualification for Employment (CQE) from a state court. The study, which involved sending fictitious resumes to over 300 employers in the Columbus area, found that individuals with a felony drug conviction were more than three times as likely to receive a job interview or offer if they had received a CQE. Although the study's findings are described as preliminary, they fill an important gap in our knowledge of the effectiveness of Ohio's CQE, and by inference of similar certificate schemes in other jurisdictions. Such schemes have to date been justified on the basis of assumptions and anecdotal evidence, with little hard data to vouch for their potency. The abstract follows: Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis. The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer. These promising results, while only a small sample, suggest that certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment. The findings are striking because even though an Ohio CQE removes mandatory collateral consequences and protects employers from negligent hiring claims, Ohio law (unlike New York’s) does not require employers to give CQEs any effect at all. It seems, then, that "forgiveness-based" models of criminal record mitigation, which acknowledge a person's criminal history while appropriately contextualizing it, can do far more to enhance employment prospects than many have supposed. The results of the study may be surprising to those who favor a "forgetfulness-based" model, which relies on limiting public access to a person's criminal history. Similar judicial certificate schemes exist in California, Georgia, Illinois, New Jersey, New York (whose certificate has served as a model for many states), North Carolina, Rhode Island, Tennessee, and Vermont. Though the legal effect of these certificates varies widely from state to state, they are generally intended to serve as an official acknowledgment of rehabilitation that can be relied upon by employers. (Our 50-state comparison of the consideration of criminal records in licensing and employment, available here, provides an overview and comparison of the certificate laws of each state. Further detail can be found in individual state profiles.) Although there is no federal certificate law, U.S. District Court Judge John Gleeson (now retired) crafted and issued his own Certificate of Rehabilitation earlier this year in lieu of expunging the conviction of a woman he had sentenced years earlier who was unable to find lasting employment. Judge Gleeson wrote in his order: The forgiveness model, which preserves the public record of a conviction, is gaining favor in the reentry community for both functional and philosophical reasons. . . . Where expungement relief is unavailable or otherwise unhelpful, I believe a certificate of rehabilitation can significantly alleviate the collateral effects of a criminal record by emitting a powerful signal that the same system that found a person deserving of punishment has now found that individual fit to fully rejoin the community. Although the University of South Carolina study gives reason for optimism that employers in states with robust certificate schemes are receiving these "powerful signals" and acting accordingly, the national picture may not be quite so rosy. Recent studies on the effectiveness of New York's certificate scheme that were based on anecdotal and interview evidence suggest that the state's certificates are falling short when it comes to encouraging employment opportunities, notwithstanding the independent effect given them in New York’s nondiscrimination law. You can read more about Ohio's Certificate of Qualification for Employment (and other Ohio relief mechanisms) in our Ohio guide to restoration of rights. Our 50-state comparison of the consideration of criminal records in licensing and employment, available here, provides an overview and comparison of the certificate laws of each state.
- When is a sex offender not a sex offender in Ohio? (3/12/2015) - The Ohio Supreme Court is considering whether a young man whose conviction requires him to register as a sex offender should be excused from this collateral consequence on grounds that it violates the state constitution's prohibition on cruel and unusual punishment. The transcript of the March 10 oral argument in Blankenship v. State of Ohio, Case no. 2014-0363, suggests that the Ohio high court may be poised to invalidate the mandatory sex offender classifications in Ohio law as applied to a 21-year-old who had a consensual sexual relationship with a 15-year-old. In 2011 the court ruled in State v. Williams that the state's registration scheme is punitive and thus may not constitutionally be applied retroactively, so it would be a short step for the court to find that the mandatory registration requirement constitutes cruel and unusual punishment in this case. According to his merits brief, Tyler Blankenship was working part-time at a department store and a few hours away from receiving his associate’s degree at Clark State Community College in Springfield when he had an affair with a 15-year-old girl. But the relationship did not remain secret, he was arrested, and later pled guilty to one count of unlawful sexual conduct with a minor, a fourth-degree felony. As part of the pre-sentence investigation, a psychologist evaluated Blankenship and opined that he was "not a sex offender" despite having committed a sexual offense, and that his risk of re-offending was "not high." Blankenship was sentenced to five years of community control with conditions, including a six-month jail sentence, which was suspended after approximately ten days. He objected to being classified as a sex offender and argued that this violated the Eighth Amendment's prohibition against cruel and unusual punishment. The trial court noted the objection, and told his counsel, "[y]ou can see if you can get the Court of Appeals to change the requirements of my job." Blankenship is appealing a 2-1 decision by the Second District Ohio Court of Appeals that upheld his classification, which before 2007 required a hearing and allowed judges to determine whether registration should be required. Judge Mary Donovan dissented, commenting that “He was punished with a scarlet letter of 25 years duration ... grossly disproportionate to the crime committed. This classification carries significant restraints on Blankenship’s liberty and a social stigma that interferes with employability, travel and housing.” Under Ohio's Adam Walsh law, Blankenship must register his work, school, and employment with the sheriff in the county he lives, and is subject to verification every six months for twenty-five years. Blankenship's public defender argued to the high court, based on the psychologist's pre-sentencing evaluation, that while her client committed a "sexually oriented offense," he was "not a sex offender" and posed no threat to the community. Under the circumstances, 25 years of registration is "grossly disproportionate" and tantamount to cruel and unusual punishment under the Ohio Constitution if not the Eighth Amendment. The transcript shows that the justices are plainly unwilling to back off the court's 2011 holding that the registration scheme is punitive, and seemed prepared, like the dissenting judge below, to invalidate the mandatory nature of the penalty in cases like Blankenship's. At the same time, perhaps because the justices were advised by counsel that Ohio is the only state to have held mandatory sex offender registration punitive (not entirely accurate, as prior posts on this website show), the court may proceed cautiously in setting aside the legislature's judgments about which categories of crimes are appropriate for mandatory long-term registration. In the end, the justices' expressions of frustration with what several of them described as "cookie-cutter, one-size-fits-all" collateral penalties suggest that they will rule in Blankenship's favor -- though on state not federal constitutional grounds.
- Ohio pardons provide “only forgiveness, not forgetfulness” (1/29/2015) - On January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records. In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states. The majority evidently found this conclusion an unhappy one, lamenting that "until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness." "Only forgiveness." Is pardon then such a second class prize? What makes an official determination of the recipient's good character by the state's highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred? If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do. As will come clear from the following discussion, I do not share the Radcliff majority's evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself). In January 2011, Governor Ted Strickland pardoned James Radcliff's five dated convictions (which included "a 1982 felony conviction in Franklin County for breaking and entering a donut shop while possessing a screwdriver") in recognition of his 30 years of law-abiding conduct. A month later Radcliff went to court to have his record sealed, even though the sheer number of his crimes put him outside the category of people authorized to pursue that relief under Ohio Rev. Code Ann. §§ 2953.31. The court of appeals thought Radcliffe's record of rehabilitation "deserves redemption," and ordered that his petition be granted. The government appealed, arguing that the court had no inherent power to seal a record of conviction, even a pardoned one. The high court held that "if he is to have that redemption, it must come from the General Assembly." Earlier decisions of the Ohio Supreme Court had found inherent judicial power to expunge or seal convictions, but that was before the legislature entered the conversation to define with some precision exactly what convictions it wanted courts to be able to seal. The enactment of sealing legislation meant there was no longer a role for the court to take an independent view of the matter. Over and above the detailed sealing law, the Radcliffe court pointed out that the legislature had also made certain provisions for retaining pardon documents, noting that “[t]he fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it.” In determining that courts had no power independent of statute, the Ohio high court expressed disappointment over the legislature’s failure to provide for a broader sealing remedy in cases like Mr. Radcliff's: Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. . . . . The pardon does not wipe the slate clean. If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act. The majority associated itself with the Pennsylvania Supreme Court in stating that “[a] pardon without expungement is not a pardon.” The three dissenting justices thought it "unnecessary in this case to state the proposition so unequivocally," though they thought there was enough left of the inherent judicial power to order expungement in the "unusual and exceptional circumstances" of a pardon. In concluding that courts have no inherent authority to seal pardoned convictions, the Ohio court is in good company. The Supreme Court of Mississippi recently came to a similar conclusion about the limits of judicial authority in closing records, so that pardon in that state also "provides only forgiveness, not forgetfulness." In this regard, it seems worth noting that a majority of states do not authorize sealing or expungement of pardoned convictions. Of those that do, it is by statute in all but three states (Indiana, New Jersey, and Pennsylvania). Even a presidential pardon provides "only" forgiveness. It appears that a national discussion of the relative merits of forgiving and forgetting as a way of restoring rights and status may be well underway. NOTE: It seems anomalous that Ohio law would provide for "forgetting" out-of-state and federal convictions by authorizing Ohio courts to seal them, but not for "forgiving" them through a Certificate of Qualification for Employment. (See today's post on CQE's here.) How will an Ohio court enforce its sealing order directed to a foreign jurisdiction?