Restoration of Rights Project – Tennessee Profile
Guide to restoration of rights, pardon, sealing & expungement following a Tennessee criminal conviction
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- Dozens of new expungement laws already enacted in 2021 (7/7/2021) - This year is turning out to be another remarkable year for new record relief enactments. In just the first six months of 2021, 25 states enacted no fewer than 51 laws authorizing sealing or expungement of criminal records, with another 5 states enrolling 11 bills that await a governor's signature. Three of these states authorized sealing of convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing, and a number of additional states substantially expanded the reach of their existing expungement laws. This post hits the highlights of what may well be the most extraordinary six-month period in the extraordinary modern period of criminal record reform that begin in 2013. The only closely comparable period is the first six months of 2018, when 11 states enacted major reforms limiting consideration of criminal records in occupational licensing. Further details of the laws mentioned below can be found in the relevant state profiles from the Restoration of Rights Project. (An earlier post noted new occupational licensing laws in 2021, and subsequent ones will describe significant extensions of the right to vote so far this year, and summarize the more than 100 record reforms enacted to date.) New Laws Three states enacted particularly significant new record relief schemes. Alabama and Virginia both authorized petition-based expungement of adult conviction records for the first time, with Virginia making relief for some misdemeanors and non-convictions automatic. Continuing the trend toward automatic expungement, Connecticut enacted a major "clean slate" bill authorizing automatic "erasure" of most misdemeanors and many felonies. All three of these important new laws are described in greater detail later in this post. In other legislative developments, Maryland authorized automatic expungement of non-conviction records after a three-year waiting period, and established a work group to study partial expungement of charges not resulting in conviction. Vermont took another step toward automation following last year's automatic marijuana expungement law, by authorizing automatic expungement of motor vehicle-related violations. At the same time, Vermont authorized a broad legislative study of its expungement laws, including the prospects for automation, to be completed by the beginning of the next legislative session. (This study follows on the heels of an inconclusive report from an executive working group charged with a similar study task in 2018.) South Dakota reduced the waiting period of its automatic sealing law (applicable to non-conviction records and some misdemeanors) from ten years to five. Tennessee expanded eligibility for petition-based expungement from misdemeanors and Class E felonies to include Class D and C felonies. It also made the filing fee discretionary with the court clerk, and required courts to both notify defendants of the availability of expungement and give reasons in writing if they deny this relief. Washington rewrote its laws applicable to victims of sex trafficking and related sexual abuses, authorizing vacatur for both B and C felonies and misdemeanors, and providing that a petition may be filed either by the victim or by the prosecutor. Four additional states made more modest improvements in their existing petition-based expungement schemes: Arkansas repealed an exclusion for anyone sentenced to prison; Nevada limited the power of the prosecutor to object to expungement, and facilitated expungement of pardoned convictions; North Dakota changed the condition of its waiting period from "no arrest" to "no conviction," and authorized sealing of DUI convictions; and Utah provided that restitution ordered by the parole board would no longer bar eligibility for expungement. Eight additional states extended their juvenile record expungement laws, and four states broadened authorities for diversion leading to expungement. New Mexico added to its significant 2019 expungement scheme by enacting most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), giving its courts authority to relieve mandatory collateral consequences as early as sentencing (New York, Vermont, and New Jersey are the only other states with such authority). This same law not only offered this relief to those with convictions from other jurisdictions, it also gave effect to relief granted by other jurisdictions, the only state other than Vermont that has done this (also through its enactment of the UCCCA). Enrolled bills As of the end of June, four states had enrolled major record relief laws awaiting the governor's signature, two of which provided for automatic record sealing. The Delaware legislature passed Clean Slate legislation, automating sealing for most of the offenses that had been authorized for petition-based mandatory and discretionary sealing in 2019. The bill is to be effective in 2021, but sealing is to begin in August 2024. The Oregon legislature made substantial changes to eligibility criteria under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. Colorado expanded eligibility for petition-based sealing and made sealing of non-conviction records automatic. The Michigan legislature send to the governor two bills providing for expungement of first DUI convictions, a category omitted from their 2020 package of record relief legislation. Finally, and perhaps most surprisingly, on the final day of its session the Arizona legislature for the first time ever passed a record-sealing bill and it is quite broad, applicable to most misdemeanors and felonies. Earlier in the session, the governor signed a bill authorizing courts to issue a "Certificate of Second Chance" when setting aside a conviction, which lifts mandatory bars to licensure and offers employers and landlords protection from liability. Marijuana expungement The first half of 2021 was also an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana. In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms—including the automatic expungement of an exceptionally broad array of past marijuana convictions—along with a variety of social equity provisions. These laws are described in our report on Marijuana Legalization and Expungement in Early 2021. Since that report was published, Connecticut authorized petition-based marijuana expungement for a range of misdemeanors and felonies as well as limited automatic relief for some misdemeanors. Colorado also expanded petition-based marijuana expungement eligibility. The particularly significant relief schemes enacted in Alabama, Virginia and Connecticut are described in greater detail below. We will provide further details on the Arizona, Colorado, and Delaware laws when they are signed into law, as appears likely. Alabama: Until 2021, Alabama courts had no statutory authority to expunge or seal adult conviction records, with the exception of a narrowly drawn exception for victims of human trafficking. With enactment of Act No. 2021-286 (SB117), the so-called REDEEMER Act, Alabama courts were authorized to expunge non-violent misdemeanors and violations, and pardoned felonies. Eligible misdemeanors and violations may apply three years after conviction if “all probation or parole requirements have been completed, including payment of all fines, costs, restitution, and other court-ordered amounts, and are evidenced by the applicable court or agency.” Pardoned felonies are eligible 180 days after the pardon was granted. Convictions for violent and sexual offenses and “serious traffic offenses” are not eligible. Nor are the dozens of crimes of “moral turpitude” that are grounds for felony disenfranchisement, unless the crime was reclassified as a misdemeanor. There is also an administrative filing fee of $500, which may be waived under with a finding of indigency. Expunged records must remain available to law enforcement and prosecutors, utilities, the agency engaged in protecting children and vulnerable adults, and “any entities or services providing information to banking, insurance, and other financial institutions as required for various requirements as provided in state and federal law.” The REDEEMER Act also expanded the laws governing expungement of non-conviction records to cover violent felony charges that were dismissed with prejudice, nol prossed or indictment quashed (after limitation period has run or prosecutor confirms charges will not be refiled), and reduced the waiting period for expungement after diversion of misdemeanor charges to one year. A five-year waiting period was retained for felony charges dismissed without prejudice Virginia Until 2021, Virginia law made no provision for expunging or sealing conviction records, except those that have been vacated pursuant to a writ of actual innocence, or those which were the subject of an absolute pardon (for innocence). With enactment of HB 2113 and SB 1406, Virginia gained one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically. The general record relief legislation (HB 2113) includes five key provisions: Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession. Allows for sealing of felony acquittals and dismissals at disposition with the consent of the prosecuting attorney. Provides for sealing a broad range of misdemeanor and low-level felony convictions and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process. Requires private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so. The provisions of HB 2113 are scheduled to go into effect in 2025 (or earlier). A separate bill providing for marijuana legalization and expungement (SB 1406) authorized the automatic expungement of records related to certain misdemeanor marijuana offenses along with petition-based expungement of all other misdemeanor and many felony marijuana offenses. With the exception of the sealing of certain police records, these provisions are also scheduled to go into effect by 2025. Connecticut Public Act 21-42, Connecticut's "Clean Slate" law, establishes a process to automatically erase records of most misdemeanor convictions and certain felony convictions entered after January 1, 2000, after a specified period following the person’s most recent conviction for any crime (with an exception for certain drug possession crimes). Class C, D, or E felonies are covered, as are unclassified felonies with up to 10-year prison terms. The bill excludes family violence crimes and offenses requiring sex offender registration. Under the bill, misdemeanors are eligible for erasure seven years after the person’s most recent conviction for any crime; class D or E felonies or unclassified felonies with prison terms of five years or less are eligible after 10 years; and class C felonies or unclassified felonies with prison terms greater than five years but no more than 10 years are eligible after 15 years. For offenses before January 1, 2000, the records are erased when the person files a petition on a form prescribed by the Office of the Chief Court Administrator. Various provisions that now apply to erasure of non-conviction records also apply to erasure under this bill: no fee is charged, and partial expungement is available. That is, if the case contained multiple charges and only some are entitled to erasure, electronic records released to the public must be erased to the extent they reference charges entitled to erasure. The law requires all purchasers of court records, including background screening providers, to update their records on a regular basis. It extends these provisions to records of other agencies (State Police, DMV, Department of Correction). The bill prohibits various forms of discrimination based on someone’s erased criminal history record information, such as in employment, public accommodations, the sale or rental of housing, the granting of credit, and several other areas. In several cases, it classifies discrimination based on these erased records as a “discriminatory practice” under the state human rights laws. The automatic erasure provisions of the law take effect on January 1, 2023. This year is turning out to be another extraordinary year for new record relief enactments. In just the first six months of 2021, 22 states enacted no fewer than 47 separate laws authorizing sealing or expungement of criminal records, with another 5 states having enrolled 11 bills from awaiting the governor's signature. Three states authorized sealing for adult convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing of convictions, and several additional states substantially expanded the reach of their existing expungement laws. This post hits the highlights of what may well be the most extraordinary single 6-month period in this extraordinary modern period of criminal record reform. (The only one that comes close is the first six months of 2018, when 10 states enacted major reforms to their occupational licensing schemes.) (An earlier post noted new occupational licensing laws in 2021, and a subsequent one will describe significant extensions of the right to vote so far this year.) New Laws Three states enacted significant new record relief schemes. Alabama and Virginia both authorized petition-based expungement of adult conviction records for the first time, with Virginia making some misdemeanors and non-convictions automatic. Continuing the trend toward automatic expungement, Connecticut enacted a major "clean slate" bill authorizing automatic "erasure" of most misdemeanors and many felonies. All three of these important new laws are described in greater detail later in this post. In other legislative developments, Maryland authorized automatic expungement of non-conviction records after a three-year waiting period, and established a work group to study partial expungement of charges not resulting in conviction. Vermont took another step toward automation following last year's marijuana expungement law, by authorizing automatic expungement of motor vehicle-related violations. At the same time, Vermont also authorized a broad legislative study of its expungement laws, including the prospects for automation, to be completed by the beginning of the next session. (This study follows on the heels of an inconclusive report from an executive working group charged with a similar study task in 2018.) Tennessee expanded eligibility for petition-based expungement from misdemeanors and Class E felonies to Class D and C felonies, made the filing fee was made discretionary with the court, and required courts to notify defendants of the availability of expungement and give reasons in writing for denying this relief. Four additional states made more modest improvements in their existing petition-based expungement scheme: Arkansas repealed an exclusion for anyone sentenced to prison; Nevada limited the power of the prosecutor to object to expungement, and facilitated expungement of pardoned convictions; North Dakota changed the condition of its waiting period from "no arrest" to "no conviction," and authorized sealing of DUI convictions; and Utah provided that restitution ordered by the parole board would no longer bar eligibility for expungement. Seven additional states extended their juvenile record expungement laws, and four states broadened authorities for diversion leading to expungement. Enrolled bills As of the end of June, four states had enrolled major record relief laws awaiting the governor's signature, two of which provided for automatic record sealing. The Delaware legislature passed its Clean Slate Act, automating sealing for most of the offenses that had been authorized for petition-based mandatory and discretionary sealing in 2019. The bill was to be effective in 2021, but sealing was to begin in August 2024. The Colorado legislature sent to the governor a bill expanding eligibility for petition-based sealing and making sealing of non-conviction records automatic. The Oregon legislature made substantial changes to eligibility criteria under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. Finally, and perhaps most surprisingly, the Arizona legislature for the first time passed a broad record-sealing bill applicable to most misdemeanors and felonies; it also authorized its courts to issue a "Certificate of Second Chance" when setting aside a conviction, which lifts mandatory bars to licensure and offers employers and landlords protection from liability. The Michigan legislature send to the governor two bills providing for expungement of first DUI convictions, a category omitted from their 2019 clean slate law. Marijuana expungement The first half of 2021 was also an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana. In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms—including the automatic expungement of an exceptionally broad array of past marijuana convictions—along with a variety of social equity provisions. These laws are described in our report on Marijuana Legalization and Expungement in Early 2021. Connecticut also automated marijuana expungement but at a more modest level. Colorado and Montana both enacted petition-based marijuana expungement laws The important record relief schemes enacted in Alabama, Virginia and Connecticut are described in greater detail below. We will provide further details on the Arizona, Colorado, and Delaware laws when they are signed into law, as appears likely. Alabama: Until 2021, Alabama courts had no statutory authority to expunge or seal adult conviction records, with the exception of a narrowly drawn exception for victims of human trafficking. With enactment of Act No. 2021-286 (SB117), the so-called REDEEMER Act, Alabama courts were authorized to expunge non-violent misdemeanors and violations, and pardoned felonies. Eligible misdemeanors and violations may apply three years after conviction if “all probation or parole requirements have been completed, including payment of all fines, costs, restitution, and other court-ordered amounts, and are evidenced by the applicable court or agency.” Pardoned felonies are eligible 180 days after the pardon was granted. Convictions for violent and sexual offenses and “serious traffic offenses” are not eligible. Nor are the dozens of crimes of “moral turpitude” that are grounds for felony disenfranchisement, unless the crime was reclassified as a misdemeanor. There is also an administrative filing fee of $500, which may be waived under with a finding of indigency. Expunged records must remain available to law enforcement and prosecutors, utilities, the agency engaged in protecting children and vulnerable adults, and “any entities or services providing information to banking, insurance, and other financial institutions as required for various requirements as provided in state and federal law.” The REDEEMER Act also expanded the laws governing expungement of non-conviction records to cover violent felony charges that were dismissed with prejudice, nol prossed or indictment quashed (after limitation period has run or prosecutor confirms charges will not be refiled), and reduced the waiting period for expungement after diversion of misdemeanor charges to one year. A five-year waiting period was retained for felony charges dismissed without prejudice. Virginia Until 2021, Virginia law made no provision for expunging or sealing adult conviction records, except those that have been vacated pursuant to a writ of actual innocence, or those which were the subject of an absolute pardon (for innocence). With enactment of HB 2113 and SB 1406, Virginia gained one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically. The general record relief legislation (HB 2113) includes five key provisions: Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession. Allows for sealing of felony acquittals and dismissals at disposition with the consent of the prosecuting attorney. Provides for sealing a broad range of misdemeanor and low-level felony convictions and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process. Requires private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so. The provisions of HB 2113 are scheduled to go into effect in 2025 (or earlier). A separate bill providing for marijuana legalization and expungement (SB 1406) authorized the automatic expungement of records related to certain misdemeanor marijuana offenses along with petition-based expungement of all other misdemeanor and many felony marijuana offenses. With one exception, these provisions are also scheduled to go into effect by 2025. Connecticut Public Act 21-42, Connecticut's "Clean Slate" law, establishes a process to automatically erase records of most misdemeanor convictions and certain felony convictions entered after January 1, 2000, after a specified period following the person’s most recent conviction for any crime (with an exception for certain drug possession crimes). Class C, D, or E felonies are covered, as are unclassified felonies with up to 10-year prison terms. The bill excludes family violence crimes and offenses requiring sex offender registration. Under the bill, misdemeanors are eligible for erasure seven years after the person’s most recent conviction for any crime; class D or E felonies or unclassified felonies with prison terms of five years or less are eligible after 10 years; and class C felonies or unclassified felonies with prison terms greater than five years but no more than 10 years are eligible after 15 years. For offenses before January 1, 2000, the records are erased when the person files a petition on a form prescribed by the Office of the Chief Court Administrator. Various provisions that now apply to erasure of non-conviction records also apply to erasure under this bill: no fee is charged, and partial expungement is available. That is, if the case contained multiple charges and only some are entitled to erasure, electronic records released to the public must be erased to the extent they reference charges entitled to erasure. The law requires all purchasers of court records, including background screening providers, to update their records on a regular basis. It extends these provisions to records of other agencies (State Police, DMV, Department of Correction). The bill prohibits various forms of discrimination based on someone’s erased criminal history record information, such as in employment, public accommodations, the sale or rental of housing, the granting of credit, and several other areas. In several cases, it classifies discrimination based on these erased records as a “discriminatory practice” under the state human rights laws. The automatic erasure provisions of the law take effect on January 1, 2023.
- New 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.
- “Certifying Second Chances” (3/24/2021) - This is the title of a provocative new article by Cara Suvall, Assistant Clinical Professor of Law at Vanderbilt Law School, and Director of the Youth Opportunity Clinic. The article, forthcoming in the Cardozo Law Review, catalogues and analyzes the costs and burdens that deter people from accessing certificates intended to enhance employment opportunities. Professor Suvall focuses particular attention on certificate programs in Tennessee, Georgia, and New York, which vary widely in eligibility criteria, administration, and legal effect. She highlights the learning, compliance, and psychological barriers that limit effectiveness of existing certificate programs, and describes proposals to lower those barriers. Here is the abstract: Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences—invisible punishments that inhibit opportunity in all facets of a person’s life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone. But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out of reach. A major problem, I argue, is the administrative burdens involved in accessing these remedies. Because of these hurdles, people with fewer resources—the population that would most benefit from the help—are the ones most likely to find these second chances out of reach. The Article closely examines one increasingly popular type of second-chance program: certificate laws that remove employment barriers. Building on recent research identifying the low usage rates of petition-based second-chance programs, this Article catalogues and analyzes the costs and burdens placed on people attempting to access employment certificates. Of particular concern is not only these low usage rates themselves, but also the identity of those least likely to access these interventions. Second-chance programs like employment certificates that provide a way forward for people with greater resources while leaving behind those without may be more harmful than helpful when placed in the larger context of mass criminalization and social change, even if they help the small number of individuals who do access them. In contrast, a well-designed second-chance initiative that appropriately considers administrative burdens and the way that interventions like employment certificates fit in to the broader picture of social change could provide short-term benefits to people with criminal records while also bolstering larger-scale reforms to the criminal legal system.
- UPDATED: 50-State Chart on Relief from Sex Offender Registration (11/21/2019) - We have completed an overhaul of our 50-State chart on relief from sex offender registration obligations, to bring it up to date and ensure that it is thorough and accurate. This chart documents the duration of sex offender registration requirements, as well as legal mechanisms for early termination from such requirements. In conducting this review, we have identified a handful of states that have, since the chart was last revised in November 2017, expanded the availability of relief from sex offender registration requirements, including for people who have successfully completed diversionary dispositions, people with serious disabilities, and people who are registered based on out-of-state offenses. These recent changes in the law, incorporated in the chart, are summarized below. In 2018, Missouri enacted SB 655, substantially revising its sex offender registration scheme in a manner expected to reduce the number of people who are required to register. Previously, all sex offender registrants were required to register for life, and the only mechanisms for relief were either: 1) a petition to the court 10 years after registration for people with certain non-violent offenses, or 2) a petition 2 years after a guilty finding for certain consensual youthful sex offenses. Under the new scheme, which follows federal guidance, registrants are classified as tier I, II, or III, with Tier I requiring 15 years of registration, Tier II requiring 25 years, and Tier III requiring life. Mo. Rev. Stat. §§ 589.400, .401. Tier I registrants may petition for a 5-year reduction of their 15-year registration obligation after 10 years with a "clean record," and Tier III registrants for a juvenile adjudication may petition for removal after 25 years with a "clean record." Id. One reason the new law is seen as likely to reduce the number of registrants in the state is that Tier I registrants under the new scheme comprise a substantially larger number of offenses than those authorized to petition for 10-year removal under the old law. (One puzzling provision of the new § 589.401 is one that authorizes Tier II registrants to petition for relief after 25 years, the point at which their registration obligation would otherwise expire automatically. §§ 589.400(4)(2), 589.401(4)(2). We must assume this is a drafting error.) In 2019, Tennessee enacted HB 624, which allows a person who is required to register due to a diversionary plea, to obtain termination of registration requirements upon successful completion of the term of judicial diversion and dismissal of the charges. §§ 40-39-207(a)(1) and (c). Also in 2019, Utah enacted HB 298, which adds a new provision authorizing people who are currently required to register for a period of 10 years after termination of sentence to petition the court for an order to be removed from the registry as early as 10 years after being sentenced to probation or committed to a community-based residential program, or 10 years after release from incarceration to parole, as long as the person commits no further serious offense, completes treatment, pays restitution, and otherwise complies with the terms of registration. Compare § 77-41-105(3)(a) with § 77-41-112(1)(b). This law, effective in May 2019, is likely to result in earlier termination of a registration obligation for people convicted of less serious offenses. In 2018, Colorado enacted SB 26, which allows a registrant who suffers from a severe disability that is permanently incapacitating, to petition to discontinue registration. § 16-22-113(2.5). Georgia and Virginia have similar laws. SB 26 also authorizes Colorado residents who are required to register because of an out of state conviction (which requires registration in the jurisdiction of conviction), to petition a Colorado court to discontinue the registration requirement if the person would not be required to register had the conviction occurred in Colorado. § 16-22-103(3).
- Prisoners fighting California fires denied licenses after release (8/20/2018) - Nick Sibilla, a legislative analyst at the Institute for Justice, has published this fine op ed piece in today's USA Today, describing how the 2,000 state prisoners currently engaged in fighting the largest fire in California history, are barred from obtaining the necessary EMT license that would enable them to continue this work after their release. It contains, inter alia, a description of the two bills currently pending in the California legislature that would end what Nick describes as a "bitterly ironic" situation, where prisoners gain valuable training in certain vocations that they cannot use after their release. The piece seems particularly relevant, in light of the amazing work being done on occupational licensing reform across the country, much of it inspired by the Institute for Justice's Model Collateral Consequences in Occupational Licensing Act. See, e.g. New Hampshire, Wisconsin, Kansas, Indiana, Arizona, and Tennessee. We hope California will soon join this group of enlightened jurisdictions, and that other states will follow in the coming year. Despite fighting California's largest fires, inmates are denied licenses they need to become firefighters after they get out. by Nick Sibilla, USA Today, August 20, 2018 As California struggles to contain the largest fire in state history, more than 2,000 inmates have volunteered to fight the flames. Offering just $1 an hour, the state has long encouraged low-level prisoners to risk their lives and serve alongside professional firefighters, who earn nearly $74,000 a year on average. Firefighting, along with less life-threatening trades like plumbing, welding, and cosmetology, is one of several vocational training programs offered to prisoners by the California Department of Corrections and Rehabilitation. But in a bitterly ironic twist, once inmates leave prison, they often can’t work as firefighters, despite their frontline experience. In California, nearly all counties require firefighters to become licensed emergency medical technician (EMTs) — a credential that can be denied to almost anyone with a criminal record. Many are denied jobs for their criminal record Nor are firefighters the only position off-limits. Under California law, the state’s licensing boards can deny a credential on the basis of an applicant’s criminal record or alleged misconduct. Thanks to the rise in occupational licensing, nearly 1,800 occupations now require a license, certification, or clearance in the Golden State, affecting one-fourth of California’s workforce. As a result, hundreds of different occupations are effectively barred to roughly 8 million Californians. California’s firefighting felons are a particularly stark illustration of a growing, national problem. According to the American Bar Association, the nation’s occupational and business licensing laws contain over 27,000 restrictions on ex-offenders, including bans on working as barbers or hosting bingo games. Those barriers impose significant costs. Research by the Center for Economic and Policy estimates that in 2014, employment barriers for the incarcerated and those with felony convictions cost the nation’s economy up to $87 billion in annual GDP, equal to “the loss of 1.7 to 1.9 million workers.” Not only do these policies slam the door on economic opportunity, they may also increase re-offending. A recent study from Arizona State University found that states with more burdensome licensing laws saw their average recidivism rates jump by nine percent. By comparison, states with fewer licensing restrictions and no moralizing provisions had recidivism rates decline by 2.5 percent, on average. In fact, licensing burdens were second only to the overall labor market climate when it came to influencing recidivism rates. California is trying to fix the problem Fortunately, new legislation would curb some of California’s licensing barriers against ex-offenders. As part of a public safety omnibus signed earlier this year, the California Department of Forestry and Fire Protection (CAL-FIRE) can certify former prison firefighters as “emergency medical responders,” a certification CAL-FIRE accepts in lieu of an EMT license for some state firefighter jobs. A separate bill would require agencies to report the number of applicants with a criminal conviction who have been denied or granted an EMT license, which would provide valuable data for further reforms. More broadly, another bill, AB 2138, would tighten the standard used to disqualify ex-offenders by the Department of Consumer Affairs, which governs 38 different boards, bureaus and commissions. Under the bill, boards could not use a conviction older than five years to reject a license (though that would not apply to violent felonies). Each board would also have to publish the criteria it uses to evaluate applicants, which must include any evidence of rehabilitation, the time elapsed since the offense as well as the nature and gravity of the offense. Critically, boards could only use convictions, not arrests or records from dismissed cases. AB 2138 has already passed the Assembly earlier this year and is currently under consideration in the Senate. California could soon join 16 states that have already eased or eliminated licensing barriers for Americans with criminal records since 2015. Many of these state reforms protect the ability of ex-offenders to get the permits they need, while also ensuring that boards only deny applicants who would truly threaten public safety. California needs fewer requirements to work These efforts are all welcome reforms to a system in desperate need of an overhaul. Yet even if former inmates aren’t automatically barred because of their past mistakes, burdensome licensing requirements can still keep them from working. According to a recent, nationwide study by the Institute for Justice (where I work), the average license for a lower-income occupation takes almost a year of education or experience. California ranked as the “worst licensing environment for workers in lower-income occupations,” with the average license requiring a staggering 827 days of training. Absurdly, becoming a professional tree trimmer, barber, or painting contractor in California takes vastly more experience than becoming an EMT, who literally holds the lives of others in their hands. A steady job is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work. The denial of so many fundamental civil rights and liberties has essentially turned many ex-offenders into second-class citizens. Restoring the right to earn an honest living is crucial for ex-offenders to regain a sense of hope and a new chance at redemption. Nick Sibilla is a legislative analyst at the Institute for Justice. You can follow him on Twitter: @nick_sibilla More: Louisiana is the only state that requires occupational licenses for florists. It's absurd. Ridiculous licensing rules are holding back people who want to work Prisoners who risk their lives during Calif. wildfires shouldn't be shut out of profession
- Collateral Consequences in Occupational Licensing Act (6/29/2018) - We've noted in recent posts the numerous states that, just in the past three or four months, have enacted broad occupational licensing reforms affecting people with a criminal record. Many of these new laws have been influenced by a model developed by the Institute for Justice (IJ), a libertarian public interest law firm that has been litigating and lobbying to reduce barriers to work for more than two decades. In turn, states like Indiana, Kansas, Tennessee and Wisconsin have built upon IJ's model to enact even more progressive schemes intended to ensure that people with the requisite professional qualifications will not be unfairly excluded based on a record of arrest or conviction. Now IJ has incorporated many of these progressive refinements into its original model licensing law, the Occupational Licensing Review Act (OLRA), and broken out the provisions relating to criminal records into a free-standing model act specifically directed at managing collateral consequences in the occupational licensing context, the new Collateral Consequences in Occupational Licensing Act (CCOLA). The CCOLA has the same key features as the original OLRA: It provides individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; It allows the individual to seek this determination at any time, including before investing in the required training necessary to otherwise qualify for the license, requires a written decision within 90 days, and limits what the agency may charge for this determination to $100; It limits the types of records that an agency may consider in a licensing decision to convictions of serious or violent crimes; It shifts the burden of proof to the agency to establish that a petitioner’s conviction is substantially related to the state’s interest in protecting public safety; It requires agencies to provide written reasons justifying denial of a license based on conviction in terms of public safety; and It requires each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. In addition to these features, IJ has recently further clarified the types of criminal conduct that may be considered in licensing decisions, and specifically prohibited the use of vague criteria like "good moral character" as a basis for exclusion. As revised, IJ's model laws now provide that licensing agencies may not consider non-conviction records, juvenile adjudications, non-violent misdemeanors, and most felonies and violent misdemeanors that occurred more than three years prior to seeking licensure. See CCOLA, 100.02, Subd. 7. Agencies may consider violent felonies and sexual offenses at any time, although even these records must still be tested against the "public safety" standard: The board may deny the petition only if it establishes by clear and convincing evidence that: 1. The individual was convicted of a felony or violent misdemeanor, not excluded by subdivision 7, which is directly, substantially and adversely related to the state's interest in protecting public safety; and 2. The granting of state recognition will put the individual in a position where the individual is more likely than not to reoffend and cause harm. See CCOLA, 100.02, Subd 10(c). IJ's website points out that "[m]ore than 25 percent of workers need a government-issued license to work," so lowering barriers to licensure for people with a criminal record has important implications for efficiency and public safety. In introducing its stand-alone CCOLA model, IJ’s website states the following: An honest living is one of the best ways to prevent those with a criminal record from re-offending. But many occupational licensing laws block or burden ex-offenders from entering regulated fields. Numerous licensing laws have morality clauses that (1) bar automatically and permanently ex-offenders from working without any individualized review or (2) require the ex-offender to prove a negative—that the ex-offender’s past crimes will not cause him to harm customers in the future. Such provisions ironically may decrease public safety. States with prohibitions and high burdens on entry have higher criminal recidivism. Conversely, states that have no such bars and low burdens have seen declines in recidivism, according to Professor Stephen Slivinski’s landmark study Turning Shackles into Bootstraps. IJ’s website surveys some of the key provisions of many of the recently enacted state licensing reforms. It also very happily links to the relevant 50-state chart from the Restoration of Rights Project, which we very much appreciate! With an enrolled bill sitting on its governor's desk for action, New Hampshire is poised to become the 10th state to enact comprehensive licensing reform in 2018. In addition to Indiana, Kansas, Tennessee and Wisconsin, Arizona, Maryland, Massachusetts, Nebraska, and Wyoming have all just this year enacted new laws incorporating many of the features of IJ's model law. Illinois anticipated these states by six months when it significantly amended its licensing scheme to reflect IJ's approach in August 2017. We were pleased to be able to work with Lee McGrath of IJ’s office in Minneapolis in developing many of the amended features of the CCOLA, which have also been folded into IJ's broader model occupational licensing act. We look forward to continuing to work with Lee and his colleagues in months to come.
- More states enact major “second chance” reforms (6/11/2018) - In recent weeks, three more states -- Colorado, Louisiana and Vermont -- have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status. We are just now noting Wyoming's enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws. In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way. States have enacted several different types of "second chance" laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing. On May 25, Vermont Governor Phil Scott signed into law an expansion of the state's expungement authority for both adult and juvenile offenders, reducing waiting periods and other eligibility criteria for qualifying felony and misdemeanor convictions. The new law also authorizes courts to expunge non-conviction records 12 months after the conclusion of the case, without need for a petition from the defendant, and without regard to the nature of the offense. This is the third time in recent years that Vermont has extended eligibility for expungement. On May 29, Colorado Governor Hickenlooper signed a bill extending the state's existing authority for sentencing courts to waive application of collateral consequences affecting employment, licensing, and other opportunities and benefits, to make this relief available in all cases regardless of sentence. Previously this waiver authority was available only in cases involving a community-based penalty. Courts are authorized to take action as early as sentencing and throughout the period an individual is under sentence. In this respect, the law resembles the authority proposed by the American Law Institute in the collateral consequences provisions of its new Mode Penal Code: Sentencing. The Colorado law is described in detail in the Colorado profile from the Restoration of Rights Project. At the end of May, Louisiana Governor John Bel Edwards approved several "second chance" bills: One new law extends voting rights to anyone under sentence for a felony who has not been actually incarcerated in the past five years; two additional laws make minor adjustments to the state expungement law, to exempt deferred adjudication cases from the 15-year eligibility waiting period for a second expungement, and to add to the requirements for filing an expungement motion. Another new law requires the governor to conduct regular periodic reviews of the standards applied by occupational licensing agencies. As finally enacted, this last-mentioned law substantially watered down provisions in earlier versions of the legislation that would have limited agency consideration of criminal records in licensing actions. Earlier this spring, Wyoming enacted a new provision of its general state licensing code establishing a "direct relationship" standard for consideration of conviction by all licensing agencies not otherwise subject to a specific contrary statutory standard. See Wyo. Stat. § 33-1-304. See Enrolled Act 63 (March 2018), available at http://www.wyoleg.gov/2018/Enroll/SF0042.pdf. This provision prohibits consideration of prior convictions that are more than 20 years old, except where the person is still under sentence or the sentence was completed fewer than 10 years ago, and unless the elements of the offense are "directly related to the specific duties and responsibilities of that profession or occupation." Among the new law's policies is that agencies should ensure that applicants have an adequate opportunity to appeal a denial. Wyoming also amended more than a dozen specific professional and occupational licensing statutes to rescind vague qualifications like "good moral character," and to substitute functional criteria specifically tying the nature of a particular crime to the licensed activity pursuant to a direct relationship standard. Licensing schemes affected include those regulating teachers, guides and outfitters, engineers, veterinarians, and nursing home administrators. Licensing standards for chiropractors, nurses, optometrists, dental hygienists, social workers, and marriage and family counselors and substance abuse counselors were also amended. Securities dealers and investment advisers, insurance agents, and athlete agents are covered by the reforms. Legislatures in several other states have passed bills that are currently awaiting approval of the governor, including Illinois, New Hampshire, and Tennessee. The only "second chance" legislation we know of that was disapproved by the governor is the South Carolina legislature's unsuccessful attempt to authorize expungement of drug convictions. We expect again to provide a summary of all new laws enacted in 2018 toward the end of the year, and we will also be keeping the state profiles and other resources in the Restoration of Rights Project up to date in real time.
- New expungement legislation: Maryland and Oklahoma (5/8/2018) - The trend toward expanding expungement and sealing laws is continuing. In the last week of April, the governors of Maryland and Oklahoma signed bills enlarging eligibility criteria and reducing waiting periods, joining Florida and Utah with new record-sealing enactments in 2018. The provisions of these two newest laws are described below. Similar legislation is well along in Illinois, Pennsylvania, Tennessee and Vermont. Vermont S 173, enrolled and awaiting the governor's signature, is of particular interest since it makes expungement automatic in some categories without the requirement of a petition or filing fee ("unless either party objects in the interest of justice"). We are tracking these pending bills and will add them to the Restoration of Rights Project if and when they are enacted. Oklahoma: On April 26, 2018, Oklahoma Governor Mary Fallon signed into law SB 650, making felony offenders eligible for expungement (sealing) for the first time without requiring that they first be pardoned. Effective November 1, 2018, a person may apply to the court for expungement of a single nonviolent felony conviction 5 years after completion of sentence, if the person has not been convicted of any other felony or separate misdemeanor in the past seven (7) years, and if no felony or misdemeanor charges are pending. Okla. Stat. Ann. § 18(A)(12) (as amended by SB 650 (2018)). The 2018 law reduces the waiting period from 10 years to five; deletes a requirement that the person have no prior felonies, or any separate misdemeanor in the past 15 years; and omits a requirement that the person first be pardoned. Okla. Stat. Ann. § 18(A)(12), as amended. Oklahoma's additional provisions for expungement of misdemeanor convictions, non-conviction records, and pardoned felonies are explained in the Oklahoma profile from the Restoration of Rights Project. Maryland: On April 24, Governor Larry Hogan signed SB 101, adding felony offenses involving theft, drug trafficking and burglary to the list of more than 100 misdemeanors first made eligible for expungement in 2016. The waiting period for felonies is 15 years after completion of sentence, while most misdemeanants must wait 10 years. (Misdemeanors involving "domestically related crimes" and second degree assault are subject to a 15-year waiting period.) In addition, SB 101 eliminated the three-year waiting period previously applicable to expungement of non-conviction records, except for "probation before judgment" cases. The new provisions are explained in greater detail in the Maryland profile from the Restoration of Rights Project. Also in April 2018, the Maryland legislature acted favorably on a bill to require state licensing agencies to report by October 1, 2018 on the number of licenses granted or denied based on conviction in the past five years. The fact that HB 1597 has been awaiting Governor Hogan's action for more than a month does not bode well for its prospects. States that have enacted new general occupational licensing requirements this year include Indiana, Tennessee, Arizona, Wisconsin, Massachusetts and Nebraska, with an enrolled bill awaiting action in Kansas. These new laws are the subject of several recent posts (see, e.g., here and here) and are written up in detail in the relevant state profiles from the RRP.
- Wisconsin joins crowd of states regulating occupational licensure (4/30/2018) - On April 16, Wisconsin Governor Scott Walker signed into law Act 278, making his state the sixth in the past two months to establish new rules on consideration of criminal record in the context of occupational and professional licensure. Effective August 1, 2018, licensing boards in Wisconsin will be prohibited in most cases from denying or revoking a license based on arrests or pending charges, and required to justify in writing any adverse action based on conviction. Boards will also be required to give applicants a preliminary determination as to whether a particular conviction will be disqualifying. Indiana, Arizona, Massachusetts, Nebraska and Tennessee have all recently enacted laws regulating how licensing boards treat arrests and convictions, in some cases with strikingly similar features, as described in recent posts here and here. The conviction-related provisions of the model occupational licensing law proposed by the Institute for Justice are reflected in almost all of these new laws, though many of them go even farther to discourage unwarranted discrimination affecting as much as 25% of the U.S. workforce. Act 278 puts new teeth into the provisions of Wisconsin’s Fair Employment Act that relate to occupational and professional licensing through a new subsection titled "Discrimination in Licensing." See Wisc. Stat. § 111.335 (4). A licensing agency will be required, before denying or terminating a license based on a prior conviction, to state its reasons in writing, including "a statement of how the circumstances of the offense relate to the particular licensed activity." An agency must also provide individuals with an opportunity to show evidence of rehabilitation and fitness to engage in the licensed activity. Moreover, "[i]f the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity . . . . the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction." In addition to any evidence of rehabilitation adduced by the applicant, agencies are directed to take into account the nature and seriousness of the offense, any "mitigating circumstances or social conditions surrounding the commission of the offense," the age of the individual at the time the offense was committed and the time elapsed since, and letters of reference by persons who have been in contact with the individual since. Negligent hiring protections are included for any firm that hired a licensee approved pursuant to an agency determination of rehabilitation. See Wis. Stat. § 452.139. Act 278 tightens provisions of current law that permit denial of licensure based on a pending criminal charge, or based on a juvenile adjudication, if the offense conduct is "substantially related" to the licensed activity, by adding a proviso that the substantial relationship standard will be met in this context only if the charge or adjudication involved a “crime against life and bodily security” or a crime “against children.” Like most of the other recently enacted occupational licensing laws, Act 278 requires agencies to make it possible for individuals to obtain a preliminary determination as to whether they would be disqualified from obtaining a license due to a prior conviction, a determination that is binding on the agency in connection with a formal application. A fee may be charged to cover the cost of processing. This provision comes straight from the model occupational licensing law proposed by the Institute for Justice, discussed in our post of April 18. Finally, each licensing agency must also publish on its Internet site a document indicating the offenses or kinds of offenses that may result in denial or termination of a license. The provisions of Wisconsin's Fair Employment Act are further elaborated in the Wisconsin profile from the Restoration of Rights Project.
- Two more states regulate consideration of conviction in occupational licensing (4/25/2018) - Tennessee and Nebraska are the two most recent states to enact laws regulating how a criminal record will be considered in occupational licensing. Nebraska's Occupational Board Reform Act (LB 299) was approved by Governor Pete Ricketts on Appril 23, and Tennessee's Fresh Start Act (SB 2465) was signed into law by Governor Bill Haslam on the same day. The Nebraska law (which does not take effect until July 2019) is a general deregulation of licensing that includes a provision whereby individuals with a criminal record may obtain a preliminary determination of their eligibility from the relevant licensing board, even before they have obtained the necessary training and qualification. The board must issue a written determination within 90 days giving its "findings of fact and conclusions of law," and the fee for this determination may not exceed $100. The individual may include with the preliminary application “additional information about the individual's current circumstances, including the time since the offense, completion of the criminal sentence, other evidence of rehabilitation, testimonials, employment history, and employment aspirations.” The board's decision may be appealed under the state's administrative procedure act. Tennessee's new law (which is effective July 1, 2018) provides for a preliminary determination of eligibility by a licensing board and written reasons for denial. However, unlike the Nebraska law, it also contains a more detailed set of standards and procedures that apply to a board's consideration whether a conviction is "directly related" to the license, and it also contains a presumption in favor of issuing a license (with certain exceptions). Among other things, the licensing authority "must demonstrate by a preponderance of the evidence that [the applicant's conviction] is related to the applicable occupation, profession, business, or trade.” Additional bills laws regulating consideration of conviction in licensing are well along in the legislative process in Kansas and Louisiana, and an enrolled bill is awaiting the governor's signature in Maryland. We have revised the Tennessee and Nebraska profiles and 50-state charts from the Restoration of Rights Project to reflect the new licensing laws.