Restoration of Rights Project – West Virginia Profile
Guide to restoration of rights, pardon, sealing & expungement following a West Virginia criminal conviction
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- 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.
- 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.
- 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<<
- Relief from sex offender registration and notification requirements (12/4/2014) - Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan's work. You can find the chart at this link. Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time: 2:42. Sex offense-related collateral consequences -- Constitutional challenges to registration and community notification laws: post-application challenges Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years,[1] states typically afford only very limited opportunity to registrants to exit registries. South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification;[2] only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.”[3] In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses.[4] In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25),[5] and in several states select registrant groups can seek early relief.[6] Early relief, however, can be less than it seems: in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry;[7] ten- and 25-year class registrants must satisfy their terms.[8] Petition criteria and procedures vary considerably among the states,[9] and to date the lack of opportunity for relief has not triggered constitutional concern. In In re Jimmy M.W.,[10] for instance, the petitioner was placed on the West Virginia registry in 1998 as a result of pleading no contest to sexual abuse in the third degree, a misdemeanor, for touching the breast of a fourteen-year-old girl. Because the conviction involved a minor, the state required that the petitioner register for his lifetime.[11] In 2012, after remaining compliant with registration requirements for fourteen years, and marrying the victim and raising children with her, petitioner’s effort to be removed from the registry was rebuffed by a state trial court.[12] The state’s highest court affirmed, reasoning that state law did not extend any opportunity for relief to lifetime registrants such as petitioner, and neither the U.S. nor West Virginia Constitutions required any such opportunity.[13] Finally, to date, courts have been disinclined to conclude that the effects of RCN qualify as “custody” sufficient to trigger federal habeas corpus coverage.[14] [1] Under the Adam Walsh Act, the following registrants can have their statutorily designated RCN periods reduced: (i) Tier I (usually subject to 15-year period) reduced by five years if “clean record” for ten years (ten-year total duration) and Tier III juveniles (usually subject to lifetime period) reduced to twenty-five years if “clean record” for twenty-five years (twenty-five year total duration). See 42 U.S.C.A. §16915(b)(2),(3). [2] S.C. Code § 23-3-460 (2014). [3] S.C. Code § 23-3-430(F). [4] See, e.g., Ala. Code § 15-20A-24 (2014); S.D. Code § 22-24B-19 (2014); Neb. Code § 29-4005(1)(b)(i) (2014). [5] See, e.g., Ariz. Stat. § 13-3821(D); D.C. Code 22-4002 (2014); Va. Code § 9.1-910 (2014). [6] See, e.g., Fla. Stat. § 943.0435(11) (2014); N.D. Stat. § 12.1-32-14(16); Wyo. Stat. § 7-19-304 (2014). [7] Haw. Rev. Stat. § 846E-10(e). [8]. Id. at § 846E-10(b). [9] See Wayne A. Logan, Database Infamia: Exit from the Sex Offender Registries, 2015 Wis. L. Rev.___ (2015)(forthcoming). [10] 2014 WL 24042298 (W. Va. 2014). [11] Id. at *1. [12] Id. at *3. [13] Id. [14] See Wayne A. Logan, Federal Habeas in the Information Age, 85 Minn. L. Rev. 147 (2000).