Tag: alaska

Oklahoma and California win Reintegration Champion awards for 2022 laws

On January 10 we posted our annual report on new laws enacted in 2022 to restore rights and opportunities to people with a record of arrest or conviction. Like our earlier reports, it documents the steady progress of what we characterized two years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. This year’s criminal record reforms bring the total number of separate laws enacted in the past five years to more than 500. Posted below is our fourth annual legislative Report Card recognizing the most productive states in 2022. Reintegration Awards for 2022 While more than a handful of states enacted noteworthy laws in 2022, two states stand out for the quantity and quality of their legislation:  California and Oklahoma share our 2022 Reintegration Champion award for their passage of at least two major pieces of record reform legislation. California – Enacted a whopping 11 new laws, including the broadest general record clearing law in the nation, a direction to courts to effectuate clearing of marijuana records, removal of restitution as a bar to clearing criminal records, easing access to judicial certificates of rehabilitation, and simplification of the process for certifying people with criminal records to work in community care. California’s governor also vetoed a bill that would have facilitated background screening by eliminating court-imposed restrictions on online access to personal identifying information. Oklahoma – Enacted a major automatic record clearing law and the most sweeping update to an occupational licensing scheme of any state in the country this year. Oklahoma also passed a significant law allowing young people who successfully complete the state’s youthful offender program to have their charges dismissed and expunged. Another eight states earned an Honorable Mention for their enactment of at least one significant new record reform law: Colorado – Expanded automatic sealing to include all offenses eligible for petition-based sealing, reduced the waiting period for low-level drug possession from three years to two, and enhanced procedural rights of those applying for occupational licenses. Connecticut – Made it easier for people with felony convictions to work in dozens of occupations under the state department of public health and authorized a binding preliminary determination. Delaware – Enacted the “Fair Chance Licensing Act,” establishing a binding preliminary application process, providing that many records may not be grounds for denial (convictions over 10 years old with no intervening convictions; pardoned, sealed, or expunged convictions; non-conviction records; and juvenile adjudications). Even “substantially related” crimes must be given an opportunity for a waiver via a board vote. Delaware also authorized automatic expungement of records of charges lacking a final disposition and prohibited higher education institutions from inquiring into an applicant’s criminal history. Indiana – Eliminated the one-year waiting period for sealing non-conviction records, including uncharged arrests, and made this relief automatic. Louisiana – Strengthened and extended its occupational licensing law, by establishing a binding preliminary determination, providing for appeal, bringing many new boards under its general licensing limits, and adopting new factors to be considered in determining “direct relationship.” The state also provided unusually broad record relief for victims of human trafficking. Maryland – Legalized the personal use of up to 1.5 ounces of cannabis for adults 21 and older, authorized resentencing and expungement of marijuana conviction records and established a business assistance fund that prioritizes individuals with cannabis convictions. Maryland also enacted a law removing state authority over the delinquency of children aged 13 and under. Missouri – Missouri voters amended the state constitution to legalize personal use of marijuana, and at the same time authorized release from prison for those serving prison sentences for marijuana trafficking, provided for automatic expungement for numerous marijuana convictions upon completion of sentence, and extended preference in commercial licensure to sell legalized marijuana to those with convictions. In addition, Governor Mike Parson has become the most prolific pardoner in the state in more than 40 years, working efficiently to reduce a case backlog built up over many years. Rhode Island – Legalized adult possession of small amounts of marijuana, provided for automatic expungement of convictions for decriminalized marijuana offenses, and waived costs as a bar to expungement for anyone who has been incarcerated for a marijuana offense. Low marks go to two states that enacted no record reform laws at all in 2022. While there are many other states in this category this year, the legislatures of Alaska and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2021, 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records.  Wisconsin’s one saving grace is the extensive record of pardoning by Governor Tony Evers in the past 30 months, during which he has pardoned more than 600 individuals, 325 in 2022 alone. Looking ahead to 2023, we expect to see a continuing expansion of eligibility for record clearing, and reduction of access barriers like lengthy waiting periods, outstanding court debt and application-related costs.  We also predict efforts to improve records management to accommodate automation of record clearance.  We look for extension of state fair employment laws, and further facilitation of occupational licensing, both areas where bipartisan reforms have benefitted from helpful model laws. We are slightly less optimistic about additional progress toward dismantling the structure of felony disenfranchisement, which has become mired in faction looking toward the presidential race in 2024. Hopefully, 2023 will see some record reform action in Congress and federal agencies, including measures to extend access to government-guaranteed loans and contracting opportunities to small businesses owned or managed by people with a criminal history. We have come a long way just in the past five years, but there is still a long way to go.     Read more

Reintegration Champion Awards for 2021

Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing.  Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords.  (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state’s reintegration scheme in our Restoration of Rights Project.) Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking:  Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation. Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors. Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking. Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Alabama – Enacted first state record-clearing authority applicable to misdemeanor convictions and pardoned felonies, and extended non-conviction sealing. California – Gave retroactive effect to automatic conviction sealing law enacted in 2019. (This new law may be the most consequential of any enacted last year in terms of its impact on criminal records in the state, and it was done without fanfare or publicity.) District of Columbia – Enacted a comprehensive scheme to limit consideration of criminal record in occupational licensing. Illinois – Added employment discrimination based on conviction to the state Human Rights Act, authorized voter education for prisoners. New Jersey – Enacted a landmark fair housing bill; made some improvements to its 1970’s-era occupational licensing law; and, provided for automatic record clearing in connection with marijuana legalization. (New Jersey was our Reintegration Champion for 2019, but evidently is not resting on its laurels.) New Mexico – Improved 1970’s-era public employment and licensing law; authorized expungement of marijuana convictions; and, enacted a substantial part of the Uniform Collateral Consequences of Conviction Act, limiting and providing relief from collateral consequences. Ohio – Expanded eligibility for record-clearing; significantly improved occupational licensing law. Virginia – Authorized petition-based and automated record-clearing of non-convictions and convictions, including convictions for marijuana possession; restored vote upon release by executive order and took steps to amend constitution to this end. Washington – restored vote upon release from prison; amended occupational licensing standards for health professions; repealed driver’s license suspension based on outstanding financial obligations Low marks go to three states that enacted no record reform laws at all in 2021. While there are six other states in this category this year, the legislatures of Alaska, Massachusetts, and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. The profile of each state’s restoration of rights scheme from CCRC’s Restoration of Rights Project is linked above (except for the states that made no progress). The profiles contain citations and links to the relevant new laws so that interested individuals can check their specific terms. Read more

New research report: Four Years of Second Chance Reforms, 2013-2016

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<<       Read more

State courts question mandatory lifetime sex offender registration

Notwithstanding the Supreme Court’s decisions in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) and Smith v. Doe, 538 U.S. 84 (2003), state courts are coming to different conclusions under their own constitutions about whether sex offender registration and notification laws constitute punishment for purposes of due process and ex post facto analysis.  The Pennsylvania Supreme Court is the most recent to invalidate mandatory registration requirements imposed on juveniles, but several state supreme courts have limited the retroactive application of registration requirements to adults under an ex post facto analysis. Juvenile registration requirements On December 29, 2014 the Pennsylvania Supreme Court ruled that the state Sex Offender Registration and Notification Act (SORNA) violates juvenile offenders’ due process rights through the use of an irrebuttable presumption of recidivism.  See In the Interest of J.B., 2014 Pa. LEXIS 3468 (Pa. 2014).  The court noted that “the common view of registered sexual offenders is that they are particularly dangerous,”  and that consequently registration “negatively affects juvenile offenders ability to obtain housing, schooling, and employment, which in turn hinders their ability to rehabilitate.”  Citing research demonstrating the difference between juvenile and adult offenders, notably where sex offenses are involved (“many acts of delinquency involve immaturity, impulsivity, and sexual curiosity rather than hardened criminality”), the court held that “individualized risk assessment, as used in other provisions of SORNA, provides a reasonable alternative means of determining which juvenile offenders pose a high risk of recidivating” so as to warrant their registration. Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebutable presumption. The Pennsylvania court joined the Ohio Supreme Court in invalidating lifetime sex offender registration requirements imposed on juveniles.  In re C.P., 967 N.E.2d 729 (Ohio, 2012) (invalidating on state and federal cruel and unusual punishment and procedural due process grounds automatic, lifetime registration imposed on juvenile tried in juvenile system). Meanwhile, federal courts have persisted in upholding categorical registration requirements imposed on juveniles under the Adam Walsh Act.  See U.S. v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012), cert. denied, 133 S. Ct. 234 (2012) (rejecting equal protection, cruel and unusual punishment, procedural and substantive due process challenges against automatic, lifetime registration). On the general issue of juveniles being subject to registration and notification requirements, see Amy E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1 (2013); Human Rights Watch, Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US, available at . http://www.hrw.org/reports/2013/05/01/raised-registry; Stephanie Forbes, Comment, Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases, 52 Wm. & L. Rev. 1717 (2011).  Adult registration requirements Adults have also caught a few breaks in state court from increasingly harsh registration and notification requirements.  In 2011, the Ohio Supreme Court granted a challenge to the state’s amended registration law under the state’s constitutional ban on non-remedial retroactive laws, finding that “all doubt has been removed” as to whether the state’s law is punitive in character. State v. Williams, 952 N.E.2d 1108 (Ohio 2011). Earlier, the Indiana Supreme Court held that the increasingly onerous features of Indiana’s law, including in-home visits by police and the requirement that registrants carry a personal identification card at all times, violated the state constitution’s ex post facto provision. Wallace v. State, 905 N.E.2d 371 (Ind. 2009).  See also State v. Letalien, 985 A. 2d 4 (Me. 2009)(more burdensome later-enacted registration requirement violated ex post facto); Doe v. Sex Offender Registry, 882 N.E. 2d 298 (Mass. 2008)(due process violation in failure to give man subjected to new registration requirement opportunity to show that he posed no risk).  For recent examples of state court invalidation of registration requirements under state ex post facto provisions, see Doe v. Dep’t of Pub. Safety & Corr. Servs., 40 A.3d 39 (Md. 2013); Starkey v. Okla. Dep’t of Corr., 305 P.3d 1994 (Okla. 2013).* As in situations involving juveniles, federal courts have persisted in finding that registration requirements fail to qualify as constitutional punishment, even in their augmented post-Adam Walsh Act form.  See, e.g., U.S. v. W.B.H., 664 F.3d 848 (11th Cir. 2011), cert. denied, 133 S. Ct. 524 (2012).  The state/federal duality is exemplified by the Alaska Supreme Court’s 2008 decision disagreeing with the Smith majority’s opinion that Alaska’s registration law was not punitive. See Doe v. State, 189 P.3d 999 (Alaska 2008). For a discussion of constitutional challenges to sex offender registration and notification requirements, and other sex offense-related residency and associational restrictions, see Chapters 2 and 3 of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (2013).  Wayne Logan will shortly be posting his new article on relief from registration requirements, discussed in an earlier post here. *NOTE:  See also Doe v. New Hampshire, ___ N.H. ___ , No. 2013-496 (2015)(lifetime-registration-without-review provision of state law, pursuant to which petitioner was denied public housing, made requirement punitive for ex post facto purposes; the requirement could be enforced against petitioner only if he was promptly given an opportunity for either a court hearing, or an administrative hearing subject to judicial review, at which he was permitted to demonstrate that he no longer posed a risk sufficient to justify continued registration.)   Read more