Tag: arizona

Wisconsin joins crowd of states regulating occupational licensure

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.   Read more

More states facilitating licensing for people with a criminal record

Last week we posted a description of a detailed new Indiana law regulating consideration of conviction in occupational and professional licensure throughout the state.  It now appears that this may represent a trend, as eight additional states have either recently enacted or are poised to enact similarly progressive occupational licensing schemes.  New general laws regulating licensure are in place in Arizona, Illinois, and Massachusetts.  Similar bills have been enrolled and are on the governor’s desk for signature in Kansas, Maryland, Nebraska, and Tennessee.  Arizona’s new 2018 licensing law follows on another law passed in that state in 2017 that authorized provisional licenses for individuals with a criminal record.  Massachusett’s new licensing law is part of a more general criminal justice reform bill.   Delaware and Connecticut have also recently loosened restrictions on licensing for cosmetology and related professions. The licensing reforms in these states – and in several other states where licensing bills are less far along toward enactment — seem to have been influenced by a model law proposed by the Institute for Justice, a libertarian public interest law firm.  Key features of the Model Occupational Licensing Review Act as they affect individuals with criminal records are 1) to provide individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; 2) to require licensing agencies to disqualify only if an applicant has been convicted of a felony or violent misdemeanor, and if the agency determines that “the state has an important interest in protecting public safety that is superior to the individual’s right to pursue a lawful occupation”; and 3) to require 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.  Disqualification is justified under this model law only if the conviction is “substantially related to the state’s interest in protecting public safety,” and the individual will be “more likely to reoffend by having the license than by not having the license.” The federal government is also encouraging licensing reform: the U.S. Department of Labor is supporting a three-year project to assist states improve their general policies and practices related to occupational licensing, including those that affect persons with a criminal record. The project brings together 11 states to participate in the Occupational Licensing Learning Consortium. The 11 states are Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin. We are monitoring this legislative trend and will revise the state profiles and other materials in the Restoration of Rights Project as new laws are enacted.   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

Second chance for some youthful sex offenders

On April 6, Arizona became the latest state to offer early relief from sex offender registration obligations to young people convicted of consensual sex offenses and sentenced to probation.  The law, HB 2539, allows individuals convicted before reaching age 22 of sexual conduct with a minor between the ages of 15 and 17 (so-called “Romeo and Juliet” offenders), to petition the court for relief from registration after completing probation.  If a petitioner meets all applicable criteria, the court must grant the petition unless it finds that a “denial is in the best interests of justice or tends to ensure the safety of the public.”  Similar laws authorizing early termination from registration for those convicted of youthful consensual offenses are in effect in ten other states, including Florida, Oregon, and Michigan. Laws requiring young people to register have come under increased scrutiny thanks to recent media coverage of their harsh effects and flimsy justifications — notably an article by Sarah Stillman published last month in the New Yorker (“The List”).   Much of the attention to registry of juveniles has been driven by mobilization around the issue by advocacy groups like Reform Sex Offender Laws (RSOL) and the Center on Youth Registration Reform (CYRR).  In 2013, Human Rights Watch issued a ground-breaking report on the issue, Raised on the Registry. Public registration of juveniles and young people convicted of sex offenses is widespread. According to one recent article, An estimated one-fourth of the people on the public sex offender registries were convicted as juveniles. Fifteen states post the names and photos of offenders who are minors on the online registries. Thirteen of the 20 states that lock up people in indefinite civil commitment—preventive, dubiously therapeutic detention for crimes not yet committed—include people who committed their offenses as juveniles. “The single age with the greatest number of offenders from the perspective of law enforcement was age 14,” according to the U.S. Department of Justice. Sex offender registries were created largely based on dubious assumptions about the recidivism rate of those convicted of sexual offenses.  But, as far as young people are concerned, that risk is generally unfounded, particularly given the nature of the offenses they are likely to commit.  The article continues: As Raised on the Registry powerfully showed, with little or no intervention these young people are virtually guaranteed not to “reoffend,” mainly because so many of them are penalized for engaging in sex play—things that, even if not always entirely consensual, are common among children and usually without long-lasting harm. Nicole Pittman, the author of the Human Rights Watch Report and Director of CYRR, told NPR in 2015, We are criminalizing normative child sexual behavior in a large fashion ….. We have kids that are on the registry for streaking at a football game, peeing at a park …. Rome-and-Juliet-type offenses where you have a 17-year-old dating a 14-year-old.  That person goes on the registry. For these young people, registration is a sentence to economic insecurity and public stigma that may last decades, if not a lifetime. According to a 2014 piece from The Huffington Post, Finding housing and employment are among the biggest challenges for juvenile offenders on the general sex offenders registry, which makes information like recent photos, home address and place of work publicly available. Many ex-offenders report being harassed, excommunicated or otherwise targeted once neighbors find them on the registry. It can have tragic results in some cases. “Suicide [among children placed on sex offender registries] is a possibility … even predictable,” David S. Prescott, a social worker and expert on treatment strategies for youth sex offenders told HRW. Many of the state laws requiring young people to register came about because of the federal Sex Offender Registration and Notification Act (SORNA) – also known as the Adam Walsh Act – a 2006 bill that requires lifetime registration of juveniles convicted as adults, as well as juveniles adjudicated of certain serious offenses in family court.  Many states have refused to implement these and other provisions of the Adam Walsh Act and have forgone federal funding as a result.  Arizona is among them, though it still requires registration of juveniles convicted in adult court and gives family courts discretion to require juvenile registration. Under Arizona law, juveniles required to register as a result of family court adjudications must remain on the registry until age 25.  Juveniles convicted in adult court remain on the registry for life, except that those sentenced to probation have an opportunity for removal during annual probation review hearings until they turn 22, or upon completion of probation.  HB 2539 extends a similar opportunity for relief to young Arizonans convicted between the ages of 18 and 21 of sexual relations with a minor over the age of 14. HB 2539 is by no means a game-changer since it will likely only benefit a small percentage of the youthful offenders that are required to register.  But hopefully its passage, and developments in the courts like the Pennsylvania Supreme Court’s 2014 ruling striking down that state’s lifetime registration requirements for juveniles, are a sign that legislatures and courts are ready to give some careful reconsideration to registry laws that ruin young lives while providing little public benefit. The CCRC maintains a chart that summarizes and compares the availability of relief from sex offender registration obligations in all 50 states, the federal system, and U.S. territories. You can find it at this link. Read more