Tag: clean slate

Legislative update: third quarter 2019 sees more new licensing and expungement laws

In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction.  A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions.  Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing.  In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record.  Another area of progress was restoring voting rights. Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions.  Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions).  (California enacted a “clean slate” law shortly after the beginning of the fourth quarter.)  At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.) By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon. All of the laws described briefly below are more fully analyzed in the context of the state’s overall restoration scheme, in the detailed profiles of the Restoration of Rights Project. Occupational licensing Florida and North Carolina enacted impressive occupational licensing schemes.  Florida’s new licensing provisions added by H7125 appear targeted to trades learned in the state prison system, and also provide that: “A conviction, or any other adjudication, for a crime more than 5 years before the date the application is received by the applicable board may not be grounds for denial of a [specified] license.”  Boards are permitted to consider violent and sexual offenses but only if they “relate to the practice of the profession.”  Starting on October 1, 2019, and updated quarterly thereafter, the boards must compile a list identifying each crime used as a basis for a license denial. North Carolina’s new law prohibits disqualification from licensure unless a crime is “directly related” to the license involved, requires written reasons in the event of denial, and provides for a preliminary determination as to whether an individual will be favorably considered that is binding on the board when the applicant later applies.  The new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record. In New Hampshire, HB 637 created two categories of criminal history information to be maintained by the state police records repository, one “confidential” and the other “public.”  “Confidential criminal history information” (defined to include non-conviction records and records of convictions that have been annulled) will no longer be disseminated for employment and licensing purposes.    Sealing and expungement Florida substantially reorganized its laws relating to sealing and expungement of non-conviction records in H7125, and the Department of Law Enforcement was directed to create an automatic process for sealing eligible non-conviction records.  See Fla. Stat. § 943.0595. Four states (DE, HI, NH and NY) passed laws authorizing expungement or sealing of marijuana possession convictions.  Of these new laws, New York’s law setting up an automated relief system is by far the most significant, because it seals the record without requiring eligible individuals to apply to the court for relief.  Individuals whose records are sealed may, further, apply later to have the record destroyed.  As an important recent study by JJ Prescott and Sonja Starr established, where laws make relief depend upon a burdensome petition process, few eligible individuals will take advantage of them.  (As the third quarter ended, a far broader “clean slate” bill was poised for enactment in California, and was signed on October 7.) Relatedly, in August, New Jersey’s governor Phil Murphy refused to sign a bill substantially expanding expungement in that state, which included but was not limited to marijuana convictions, on grounds that its cumbersome petition process did not go far enough in addressing the problem of dated convictions.  The governor cited with approval the “clean slate” law enacted by New Jersey’s neighboring state Pennsylvania, and proposed a series of measures aimed at developing a similar automated system in his state.  As of this writing, the governor has been unable to persuade the legislature to adopt it, but we may expect to see another pass at the problem before year’s end. Two more states (HI and NC) expanded their provisions offering record relief to victims of human trafficking convicted of any non-violent offense linked to their victim status. Civil rights Finally, New Hampshire revised its law disqualifying people with a conviction from holding public office, making the restriction applicable only during actual incarceration, so that it is now coincident with the period of felony disenfranchisement (this limit on disenfranchisement to only during actual incarceration has been in place in the Granite State since 1965). Perhaps more significant, HB 486 requires the commissioner of the department of corrections to ensure that probation/parole officers receive instruction on the current state of the law regarding the civil rights of individuals convicted of a felony, and to direct that individuals serving a suspended sentence or on parole receive “written notice that he or she may vote during the period of the suspension or parole.” Similar provisions were enacted earlier in the year in Colorado and Washington.  In our experience, many people who have been convicted of a felony believe that they cannot vote long after their rights have been restored – and some (like those in New Hampshire not sentenced to prison) never lost the right to vote in the first place.     Read more

California becomes third state to adopt “clean slate” record relief

On October 8, Governor Newsom signed into law AB 1076, the so-called “Clean Slate Act,” authorizing automatic record relief in the form of set-aside or sealing for individuals with certain convictions and arrests under California law.  The new law supplements but does not supplant the existing system of petition-based relief, and applies to convictions and arrests occurring after the bill’s effective date of January 1, 2021.  Eligibility for automatic relief under the new law is similar to but not precisely coincident with eligibility under existing law.  The new law also for the first time prohibits courts and the state repository from disclosing information about conviction records that have been granted relief, except where specifically authorized, whether under the new automatic process or the older petition-based system. California is now the third state to adopt general “clean slate” record relief, after Pennsylvania (2018) and Utah (2019).  While the automatic feature of the new law has prospective effect only, its limits on disclosure will, when effective, apply to all conviction records that have at any time been dismissed or set aside, whether automatically or by petition, as well as to all arrests and other non-conviction records that have been sealed.  The specific features of AB 1076 are described in detail in the following comment posted on October 3. Governor Newsom also on October 8 signed two other bills that affect collateral consequences:  SB 310 amends Section 203 of California’s Code of Civil Procedure to make people convicted of a felony eligible to serve of a trial jury unless incarcerated or under supervision, or required to register as a sex offender based upon a felony conviction; and AB 1394 repeals a law requiring that juveniles pay a fee to have their records sealed. California poised to become third state to adopt “clean slate” record relief October 3, 2019 On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation.  If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize “clean slate” record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.)  The specific provisions are described generally below, and more fully after the break. AB 1076 would not modify eligibility for relief under California’s existing petition-based scheme of judicial remedies for people with criminal records, primarily via dismissal and set-aside for convictions and sealing for non-conviction records.  Rather, effective January 1, 2021, it would create a new automatic process obviating the requirement of an individually-filed petition or motion in most cases.  Eligibility for relief under this new automatic process would be similar but not identical to eligibility under the existing petition-based process, both for convictions and for non-convictions.  If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession). A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records:  it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law.  As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository.  This would change in 2021, if this law is enacted.  (Most non-conviction records are now eligible for sealing by petition under California law.)  Note that, like most state repositories, California’s repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users. The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce “barriers to employment and housing opportunities for millions of Californians.”  They point to the key findings of J.J. Prescott and Sonja Starr’s 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court.  While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan. If California’s new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions.  For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic.  (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.)  For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense.  Prosecutors and probation officers may object to automatic conviction relief in individual cases on “based on a showing that granting such relief would pose a substantial threat to the public safety,” and such an objection may be tested in a court hearing. A major shortcoming of AB 1076 — in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only.  That is, relief is automatic only for arrests and convictions occurring after the law’s effective date.  Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief.  Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021.  Presumably these changes were based on financial and logistical considerations.  The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year.  Moreover, the bill’s effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it “would need the implementation date to be delayed to July 1, 2023 for proper implementation.”  Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021. Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted. We will now describe in detail California’s clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105. Arrests A person arrested on or after January 1, 2021, is eligible for automatic relief if any of the following is true: The arrest was for a misdemeanor and either the charge was dismissed, the person was acquitted of any charges, or at least 1 year has elapsed since the arrest and there is no indication that criminal proceedings have been initiated; The arrest was for a felony punishable by imprisonment in county jail, and either the person was acquitted of any charges, or at least 3 years have elapsed since the arrest and there is no indication that criminal proceedings have been initiated; or The person successfully completed one of various specified diversion programs. Cal. Penal Code section 851.93.  (Note: this excludes an arrest for a felony punishable by imprisonment in state prison and dismissed cases where the arrest was for for a felony punishable by imprisonment, unless the person successfully completed a specified diversion program.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with arrest records that are eligible for relief, and “shall grant relief” if such information is present in the records.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of arrests granted relief and the percentage of arrests for which the state summary criminal history information does not include a disposition. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “arrest relief granted,” and the date.  The arrest “is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to that arrest accordingly,” except that relief does not affect: a person’s obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer; the ability of a criminal justice agency to access and use records, or a district attorney to prosecute an offense within the applicable statute of limitations; a person’s authorization to own or possess a firearm; any prohibition from holding public office; or the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria. Starting on February 1, 2021, courts “shall not” disclose information concerning the arrest or case to any person or entity, in any format, except to the subject of the arrest, a criminal justice agency, or under one of the exceptions above. Convictions A person convicted on or after January 1, 2021, is eligible for automatic relief if otherwise eligible under existing law, and if each of the following conditions are also true: the person is not required to register under the Sex Offender Registration Act; the person does not have an active record for local, state, or federal supervision; based on information in the DOJ record, it does not appear that the person is currently serving a sentence for any offense and there is no indication of pending criminal charges; and there is no indication that the conviction resulted in a sentence of incarceration in state prison, and either: (1) the defendant was sentenced to probation, and, based on DOJ’s records, appears to have completed probation without revocation; or (2) the defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based on DOJ’s records, appears to have completed their sentence, and at least 1 year has elapsed since the judgment. Cal. Penal Code section 1203.425.  Nonetheless, even if a person is eligible, the prosecutor or probation department may file a petition to prohibit automatic relief “based on a showing that granting such relief would pose a substantial threat to the public safety.”  The petition must be filed by 90 days before eligibility, and the court must give notice to the defendant and conduct a hearing within 45 days.  (A person denied automatic relief can still petition for relief under existing law.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with conviction records that are eligible for relief, and “shall grant relief, including dismissal of a conviction,” if such information is present in the records, unless a petition to prohibit relief has been granted.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of convictions granted and prohibited from automatic relief. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “relief granted” and the date.  A person granted relief “shall be released from all penalties and disabilities resulting from the offense of which the person has been convicted,” except that the relief does not affect: the provisions of Section 13555 of the Vehicle Code; the obligation to disclose a criminal conviction in response to a direct question contained in a questionnaire or application for employment as a peace officer, public office, or for contracting with the California State Lottery Commission; the ability of a criminal justice agency to access and use records; the jurisdiction of the court over a subsequently filed motion to amend the record, petition or motion for postconviction relief, or collaterally attack a conviction; a person’s authorization to own or possess any firearm; a prohibition from holding public office; the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria; eligibility to provide, or receive payment for providing, in-home supportive services; or pleading and proof of the prior conviction in any subsequent prosecution of the defendant. Starting on February 1, 2021, courts “shall not” disclose information concerning the conviction to any person or entity, except to the person granted relief, to a criminal justice agency, or under one of the exceptions above.  In addition, a sentencing court “shall advise” a defendant of the provisions of this section, as well as the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon. Finally, by amendments to Cal. Penal Code section 11105(p)(2)(A) that are effective January 1, 2021, the state records repository system is prohibited from disclosing conviction records that have been dismissed or set aside, whether automatically or by petition, in response to certain requests for background information to be used for employment, licensing or certification.  Exceptions in existing law where background checks are authorized by law apply (including law enforcement employment, health care licensure, and a variety of other authorized situations). When effective, these non-disclosure provisions apply without regard to when or by what process relief was granted. Both sections of the clean slate law make clear that they do not limit any petitions, motions, or orders for relief authorized or required under existing law. Read more

California poised to become third state to adopt “clean slate” record relief

On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation.  If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize “clean slate” record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.)  AB 1076 creates a parallel eligibility scheme that overlaps but is not exactly coincident with the petition-based system, as well as a new procedure for automatic relief.  The specific provisions are described generally below, and more fully after the break. AB 1076 would not modify eligibility for relief under California’s existing scheme of judicial remedies for people with criminal records, via sealing as well as dismissal and set-aside.  Rather, effective January 1, 2021, it would create a new process obviating the requirement of an individually-filed petition or motion in most cases.  If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession). A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records:  it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law.  As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository.  This would change in 2021, if this law is enacted.  (Most non-conviction records are now eligible for sealing by petition under California law.)  Note that, like most state repositories, California’s repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users. The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce “barriers to employment and housing opportunities for millions of Californians.”  They point to the key findings of J.J. Prescott and Sonja Starr’s 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court.  While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan. If California’s new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions.  For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic.  (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.)  For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense.  Prosecutors and probation officers may object to automatic conviction relief in individual cases on “based on a showing that granting such relief would pose a substantial threat to the public safety,” and such an objection may be tested in a court hearing. A major shortcoming of AB 1076 — in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only.  That is, relief is automatic only for arrests and convictions occurring after the law’s effective date.  Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief.  Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021.  Presumably these changes were based on financial and logistical considerations.  The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year.  Moreover, the bill’s effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it “would need the implementation date to be delayed to July 1, 2023 for proper implementation.”  Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021. Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted. We will now describe in detail California’s clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105. Arrests A person arrested on or after January 1, 2021, is eligible for automatic relief if any of the following is true: The arrest was for a misdemeanor and either the charge was dismissed, the person was acquitted of any charges, or at least 1 year has elapsed since the arrest and there is no indication that criminal proceedings have been initiated; The arrest was for a felony punishable by imprisonment in county jail, and either the person was acquitted of any charges, or at least 3 years have elapsed since the arrest and there is no indication that criminal proceedings have been initiated; or The person successfully completed one of various specified diversion programs. Cal. Penal Code section 851.93.  (Note: this excludes an arrest for a felony punishable by imprisonment in state prison and dismissed cases where the arrest was for a felony punishable by imprisonment, unless the person successfully completed a specified diversion program.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with arrest records that are eligible for relief, and “shall grant relief” if such information is present in the records.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of arrests granted relief and the percentage of arrests for which the state summary criminal history information does not include a disposition. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “arrest relief granted,” and the date.  The arrest “is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to that arrest accordingly,” except that relief does not affect: a person’s obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer; the ability of a criminal justice agency to access and use records, or a district attorney to prosecute an offense within the applicable statute of limitations; a person’s authorization to own or possess a firearm; any prohibition from holding public office; or the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria. Starting on February 1, 2021, courts “shall not” disclose information concerning the arrest or case to any person or entity, in any format, except to the subject of the arrest, a criminal justice agency, or under one of the exceptions above. Convictions A person convicted on or after January 1, 2021, is eligible for automatic relief if otherwise eligible under existing law, and if each of the following conditions are also true: the person is not required to register under the Sex Offender Registration Act; the person does not have an active record for local, state, or federal supervision; based on information in the DOJ record, it does not appear that the person is currently serving a sentence for any offense and there is no indication of pending criminal charges; and there is no indication that the conviction resulted in a sentence of incarceration in state prison, and either: (1) the defendant was sentenced to probation, and, based on DOJ’s records, appears to have completed probation without revocation; or (2) the defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based on DOJ’s records, appears to have completed their sentence, and at least 1 year has elapsed since the judgment. Cal. Penal Code section 1203.425.  Nonetheless, even if a person is eligible, the prosecutor or probation department may file a petition to prohibit automatic relief “based on a showing that granting such relief would pose a substantial threat to the public safety.”  The petition must be filed by 90 days before eligibility, and the court must give notice to the defendant and conduct a hearing within 45 days.  (A person denied automatic relief can still petition for relief under existing law.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with conviction records that are eligible for relief, and “shall grant relief, including dismissal of a conviction,” if such information is present in the records, unless a petition to prohibit relief has been granted.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of convictions granted and prohibited from automatic relief. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “relief granted” and the date.  A person granted relief “shall be released from all penalties and disabilities resulting from the offense of which the person has been convicted,” except that the relief does not affect: the provisions of Section 13555 of the Vehicle Code; the obligation to disclose a criminal conviction in response to a direct question contained in a questionnaire or application for employment as a peace officer, public office, or for contracting with the California State Lottery Commission; the ability of a criminal justice agency to access and use records; the jurisdiction of the court over a subsequently filed motion to amend the record, petition or motion for postconviction relief, or collaterally attack a conviction; a person’s authorization to own or possess any firearm; a prohibition from holding public office; the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria; eligibility to provide, or receive payment for providing, in-home supportive services; or pleading and proof of the prior conviction in any subsequent prosecution of the defendant. Starting on February 1, 2021, courts “shall not” disclose information concerning the conviction to any person or entity, except to the person granted relief, to a criminal justice agency, or under one of the exceptions above.  In addition, a sentencing court “shall advise” a defendant of the provisions of this section, as well as the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon. Finally, by amendments to Cal. Penal Code section 11105(p)(2)(A) that are effective January 1, 2021, the state records repository system is prohibited from disclosing conviction records that have been dismissed or set aside, whether automatically or by petition, in response to certain requests for background information to be used for employment, licensing or certification.  Exceptions in existing law where background checks are authorized by law apply (including law enforcement employment, health care licensure, and a variety of other authorized situations). When effective, these non-disclosure provisions apply without regard to when or by what process relief was granted. Both sections of the clean slate law make clear that they do not limit any petitions, motions, or orders for relief authorized or required under existing law. Read more

Bumper crop of new expungement laws expected in 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.    Read more

PA prepares to implement clean slate

Community Legal Services of Philadelphia (CLS), with the leadership of Sharon M. Dietrich, has issued a report on the progress made towards implementing Pennsylvania’s Clean Slate Act.  (See our post describing this ground-breaking law when it was enacted last June.)  Notably, the state is “on target” to start automated sealing of criminal records by the onset date of June 28, 2019.  As the report explains, “[a]utomated sealing will permit Pennsylvania to close the large ‘second chance gap’ between those eligible for expungement or sealing and those who actually benefit, by allowing cases to be sealed in a volume not possible in the absence of technology.”  The most ambitious aspect of the new law is its retroactive application to millions of people, some of whom were convicted decades ago. CLS is to be commended for marshaling lawyers and other advocates to make the relief promised by this law a reality.  Other jurisdictions across the country will have their eyes on Pennsylvania as it works to harness technology in the service of reintegration. The report’s overview is reprinted below: Get Ready, Get Set: Pennsylvania Prepares for Clean Slate Implementation By: Community Legal Services, Inc., Philadelphia, PA First Published: March 6, 2019 Last Updated: March 13, 2019 Overview On June 28, 2018, Governor Tom Wolf of Pennsylvania signed Act 56 of 2018, more commonly known as the Clean Slate Act. With its signing, Pennsylvania became the first state in the nation to enact automated sealing of criminal records by technology. Instead of expunging or sealing cases one by one with the filing, adjudication, and processing of petitions, millions of cases will be sealed by algorithms. Automated sealing will permit Pennsylvania to close the large “second chance gap” between those eligible for expungement or sealing and those who actually benefit, by allowing cases to be sealed in a volume not possible in the absence of technology. The Clean Slate Act provides that automated sealing will begin on June 28, 2019. Sealing of the inventory of millions of eligible cases will be completed by June 27, 2020. With fewer than four months until June 28th, the Administrative Office of Pennsylvania Courts (“the Courts”) and the Pennsylvania State Police (“the State Police”) are on target for successful implementation of automated sealing by the onset date. Meanwhile, Phase 1 of the Clean Slate Act, which expanded eligibility for sealing in Pennsylvania to most misdemeanor convictions, started on December 26, 2018. Phase 1 implementation marked the kick-off for public awareness of the Clean Slate Act around the state, featuring the following. The creation of the Clean Slate Screening Project, through which hundreds of volunteer lawyers are screening records and providing advice to the more than 7,500 Pennsylvanians who have signed up for assistance. The establishment of MyCleanSlatePA.com as a statewide resource. A press conference by Governor Wolf that generated statewide press about Clean Slate At present, Community Legal Services (CLS) and its many partners are working to insure the best and fullest possible implementation of the law. The issues that we are working on include the following. Insertion of missing data, such as grading information, into the Courts’ database. Resolution of court fines and costs that prevent sealing of convictions. Extending the implementation of Pennsylvania’s sealed cases to FBI background checks. Finally, CLS has published numerous resources explaining the Clean Slate Act, leading to better understanding of the law among lawyers, court personnel, policy makers, and the public. Read the full report here. Read more