Tag: deferred adjudication

Study: Texas diversion provides dramatic benefits for people facing their first felony

NOTE: In light of renewed interest in state legislatures in judicially-administered diversion and deferred adjudication programs, we are re-publishing our 2021 report on a remarkable study of deferred adjudication in Texas by researchers Michael Mueller-Smith and Kevin Schnepel. We noted at the time that “The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction. by Margaret Love and David Schlussel (Feb 23, 2021). Increased use of diversion is a key feature of America’s new age of criminal justice reform. Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record. Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior. Until now. By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants. A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect. Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists. Michael Mueller-Smith and Kevin Schnepel (2020) use detailed administrative data from Harris County (which covers the Houston area) to estimate the first causal impacts of a diversion program available to a large fraction of felony defendants in the state. Texas’ “deferred adjudication community supervision” allows defendants to plead guilty but have entry of a conviction deferred during a period of community supervision, with the case dismissed without a conviction upon successful completion. The arrangement must be approved by the judge. This diversion program is comparable to numerous programs administered by prosecutors and judges across the U.S., Europe, and several other countries—although many programs do not necessarily require a guilty plea. At the same time, Texas law has broad eligibility for its program compared to many otherwise-comparable American programs, making deferred adjudication potentially available to all defendants except those charged with DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, and murder. The Mueller-Smith and Schnepel study finds that defendants without a prior felony conviction who participated in Texas’ deferred adjudication program experienced an immediate and dramatic reduction in subsequent offending. The total number of future convictions fell by 75% over a 10-year follow-up period, compared to similarly situated defendants who did not receive diversion. The results also suggest large improvements in labor market outcomes, including a 50% increase in formal employment rates. For the cohort studied over the longest period, “these positive effects persisted and expanded even 20 years out,” leading the authors to conclude that “diversion, at least at the critical juncture of someone’s first felony charge, has the potential to fundamentally alter an individual’s trajectory in life.” The circumstances that produced the subject data are somewhat unique: To measure the causal impacts of diversion, the analysis leverages two sudden lasting shifts in the use of diversion options (one in September 1994, another in November 2007) that each approximate an experiment where the treatment is randomly assigned to eligible felony defendants. The research design focuses on first-time felony defendants who are charged in the months preceding or following these abrupt changes, subjecting them almost arbitrarily to dramatically different case dispositions. As the study notes, “the main difference from the defendant’s perspective was that before the cut-off one could avoid a felony conviction, whereas afterwards a felony conviction was non-negotiable.” Defendants who, by chance, ended up charged at the “wrong” time and received a formal felony conviction for their first offense, went on to receive 1.6 to 1.7 additional criminal convictions and 50% lower employment rates during a 10-year follow-up period relative to their diverted peers. Perhaps the study’s most remarkable finding is that those who are often considered the most over-policed—young Black men with one or more misdemeanor convictions—gained the most from diversion. The results indicate that intervening for such individuals at a critical moment (when charged with a first felony offense) could significantly improve their life course. Interviewed for this post, one of the study authors commented about its potential impact for criminal justice policymakers: Given the trajectory toward more leniency in the U.S. criminal justice system, the results suggest that increases in diversion options may lead to lower rates of reoffending and higher rates of rehabilitation in the coming years. While much has been written about what doesn’t work in criminal justice policy in the U.S., this study provides compelling evidence for a successful intervention that both improves defendant outcomes and saves public resources. Diversion can be implemented without significant investments or changes to current infrastructure, making it a potential solution for U.S. criminal justice reform. The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction. Citation: Michael Mueller-Smith and Kevin T. Schnepel, Diversion in the Criminal Justice System, The Review of Economic Studies 1-54 (2020), accessible at https://academic.oup.com/restud/advance-article-abstract/doi/10.1093/restud/rdaa030/5856753. Note: The co-authors thank Michael Mueller-Smith, Jordan Hyatt, and Emily Greberman for their assistance in helping us understand the technical aspects of the Harris County study.   Read more

Study: Texas diversion provides dramatic benefits for people facing their first felony

Increased use of diversion is a key feature of America’s new age of criminal justice reform. Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record. Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior. Until now. By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants. A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect. Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists. Michael Mueller-Smith and Kevin Schnepel (2020) use detailed administrative data from Harris County (which covers the Houston area) to estimate the first causal impacts of a diversion program available to a large fraction of felony defendants in the state. Texas’ “deferred adjudication community supervision” allows defendants to plead guilty but have entry of a conviction deferred during a period of community supervision, with the case dismissed without a conviction upon successful completion. The arrangement must be approved by the judge. This diversion program is comparable to numerous programs administered by prosecutors and judges across the U.S., Europe, and several other countries—although many programs do not necessarily require a guilty plea. At the same time, Texas law has broad eligibility for its program compared to many otherwise-comparable American programs, making deferred adjudication potentially available to all defendants except those charged with DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, and murder. The Mueller-Smith and Schnepel study finds that defendants without a prior felony conviction who participated in Texas’ deferred adjudication program experienced an immediate and dramatic reduction in subsequent offending. The total number of future convictions fell by 75% over a 10-year follow-up period, compared to similarly situated defendants who did not receive diversion. The results also suggest large improvements in labor market outcomes, including a 50% increase in formal employment rates. For the cohort studied over the longest period, “these positive effects persisted and expanded even 20 years out,” leading the authors to conclude that “diversion, at least at the critical juncture of someone’s first felony charge, has the potential to fundamentally alter an individual’s trajectory in life.” The circumstances that produced the subject data are somewhat unique: To measure the causal impacts of diversion, the analysis leverages two sudden lasting shifts in the use of diversion options (one in September 1994, another in November 2007) that each approximate an experiment where the treatment is randomly assigned to eligible felony defendants. The research design focuses on first-time felony defendants who are charged in the months preceding or following these abrupt changes, subjecting them almost arbitrarily to dramatically different case dispositions. As the study notes, “the main difference from the defendant’s perspective was that before the cut-off one could avoid a felony conviction, whereas afterwards a felony conviction was non-negotiable.” Defendants who, by chance, ended up charged at the “wrong” time and received a formal felony conviction for their first offense, went on to receive 1.6 to 1.7 additional criminal convictions and 50% lower employment rates during a 10-year follow-up period relative to their diverted peers. Perhaps the study’s most remarkable finding is that those who are often considered the most over-policed—young Black men with one or more misdemeanor convictions—gained the most from diversion. The results indicate that intervening for such individuals at a critical moment (when charged with a first felony offense) could significantly improve their life course. Interviewed for this post, one of the study authors commented about its potential impact for criminal justice policymakers: Given the trajectory toward more leniency in the U.S. criminal justice system, the results suggest that increases in diversion options may lead to lower rates of reoffending and higher rates of rehabilitation in the coming years. While much has been written about what doesn’t work in criminal justice policy in the U.S., this study provides compelling evidence for a successful intervention that both improves defendant outcomes and saves public resources. Diversion can be implemented without significant investments or changes to current infrastructure, making it a potential solution for U.S. criminal justice reform. The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction. Citation: Michael Mueller-Smith and Kevin T. Schnepel, Diversion in the Criminal Justice System, The Review of Economic Studies 1-54 (2020), accessible at https://academic.oup.com/restud/advance-article-abstract/doi/10.1093/restud/rdaa030/5856753. Note: The co-authors thank Michael Mueller-Smith, Jordan Hyatt, and Emily Greberman for their assistance in helping us understand the technical aspects of the Harris County study.     Read more

CCRC proposes a reintegration agenda for the 117th Congress

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record.1 This agenda recommends specific measures by which Congress can accomplish this. During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.2 Many states have entirely remade their record relief systems—authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication—and limited the consideration of arrest and conviction records in employment and licensing.3 Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020. However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states. Recent controversies over presidential pardoning offer an incentive to wean the federal justice system from its dependence upon presidential action for the sort of routine relief these mechanisms promise. During the pandemic, the need to access opportunities and resources is perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below: Record relief: authorize federal courts to expunge certain records, grant certificates of relief, and increase use of deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; provide relief from firearms dispossession. Federal public benefits: end record-related restrictions in small business relief, SNAP and TANF benefits, and student financial aid. Employment & licensing: establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations. Voting rights: allow voting in federal elections unless a person is serving a felony sentence in a correctional institution. CCRC’s full federal agenda can be accessed here, and is reprinted below. Record Relief Since 2013, most states have either expanded record relief laws enacted in the 1970’s or enacted relief for the first time.4 States have tailored eligibility and procedures to the specific type of record, and more than a dozen have authorized automatic relief for certain records. Record remedies are now authorized in almost every state and apply to many types of criminal records. The popularity of court-managed diversion is growing, and many states also offer judicial or administrative certificates to restore lost rights.5 Yet Congress has thus far failed to act, leaving those with federal convictions without remedy short of a presidential pardon, and those with federal non-conviction records without any remedy at all. In addition, many areas of federal law fail to recognize or give effect to state relief. Legislative recommendations: Enact the Clean Slate Act of 2019 (R.2348), amended to authorize courts to seal conviction records upon completion of supervision, and expunge non-conviction records automatically upon disposition.6 Enact the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (R.3884), to decriminalize marijuana, and establish a process to expunge convictions and conduct sentencing review hearings related to federal marijuana offenses. Replace its vague proposed definition of “expungement” with the more precise definition in 18 U.S.C. § 3607(c). Expand authority under 18 U.S.C. § 3607 to allow federal courts to defer judgment for any person eligible for a probationary sentence and to expunge the record upon successful completion of probation without regard to age, thereby avoiding a conviction record.7 The Judicial Conference of the United States has previously agreed to support amendments to this statute “that provide judges with alternatives to incarceration and expand sentencing discretion….”8 Enact the RE-ENTER Act (2931), with an additional amendment to authorize federal courts to grant certificates that avoid all mandatory collateral consequences and provide evidence of rehabilitation for public and private decision-makers. The American Law Institute has approved a model law that authorizes courts to issue such certificates to mitigate collateral consequences and facilitate reentry and reintegration.9 Give effect to state diversion and deferred adjudication dispositions as non-convictions—and to state expungement, sealing, and set-aside relief—in federal laws and regulations (e.g., Federal Credit Reporting Act, Small Business Administration, sentencing guidelines, immigration). Authorize grants to the states to improve the operation of record relief systems, including supporting technology projects for automatic relief and streamlining petition-based systems. Enact provision in the Comprehensive CREDIT Act of 2020 (R.361) to prohibit credit reporting agencies from reporting arrests for which a person was not convicted. Amend the federal Fair Credit Reporting Act (FCRA) to restore the prohibition on reporting indictments and convictions if more than seven years have elapsed after date of disposition, release, or parole, a prohibition repealed in 1998. 15 U.S.C. § 1681c. Increase FCRA enforcement tools in the Federal Trade Commission and Consumer Financial Protection Bureau. Enact the Fairness and Accuracy in Criminal Background Checks Act (R.2851), which includes a requirement that the FBI not report state or federal criminal history information for employment-related purposes about arrests that are more than one-year-old and do not indicate a disposition. Authorize incentives to states that are part of the National Crime Prevention and Privacy Compact to adopt the same policy. Adopt a judicial or administrative mechanism to restore firearms rights to persons with federal convictions to reduce reliance on presidential pardon. Federal public benefits Federal law and regulations include a range of criminal history-based exclusions on public benefits, denying vital federal assistance during the health and economic crises of the pandemic. Most urgently, Congress should remove criminal history restrictions on Small Business Administration (SBA) assistance, Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), and student financial aid. Legislative recommendations: Strengthen the Paycheck Protection Program (PPP) Second Chance Act (3865), which would prohibit many criminal history restrictions that the Small Business Administration (SBA) has adopted for PPP relief, by removing categorical exceptions for applicants with an equity ownership of 20 percent or more who are incarcerated or were convicted of certain felonies. Amend the Small Business Act to prohibit the SBA from categorically excluding from 7(a) loan assistance those on probation and parole, see 13 C.F.R. § 120.110(n); and strictly limit use of criminal records in 7(a) and (b) character determinations, see SBA SOP 50 10 6 and SOP 50 30 9. Enact the Removing Barriers to Basic Needs Act of 2020 (R.7916), amended to permanently lift the federal ban on individuals with felony drug convictions from receiving SNAP and TANF assistance, not simply during the COVID-19 pandemic, consistent with the recommendation of the U.S. Commission on Civil Rights to eliminate such bans (and consistent with the increasing number of states that have opted-out of the ban). Enact the Financial Aid Fairness for Students Act (R.4584) to repeal provision making students convicted of drug-related offenses ineligible for federal student aid (companion provision prohibiting inquiry about drug-related convictions on FAFSA enacted in December 2020). Federal Employment and Licensing In 1998, Hawaii became the first state to prohibit inquiry into a job applicant’s criminal record until after a conditional offer is made, thereby inspiring the “ban-the-box” campaign that began several years later in California. In Hawaii, a conditional offer may be withdrawn only if a conviction within the most recent 10 years bears a “rational relationship” to the position. Its four-part enforcement mechanism is still a model for other states: Prohibit application-stage inquiries about criminal history (ban-the-box); After inquiry, prohibit consideration of non-convictions and certain other convictions that are categorically deemed “unrelated” to qualifications; Apply standards and procedures for potentially relevant convictions; and Enforce standards and procedures through a general fair employment law.10 Thirty-six states now have “ban-the-box” laws for public employment; 14 of them cover private employment as well.11 Several states have enacted comprehensive schemes like Hawaii’s.12 In 2019, Congress enacted a “ban-the-box” law for federal employment and contracting. The Fair Chance Act (P.L. 116-92, Subtitle B), effective December 2021, prohibits most agencies and contractors from requesting criminal history information about a job applicant until a conditional offer is made. Congress has not, however, provided standards for when a conditional offer may be withdrawn based on criminal history, and has given OPM no enforcement authority. In addition, federal law restricts or prohibits employment of people due to criminal record in various areas, including banking, insurance, real estate, transportation, mortgage lending, federal health care programs, etc.13 While federal regulations restricting bank employment were recently reformed to some degree, the FDIC Act still disqualifies people based on participation in pre- trial diversion and other non-conviction dispositions.14 Legislative recommendations: Amend the 2019 Fair Chance Act to add enforceable standards on what criminal records may be considered in federal employment and contracting (g., Hawaii’s four-part mechanism described above; standards in the Fair Chance Licensing Act of 2019 (Title VIII of Next Step Act of 2019 (S.697/H.R.1893)). Give OPM enforcement authority. Eliminate conviction-based bars and limit discretionary disqualification in federally-regulated occupations and employments, consistent with the standards in the Fair Chance Licensing Act of 2019 (see above). Amend the FDIC Act to eliminate disqualification from banking employment based on participation in a pre-trial yeah that’s not a big deal diversion or similar non-conviction program. Voting Rights There is a growing consensus that restoration of the vote is an important aspect of criminal justice reform. Since 2015, 17 states and the District of Columbia have enacted a total of 26 laws either limiting disenfranchisement or encouraging the newly enfranchised to vote.15 As a result of these reforms, 18 states now disenfranchise people convicted of a felony only during actual incarceration, and another two states and the District of Columbia do not disenfranchise at all.16 Already in 2021, an impressive 18 states are considering bills to ease or eliminate prohibitions on voting based on a past conviction.17 Yet in thirty states people living in the community are unable to vote because they have not completed their terms of supervision and, in 10 of these states, only because they have not fully paid court debt.18 While eligibility for the franchise has historically depended upon state law, Congress has authority to control who is eligible to vote in federal elections, and bills have been introduced in successive Congresses to extend the franchise in this context. Legislative recommendation: Enact the Democracy Restoration Act of 2019 (1068) to allow any individual who is a citizen of the United States to vote in any election for Federal office notwithstanding their conviction of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election; and, to provide for written notification of restoration of voting rights.   ________________ Note:  This report was developed by Margaret Love and David Schlussel, Executive Director and Deputy Director, respectively, of the Collateral Consequences Resource Center (CCRC). CCRC is a nonprofit organization established in 2014 to promote public engagement on the myriad issues raised by the collateral consequences of arrest or conviction. Our Restoration of Rights Project describes and analyzes the laws and practices relating to restoration of rights and criminal record relief in each U.S. jurisdiction. Our 50-state charts, annual reports on new legislation, and issue-based projects make it possible to identify national patterns, emerging trends, and key policy issues. This report was made possible by a generous operating grant from Arnold Ventures. 1 See Marc Levin, Build a bridge, not a wall, between administrations on justice reform, The Hill (Feb. 1, 2021), https://thehill.com/opinion/criminal-justice/536732-build-a-bridge-not-a-wall-between-administrations-on-justice-reform. 2 See CCRC annual reports on new restoration of rights and record relief laws from 2013 through 2020, available at https://ccresourcecenter.org/resources-2/resources-reports-and-studies/. 3 The spirit of reform that produced many of the state record relief laws in the 1970s was dormant for 30 years until it reawakened around 2013, following a dramatic increase in the severity of collateral consequences, the number of people affected by them, and the routine practice of criminal background checking. See https://ccresourcecenter.org/the-many-roads-to-reintegration/. 4 “Record relief” refers to various types of remedies that operate directly on the criminal record:  expungement, sealing, and set-aside revise a person’s record; pardon or certificates of relief remove or mitigate specific barriers; diversion and deferred adjudication avoid a criminal record in the first place. See https://ccresourcecenter.org/resources-2/resources-reports-and-studies/. 5 Expungement, sealing, or set-aside are now available for at least some felony convictions in 38 states, for misdemeanor convictions in 42 states, and all but two states now authorize sealing of non-conviction records. See https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial- expungement-sealing-and-set-aside/. 6 We do not agree with the categorical restriction of relief in this bill to “non-violent” offenses, since the definition of “crimes of violence” under federal law is both exceedingly broad and vague. See 18 U.S.C. §§ 16, 924(e). We would leave it to the federal courts to determine whether sealing relief poses a threat to public safety in particular cases. 7 18 U.S.C. § 3607, the so-called Federal First Offender Act, limits deferred dispositions to persons charged with misdemeanor drug possession with no prior drug-related convictions, and authorizes expungement after successful completion of probation only for persons under 21 years of age at the time of the offense. 8 See Report of The Proceedings of the Judicial Conference of the United States 11 (Sept. 12, 2017) (“A bill was introduced in Congress, H.R. 2617 (115th Congress), the RENEW Act, that would expand the age of eligibility for expungement under section 3607 of title 18 from “under the age of 21” to “under the age of 25.” The Committee on Criminal Law noted that the RENEW Act’s aim of expanding the scope of section 3607 is consistent with practices already occurring in many courts looking to increase alternatives to incarceration and enhance judicial discretion and is consistent with Judicial Conference policy on sealing and expunging records in that it would not limit judicial discretion in the management of cases and adoption of rules and procedures. On recommendation of the Committee, the Conference agreed to support amendments to 18 U.S.C. § 3607 that provide judges with alternatives to incarceration and expand sentencing discretion, and that are consistent with the Conference’s prior views on sealing and expunging records”),  https://www.uscourts.gov/sites/default/files/17-sep_final_0.pdf (citing Report of The Proceedings of the Judicial Conference of the United States 12-13 (Sept. 17, 2015) (expressing concerns that certain provisions of the proposed Record Expungement Designed to Enhance Employment  Act of 2015, S.675, 114th Congress, could impact judicial independence as well as increase civil workload without providing additional resources)), https://www.uscourts.gov/sites/default/files/2015-09-17_0.pdf/. 9 American Law Institute, Model Penal Code: Sentencing, §§7.04-7.06 (2017). 10 See https://ccresourcecenter.org/the-many-roads-to-reintegration/. 11 See Beth Avery & Han Lu, Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies, National Employment Law Project (Sept. 30, 2020), https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/. 12 See supra note 10. 13 See Margaret Colgate Love, Jenny Roberts, & Wayne A. Logan, Collateral Consequences of Criminal Conviction: Law, Policy and Practice §§ 2:10, 2:11 (NACDL/West, 3d ed. 2018-2019). 14 12 U.S.C. § 1829(a)(1)(A) bars banking employment for any person who has been convicted of a criminal offense involving dishonesty “or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense.” 15 See supra note 2. 16 See https://ccresourcecenter.org/2020/11/23/who-must-pay-to-regain-the-vote-a-50-state-survey-2/. 17 See https://ccresourcecenter.org/2021/02/03/momentum-grows-to-restore-voting-rights-to-people-with-a-felony. 18 See supra note 16. Read more

Comparison of collateral consequences in Europe and the U.S.

Alessandro Corda has a new article that compares the treatment of regulatory collateral consequences in the United States and in European legal systems.  He argues that the primary difference is that in Europe proportionality is central to punishment schemes, and that sentencing courts must consider the impact of all combined sanctions on the defendant, including collateral consequences, in deciding whether a sentence is proportional to the crime.  “Collateral restrictions in the United States, instead, are not taken into account in determining the overall proportionality of the sentence to the seriousness of the offense since they are not considered as punishment.”  Criminal courts in the United States rarely consider collateral consequences in imposing a sentence, and for the most part have not regarded them as any of their business. Corda points out that “Europe never moved completely away from a rehabilitative model of punishment,” and that “the ultimate goal of European penal systems widely remains the reintegration of ex-offenders.”  In contrast, “the approach toward collateral restrictions in the United States tends to mirror prevailing criminal justice attitudes oriented primarily toward harsh and prolonged measures of penal control.”  Even during a period of “penal climate-change,” when sentencing and corrections policies are being rethought in this country, collateral consequences have been largely left out of the reform picture.  He argues that “no reform aimed at moving away from mass incarceration and overreliance on penal control can ultimately succeed if indirect ramifications of ‘being a criminal’ are ignored.” Corda proposes that collateral consequences should be integrated into the sentencing process as a formal part of the sentence, “thus moving beyond the legal fiction of the divide between direct and indirect consequences of a criminal conviction.”  Proposals of national law reform organizations like the American Law Institute are a step in the right direction in giving sentencing courts the authority to dispense with mandatory collateral penalties, but they stop well short of regulating discretionary consideration of criminal record. Corda concludes that there is an “inherent contradiction” in “policies of massive investments in reentry programs (e.g., the Second Chance Act Grant Program) that simultaneously leave collateral restrictions out of the equation.”  Legislative programs designed to promote reintegration are “doomed to fail if the issue of [collateral consequences] is not considered and tackled properly and effectively.” One sign that this is beginning to happen is the expansion of authorized diversionary dispositions whereby courts may afford less serious offenders an opportunity to avoid a criminal record entirely.  For example, the Forgiving & Forgetting report (pp. 13-15) notes that all but 13 states now authorize deferred adjudication, many for felony-level offenses, and most including expungement for successful participants.  In some jurisdictions access to such court-managed diversionary programs is controlled by prosecutors, but there are hopeful signs that prosecutors are becoming more sensitive to the impact of collateral consequences on recidivism. Here is the citation and abstract for Professor Corda’s article: Alessandro Corda, The Collateral Consequences Conundrum: Comparative Genealogy, Current Trends, and Future Scenarios, in AFTER IMPRISONMENT, a special issue of Studies in Law, Politics and Society, edited by Austin Sarat. Abstract: Collateral consequences (CCs) of criminal convictions such as disenfranchisement, occupational restrictions, exclusions from public housing, and loss of welfare benefits represent one of the salient yet hidden features of the contemporary American penal state. This chapter explores, from a comparative and historical perspective, the rise of the many indirect “regulatory” sanctions flowing from a conviction and discusses some of the unique challenges they pose for legal and policy reform. US jurisprudence and policies are contrasted with the more stringent approach adopted by European legal systems and the European Court of Human Rights (ECtHR) in safeguarding the often blurred line between criminal punishments and formally civil sanctions. The aim of this chapter is twofold: (1) to contribute to a better understanding of the overreliance of the US criminal justice systems on CCs as a device of social exclusion and control, and (2) to put forward constructive and viable reform proposals aimed at reinventing the role and operation of collateral restrictions flowing from criminal convictions. Read more

Restrictions on access to criminal records: A national survey

We have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement.  This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records.  The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004.  We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials. A brief overview of research methodology and conclusions follows. Background A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life.  Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse.  In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety.  One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.”  Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records. At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions. The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business. Notes on research methodology and terminology The 50-state chart summarizes the law in each state in several different categories, with citations to the relevant laws.  To accompany the chart we have created two color-coded maps, one identifying record-closing laws that affect adult conviction records, and the other identifying programs administered by courts that close records after successful completion of a deferred disposition.  We did not create a separate map for access to other non-conviction records, since all but three states (Arizona, Idaho and Wisconsin) make at least some provision for judicial sealing of arrests that did not result in a prosecution.  Similarly, only a handful of states make no provision for sealing the record of juvenile adjudications. Readers should keep in mind that states within the same color-coded category on each of the two maps may have widely varying laws.  We have done our best to choose the most appropriate category, but our choices may be somewhat arbitrary at the margins.  For a more precise picture of record closing laws in each state, we encourage readers to consult the 50-state chart, and the state profiles posted on this site that analyze laws and policies in detail. On the matter of terminology, we caution that terms like “sealing” and “expungement” have widely varying meaning in operation, and are frequently misunderstood.  Because most of the laws identified on the 50-state chart do not result in “clearing” a record in the literal sense that it is removed entirely from official files, we have chosen the general term “record-closure” to signal their most common effect.  In general, the authorities cited limit public access to court records as well as records in a state repository. One important final note:  We have tried to present a complete and accurate picture of state record-closing laws, but are well aware that any such effort will necessarily fall short. Accordingly, we welcome additions and corrections from our readers.  Above all, this research does not constitute legal advice, and there can be no substitute for the text of the law itself, and judicial interpretations of it. Overview of national landscape of record-closing laws A. Convictions It should come as no surprise that only a small number of states provide a comprehensive approach to record-closure, and most of these states have done so for many years.  Of the 12 states that give courts broad authority to limit public access to a substantial number of felonies as well as misdemeanors, only three (Indiana, Louisiana, and Missouri) have enacted this relief for the first time in the past ten years.  Seven other states (Arkansas, Connecticut, Kansas, Massachusetts, Oregon, Utah and Washington) have had well-developed statutory record-closing schemes for many years, some dating back to the 1970s.   The Minnesota courts have historically used their inherent authority to seal conviction records, and the legislature has now put that practice on firmer legal footing. New Hampshire courts have had authority to “annul” or set-aside conviction records for decades, though annulment has only recently resulted in limiting public access to court records. A few states have slightly expanded eligibility criteria for closing the record of minor felonies (Illinois, Michigan and Kentucky); Colorado now makes minor drug convictions eligible for expungement; and, a handful of additional states have recently limited public access to some categories of misdemeanor convictions, frequently confining relief to defendants who have no other criminal record.  Many states have created significant exceptions to restrictions on public access for certain categories of crime (e.g., sexual or violent offenses) or categories of user (licensing boards or employers working with vulnerable populations). The map at the right indicates in yellow the 12 states that authorize courts to limit access to many misdemeanors and a significant number of felonies.  The 15 dark blue states make provision for limiting public access to many misdemeanors and a few felonies.  Eleven light grey states make no provision for sealing of valid convictions.  Most of the rest of the states in lighter shades of blue allow record closure only to a few specific categories of convictions (e.g., drug possession) or offenders (youthful defendants).  Eligibility criteria, waiting periods, and applicable standards vary widely, as indicated on the 50-state chart. B. Non-conviction dispositions By far the most common recent expansion of record closure laws involves non-conviction dispositions, including deferred adjudication dispositions.  These dispositions originated in the 1970s as a way of enabling less serious offenders to avoid a conviction record. The map at left below shows that 37 states authorize court-supervised deferred dispositions, in which defendants charged with a crime are allowed to avoid imposition of judgment and a conviction record if they successfully complete a term of probation.  All but five of these deferred adjudication schemes provide the possibility of closing the record as an added incentive for defendants to take advantage of what are frequently more-onerous conditions than a straight term of probation. In most states the benefits of deferred adjudication are restricted to a narrow class of offenses (e.g., misdemeanors) or offenders (e.g., defendants with no prior criminal record).  Defendants are generally required to first enter a guilty plea, and a failure to complete what are frequently more onerous terms of probation may result in a more severe sentence.  Deferred adjudication may be appealing to prosecutors who are willing to offer a defendant a second chance but do not have the resources (or inclination) to manage a diversion program. There are many states that have broad sealing authority that extends to arrest and other records in cases not resulting in a conviction, including all of the states that have deferred adjudication schemes.  As previously noted, only three states make no provision for sealing any records (Arizona, Idaho and Wisconsin).  The federal system has a very narrow deferred adjudication authority that applies only to drug possession offenses, and that authorizes expungement only if the defendant was under the age of 21 at the time of the crime. The 50-state chart of judicial record-closing authorities provides a general description of the eligibility criteria for deferred adjudication in each state.  Additional details about record sealing in each state can be found in the profiles.          Read more