Tag: expungement

Expungement resources now online from Papillon Foundation

143_PapillonLogo_Black.aiMost people with a criminal record have a general understanding of the value of expunging or sealing their criminal records.  However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy.  The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past.    Read more

Expungement of criminal records in Europe (Spain)

This is the fourth post in a series about European law and policy on criminal records by Professors Jacobs and Larrauri.  Prior posts noted that public access is never allowed where a record has been expunged.  This post discusses the types of records that are eligible for expungement, how the expungement process works, and what the effect of expungement is.   (Professor Larrauri’s more detailed discussion of “judicial rehabilitation” in Europe is available here.)  – Eds. 

spainJust as there are variations in eligibility for and consequences of expungement in U.S. states, there are differences in detail in continental European countries. We focus on Spain, which we know best, though we have no reason to believe that Spain is an outlier when it comes to European countries’ law and policy.  (As in most all criminal record matters, the U.K. is more like the U.S. than continental Europe, making expunged records more accessible to the public than they are on the Continent.)

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Louisiana’s new expungement law: How does it stack up?

Louisiana has far and away the largest prison population of any state in the country (847 per 100,000 people — Mississippi is second with 692 per), but until last year there was little that those returning home after serving felony sentences could do to unshackle themselves from their criminal records and the collateral consequences that accompany them. While Louisiana has for years authorized expungement of misdemeanor convictions and non-conviction records, the only relief available to convicted felony offenders was a governor’s pardon — very few of which have been granted in Louisiana in recent years. Most people convicted of a felony in the state, no matter how long ago and no matter how serious the conduct, were stuck with it.* That’s why we were interested to learn that in 2014 Louisiana enacted a brand new freestanding Chapter 34 of its Code of Criminal Procedure to consolidate and extend the law governing record expungement to many felonies.

We decided to find out what the new law offers to those with felony records, and how it stacks up against the three other new comprehensive expungement schemes in Arkansas, Indiana, and Minnesota. We found that while a relatively large number of people with felony convictions are newly eligible for expungement relief, the law’s effectiveness is hampered by 1) unreasonably long waiting periods and 2) limited effectiveness in mitigating collateral consequences related to employment and licensure. Read more

Minnesota’s sweeping new expungement law takes effect

Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched.

The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that.   It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues.  The standard for granting expungement remains that under current law, requiring the court to balance private and public interests.

While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance.

Here is an explanation of the new law’s specific provisions. 

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“Decades-long Arrest Wave Vexes Employers”

The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction.  The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford.

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Indiana’s new expungement law the product of “many, many compromises”

In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country.  Under the new law, courts are empowered to “expunge” most criminal records, after waiting periods keyed to the seriousness of the offense.  The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere.  This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation.

We r150px-On_the_Banks_of_the_Wabash,_Far_Away,_sheet_music_cover_with_Bessie_Davis,_Paul_Dresser,_1897ecently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states.  Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation.  But in an age of bipartisan support for criminal justice reform, apparently anything can happen.   Read more

Despite pardoning hundreds, out-going Illinois governor may leave significant clemency backlog

When disgraced Illinois governor Rod Blagojevich was removed from office in 2009, he left behind more than the ugly controversy that would eventually lead to a 14-year federal prison sentence: he also left behind a 7-year backlog of over 2,500 clemency recommendations from the state’s Prisoner Review Board (“PRB”).   Blago’s successor Pat Quinn declared in April 2009 his intention of “erasing the shameful logjam of cases in a methodical matter and with all deliberate speed,” stating that “Justice delayed is justice denied.”  Since then, Governor Quinn has disposed of a total of 3,358 clemency petitions, granting more than a third of them.  Of the 1,239 persons pardoned, most have also had their records expunged.

However, despite his admirable efforts to restore regularity to Illinois pardoning, it appears that Quinn may leave his successor almost as large a backlog as he himself inherited.  This is because, during  his six years in office, the PRB has forwarded over 3,000 additional recommendations to the governor’s desk, most of which have not been decided.  Unless Quinn somehow finds a way to dispose of this still-large backlog of cases between now and January, Blagojevich’s irresponsible neglect of his pardoning responsibilities will have created a kink in the administration of the pardon power in Illinois that may not be worked out for years to come.

If long waits have become the new normal for pardon applicants in Illinois, those seeking relief from collateral consequences would do well to consider the alternatives available under state law.  For example, Illinois courts are authorized to grant Certificates of Relief from Disabilities, which avoid numerous licensing restrictions and shield employers from negligent hiring liability; and, Certificates of Good Conduct, which relieve mandatory bars to employment and other opportunities and certify the recipient’s rehabilitation.  Courts are also authorized to seal and expunge records in certain cases.

You can read about the latest round of Governor Quinn’s pardons in this Chicago Tribune article.  More information about relief and restoration of rights in Illinois can be found in the NACDL Restoration of Rights resource here.

UPDATE:  In his final days in office, Governor Quinn pardoned more than 300 people, and denied about 1000 petitions. He left about 2000 petitions for his successor to act on.  Let us hope he has a similarly progressive view of pardoning.

Reduced charge more harmful than original?

An earlier post highlighted the dilemma that some young Wisconsin defendants face because of the narrow scope of the law on sealing conviction records.  The court can seal the record of certain convictions, but the record of dismissed charges remains accessible to the public in a searchable online database.  Therefore, the dismissal can increase the potential for prospective employers to learn of an applicant’s legal troubles.

Now the Wisconsin Court of Appeals has held that the court may not seal the record of a nSeal-of-Wisconsinon-criminal violation.  Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014).  The appellate court reviewed the statutory language and concluded that references to 1) the maximum term of imprisonment for sealable offenses; 2) “completion of the sentence”; and 3) “certificate of discharge” from the “detaining or probationary authority” showed that the procedure applies only to criminal convictions.

For a young woman cited in 2012 in Kenosha County for underage drinking, now a college student in New York, the decision means that the record of her conviction for the amended charge of littering remains publicly accessible.  If she had been convicted of drug possession or fraud she might have been able to close the book on this episode.

Although the Frett case did not involve the reduction of criminal charges, the decision means that some defendants might prefer to have a sealed criminal conviction than to have a public record of a reduced, non-criminal charge (the public record of the reduced charge also shows the original charges).

The Frett decision may be appealed to the Wisconsin Supreme Court, and policymakers are considering statutory amendments to expand judicial authority to seal records.  For now, however, non-criminal dispositions and dismissals are publicly accessible in situations in which some criminal convictions can be sealed.

New reports evaluate national policy on juvenile record confidentiality

This month the Juvenile Law Center released an impressive pair of reports evaluating national policy on public access to juvenile criminal records. The first report, Juvenile Records: A National Review of State Laws on Confidentiality, Sealing and Expungement, provides a national overview of state laws, and proposes standards to mitigate exposure to collateral consequences as a result of a juvenile record.  150xNxJLC.jpg.pagespeed.ic.w0Eyk4Lh56The report also makes recommendations for policy-makers, courts, defense attorneys, and youth-serving agencies. Supplementing the national overview are fact sheets on the law in each state, including the availability and effect of expungement or sealing, and an overview of the process for obtaining such relief. (These fact sheets can be found by clicking on the relevant state on the map here).

A second complementary report, Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records, scores each state on the degree to which it meets the Center’s ideal standards for juvenile record protection. The Center based its evaluation of the states on its “core principles for record protection” including:

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Canada stiffens policy on sealing of criminal records – but it still looks pretty liberal from here

A couple of news items about an increase in clemency applications in Canada made me curious to learn more about how restoration of rights works in our Northern neighbor.

Canada has long had a policy of virtually automatic sealing of criminal records through what is known as a “record suspension” (before 2012, called a “pardon”).  The Criminal Records Act (CRA) makes record suspension available from the Parole Board of Canada for any offense except sex crimes involving children, and to any individual except those convicted of multiple serious crimes, after waiting periods of five years from completion of sentence for “summary” offenses and 10 years for “indictable” offenses.  (Prior to 2012 the waiting periods were three and five years.)  Non-conviction records may be purged sooner.

Once a record has been suspended, all information pertaining to convictions is taken out of the Canadian Police Information Centre and may not be disclosed without permission from the Minister of Public Safety.  The CRA states that no employment application form within the federal public service may ask any question that would require an applicant to disclose a conviction.  It is unlawful under Section 3 of the Canadian Human Rights Act to discriminate in employment or housing or union membership against anyone based upon “an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

In 2012-13 the PBC ordered more than 6600 pardons and records suspensions, 97% of all applications received.  (According to the PBC website, since 1970 more than 460,000 Canadians have received pardons and record suspensions. “96 percent of these are still in force, indicating that the vast majority of pardon/record suspension recipients remain crime-free in the community.”)

The 2012 amendment of the CRA to extend the eligibility waiting periods has resulted in an increase in applications for the extraordinary remedy of “clemency,” which has higher standards but no eligibility waiting period.  Clemency, formally known as the “Royal Prerogative of Mercy” (RPM), may be granted in federal cases by the Governor General or the Governor in Council (i.e. Federal Cabinet), and applications are staffed by the PBC.   Clemency is intended “only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.” All other avenues of relief must have been exhausted, and there must be must be “clear and strong evidence of injustice or undue hardship.”  In contrast to the thousands of ordinary records suspensions granted each year in Canada, there are only a handful of these extraordinary clemency grants.  In 2012 there were 52 RPM applications and only 12 grants.

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