Tag: Idaho

Two significant new occupational licensing laws enacted in 2021

After 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies last year, the first significant record reforms of 2021 are occupational licensing laws enacted by Ohio and the District of Columbia.  D.C.’s new law is particularly comprehensive, and applies both to health-related and other licensed professions in the District. The new District of Columbia law, Act A23-0561, is described in detail in the DC profile from the Restoration of Rights Project.  It provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the licensed occupation, as determined by a detailed set of standards; prohibits inquiry about a record until an applicant has been found otherwise qualified and then prohibits consideration of certain records (including non-conviction and sealed convictions); and provides procedural protections in the event of denial. The new law also establishes a pre-application petition process for individuals with a record to determine their eligibility, and requires the Mayor to report annually to the Council on each board’s record.  The Institute for Justice has described the “landmark” new D.C. law as “the best in the nation, second only to Indiana.” The new Ohio law, HB 263, is more complex and less protective than DC’s, requiring licensing boards to publish lists of two types of convictions: those that “shall” be disqualifying (overcome only by a court-ordered certificate) and those that “may” be found disqualify based on their “direct relationship” to the licensed occupation. Other convictions and non-conviction records may not be grounds for denying a license, and vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those “directly related,” the board must still consider certain standards linked to an applicants overall record that are linked to public safety, and may not deny after a period of either five or 10 years depending on the offense.  In the event of denial, a board must provide procedural protections including written reasons and a hearing.  These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019. Michigan’s governor also signed a series of bills regulating occupational licensure on the last day of 2020, which include some of the features of the schemes described above but retain the unfortunate disqualification standard of “good moral character.” While Michigan’s licensing law could use improvement, it contributed to the state’s earning the title of Reintegration Champion of 2020. Our report on new legislation in 2020, documenting that 11 states enacted 19 licensing reform laws, noted that “[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy.”  We reprint the discussion of 2020 licensing reform from our report here: In 2020, 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies. Four states (Idaho, Iowa, Missouri, and Rhode Island) regulated licensing agencies statewide for the very first time; two other states (Utah and West Virginia) improved upon their first venture into licensing regulation in 2019; and Pennsylvania made improvements in licensing standards originally adopted in an earlier era of reform in the 1970s. These enactments continue a trend begun in 2017 that has transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people. As explained in our national report The Many Roads to Reintegration, these licensing reforms are particularly important in supporting reintegration, since studies have shown that more than 25% of all jobs in the United States require a government-issued license.  Occupational licenses offer a gateway to the middle class, particularly for people who may have learned a trade or gained a skill while in prison. The new wave of licensing reforms resurrects a progressive approach to occupational opportunity that dates from the 1970s.  In recent years it has been strongly influenced by model legislation developed by the Institute of Justice (IJ), a libertarian public interest law firm, and the National Employment Law Project (NELP), a workers’ rights research and advocacy group.  Despite their origin in differing regulatory philosophies, the IJ and NELP model laws reflect a similar approach:  they 1) limit the kinds of records that may result in disqualification, rejecting vague “good moral character” and other criteria irrelevant to competence; and 2) insist that individual denials be grounded in findings of rehabilitation and public safety with rigorous due process guarantees, making agency procedures more transparent and accountable.  In the IJ model, applicants may seek binding preliminary determinations of qualification, and agency compliance is monitored by disclosure and reporting requirements. Some of the more familiar provisions of these new laws are drawn from the IJ or NELP models: Preliminary determination: Providing for a preliminary determination of qualification, for a small fee with quick turnaround and written reasons Relevant standards: Deleting vague standards like “good moral character” in favor of standards likely to evidence low risk and rehabilitation Prohibited considerations: Barring consideration of certain types of records and other types after a specified time Transparency: Requiring agencies to publish a list of disqualifying convictions and to provide written reasons for rejection in individual cases Accountability: Including reporting requirements intended to monitor agency compliance. The new occupational licensing laws in 2020 are summarized below: Colorado enacted the “Occupational Credential Portability Program,” which authorizes approval of an application for reciprocal licensure by anyone licensed in another jurisdiction, apparently without regard to whether they meet Colorado’s standards for licensure that relate to consideration of criminal record, unless they have committed an act that would be grounds for disciplinary action in Colorado (HB 20-1326). Colo. Rev. Stat. §§ 12-20-202(3)(a), (b), (f)(III). In addition, HB 20-1424 creates “social equity licenses” to operate legal marijuana businesses, available to people who: (1) themselves or their family members were arrested, convicted, or subject to a civil forfeiture for a marijuana offense; (2) have a low income; or (3) live in an “opportunity zone” or “disproportionate impacted area.” Iowa had no general law regulating consideration of criminal record in occupational licensing prior to 2020. HF 2627 adds a new section to Chapter 272C of the Iowa Code to impose an unusually robust and license-specific “direct relationship” test on all but a few health-related licenses. Each covered board must provide a list of offenses that “directly relate[] to the duties and responsibilities of the profession,” and may not deny a license based on non-conviction records or any finding that an applicant “lacks good character” or “suffers from moral turpitude.” Iowa Code Ann. §272C.15. Under the new section, an agency “shall grant” an exception to an individual “who would otherwise be denied a license due to a criminal conviction” if the individual is determined to be rehabilitated and an “appropriate candidate for licensure” based on a list of factors that include the nature and seriousness of the crime, the passage of time, and other mitigating or aggravating factors. There is a rebuttable presumption that an applicant is “rehabilitated” five years after release from incarceration unless the conviction was for certain violent or sexual crimes. The board shall consider whether a “certification of employability” has been issued and any letters of reference. A prospective applicant may petition for a preliminary determination, for which a board may charge a fee of $25. Grounds for denial must be in writing, and the applicant must be given an opportunity to appeal and informed that evidence of rehabilitation will be considered on reapplication. The board’s findings on each criterion specified must be “sufficient for review by a court.” The board has the burden of proving direct relationship. An individual may be requested to submit a “complete criminal record,” which includes the complaint and judgment for each conviction. Idaho had no general law regulating consideration of criminal record in occupational licensing, prior to 2020. SB 1351 adds a new chapter 94 to Title 67 of the Idaho Code, inter alia establishing a committee “to study and review occupational licensing and certification laws in general in order to determine, as applicable, how the legislature may be able to ease occupational licensing barriers while still protecting the public health and safety.” The new law authorizes a non-binding preliminary determination as to whether a person’s conviction would be disqualifying, and establishes a multi-factor test to determine whether a person’s criminal record is “currently relevant to the applicant’s fitness” to engage in the occupation. A license may not be denied on the basis of “vague or generic terminology related to a criminal conviction, including but not limited to ‘moral turpitude’ or ‘moral character.'” “Where such terms appear in code or rule with respect to a criminal conviction, a licensing authority shall conduct a relevancy evaluation pursuant to subsection (1) of this section.” The “relevancy” standard was inserted in a variety of licensing chapters as a basis for denial or revocation of a license, replacing a formulation that permitted adverse action based on “conviction of any felony, or conviction of any other crime involving moral turpitude.” It was also inserted into the rules of the division of human resources and the personnel commission that regulate public employment in the state. Louisiana’s SB 354 provides for issuing a card to individuals leaving prison that includes a list of all vocational licensing and certification programs completed while incarcerated. Michigan enacted a series of bills applicable to occupational licensure to limit agency consideration of certain types of criminal record. HB 4488 and related bills retained the standard of “good moral character” as a basis for restricting licenses to those with a criminal record but limited it for most licenses to exclude non-convictions, misdemeanors that do not carry a prison term, and convictions “unrelated to an individual’s capacity to serve the public.”  The new law requires each licensing agency to specify the crimes that are likely to fall into the last-mentioned category. They must also provide a statement of reasons in the event of denial (“including a complete record of the evidence upon which the determination was based”), an opportunity to appeal, and judicial review. An annual report must be submitted with the number of applications denied because of lack of good moral character and a summary of the convictions on which denials were based. Missouri provided very little protection to a person with a criminal record in the licensing process prior to 2020. The Fresh Start Act (HB 2046) requires that a disqualifying criminal record must be “directly related” to the license, also specifying that certain violent crimes “shall” be considered “directly related” to whatever license is involved even if sentence is not imposed. Drug crimes “may” be disqualifying for certain occupations, while fraud offenses “may” be disqualifying for other occupations. If convicted of a lesser included offense, the period of disqualification as “directly related” lasts only for four years after release from incarceration. “Direct relationship” is determined by a multi-factor test. Applicants may apply for a preliminary determination that is binding on the agency. If a person is denied a license, they have a right to a hearing, as well as written findings addressing each factor on which the agency relied sufficient for a reviewing court. “In any administrative hearing or civil litigation authorized under this subsection, the licensing authority shall carry the burden of proof on the question of whether the applicant’s criminal conviction directly relates to the occupation for which the license is sought.” The new law does not apply to significant classes of licenses, including teachers, various health professionals, accountants, real estate brokers and agents, and peace officers. Pennsylvania enacted SB 637 to bolster its weak occupational licensing law dating from the 1970s. SB637 supersedes any law that disqualifies an individual for a license or provides for “good moral character” findings, requires that there be a “direct relationship” between the crime and the profession and whether licensing the individual poses a public safety risk, as determined by an “individualized assessment” under a long list of specified factors. It excludes those convicted of sexual offenses from health care licensure and establishes a separate set of standards for those convicted of violent crimes. Prohibits consideration of juvenile adjudications, non-conviction records, and records of convictions that have been expunged or sealed). It also authorizes restricted licenses for applicants who cannot immediately demonstrate fitness due to a criminal conviction, and it provides for a “preliminary determination” for applicants considering undergoing training for a license, which is binding unless the crime is one on the list of crimes “directly related,” in which case it may be subject to further inquiry when a formal application is filed. The law falls short in not ruling out consideration of dated or minor convictions, although it does rely on a public safety standard for denial of a license and gives those recently released from prison a chance to demonstrate their abilities. While existing law requires boards to defend record-related denials with written reasons, neither old nor new law provides an opportunity for an administrative appeal, requiring a disappointed applicant to file a lawsuit. Rhode Island enacted its first generally applicable law regulating the occupational licensing process, extending it as well to professional and business licenses issued by state agencies. S 2824 applies a “substantial relationship” standard to licensing boards under most departments of state government, establishes standards for determining substantial relationship, excludes certain records from consideration, allows applicants to establish rehabilitation by detailed standards, provides detailed procedures in the event of denial, suspension or revocation, and includes accountability standards. Records that may not be considered include non-conviction records, juvenile records, expunged records, records of misdemeanors that may not be punished by incarceration, and any crime that is not substantially related. If a licensing authority intends to deny, suspend, or revoke an occupational license solely or in part because of a conviction, the person must be given reasons in writing, and if the conviction is “substantially related” an analysis under each of the criteria. The person must be permitted to respond and given an opportunity to appeal. Every agency must post on its website each year a report with “(1) the number of applicants granted licenses, the number of applicants denied licenses for any reason, and, to the extent available, the demographic breakdown of the applicants, including race, ethnicity, and gender, and city or town of residence; and (2) The number of applicants denied solely, or in part, because of a criminal conviction. The law took effect on January 1, 2021. Utah’s legislature acted to enhance a 2019 law that provided for a preliminary determination of qualification for licensure applicable to many state licensing boards, upgrading its standard for decision-making from “reasonable relationship” to “substantial relationship.” SB 201 takes regulation of licensing a step further, establishing heightened standards for consideration of licensure of applicants with criminal records. Licensing boards must “provide individualized consideration to the applicant or licensee,” and “determine whether the criminal conviction bears a substantial relationship to the applicant’s or licensee’s ability to safely or competently practice the occupation or profession.” In this determination the board will “consider the applicant’s or licensee’s current circumstances” measured by a number of the customary factors such as age when offense committed, time since conviction, and various indicia of rehabilitation. Applicants are provided an opportunity to appeal a denial. § 58-1-402. Certain convictions are per se “not evidence of unprofessional conduct,” including non-convictions, and convictions where seven years have passed since release from incarceration without a conviction or guilty plea. Convictions for violent and sexual crimes, and for fraud or embezzlement are excepted. § 58-1-501(4). Vermont has very weak regulation of occupational licensing agencies, allowing denial or discipline for “unprofessional conduct” based on “[c]onviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession.” 233 did nothing to tighten this standard, providing only that its licensing boards must offer interested persons a pre-application determination regarding whether their criminal background will be disqualifying. This request shall provide documentation related to the individual’s conviction or convictions, evidence of rehabilitation, and identification of the profession or professions for which the individual seeks licensure. An applicant would pay a $25 fee for this so-called “second chance determination,” and this fee would be deducted from the license application fee if the applicant does thereafter seek licensure. The new law applies to the professions and occupations regulated by the Office of Professional Regulation, the Department of Environmental Conservation (for well drillers), the Standards Board for Professional Educators, the Board of Medical Practice, the Electricians’ Licensing Board, and the Plumbers’ Examining Board. Washington enacted HB 2870 to create a “social equity program” to reduce barriers to entry to the cannabis industry for individuals and communities most adversely impacted by the enforcement of cannabis-related laws. West Virginia enacted two laws (HR4352 and HR4353) extending regulation enacted in 2019 to a variety of different licenses, applying a “rational nexus” standard for denial, lifting mandatory bars after five years, and authorizing a preliminary determination. Read more

Pennsylvania expands access to 255 licensed occupations for people with a record

On July 1, Pennsylvania Governor Tom Wolf signed into law an expansive new regulation of the state’s occupational licensing process, giving the agencies that control access to 255 occupations detailed new standards for considering criminal records in the licensing process.  Pennsylvania has not addressed these issues on a state-wide basis since the 1970’s, and with proper implementation the new law promises a path to the middle class for skilled individuals whose career prospects might otherwise be limited. While Pennsylvania’s law is by far the most ambitious one of its kind passed this year, five other states have also passed laws since the beginning of 2020 regulating consideration of criminal record in occupational licensing.  Two were states that previously had no general law governing this issue (Idaho and Missouri) and three were states that extended laws passed in recent years (Iowa, Utah and West Virginia). Pennsylvania’s new law is analyzed in detail below.  The provisions of the other five states’ new licensing laws are summarized briefly at the end of the post, and the laws of all six states are written up in greater detail in the relevant state profiles in the Restoration of Rights Project. Pennsylvania’s new occupational licensing law Pennsylvania’s new law (SB637) is very strong substantively.  To summarize, it supersedes provisions in existing law that provide for “good moral character” criteria for certain licenses, as well as laws that mandate disqualification, including 10-year bars that apply in numerous health-related licensing schemes.  It requires each licensing agency to identify offenses that may be disqualifying as “directly related” to the occupation, pursuant to a notice-and-comment rule-making process.  If an offense is not considered “directly related,” the new law mandates an individualized assessment of each applicant pursuant to detailed criteria that emphasize public safety.  It gives individuals recently released from prison a chance to demonstrate their abilities through offering “restricted” licenses to those who cannot immediately demonstrate fitness under the law’s new standards.  Finally, it expands the category of records that may not be considered to include convictions that are subject to an order of “limited access.”  At the same time, unlike recent licensing reforms in some other states, it does not rule out consideration of dated or minor convictions. The new law is not as strong from a procedural standpoint as some other recent licensing reforms, and its due process provisions are not well-developed.  For example, it does not require licensing agencies to defend record-related denials with written reasons, nor does it provide for an administrative appeal, so that applicants who have been denied a license must seek redress in the courts through the state’s administrative procedure act.  In this respect, disappointed applicants seeking to  challenge an agency decision are in no better position under this 2020 law than disappointed applicants for employment under Pennsylvania’s 1980 law, which also has strong standards but no enforcement mechanism. It is possible that the legislature decided to wait to see how licensing agencies perform under the new substantive criteria before imposing new procedural requirements.  As an interim accountability measure, the new law includes a requirement that each agency make detailed statistical reports to the legislature after two years.  If the agencies proceed with good will to implement the new criteria, many individuals previously excluded should benefit. As background, in 2017 Governor Tom Wolf directed the Bureau of Professional and Occupational Affairs (BPOA) in the Department of State to study several licensing-related issues in Pennsylvania, including how licensees are disciplined, how licenses from other jurisdictions are considered, and how a criminal record operates to deny many licenses either by operation of law or because of unaccountable discretionary decisions.  The resulting report (Review of State Occupational and Professional Licensure Board Requirements) found a number of flaws in how people with criminal records are treated in the licensing process: Criminal history bans also vary from board to board, with significant bans set in statute for most healthcare-related occupations. Lastly, the requirement to demonstrate “good moral character” is loosely defined and while this administration has provided guidance through policy statements regarding the use and review of criminal histories there is the potential for it to be applied unevenly across boards. The governor and administration officials should examine the impact of criminal history bans and “good moral character” requirements on ensuring Pennsylvania residents are able to engage in the workforce without unnecessary barriers. The report found that, particularly with respect to health-related licenses, “[a]mong the regional comparison group, Pennsylvania is an outlier in applying an automatic criminal history licensure ban.”  See report at p. 25, also listing professions that have a 10-year bar.  The report made a number of recommendations which provided new organization for the 29 agencies and commissions that regulate 255 licensure types, a single disciplinary structure, and licensure by endorsement for people with out-of-state licenses.  Most importantly for our purposes, the report made a number of recommendations related to criminal records that two years later have now made their way into SB637. The new law applies to the 29 licensing agencies under BPOA jurisdiction, and includes architects, pharmacists, veterinarians, podiatrists, psychologists, physicians, nurses, barbers and cosmetologists, occupational therapists, nail technicians, and engineers.  Building trades requiring a license, teachers, and lawyers are not covered. Under preexisting law, licensing agencies “may consider convictions of the applicant of crimes but the convictions shall not preclude the issuance of a license, certificate, registration or permit.” 18 Pa. Cons. Stat. § 9124(a).  Licensing agencies may not consider records of arrest if there was no conviction of a crime based on the arrest; convictions which have been annulled or expunged; convictions of a summary offense; convictions for which the individual had received a pardon from the Governor; or “convictions which do not relate to the applicant’s suitability for the license, certificate, registration or permit.”  § 9124(b)(2).  Agencies are free to suspend or revoke a license because of a felony conviction, or where the applicant was convicted of “a misdemeanor which relates to the trade, occupation or profession for which the license, certificate, registration or permit is sought.”  § 9124(c). SB637 established in Title 63 of the Pennsylvania statutes a new Chapter 31 to establish standards for consideration of criminal record in licensing.  The new law amends existing § 9124(a) to add to records that may not be considered any that have been made subject to limited access, including by the state’s automated “clean slate” process.  It also specifically supersedes any other provision of law that disqualifies an individual for a license or provides for “good moral character” findings.  § 3113(a).  It then establishes in §§ 3113(b) and (c) an elaborate two-stage inquiry to determine qualification for licensure: First, the agency must determine, considering a list of potentially disqualifying crimes developed through a notice-and-comment process under § 3117, whether there is a “direct relationship” between the applicant’s criminal record and the profession. (“Direct relationship is defined in § 3102 as having “a direct bearing on the fitness or bearing on the fitness or ability to perform one or more of the duties of responsibility necessarily related to the profession trade or occupation”).  § 3113(b) Second, if there is not such a direct relationship, the agency must make an “individualized assessment” as to whether licensing the individual would pose a public safety risk, as determined under a long list of specified factors.  § 3113(c). Section 3113(d) makes clear that those convicted of sexual offenses may not qualify for health-related licenses, and § 3113(e) establishes a separate test for offenses involving violence. Additional features of the new law: § 3114 prohibits consideration of juvenile adjudications (this is in addition to the various exclusions in § 9124(a) above for non-conviction records, and records of convictions that have been expunged or sealed); § 3112 authorizes restricted licenses for applicants who cannot immediately demonstrate fitness due to a criminal conviction, §§ 3112 (barbers and cosmetologists) and 3112.1 (all other occupations), with various standards for demonstrating “fitness” that relate to conduct in prison and supervision, and “a commitment to living a law-abiding life,” §§ 3112(B) and 3112.1(B); § 3115 provides for a “preliminary determination” for applicants considering undergoing training for a license, which is binding unless the crime is one on the list of crimes “directly related,” in which case it may be subject to further inquiry when a formal application is filed; § 3116 provides for issuance of a best practices guide; § 3117 provides for a process (involving the business community as well as the boards) for identifying crimes that will be presumptively considered “directly related” for each profession, and for publishing them for public comment. Section 3118 provides for a report to the legislature within two years by the Secretary of the Commonwealth on the implementation of each section of the act, and statistical report on applications received, granted and denied under each section of the act.  Effective date: Sections 3112 through 3115 are effective at end of 2020, the rest are effective immediately. Other new occupational licensing laws enacted in 2020 Idaho: As of 2020, licensing agencies must determine whether a person’s criminal record is “currently relevant to the applicant’s fitness” to engage in the occupation, using a multi-factor test; vague terms like “moral character” are prohibited.  Individuals may apply for a non-binding preliminary determination. SB1351 Iowa: A 2020 general licensing law enacted a direct relationship standard, defined rehabilitation broadly (and presumed it after 5 years for most crimes), provided for a preliminary determination, and provided for strong due process protections.   HF2627.  Previously, the only licenses for which consideration of criminal records was limited were in trades taught in the state’s prisons (e.g., electrician, plumber, mechanical, contractor, and barbering licenses). Missouri: The 2020 Fresh Start Act requires licensing agencies to apply a “direct relationship” standard, and provides that they may not deny a license “solely” because an applicant has a felony conviction.  Licensing agencies may consider a conviction “some evidence of an absence of good moral character,” but they must also consider the nature and date of the crime, as well as conduct after the conviction.  A license may not be denied “primarily” because of a conviction that was pardoned, and expunged records may be grounds for denial of some licenses involving sensitive employment.  HB2046. Utah: An occupational licensing agency may not disqualify based on conviction unless it is “substantially related” to the occupation, and applicants must be given individualized consideration pursuant to a multi-factor test, with an appeal in the event of denial.  Non-convictions, and most convictions after seven conviction-free years may not be considered.  Potential applicants may apply for a preliminary determination as to whether their criminal history will be disqualifying.  SB201. West Virginia: Licensing agencies may not disqualify an applicant because of a conviction unless it has a “rational nexus” to the desired occupation, determined by specified standards including seriousness of crime, passage of time, and evidence of rehabilitation.  Agencies are not required to give reasons for denial, but they are authorized to give potential candidates a preliminary determination respecting likely disqualification.  An applicant who is denied licensure may reapply after 5 years (with violent and sexual crimes subject to a longer period). HR4352, HR4353. Read more

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

Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types.  The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process.  Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time.  Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible.  Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado’s new “order of collateral relief” provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction.  The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority.  These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<       Read more

“Second Chances for Teen Offenders”

This New York Times editorial urges states to seal or expunge juvenile records “so that young offenders are not permanently impaired by their youthful transgressions.”  It describes a new study from the Juvenile Law Center that concludes “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to [juvenile] records.” The first juvenile courts were established more than a century ago on the principle that children deserve special care under the law because they are vulnerable, because their transgressions tend to be nonviolent and because they can be expected, on the whole, to outgrow their youthful misbehavior. These presumptions are borne out by data showing that 95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood. But because some juvenile court records remain open to the public when they should have been sealed or expunged, these young people can be denied jobs, housing and even admission to college. An eye-opening state-by-state study by the Juvenile Law Center, a public interest law firm in Philadelphia, reveals the scope of the problem. A young person who is arrested acquires a paper or electronic trail that can include educational, medical and mental health data, as well as intimate family information. States allow courts, correction officials and juvenile agencies to use these records to help plan a course of treatment and rehabilitation. But only a few states have ironclad systems prohibiting employers and members of the public from gaining access to these records. The center rated all 50 states and the District of Columbia based on how well they protect confidentiality. New Mexico is the top-rated state, partly because it limits access to juvenile records to schools and government agencies during court proceedings and because juvenile record information is never accessible to the general public. Ranked near the bottom are Kansas, Michigan, Delaware, Utah, Minnesota and Arizona. Dead last is Idaho, because it has no confidentiality protections for juvenile records and makes very few records eligible to be sealed. The fact that most juvenile offenders never presented a threat to public safety and have no further contact with the law after they become adults argues strongly for sealing or expunging records so that young offenders are not permanently impaired by their youthful transgressions. Read more