Our new report on 2020 legislative reforms shows continued progress in state efforts to expand voting rights for people with a felony conviction. Despite a courtroom setback at the Eleventh Circuit, where a federal appeals court ruled that Florida’s landmark 2018 felony re-enfranchisement initiative does not restore the vote to people who owe court debt, two additional states and D.C. took major actions to restore voting rights to people convicted of a felony. Already in 2021, an impressive 19 states are considering bills to ease or eliminate prohibitions on voting based on a past conviction.
In 2020, California restored the vote to people on parole, via a ballot initiative amending the state constitution. Iowa‘s governor issued an executive order restoring voting rights to people convicted of most felonies after completion of incarceration and supervision. And the District of Columbia repealed felony disenfranchisement altogether so that even people in prison may vote. Since 2016, 19 states have taken steps to restore the right to vote for people with a felony and expand awareness about eligibility.
In 2021, at least 19 state legislatures are considering bills that would expand the franchise to those with a conviction:
- 5 states are considering measures to amend their constitutions or statutes to eliminate felony disenfranchisement entirely (Nebraska, Georgia, Massachusetts, Oregon, and Virginia). They would join Maine, Vermont, and D.C., as jurisdictions that have fully abandoned felony disenfranchisement. Connecticut also has a proposed bill that to eliminate disenfranchisement for certain felony offenses and restore the vote after incarceration for the others.
- 10 states are considering bills to re-enfranchise individuals not presently incarcerated for a felony conviction: Alabama, Minnesota, Missouri, New Mexico, New York, Oklahoma, Washington, Texas, and Virginia (Alabama’s bill would do so 5 years after release). The Washington measure is sponsored by newly elected Rep. Tarra Simmons, believed to be the first Washington state lawmaker formerly convicted of felony.
- The only 4 states remaining without a statutory mechanism for re-enfranchisement (Kentucky, Iowa, Mississippi, Virginia) are considering measures to restore the vote upon completion of incarceration and supervision, or earlier, for a disqualifying offense (in the case of Mississippi, after incarceration and parole only; in the case of Iowa, 5 years after completion of incarceration and supervision; Virginia has proposals to eliminate disenfranchisement completely or restore the vote upon release). These four states currently make re-enfranchisement wholly dependent upon discretionary gubernatorial action (or in Mississippi, discretionary legislative action).
- In addition, Tennessee has a pending bill that would remove requirements that a person has paid all restitution and court costs, and be current on child support, before voting rights may be restored. Maryland and Missouri are considering bills to facilitate voting in jails for eligible individuals, and Maryland has another bill to require individuals released from correctional facilities and/or on community supervision to be informed that they are eligible to vote. Nebraska also has a pending bill to remove the two-year waiting period after completion of a felony sentence for voting rights restoration.
Our full report on 2020 criminal record reforms is available here. For an overview of loss and restoration of voting rights, see our Sept. 2020 national survey and our 50-state comparison chart. In addition, our Nov. 2020 report documents which states treat unpaid court debt as a barrier to regaining the vote.
This is the first in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief in various ways. The full report on 2019 laws is available here.
Restoration of Civil Rights
In 2019, eleven states took steps to restore the right to vote and to expand awareness of voting eligibility. Our experience is that many people convicted of a felony believe they are disqualified from voting when they are not: almost every state restores voting rights automatically to most convicted individuals at some point, if they are even disenfranchised to begin with.
The most significant new re-enfranchisement laws were enacted in Colorado, Nevada and New Jersey, where convicted individuals are now eligible to vote except when actually incarcerated. Colorado restored the vote to persons on parole supervision, while Nevada revised its complex system for restoring civil rights so that all people with felony convictions may now vote except while in prison. In one of the final legislative acts of 2019, New Jersey’s governor signed a law limiting disenfranchisement to a period of actual incarceration, even in cases where a court has ordered loss of the vote for election law violations, immediately restoring the vote to 80,000 people. These three states joined the two states (New York and Louisiana) that in 2018 took steps to limit disenfranchisement to a period of incarceration: New York’s governor issued the first of a series of executive orders under his pardon power restoring the vote to individuals on parole, and Louisiana passed a law allowing people to register if they have been out of prison for at least five years.
Now, only three of the 19 states that disenfranchise only those sentenced to prison still extend ineligibility through completion of parole: California, Connecticut, and Idaho. Bills under consideration in 2019 in both California and Connecticut would allow people to vote once they leave prison, though in California this will require a constitutional amendment.
Kentucky saw perhaps the most dramatic extension of the franchise in 2019, when its incoming governor Andy Beshear issued an executive order restoring the vote and eligibility for office to an estimated 140,000 individuals convicted of non-violent felonies who had completed their sentences. Before the order, individuals were required to petition the governor individually to obtain restoration of their voting rights. (Governor Beshear’s father had issued a similar order in 2015 at the end of his own term as governor, but it was revoked by his successor.) Iowa is now the only state that does not restore the vote automatically to most convicted individuals at some point.
Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record. (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.) The first quarter of 2019 has already produced a baker’s dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last. The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency. Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature’s accession to Governor Ralph Northam’s request that it “eliminate the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” which will immediately reinstate driving privileges to more than 627,000 Virginians.
This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures. The two most significant new laws were enacted in Western states. Utah’s HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records. When it takes effect on May 1, 2020, it will be the nation’s second “clean slate” law in operation (Pennsylvania’s first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019). Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment).
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.
How much is a clean slate worth? That’s the question many people with criminal records are asking in Kentucky, Louisiana, and Tennessee, where the cost of filing for expungement is (or will soon be) between $450 and $550. To put that into perspective: In Kentucky, the $500 fee required to expunge an eligible felony conviction under a new law that takes effect in July will equal nearly half of the monthly wages of a full-time worker earning the state’s $7.25 minimum wage. The relative cost will be even higher for the many people who have difficulty securing steady full-time employment because of their criminal record. The high filing fee puts relief effectively out of reach for most of those it was intended to benefit, even if they elect to file without retaining a lawyer.
There is a major disconnect between these exorbitant fees and the policy rationale that has led many states to create or expand expungement opportunities in recent years. Expungement improves the employment prospects of people with criminal records, allowing them to achieve a degree of economic stability that in turn discourages further criminal behavior. People held back from economic stability by their criminal records are the people that are likely to benefit most from expungement, and the social advantages of expungement are most keenly experienced among this population. But these are the very people least likely to be able to afford to pay high application fees.
According to an article by Maura Ewing published by the Marshall Project earlier this week that takes a closer look at the issue, Kentucky, Louisiana, and Tennessee are outliers among states that allow for expungement in charging such high fees:
Many states charge $150 or less to apply for expungement … and some states offer a waiver if the applicant is too poor to pay.
In the 17 states that allow for expungement of low-level felonies, “the application fee is generally in line with standard court fees.”
So why are the application fees in those three states so high, and where does that money go? Ewing found that while Louisiana’s fees were considered necessary to cover the costs of an inefficient and underfunded justice system, the fees in Kentucky and Tennessee were driven solely by the prospect of generating general revenue. From the article:
More and more states are enacting new expungement and sealing laws, or expanding existing ones, some covering convictions for the first time. The first four months of 2016 alone saw courts given significant new authority to limit access to criminal records in four states, and bills have been introduced in several others that promise more new laws in months to come.
In April, Kentucky authorized expungement of felonies for the first time, while New Jersey reduced waiting periods for some offenses and made expungement automatic for some others. Also in April, Maryland’s Governor Hogan signed that state’s Justice Reinvestment Act, permitting expungement of misdemeanor convictions for the first time. Beginning in November, Pennsylvania courts will have new authority to seal misdemeanor offenses, and follow-up bills have been introduced in both houses to make sealing automatic for most non-felony records after a waiting period. There are also several pending proposals to significantly expand existing expungement laws in Oklahoma, Missouri, and Rhode Island.
We take a closer look at each of these new expungement authorities below.
The new laws evidence the growing momentum behind second-chance reforms. They also show how expansion of expungement and sealing mechanisms can be an incremental process. For example, the legislatures in Maryland and Pennsylvania first tested the waters by giving courts new authority to mitigate low-level conviction records in relatively limited ways, with both following up shortly after with proposals to increase both the availability and effectiveness of those mechanisms. Meanwhile, states with fairly robust expungement mechanisms already in place, like New Jersey, Missouri, and Kentucky, have taken steps to make relief available sooner and to more people. Relatedly, in the first four months of 2016, six more states enacted or expanded state-wide ban-the-box laws limiting inquiry about criminal records at early stages of the hiring process, bringing the total to 23.
On Wednesday Kentucky Governor Matt Bevin signed a bill giving state courts authority for the first time to expunge felony convictions. The new law, HB 40, allows people convicted of specified non-violent class D felonies who have been crime-free for 5 years to petition to have their conviction vacated, charges dismissed, and record expunged. Expunged records are deleted from official databases (including law enforcement), will not show up in background checks, and need not be acknowledged. The court and other agencies “shall reply to any inquiry that no record exists on the matter.”
Democrats in the Kentucky House had worked for years to pass similar legislation, but were unsuccessful until one man’s moving testimony before the Senate Judiciary Committee galvanized bipartisan support for the bill. According to the AP,
At least 62,000 convicted felons in Kentucky will have the opportunity to wipe their records clean in part because a 45-year-old man convicted of stealing car radios 27 years ago convinced a powerful Republican lawmaker to change his mind.
West Powell, who has not had a run-in with law enforcement in 27 years, told the Committee: