Tag: licensing agencies

Indiana enacts progressive new licensing law

The race is on in 2018 to see which State can enact the most progressive new laws on restoration of rights.  As in the past, Indiana is at the forefront of reform.  On March 21, Governor Eric Holcomb signed into law HB 1245, which appears to be the most progressive and comprehensive scheme for regulation of occupational and professional licensure in the country.  It applies not only to state licensing agencies, but also to units of county and municipal government that issue licenses, and requires that state agencies work with them to eliminate redundant and overlapping rules.  Agencies must report to the legislature respecting their implementation of the new law by November 1, 2018. Effective July 1, 2018, Indiana State licensing boards and commissions are required to “explicitly list” all disqualifying convictions in their licensing requirements, each one of which must “specifically and directly” relate to the duties and responsibilities of the occupation or profession.  See Ind. Code § 25-1-1.1-6(d), (e).  Licensing authorities may not “use nonspecific terms, such as moral turpitude or good character, as a licensing or certification requirement” and may not “consider an arrest that does not result in a conviction.” § 25-1-1.1-6(d).  If an applicant has a disqualifying criminal history, the board, commission, or committee shall consider the following in determining whether to deny a license to the applicant, based on a “clear and convincing showing”: (1) The nature and seriousness of the crime for which the individual was convicted. (2) The passage of time since the commission of the crime. (3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation. (4) Evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a direct relation to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation.§ 25-1-1.1-6(f). § 25-1-1.1-6(f). The disqualification period for convictions listed by the agency as disqualifying is limited to five years, as long as the applicant has kept a clean record during the disqualification period and the conviction was not a violent crime or criminal sexual act. § 25-1-1.1-6(g).  Note, however, that crimes involving sexual conduct and violence are not exempted from the new law entirely, only from the disqualification period’s 5-year limitation. It is not entirely clear how drug convictions, which are made absolutely disqualifying by older provisions of the law, should be treated under the new law.  However, a reasonable harmonization of the two laws would apply to drug crimes the same criteria for deciding to disqualify in (f) and the 5-year period of disqualification in (g). Under the new authority, persons with a felony or misdemeanor conviction may seek an advisory opinion from the licensing agency as to whether their convictions would be disqualifying.  The agency may charge a fee for this review that does not exceed $25.  § 25-1-1.1-6(h), (j). If a person is denied a license in whole or in part based on their conviction, the agency must make “written findings” for each of the mitigating factors set forth in § 25-1-1.1-6(f), “by clear and convincing evidence sufficient for review by a court.”  § 25-1-1.1-6(i).  Further, “[i]n an administrative hearing or civil action reviewing the denial of a license, a board, commission, or committee has the burden of proof on the question of whether the individual’s criminal history directly relates to the occupation for which the license is sought.”  Id.  Local government licensing:  Essentially identical requirements are extended to professional and occupational licensing by units of county and municipal governments.  Ind. Code § 36-1-26.  Each state licensing agency is required to consult with the small business ombudsman, the office of management and budget, and representatives of units of local government that issue licenses to develop and submit to the legislature by November 1, 2018, a report concerning “proposed policies and parameters” for the licensing of occupations and professions by local units in order to reduce or eliminate redundant licensing by the state and multiple local units.  Ind. Code § 25-1-16-16. Other Indiana restoration authorities: A recent post on Indiana’s comprehensive expungement law is worth a look, to get a fuller picture of how that state is dealing with the problem of criminal records:  Expungement in Indiana – A radical experiment and how it is working so far (December 17, 2017).   Copyright © 2018 State Net   Read more

Federal agencies reportedly (mostly) satisfied with their collateral consequences

In 2013, the Justice Department launched its Smart on Crime Initiative, which included a call for federal agencies to review collateral consequences in their own rules and policies, to determine which could be narrowed or amended without jeopardizing public safety. According to an NPR report, the results of that long-anticipated review are now in: Amy Solomon was appointed by Attorney General Holder to oversee the twenty federal agencies charged with reviewing their regulations and policies for potential changes. She reports that hundreds of regulations were reviewed, but the vast majority were deemed “appropriately tailored for their purposes,” including HUD’s discretionary housing policies. So far, only three agencies have submitted changes. In assessing the “appropriately tailored” conclusion in the context of HUD housing policies, NPR reporter Monica Haywood tells the story of Maurice Alexander, a 67-year-old man who was turned away from subsidized housing in the District of Columbia based on a six-year-old misdemeanor threat conviction, despite guidance from HUD encouraging property owners and agents “to develop policies and procedures that allow ex-offenders to rejoin the community.” The HUD guidance urges property owners to consider all relevant information when reviewing applications from people with a criminal record, including evidence of rehabilitation and “probability of favorable future conduct.” Haywood concludes that, “If Alexander’s case is any indication, owners may not be taking HUD’s advice.” The D.C. Housing Authority determined that he was eligible for three properties in his area, but he received three rejection letters, each specifically citing his criminal record as the reason he was denied.  As a result, his plans to move into subsidized housing were derailed, and he became homeless. Even with help from the Legal Aid Society of the District of Columbia, he wasn’t able to find housing until November, nearly seven months later. The problem is that when even when decision-makers have discretion “to review case-specific mitigating circumstances, such as how long ago the crime was committed, and how the offender has behaved since,” in practice they generally prefer not to take a risk.  The result is categorical rejection based upon status alone.  If challenged, an agency may relent in a particular case, but continue to enforce the “just say no” rule in all others. It now appears that most federal agencies are willing to go along with this result where their own regulations and policies are concerned. In considering what might be done to put some teeth into his exhortation to federal agencies to ensure that people with a criminal record are treated fairly, the Attorney General might consider what Colorado has recently done to ensure agency accountability. Under a law enacted in 2013, Colorado licensing agencies must now report in a public hearing on whether collateral consequences in their regulations and policies “serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104(9)(b)(VIII.5).  To assist the legislature in determining agency compliance, the department of regulatory agencies is required to prepare an analysis for each agency that includes “data on the number of licenses or certifications that were denied, revoked, or suspended based on a disqualification and the basis for the disqualification.” Id.  Any proposal to regulate a new profession or occupation must evaluate any proposed disqualification based on criminal record by these same standards.  Colo. Rev. Stat. §§ 24-34-104.1(2)(f), (4)(b)(IV).  Colorado backs up its new procedures with a general anti-discrimination law that governs consideration of conviction in most licensed professions.  See Colo. Rev. Stat. § 24-5-101(1)(a). Colorado is not the only state that polices its agencies, holding them to account for their treatment of people with a criminal record with evidence-based practices.  Many states include provisions in their administrative codes that compel fair consideration of conviction, and provide for the enforcement of these provisions through the courts.  See 50-state chart here.  It is unfortunate that the federal government does not.  Absent the kind of transparency and data-driven accountability that Colorado has introduced into its regulatory scheme, the default rule will inevitably be rejection. Read more