Tag: Many roads

“The Many Roads From Reentry to Reintegration”

We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, “The Many Roads from Reentry to Reintegration.“ Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing.

Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20.

The legal landscape has been changing rapidly in the 18 months since the first edition of this report was published in September 2020. Substantial progress has been made in a number of states, and in the Nation as a whole, toward devising and implementing an effective and functional system for relieving collateral consequences. The bipartisan public commitment to a reintegration agenda seems more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers, who are essential to rebuilding the small businesses that are the lifeblood of healthy communities.

The greatest headway has been made in restoring the vote and broadening workplace opportunities controlled by the state, both areas where there are national models and best practices. The area where there is least consensus, and that remains most challenging to reform advocates, is managing dissemination of criminal record information. Time will tell how the goal of a workable and effective criminal record relief system is achieved in our laboratories of democracy.

One area of record relief on which there does appear to be an emerging bipartisan consensus is that non-conviction records should be automatically sealed or expunged on case disposition. We are particularly pleased to see how many states have enacted laws limiting access to the record of cases disposed in favor of the defendant just since publication of our Model Law on Non-Conviction Records in 2019.

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Fair Chance Employment and Occupational Licensure: A National Survey

Yesterday we announced the forthcoming publication of a national report surveying various legal mechanisms for restoring rights and opportunities following arrest or conviction, a revision and updating of our 2020 report “The Many Roads to Reintegration.” The first post in the series (“Expungement, Sealing & Set-Aside of Convictions“) gives some additional background about the report. This second post in this “preview” series deals with how the law regulates consideration of criminal history in employment and occupational licensing. We expect to publish the whole report, plus our Reintegration Report Card for 2022, early next week.

Fair Chance Employment & Occupational Licensing
Introduction

There is perhaps no more critical aspect of a reintegration agenda than removing the many unjustified and unjustifiable barriers faced by people with a criminal record in the workplace.[1] In an era of near-universal background checking and search engines, the “Mark of Cain” these individuals bear will sooner or later be known to potential employers and licensing boards even if criminal record information is not requested on an initial application.

Some barriers take the form of laws formally disqualifying people with certain types of convictions from certain types of jobs or licenses. More frequently, barriers result from informal discrimination grounded in an aversion to risk and, too frequently, racial stereotypes. Whether it is securing an entry level job, moving up to management responsibilities, or being certified in a skilled occupation, people with a criminal record are at a competitive disadvantage, if they are even allowed to compete. As between two individuals with hypothetically equal qualifications, it is easy for a risk-averse prospective employer or licensing agency to justify breaking the tie in favor of the person who has never been arrested.

Individualized record relief mechanisms like expungement or pardon are intended to improve employment opportunities, and they can be helpful on a case-by-case basis to those who are eligible and able to access them.[2] But equally important are fair employment and licensing laws that impose general standards limiting consideration of criminal record and provide for their enforcement, offering class-wide relief to all similarly situated individuals. States have enacted an impressive number of this sort of systemic “clean slate” law[3] just since 2015, some building on laws enacted in an earlier period of reform half a century ago in the 1960s and 1970s,[4] and others breaking new ground in regulating how employers and licensing agencies consider an applicant’s criminal record.

In employment, one of the most striking legislative trends in the past decade is the embrace of limits on inquiry into criminal history in the early stages of the hiring process, particularly for public employment. The so-called “ban-the-box” campaign that began modestly more than 20 years ago in Hawaii and took off nationwide after it was adopted in California, has now produced new laws or executive orders in more than two-thirds of the states and in over one hundred cities and counties. More efficient and broadly effective than after-the-fact lawsuits, ban-the-box laws now represent the primary tool for eliminating unwarranted record-based employment discrimination on a system-wide basis. They are premised on an expectation that getting to know applicants before learning about adverse information in their background is likely to lead to a fairer and more defensible hiring decision. This should be particularly true when a records check is permitted only after a conditional offer of employment has been made, so there is little doubt about the reason in the event of a later withdrawal.[5] A few states (though still too few) have coupled ban-the-box strategies with standards for considering a person’s record after inquiry is permitted.

Occupational licensing has also seen an acceleration of legislative efforts to limit the arbitrary rejection of qualified workers. Significant procedural and substantive reforms have been enacted in more than two thirds of the states in the last five years, in some cases building on reforms originally adopted in the 1970s, and in others following models recently proposed by policy advocacy organizations from across the political spectrum whose model laws aim to make licensing authorities newly accountable for their actions and individuals newly able to obtain and practice a skill with enhanced career prospects. Following these models, states have

  • substituted objective standards related to the specific occupation for vague “good moral character” criteria;
  • afforded individuals a preliminary decision about whether their record will be disqualifying before they invest in education or training;
  • prohibited consideration of certain records considered unrelated to job performance, including based on their minor or dated nature;
  • required licensing agencies to justify negative decisions, frequently in terms of public safety, and to afford disappointed applicants an opportunity to appeal;
  • imposed legislative oversight requirements to hold licensing agencies accountable for their performance.

As shown in the following discussion and in the “Report Card” maps that follow the section, almost every state now has at least some law aimed at limiting record-based discrimination in employment or licensure, and most have both. Enforcement of these new laws may in many cases depend on education and persuasion rather than on lawsuits and executive orders, but this may make systemic change come sooner and have a more lasting effect. The very exercise of repeatedly having to decide the relevance of an individual’s past conduct through a transparent and accountable process is likely to result in more reliable decision-making, and a better understanding of those relatively few instances when denial of opportunity is justifiable. We discuss the state of the law in greater detail in the following sections.

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Expungement, Sealing & Set-Aside of Convictions: A National Survey

We are pleased to announce the forthcoming publication of a national survey of the various legal mechanisms that exist in each state to restore rights and opportunities after arrest or conviction. Titled “The Many Roads from Reentry to Reintegration,” the report revises and updates the survey CCRC originally published in the summer of 2020.  Like that earlier report, it includes grades for each state in nine different categories of relief, and an overall ranking of the states according to the efficacy of their combined restoration measures. Those who are familiar with the rankings in our 2020 report will find that since then many states have improved their position substantially (mostly at the higher end of the ranking scale, with several impressive exceptions) and many have not (mostly at its lower end).

We hope that this report will allow us to take stock of the extraordinary things that legislatures across the country have been able to accomplish in just the past 18 months, enacting a total of more than 250 separate laws to restore the franchise, clear criminal records, and ensure fair consideration in employment and licensing.  We expect to publish the entire new “Many Roads” report next week, along with a new version of our Reintegration Report Card that showcases the states that have made the most progress and suggests how each state may improve its ranking for the next report.

Today we are publishing an excerpt from the new “Many Roads” report on two of its nine categories: record clearing for felony and misdemeanor convictions. Each state is graded separately in the two categories, although the map that is included midway through this post combines them, as they are combined in the 50-state chart from the Restoration of Rights Project. Record clearing for non-conviction records is covered in a separate section, and will be published here in the next few days.

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Expungement, Sealing & Set-Aside of Convictions: A National Survey

Tens of millions of Americans have been convicted of a felony or misdemeanor.[1] This number has grown substantially in the last four decades as a result of the policies of “mass incarceration” and so-called “war on crime,” with disproportionate impacts on Black and Brown people.[2] The vast network of collateral consequences that can flow from a conviction in the modern era has been described as a new form of “civil death.”[3] In addition to formal consequences imposed by law and rule, widespread dissemination of criminal records online and in background checks operates as a form of continuing “digital punishment.”[4]  In recent years collateral consequences of a less formal variety have extended even to mere arrest records not followed by conviction.[5] The American way of dealing with a person’s criminal history is unburdened with the considerations of privacy, utility, and basic fairness that have shaped European systems.[6]

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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:

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The Reintegration Report Card

We are pleased to publish “The Reintegration Report Card,” a new resource that ranks and grades all 50 states on how their laws address voting rights, record relief (including expungement and pardon), fair employment, and occupational licensing for people with a criminal record.

This Report Card supplements our recent 50-state report, “The Many Roads to Reintegration.” That report surveys U.S. laws aimed at restoring rights and opportunities after arrest or conviction. It grades the states on nine different types of restoration laws, including voting rights, six different record relief remedies, and laws regulating consideration of criminal record in employment and occupational licensing. Based on these grades, the report includes an overall ranking of the states and D.C.

This Report Card provides the grades and rankings in a more easily accessible form. It also includes a brief narrative summary of how each state’s law stacks up in the different graded categories. Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its overall ranking. An appendix collects all the grades and rankings (the rankings are also at the end of this post).

We emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries. We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them. In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

The Reintegration Report Card is available at this link. For more details and legal citations for each state, see the Restoration of Rights Project. For essays surveying each topic, consult “The Many Roads to Reintegration.”

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Pardon policy & practice: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

In July, we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.”  So far, we have previewed the report by publishing draft sections covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing.”  Today we publish a draft section on pardon, the ultimate expression of forgiveness and reconciliation from the sovereign that secured the conviction.  While pardon is no longer routinely available in all or even most U.S. jurisdictions, in the 18 states where post-sentence pardoning is frequent and regular it provides an important record remedy – frequently the only remedy – for those convicted of more serious offenses, for those seeking restoration of firearms rights, and for non-citizens seeking to avoid conviction-related immigration consequences.

This section on “pardon policy & practice” is part of a chapter on “record relief.”  This chapter deals with any remedy that revises or supplements a person’s criminal record to reduce or eliminate barriers to opportunity in civil society.  Later this week, we will publish additional sections of the record relief chapter on deferred adjudication and judicial certificates, followed next week by sections on expungement, record-sealing, and set-aside.  We expect to publish the entire “Many Roads” report by the end of the month.

A PDF of this section is available here.  The full text follows, with end notes.

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Fair chance employment and occupational licensing: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

Last week we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.”  Also last week, we published the first chapter of that report on loss and restoration of voting and firearms rights.  Today we publish a near-final draft of the third chapter of the “Many Roads” report, dealing with laws that systematically regulate how criminal record is considered in the workplace, by employers and by occupational licensing authorities.  Next week we expect to publish the second chapter of the report on “record relief” (including record-sealing, pardon, and judicial certificates).  The research, drawn from CCRC’s Restoration of Rights Project, reveals a trend in the states toward restricting the power of occupational licensing agencies to reject applicants with criminal records based upon factors not directly related to their qualifications.

There has also been marked progress in extending fair chance employment laws, primarily through limiting inquiry into criminal record in the early stages of the hiring process and setting standards for later consideration of the record.  These trends, which have accelerated in the past three years, recall and in many cases build on an earlier period of criminal record reforms in the 1970s.  At the conclusion of the chapter are report cards with color-coded maps ranking state laws by specific criteria, to facilitate comparisons between and among states.

There are some surprises.  For one thing, there is not a particularly strong correlation between how states rate in each of the two areas.  That is, states that have a robust system of fair chance employment laws may not and frequently do not have a similarly strong system for regulating how occupational licensing agencies treat people with a criminal record.  In fact, only two states (Illinois and Minnesota) scored at the top of both categories.  Three other states that scored well on employment also scored reasonably well on occupational licensing (California, New York, and Wisconsin), but the last two jurisdictions in the top employment category (Hawaii and the District of Columbia) scored poorly on occupational licensing.  Conversely, four states that ranked in the top tier for occupational licensing had no law at all regulating consideration of criminal record in employment (Iowa, Mississippi, New Hampshire, and North Carolina) and two others had only minimal regulation of public employment (Indiana and Utah).  Three states had no law at all governing either employment or occupational licensing (Alaska, South Carolina, and South Dakota).

Another result that may surprise those who have not been following recent developments in this area of the law, is that high marks for reining in the exclusionary policies of licensing boards go to some states not ordinarily considered politically and socially progressive.  The unexpectedly strong performance of some states in regulating occupational licensing boards may be attributable to antipathy toward government interference in free markets as well as an interest in efficiency and fairness.

A PDF of this chapter is available here.  The full text follows, with end notes. Coming next, the report’s chapter on “Record Relief.”

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Loss and restoration of voting and firearms rights after conviction: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

Earlier today we announced the forthcoming publication of a national report on mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.”  As promised, here is the first chapter of that report on loss and restoration of voting and firearms rights, a subject that needs little or no introduction.  The research, drawn from the Restoration of Rights Project, reveals a trend since 2015 toward expanding opportunities to regain the vote that has accelerated just in the past two years.

This trend seems particularly timely in light of the pending constitutional challenge to Florida’s restoration system, which raises the question whether the state may constitutionally require people to pay outstanding legal financial obligations (LFOs) before being allowed to vote, even if they cannot afford to do so.  There are now only two states in addition to Florida in which the vote is permanently lost for those unable to pay all LFOs associated with a disqualifying conviction.  An additional seven states permanently deny the vote for those unable to pay certain types of LFOs.  (Early next week, we will publish a report surveying state laws and practices on this issue, which will be included in abbreviated form in an amicus brief we plan to file in the court of appeals in support of the Florida plaintiffs.)

In contrast to voting rights law, there has been almost no change in the past half dozen years in how state and federal law treats firearms restoration after conviction.  In most states, firearms dispossession remains indefinite for anyone convicted of a felony, and restoration depends upon petitioning a court for discretionary relief or asking for a pardon. In 11 of the 26 states in which all firearms rights are permanently lost upon conviction of any felony, and for those with a federal conviction, a pardon is the exclusive restoration mechanism.

A PDF of this chapter is available here.  Coming next week, the report’s chapter on “Employment and Occupational Licensing.”

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