Tag: Many roads

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. II(A).  Pardon Policy & Practice  Pardon has been described as the patriarch of restoration mechanisms, whose roots in America are directly traceable to the power of the English crown. Just as a power to pardon was assigned to the president in Article II of the U.S. Constitution, the constitutions of every state save two provide for an executive pardoning power.[1]  Both in theory and practice, a post-sentence pardon is the ultimate expression of forgiveness and reconciliation from the sovereign that secured the conviction.  For almost two centuries, executive pardon played a routine operational role in the criminal justice system throughout the United States, dispensing with court-imposed punishments and restoring rights and status lost because of conviction. Nowadays, in most U.S. jurisdictions pardon is a shadow of its once-robust self, particularly those in which it is exercised without institutional restraint or encouragement.  Since the 1980s, governors and presidents alike have been wary of exposing themselves to criticism from an ill-advised grant, and in many jurisdictions pardoning has stopped being thought of as part of the chief executive’s job — though being labeled “soft on crime” seems thankfully no longer a political kiss of death.  It is not surprising that reformers tend to regard pardon with suspicion, dubious about its legitimate operational role in the modern justice system. Yet pardon fills an important gap in restoration schemes across the country, supplementing judicial record relief mechanisms like sealing and expungement. For example, in 20 states pardon offers the only way to regain firearms rights lost because of conviction, including California, Colorado, Florida, Georgia, Nebraska, Oklahoma, and Wyoming. In 12 states ineligibility for jury service is permanent without a pardon, including Arkansas, Delaware, Oklahoma, Pennsylvania, South Carolina, and Texas. (By comparison, expungement restores firearms rights in only five states, and jury rights in only two.)  See infra, § 1.  A pardon may be necessary to enable a person to stand for elected office, or to demonstrate the requisite good character to secure a professional or business license. Perhaps most important for a substantial number of non-citizens, a pardon is the only state relief mechanism recognized by federal immigration law, providing the only way for a non-citizen convicted of an aggravated felony to avoid mandatory deportation and remove the conviction-related bar to citizenship.[2] Sometimes pardon is sought simply as a sign of official forgiveness, not a small matter to some people. Of greater moment, pardon represents the only potential source of record relief available for felony convictions in the 16 states whose courts have no authority to expunge or set aside more serious convictions.[3] Another 14 states limit judicial record relief to people who have been convicted of a single felony, so in these states too pardon constitutes an important auxiliary remedy for people with a lengthy felony record.[4]  It is easy to see why pardon’s vitality is or ought to be of considerable public concern to people in at least 30 states. The good news is that the pardon power is neither dead nor fatally compromised in most U.S. jurisdictions. In fact, in a significant number of states (18) the practice of pardoning still thrives as in integral part of the justice system.[5] In most of these states (colored gold on the map on the following page) the pardon power is either shielded from politics by institutional design or sanctioned by custom.  Ordinary people who can demonstrate their rehabilitation have a good chance of official forgiveness, obtaining relief from legal disabilities and certification of their rehabilitation and good character. In more than half of these 18 states, pardon now leads to expungement of the record. In four additional states, the pardon power appears to be in the early stages of a revival.[6] Not surprisingly, in most of these 18 states,  the governor either has little or no involvement in pardoning or is required to seek (and in some cases required to follow) the advice of other officials.[7]   In six of the 18 states (Alabama, Connecticut, Georgia, Idaho, South Carolina, Utah) the pardon power is exercised in most or all cases by an independent board of appointed officials.  In five of those independent board states, the power derives from the state constitution. (In Connecticut, the power to pardon has since colonial times remained within the legislature’s control, so that pardoning is both authorized and limited by statute.)  In all six of these independent board states, standards are clear, the process is transparent and accessible, and a high percentage of applications are granted.[8] In Alabama, Connecticut, Georgia, and South Carolina, hundreds of pardons are granted each year to people convicted of garden variety crimes who are seeking to mitigate the harsh lingering consequences of conviction. For example, in 2019 the Alabama board granted 889 pardons, or 80% of eligible applications, and the Connecticut board granted 593, or 80% of applications considered. The Idaho board gets fewer applications but grants a relatively high percentage of them. Utah for many years preferred to rely on a broad expungement remedy, but a recent tightening of the expungement process has produced a demand for reinforcements from the state pardon board. In another eight of the 18 states where pardons are frequent, the governor sits on a board with other high-level officials (Minnesota, Nebraska,[9] Nevada), or shares power with an appointed “gatekeeper” board whose affirmative recommendation is necessary before the governor may act (Delaware, Louisiana, Oklahoma, Pennsylvania, South Dakota). In these states pardon remains a viable form of relief, and pardoning occurs at regular intervals through a public process: Delaware and Pennsylvania are the stars of this category, but the governors of Oklahoma and South Dakota have traditionally also pardoned generously, and Louisiana’s current governor has revived pardoning in that state.  The three boards that include the governor as a member hold regular public hearings and grant a substantial percentage of the applications they hear, through the fourth board with this same set-up (Florida) has in recent years been notoriously stingy, recently characterized by a federal court as ;providing an “illusory remedy” to people who only want to regain their right to vote.[10] In the final four of the 18 states, the governors are less constrained by regulation, but they have authorized advice available to them. The governors of Illinois and Arkansas have customarily relied on a board’s recommendations produced by a formal process, though they are not required to do so. The governors of California and Virginia have also pardoned generously in recent years, though without the same degree of structure and transparency in their advisory system. But since the constitutions of both states require the governors to make a formal annual report to the legislature on their pardons, there is at least at least a post-hoc system of accountability in place. A regular process facilitates regular pardoning, but it does not guarantee it. For example, interest in pardoning in California, Florida, Illinois, Louisiana, Maryland, and Ohio has waxed and waned depending upon the predilections of the incumbent governor. The current governors of California, Illinois and Louisiana have been enthusiastic pardoners, but the power is still in a waning phase in Florida, Maryland, and Ohio. Texas and Arizona, both of which have a well-regulated process and “gatekeeper boards” that control who the governors may pardon, have in recent years seen, respectively, very few pardons and no pardons at all. New Hampshire and Rhode Island have complex procedures requiring the approval of other elected officials, a set-up that virtually guarantees no operational role for pardon in those states. Beyond the 18 states where the pardon power functions on a regular and productive basis, there are another three where recent efforts to revive the process are promising. Wisconsin’s governor has re-established that state’s pardon advisory board and began issuing grants in the fall of 2019 after a 9-year hiatus during which his processor expressed disdain for pardons and granted none at all; Colorado’s governor has also taken some steps to reinvigorate that state’s process; and Ohio’s current governor has enlisted two local law schools to supplement state agencies in developing an “expedited pardon project.”[11]  Washington’s recent governors have shown some interest in pardoning, but grants have been irregular and sparing.  In the other 28 states, the District of Columbia, and the federal system pardoning takes place, if at all, in an ad hoc and unreliable fashion. In 10 of the 18 “frequent and regular” states (Arkansas, Connecticut, Delaware, Georgia, Louisiana, Nebraska, Oklahoma, Pennsylvania, South Dakota, and Utah), a full pardon entitles the recipient to expungement (either upon application to a court or automatically, depending on the state). In an eleventh state, Illinois, the governor may specifically authorize this additional judicial relief. Pardon is uniquely valuable to people with felony records in five of these 11 states (Connecticut, Georgia, Nebraska, Pennsylvania, and South Dakota), because they otherwise offer no judicial record-sealing for felony-level convictions.[12] Sealing or expunging the record of a pardoned conviction is authorized in another nine states: Indiana, Kentucky, Maryland (non-violent first offenses), Massachusetts, New Jersey, Oregon, Tennessee, Texas, and West Virginia (one year after pardon and at least five years after discharge, with certain exceptions for violent crimes). In Washington, pardons result in automatic vacatur and nondisclosure of administrative records, but petitions to seal court records are subject to a balancing test. Maine treats pardoned convictions like non-conviction records subject to non-disclosure rules. In addition to providing record relief to individuals, pardon has been enlisted in recent years to advance criminal justice reforms on a broader basis in several states, notably to restore the vote and to implement marijuana decriminalization. In addition to large-scale programs to advance marijuana reform in states whose pardoning program is otherwise robust (notably Illinois, Nevada, and Pennsylvania), the governors of Colorado, North Dakota, and Washington have used their pardon power to deliver record relief to people convicted of marijuana possession before its decriminalization.  The Colorado legislature even passed a law authorizing class-wide pardon relief.[13]  The Nevada Board of Pardons Commissioners passed a resolution at the request of that state’s governor automatically pardoning approximately 15,000 people convicted of possessing one ounce or less of marijuana between 1986 and 2017.[14]  The legislature in Illinois also gave the governor’s pardon power a part to play in Illinois’ marijuana automated sealing effort, which resulted in a mass grant of pardon to 11,000 people.[15]  The governors in Iowa, Kentucky, New York, and Virginia have all used their power to restore voting rights on a class-wide basis.[16] It seems unfortunate but unsurprising that in more than half the states pardoning has been sporadic or rare since the 1980’s. Many of these states have no formal statutory advisory process in place, so the governor has no institutional encouragement to engage in what may seem a politically risky activity. In two of the states in this category (Mississippi and Kentucky) the pardon power was notoriously abused when out-going governors made hundreds of controversial grants, confirming popular suspicions about the corruptibility of the pardon power. In a few others, notably Rhode Island and New Hampshire, the constitutional limits on the governor’s power almost guarantee few pardon grants. But successive governors of Alaska, Kansas, Massachusetts, and North Carolina, who have issued almost no pardons since the mid-1990s, do not have the same excuse. They are not among the few states whose governors have no authority from the legislature to seek official assistance in their pardoning (Maine, Oregon, and Wisconsin), who have devised their own non-statutory advisory systems. A full thirty states require the pardoning authority to report annually to the legislature on their grants, frequently with reasons, including Oregon and Wisconsin.[17] The governor of Maine is joined only by the president of the United States in having neither statutory assistance nor obligation to account to the legislature for their pardoning,  The federal pardon process housed in the Department of Justice has steadily declined in productivity and reputation over the past thirty years,[18] though it has been ignored almost entirely by the current president through no apparent fault of its own. Overall, the number of presidential pardons granted in the past twenty years is small considering the volume of applications filed each year, and there has been only one presidential pardon granted for a D.C. Code conviction during this period.[19] In summary, in 18 states a person may file a pardon application with a reasonable expectation of success. There are signs that pardoning may revive in an additional handful of states, and hope springs eternal that future governors in other states will want to employ this uniquely personal power to help their constituents reintegrate and to advance the cause of criminal justice reform. But it seems premature to count any but the 18 as having a fully functional and reliable pardon process for present purposes. So, there are 32 states in which pardon cannot be counted on to provide record relief for anyone convicted of a felony. To be sure, in 23 of these 32 states there is some alternative individualized judicial record relief for felony-level offenses:  nine of the 32 offer sealing or expungement for many felonies,[20] another 12 offer relief for a single felony (usually a first felony offense),[21] and New York and New Jersey restore rights though judicial and administrative certificates.  But still and all, that means that there are 11 U.S. jurisdictions – nine states, the District of Columbia, and the federal system – in which neither executive nor judicial record relief is reliably available to people convicted of a felony.[22] More specific information about pardoning policies and procedures in each state is available in the 50-state material from the Restoration of Rights Project at Appendix A, and in the RRP’s individual state profiles.   ENDNOTES [1] In both Alabama and Connecticut, the power to pardon is regulated by the legislature. Ala. Const. amend. 38 (amending art. V § 124) (since 1939, power to pardon in all but capital cases in administrative board appointed by governor); Conn. Gen. Stat. § 54-124a(f) (since colonial times, pardoning regulated by the legislature).  For an overview of post-sentence pardoning in the United States, and additional citations, see generally Love, et al., Collateral Consequences of Criminal Conviction: Law Policy and Practice § 7:6 (“Executive Pardon: Generally”) (West/NACDL, 3d ed. 2018-2019); Margaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 St. Thomas L. Rev. 730 (2013). [2] See 8 U.S.C. § 1227(a)(2)(A)(vi).; see also Thompson v. Barr, 959 F.3d 476, 484 (1st Cir. 2020)(“A pardon waiver has the effect of automatically canceling removal”), Love et al., supra note 1, § 2:61(“Immigration Consequences – Pardon Waiver”), collecting cases and executive opinions. [3] See 50-state chart, “Authority for Expunging or Sealing Convictions,” Restoration of Rights Project,  https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/. [4] See also note 10, infra, pointing out that five of the states that offer no judicial record relief for felony convictions are ones where pardoning is frequent and leads to expungement. [5] The 18 states are Alabama, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Illinois, Louisiana, Minnesota, Nebraska, Nevada, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, and Virginia. [6] Colorado, Ohio, Washington, Wisconsin. [7] For more detail about the organization and authority of the pardoning authority in these 18 states, see the individual state profiles in the Restoration of Rights Project, and Love et al., supra note 1, at §§ 7:8 through 7:11. [8] All six boards have brief eligibility waiting periods (no more than five years after completion of sentence), but only Connecticut’s does not require payment of court debt as a condition of eligibility for pardon. See relevant state profiles from the Restoration of Rights Project. [9] Nebraska’s pardon board has in past years been among the most prolific in the country but staffing changes in 2019 led to a reduced hearing schedule and a sharp reduction in the number of grants that year. [10] See Jones v. DeSantis, 410 F.Supp.3d 1284, 1291-92 (“Florida has long had an Executive Clemency Board with authority to restore an individual’s right to vote. But the Board moves at glacial speed and, for the eight years before Amendment 4 was adopted, reenfranchised very few applicants. For the overwhelming majority of felons who wished to vote, the Executive Clemency Board was an illusory remedy.”) [11] In December 2019, Governor Mike DeWine announced the Expedited Pardon Project, a collaboration between the Governor’s Office and the Drug Enforcement Policy Center at Ohio State University and the Reentry Clinic at The University of Akron School of Law. This project aspires to expedite the process by which people apply for a pardon under Ohio’s laws, and will enlist law students to assist in preparing pardon applications. The Ohio Department of Corrections will conduct background investigations of applicants referred by the Project, and the Parole Board will then hold a hearing for each applicant, during which victims, judges and prosecutors involved with his or her case can offer their thoughts. The Parole Board will then vote the same day about whether to recommend clemency to the governor.  See Jeremy Pelzer, Gov. Mike DeWine creates streamlined pardon process to help Ohio offenders, Cleveland.com, Dec. 3, 2019, https://www.cleveland.com/open/2019/12/gov-mike-dewine-creates-streamlined-pardon-process-to-help-ohio-ex-offenders.html. [12] See 50-state chart, “Authority for Expunging or Sealing Convictions,” supra note 3. [13] See Colo. Rev. Stat. § 16-17-102(2). [14] The form issued by the Board for grantees to apply for documentation evidencing the pardon is at http://pardons.nv.gov/uploadedFiles/pardonsnvgov/draft%20marijuana.pdf. [15] Illinois established a tiered procedure to deal with marijuana arrests and convictions, with non-conviction records sealed automatically by the State Police, “minor cannabis offenses” made eligible for expungement through a streamlined pardon process, and more serious marijuana offenses required to petition for relief from the court. See Ill. Comp. Stat. Ann. 2630/5.2(i)(2). [16] See En Banc Brief for Amicus Curiae Collateral Consequences Resource Center in Jones v. DeSantis at 6, n. 10 (11th Cir., No. 20-12003, Aug. 3, 2020), accessible at https://ccresourcecenter.org/wp-content/uploads/2020/07/2020.08.03-Exhibit-A.pdf.; Iowa Exec. Order No. 7 (August 5, 2020), accessible at https://governor.iowa.gov/sites/default/files/documents/EO7%20-%20Voting%20Restoration.pdf?utm_medium=email&utm_source=govdelivery. [17] See 50-state chart, “Comparison of Pardon Policies,” Restoration of Rights Project, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncharacteristics-of-pardon-authorities-2/. [18] See generally Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169, 1193-2000 (2010). See also Love, Obama’s Clemency Legacy: An Assessment, 29 Fed. Sent. Rptr 271 (2017). [19] In 2018 the D.C. City Council authorized an independent pardon advisory process for those conviction of D.C. Code offenses, in an apparent effort to avoid an advisory process at the Justice Department that historically has been unfriendly to D.C. Code petitioners, but nothing appears to have come of it.  See § 24-481.01 et seq. [20] Colorado, Indiana, Kansas, Maryland, Massachusetts, New Mexico, North Dakota, Oregon, and New Hampshire. See the first column of the 50-state chart, “Authority for Expunging or Sealing Convictions,” note 3, supra. [21] See id., second column (all listed states except but Delaware and Utah). [22] The nine states are Alaska, Arizona, Florida, Hawaii, Iowa, Maine, Montana, Texas, Wisconsin.  Note that a few of these states provide for specialized relief for, e.g., youthful first drug offenses, prostitution convictions by victims of human trafficking.   Read more

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.” III.  Fair Chance Employment & Occupational Licensing Laws 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” they bear will sooner or later be known to potential employers and licensing boards even if it is not called for on an initial application. Some barriers take the form of laws formally disqualifying people with certain types of convictions from certain types of jobs. More frequently barriers result from informal employer or agency 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 disadvantage, if they are even able to compete. As between two individuals with hypothetically equal qualifications, it is easy 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 are helpful on a case-by-case basis to those who are eligible and able to access them.[2] But equally important are systemic fair employment and licensing laws that impose general standards and provide for their enforcement, offering class-wide relief to individuals with a record. States have enacted an impressive number of this sort of “clean slate” law just since 2015, some building on laws enacted in an earlier period of reform in the 1970s, and others breaking new ground in regulating how employers and licensing agencies consider an applicant’s criminal record.[3] 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 15 years ago in California has now produced new laws or executive orders in two-thirds of the states and 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 this aspect of their background is likely to lead to a fairer and more defensible hiring decision. This should be particularly true when a records check comes only after a conditional offer is made, so if it is withdrawn there is little doubt about the reason.[4] 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 half the states in the last five years, making licensing authorities newly accountable for their actions and individuals newly able to obtain and practice a skill with enhanced career prospects. Following suggestions proposed in model laws endorsed by organizations from across the political spectrum, states have substituted objective standards for vague “good moral character” criteria, prohibited consideration of irrelevant minor offenses unrelated to job performance, required licensing agencies to justify their decisions in terms of public safety, and imposed 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, or 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 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 it is legitimate to deny someone an opportunity to work based on their criminal record.  We discuss the state of the law in greater detail in the following sections. Note:  Color-coded maps and a side-by-side Report Card for both employment and occupational licensing are at the end of the section. Fair Chance Employment Few states have adopted general rules prohibiting employment discrimination based on criminal record, and the only relevant federal law depends upon being able to establish disparate impact based on race or some other protected classification.[5] In fact, until this century, only three states had incorporated provisions relating to a record of arrest or conviction into their general FEP law: New York (1976), Wisconsin (1981), and Hawaii (1998).[6] Article 23-A of New York’s Corrections Law prohibits “unfair discrimination” against a convicted person by public and private employers and licensing entities. The law imposes a “direct relationship” standard defined by a multifactor test limited only by public safety considerations, which may be enforced through the courts or through the State Human Rights Law. Certificates issued by a court or the parole board may lift mandatory employment or licensing bars and are evidence of rehabilitation in discretionary decisions. Rejected applicants must be given reasons in writing.[7] Wisconsin’s fair employment law also covers arrest or conviction record, and has been broadly interpreted by the administrative agency responsible for its enforcement and the courts to require a conclusion that “a specific job provides an unacceptably high risk of recidivism for a particular employee.”[8] Many other states adopted laws in the last years of the 20th century providing that a conviction could not be the “sole” reason for refusing to employ someone, and enjoined employers to consider whether a criminal record was related in some fashion to the job. Some even set out detailed criteria for determining when a “direct relationship” (or, variously, “substantial” or “reasonable” relationship) exists between a person’s criminal record and the position. These standards were sometimes sufficiently precise as to encourage rejected applicants to go to court, but the employer usually won.[9] Individuals rejected for employment because of a criminal record had somewhat better luck under federal civil rights law if they could establish a correlation between criminal record and another independently prohibited basis for adverse treatment such as race.[10] But for all intents and purposes until 1998 Wisconsin and New York were the only states that provided administrative remedies for record-based employment discrimination without also requiring a nexus with race or some other illegal ground. When Hawaii extended its Fair Employment Practices law to criminal records in 1998, it was the first state to identify and address a concern about threshold disqualification based on criminal background checks. Its prohibition on inquiries into an applicant’s criminal record until after a conditional offer of employment has been made served as an inspiration for the “ban-the-box” campaign that began several years later in California. In Hawaii, a conditional offer may be withdrawn only if a conviction within the most recent 10 years bears a “rational relationship to the duties and responsibilities of the position.”[11] Its four-part enforcement mechanism is a model for other states: To prohibit application-stage inquiries about criminal history After inquiry is made, to prohibit consideration of non-convictions and certain other records that are categorically deemed “unrelated” to qualifications To apply detailed standards to consideration of potentially relevant records, and To enforce these standards and procedures through the general fair employment law. While the ban-the-box approach pioneered by Hawaii has taken hold across the country, only three additional jurisdictions have built a comprehensive approach to “fair chance employment” around the same four-part mechanism, and of these three only two applied it to private as well as public employment. The District of Columbia was the first in this century to enact what has come to be called a “fair chance” approach to hiring people with a criminal record, regulating public employment in 2010 and a few years later extending similar rules to private organizations employing more than 10 people.[12] California and Nevada followed suit with similar laws in 2017, although Nevada’s extends only to public employment. California’s Fair Employment and Housing Act (FEHA) is discussed first because it is the most extensive of the three, extending criminal history protections to both public and most private employers, delaying a background check until after an offer of conditional employment is made, and thereafter prohibiting consideration of non-conviction records, as well as convictions that have been dismissed or set aside, pardoned, or been the subject of a judicial Certificate of Rehabilitation. In all cases, employers must conduct individualized assessments to determine whether a conviction has a “direct and adverse relationship with the specific duties of the job,” notify an applicant in the event of denial and of the record relied upon (though no further reasons need be given), and allow the applicant to respond. Violations constitute an “unlawful employment practice” that may lead to administrative enforcement by the Department of Fair Employment and Housing and ultimately to court.[13] Nevada and the District of Columbia employ essentially the same four-part approach as California and Hawaii before it, including enforcement through their general fair employment or human rights laws. While Nevada prohibits discrimination in public employment only and permits inquiry into criminal record after the first interview, it categorically prohibits consideration not only of non-conviction and sealed records, but also of misdemeanors that did not carry a prison sentence. Nevada law provides that failure to comply with its procedures is an unlawful employment practice and authorizes complaints to be filed with the Nevada Equal Rights Commission. The District’s law prohibits inquiry until after a conditional offer has been made, which may be withdrawn only for a “legitimate business reason” that is “reasonable” under a multifactor test and accompanied by written reasons. The applicant may file a complaint with the D.C. Office of Human Rights (OHR), though the law does not contemplate an appeal from its Human Rights Office to the courts. Two additional states provide for limited record-elated protections through their human rights laws: Illinois[14] prohibits inquiries about or consideration of non-conviction records, juvenile records, or expunged or sealed records; and Massachusetts[15] prohibits consideration of non-convictions and some misdemeanors. Some advocates have looked to federal civil rights law for reinforcement, but many are wary of relying on a vehicle for challenging record-based employment bars that is necessarily tethered to otherwise-prohibited discrimination based, inter alia, on race or ethnicity.[16] A large number of states have now adopted the first step of Hawaii’s comprehensive approach to hiring by adopting “ban-the-box” laws, and rely primarily on limiting the amount of information employers have about an applicant’s criminal record until the later stages of the hiring process. These laws are premised on a hopeful expectation that if applicants are given a chance to demonstrate their job-related qualifications before their past record is revealed, employers will be willing to take a more considered look at them. By the beginning of 2020, laws or ordinances prohibiting application-stage inquiries applied to public employment in 36 states, the District of Columbia, and over 150 cities and counties, and in many cases limited record checks until after a conditional offer of employment.[17] In 14 states and D.C., and 18 cities and counties, private sector employment was also affected.[18] Even Congress acted in late 2019 to postpone inquiries into criminal record, until after a conditional offer is made, for federal agency employment in all three branches of government and private contractor hiring.[19] Effective January 2021, the federal Fair Chance Act also prohibits agency procurement officials from asking persons seeking federal contracts and grants about their criminal history, until an “apparent award” has been made.[20] Many of these states also enjoin employers to base hiring decisions involving a person with a criminal record on criteria related in some fashion to the job, and in some cases set out detailed criteria for determining when a “direct relationship” (or, variously, “substantial” or “reasonable” relationship) exists between a person’s criminal record and the position.[21] Some also prohibit employer consideration of non-conviction records and convictions that have been expunged or sealed, or ask employers to consider “certificates of relief” issued by courts or parole boards. Colorado has built an extensive set of standards around a “ban-the-box” core, requiring justification for withdrawing a conditional offer, prohibiting consideration of non-convictions or sealed or pardoned convictions, and giving effect to judicial or administrative certificates of relief.[22] The limited information available to date on the practical effect of ban-the-box schemes suggests that they do improve job opportunities for people with a criminal record.[23] However, their effectiveness depends to some extent upon a willingness on the part of decision-makers to forego, at least temporarily, information about a candidate for employment that might be highly relevant to a hiring decision. In this regard, there has been some concern that limiting inquiry into criminal history may lead to employer reliance on racial or other stereotypes about who may have a criminal record.[24] Some states protect employers from negligent hiring liability, the primary reason cited by employers for not hiring someone with a criminal record.[25] Frequently such protections are triggered when an employee or applicant for employment receives some form of individualized restoration of rights, such as a pardon or judicial sealing. But some states, like Colorado, Minnesota, and New York, absolutely prohibit the use of conviction evidence in a negligent hiring civil suit. Texas prohibits negligent hiring suits except when the employer knew or should have known that an employee committed certain high-risk offenses.[26] Massachusetts protects employers so long as they relied on information from the state’s Criminal Offender Record Information System (CORI) and reached a decision within 90 days of receiving that information. While ban-the-box laws generally exclude specific types of employment, including employment where a background check is required by law, and are essentially toothless without standards and an enforcement mechanism, collectively they represent the single most significant advance for people with a record in the workplace in thirty years. In requiring potential employers to evaluate each applicant’s circumstances as opposed to reflexively rejecting anyone who reports a record, and in some cases potentially making it expensive to withdraw an offer conditionally extended, these laws are to a considerable extent self-enforcing. In this sense, they depend for their effectiveness not so much on the threat of lawsuits to compel compliance as on marketplace efficiency. As we will see in the following discussion, comprehensive occupational licensing reforms enacted by more than a dozen states since 2018, and partial reforms enacted by another dozen, are an equally encouraging development. Occupational Licensing Recent studies have shown that close to 20% of all jobs in the United States are available only to people who have been approved to compete for them by a government licensing agency.[27] It is therefore of obvious importance to the reintegration agenda to remove record-based barriers that unfairly and inefficiently restrict access to the licenses and certificates that people need to work in regulated occupations and professions. In addition to the burdens imposed in time and money by engaging in the licensing process, applicants face regulatory agencies that may be inhospitable to people with a criminal record even if they are fully qualified by skill and training. Sometimes this is because the law mandates a heightened standard for those who have been convicted of a crime (if they are not excluded entirely). More frequently it is because of vague “good moral character” standards arbitrarily enforced by those with a guild mentality or moral scruples untethered to public safety or actual occupational requirements.[28] In an earlier era of reform in the 1970s, many states enacted laws intended to soften the rough edge of what had been complete exclusion of people with a criminal record from trades and professions.[29] Several states regulated public employers and licensing agencies together, requiring them to consider whether a conviction was “directly related” to a job or license, and whether the person was “rehabilitated.”[30] Some states that enacted detailed regulation of public employment and licensing prior to the 1980s have not made major changes to their licensing rules since that time.[31] Beginning in 2013, a new era of occupational licensing reform took shape, transforming the policy landscape.[32] By mid-2020, more than 30 states had enacted legislation to make it easier for qualified individuals with a criminal record to obtain occupational and professional licensure and the foothold in the middle class that this promises.[33] The modern reforms were heavily influenced by model occupational licensing laws proposed by two national organizations with differing regulatory philosophies: The Institute of Justice (IJ), a libertarian public interest law firm,[34] and the National Employment Law Project (NELP), a workers’ rights research and advocacy group.[35] Both of these model law proposals addressed the following five key issues: What records should be considered? Both proposals limit the kinds of records that may be considered, recommending that only recent serious convictions should be the basis of denial or other adverse action, and that non-convictions and sealed or pardoned convictions not be considered at all. What are proper criteria for denial of licensure? Under IJ’s proposal, denials must be based on evidence of public safety risk; under NELP’s proposal, denials must be based on a record’s “direct relationship” to the occupation, coupled with a lack of rehabilitation. Both proposals would eliminate mandatory bars to licensure and vague standards like “good moral character.” At what point in the process should criminal record be considered? The timing for considering whether a criminal record should be disqualifying differs significantly in the two proposals. Under IJ’s proposal, a person may at any time petition for a “preliminary determination” whether a criminal record will be disqualifying, before investing in any training or special education, the agency must promptly respond and charge a minimal fee, and its determination is binding upon later application. Under NELP’s proposal the order of decision is reversed: consideration of the record should occur only after determining the person is otherwise qualified, a variation on its “ban-the-box” approach. What procedural protections should apply in licensing decisions? Under both proposals, procedures for decision-making are well-defined, and both require agencies to bear the burden of showing unfitness, to issue written decisions defending denials, and to allow for appeals. How should licensing agencies be held accountable? Both proposals require agencies to make periodic reports that will allow monitoring of compliance by the legislature or responsible executive agency. The most ambitious and extensive licensing schemes enacted during the current reform period address each of these questions, while other states have been more selective in deciding which approaches to adopt. Between 2016 and mid-2020, 30 states enacted a total of 39 laws imposing new generally applicable obligations and limitations on licensing agencies, some states enacting multiple laws in successive years:[36] Arizona (2017, 2018, 2019), Arkansas (2019), California (2018), Colorado (2018), Georgia (2016), Idaho (2020), Illinois (2016, 2017), Indiana (2018, 2019), Iowa (2019, 2020), Kansas (2018), Kentucky (2017), Louisiana (2017), Maryland (2018, 2019), Massachusetts (2018), Mississippi (2019), Missouri (2020), Nebraska (2018), Nevada (2019), New Hampshire (2018), North Carolina (2019), Ohio (2019), Oklahoma (2019), Pennsylvania (2020), Rhode Island (2020), Tennessee (2016, 2018), Texas (2019), Utah (2019, 2020), West Virginia (2019, 2020), Wisconsin (2018), and Wyoming (2018). Eight states regulated licensing decisions state-wide for the very first time,[37] while others expanded on laws originally enacted during the earlier reform era in the 1970s and 80s.[38] Many of them required agencies to publish lists of disqualifying convictions and limit disqualification to convictions “directly related” to the regulated occupation, abolished vague “good moral character” criteria and emphasized public safety instead, barred licensing agencies from considering non-convictions and certain other types of records, and required agencies to justify denials with written reasons and defend them on appeal. Many states also required agencies to report periodically to the legislature on their progress.[39] The Institute for Justice keeps a running tab of the types of reforms enacted, by state, on its website.[40] The most ambitious of the new laws was the comprehensive scheme enacted by Indiana, which is strong both substantively and procedurally, and its requirements apply not only to state agencies but also to county and municipal governments that issue occupational and professional licenses and permits.[41] Rhode Island’s law comes in a close second.[42]  The most surprising were the extensive new schemes put in place in two Southern states, North Carolina and Mississippi, the first an expansion of a scheme from an earlier reform era, and the second a brand new effort by a state that previously had no law at all.[43] Minnesota evidently saw no need to modify a progressive set-up first enacted in 1974 and virtually unchanged since that time,[44] but Pennsylvania completely reworked the substantive standards intended to guide 29 licensing agencies controlling 255 licenses.[45] Pennsylvania, along with Nebraska, also imposed new reporting requirements on occupational licensing boards, perhaps a prelude to more extensive procedural regulation. Alabama and Washington authorized their courts to grant exemptions from many barriers to licensure.[46] In addition to these general reforms, several additional states enacted laws regulating specific occupations or addressing narrower aspects of licensure. Five states (Connecticut, Delaware, Florida, Idaho, and Iowa) loosened restrictions on barbers and cosmetologists, and Florida and Iowa facilitated licensing in construction trades taught in their prisons. Wisconsin added discrimination by occupational licensing boards to its venerable fair employment law, and Alabama passed a law allowing individuals to petition a court to remove mandatory bars to specific occupational licenses so that applicants may be considered on the merits. Texas opened health care occupations to people who may have been barred from them earlier in life.[47] At the time this report went to press, Michigan had pending seven bills addressing different aspects of the licensing process. In summary, given the number of work opportunities they control, licensing agencies play a key part in any reintegration strategy aimed at giving people with a criminal record a fresh start. While the philosophies behind the bipartisan advocacy for licensing reform may vary, the practical value of its guidance to the many individuals who stand to benefit cannot be overestimated. If a “clean slate” means “an absence of existing restraints,”[48] lifting legal and societal barriers to licensure seems an essential part of a clean slate agenda.   REPORT CARD ON FAIR CHANCE EMPLOYMENT Ranking methodology:  The following map assigns each state to one of five color-coded categories reflecting the textual strength of the laws regulating how criminal record is taken account of in the employment application process. (We cannot and do not comment on how these laws operate or how they are enforced.) The five categories are: 1) Orange: robust regulation of both public and private employment; 2) Green: robust regulation of public employment only; 3) Light orange: minimal regulation of both public and private employment; 4) Light green: minimal regulation of public employment only; and 5) White: no regulation of either public or private employment.  In determining which laws were robust and which were minimal, consideration was given to whether a state’s fair employment law extends to discrimination based on criminal record; whether a “ban-the-box” law prohibits inquiry until after a conditional offer has been made; whether clear standards determine how employers should consider a record in the employment application process; and, whether the law provides for administrative enforcement.   REPORT CARD ON REGULATION OF OCCUPATIONAL LICENSING Ranking methodology: The following map assigns each state to one of five color-coded categories reflecting the textual strength of the law regulating consideration of criminal record by occupational licensing agencies. Orange designates a robust regulatory scheme, green an adequate one, light orange a modest one, light green a minimally acceptable one, and states colored white have no general licensing scheme at all.  Rankings were determined by 1) whether clear and specific standards apply to test the relevance of an applicant’s criminal record to the occupation, by reference to public safety rather than character;  2) whether certain categories of records (notably non-conviction records) are excluded as irrelevant to licensure; 3) whether the law provides an opportunity for aspiring applicants to get an early read on their likelihood of success, and whether that early read is binding on a later determination;  4) whether procedural protections are available through written reasons for denial and opportunities to appeal; 5) whether there is an external accountability mechanism to monitor agency performance, such as periodic reporting requirements.  Even licensing schemes deemed “robust” may not have gotten that mark because of high marks in all five categories.   Comparison of State Ratings Between Employment and Licensing Looking at how states performed on the two report cards, it is interesting that there is not a particularly strong correlation between their rankings. That is, states that have a robust system for regulating consideration of conviction in employment may not and frequently do not have similarly strong systems for regulating occupational licensing agencies. 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 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. Four of the six states that have robust regulation of public employment scored in the middle tier of occupational licensing (Delaware, Kentucky, Missouri, and Tennessee), but the other two with good scores on public employment scored poorly on occupational licensing (Louisiana and Nevada). Conversely, four states that ranked in the top tier for occupational licensing had no law at all regulating 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 regulation at all governing either employment or occupational licensing (Alaska, South Carolina, and South Dakota). Appendix C contains a 50-state summary of laws regulating consideration of conviction in employment and licensing in each state, with links to specific state profiles that may be consulted for additional detail.   ENDNOTES [1] Studies have shown that having a well-paying job has a demonstrable impact on recidivism rates for those released from prison. See, e.g., Crystal Yang, Local labor markets and criminal recidivism, 147 J. Pub. Economics 16 (2017). Recent years have produced an extraordinary literature on the public policy importance of removing barriers to employment and licensure for those with criminal records, as a matter of economic efficiency, public safety, and fairness. See, e.g., J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2461 (2020). The chapter on “Consequences for Employment and Earnings” from the 2014 report of the National Research Council of the National Academy of Sciences, The Growth of Incarceration in the United States:  Exploring Causes and Consequences 211-259 (Jeremy Travis and Bruce Western, eds.), remains the most thorough scientific treatment of the impact of incarceration on the life prospects of those who experience it. [2] Recent reforms in a few states call for automatic sealing of records on a categorical basis, legislative relief that is described in Part II of this report on Record Relief. [3] The term “clean slate” is frequently used to describe the desired effect of record-sealing laws, but its definition as “an absence of existing restraints or commitments” makes it equally apt in connection with regulation imposition of unwarranted record-related restrictions in employment and occupational licensing. See Oxford Dictionary of Idioms 65 (John Ayto, ed., 2020), https://www.lexico.com/definition/clean_slate. [4] One caveat that has been raised by researchers about ban-the-box strategies is that barring early inquiry into criminal record may lead employers to rely on stereotypes about which applicants are likely to have one. See generally infra note 24, infra. [5] The only national standards for employment of people with a criminal record, the 2012 EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 tests the validity of employment policies affecting people with a criminal record in terms of their adverse effect on groups that are otherwise protected from discrimination. The EEOC has taken the position that employers may not reject applicants based on an arrest record alone and may not impose an across-the-board exclusion of people with a conviction record. The Guidance requires individualized consideration using a multifaceted screening test that considers the nature of the person’s offense, the time elapsed since it occurred, and the nature of the position. See Margaret Love, Jenny Roberts & Wayne Logan, Collateral Consequences of Criminal Conviction: Law, Policy, and Practice, § 6:5 (3d ed. 2018-2019). In 2019 the Fifth Circuit invalidated the Guidance, so its legal status is no longer clear. See Texas v. Equal Employment Opportunity Commission, 933 F.3d 433, 451 (5th Cir. 2019) (finding that the EEOC overstepped its statutory authority in promulgating guidance on employers’ use of criminal records in hiring). [6] A fourth state, Connecticut, included as early as 1980 provisions addressing discrimination based on criminal record in public employment in its human rights code. See Conn. Gen. Stat. § 46a-80 (citing the former Sec. 4-61o which was transferred to Sec. 46a-80 in 1981). However, the state Commission on Human Rights and Opportunities evidently never regarded enforcement of these provisions as within its mandate. See 1994 memorandum from the Office of Legislative Research on Employment Discrimination Based on Prior Conviction of a Crime to the Connecticut General Assembly (Jan. 19, 1999), https://www.cga.ct.gov/PS94/rpt/olr/htm/94-R-0201.htm. [7] Compare Boone v. New York City Department of Education, 38 N.Y.S.3d 711, 721 (N.Y. Sup. Ct. 2016) (holding that denial of security clearance for a position as a School Bus Attendant to petitioner convicted of shop-lifting from her employer, without due regard to the factors set forth in Article 23-A, or petitioner’s CRD, was arbitrary and capricious) with Arrocha v. Bd. of Educ. Of City of N.Y., 93 N.Y.2d 361, 366 (1999) (holding that the Board of Education’s determination that teaching license applicant’s prior conviction for sale of cocaine came within statutory “unreasonable risk” exception to general rule that prior conviction should not place person under disability, was neither arbitrary nor capricious, where Board properly considered all statutory factors and determined that those weighing against granting license outweighed those in favor; age of conviction, applicant’s positive references and educational achievements, and presumption of rehabilitation were outweighed by teacher’s responsibility as role model and nature and seriousness of applicant’s offense.). [8] See e.g. Palmer v. Cree, Inc., ERD Case No. CR201502651 (LIRC, Dec. 3, 2018) (finding that lighting products company could not show that a job applicant’s convictions—for felony strangulation and suffocation, and misdemeanor battery, fourth degree sexual assault, and damage to property—were substantially related to employment as a lighting applications specialist who would have contact with the public; “Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job.”); Staten v. Holton Manor, supra, ERD Case No. CR201303113 (LIRC, Jan. 30, 2018) (holding that skilled nursing facility could not refuse to hire based on misdemeanor theft conviction that had been expunged; permitting the employer to do so would conflict with the purpose of the statute permitting expungement, which is to permit certain offenders to “wipe the slate clean of their offenses and to present themselves to the world—including future employers—unmarked by past wrongdoing.”). [9] For example, Minnesota’s Criminal Rehabilitation Act of 1974 prohibits discrimination in public employment and licensing and sets out a detailed set of standards for determining whether a criminal record is “directly related” to a specific job so that it justifies adverse employment action. See Minn. Stat. § 364.03, subd. 2. Even where a crime is found to be directly related, a person may not be disqualified if the person can show “competent evidence of sufficient rehabilitation and present fitness to perform the duties of the public employment sought or the occupation for which the license is sought.” § 364.03, subd. 3. Rehabilitation may be established by a record of law-abiding conduct for one year after release from confinement, and compliance with all terms of probation or parole. The problem is that, unlike the laws enacted in Wisconsin and New York, the Minnesota law contains no enforcement mechanism, leaving aggrieved individuals to seek relief in the courts, which have tended to interpret the standard in favor of the employer. See, e.g., Peterson v. Minneapolis City Council, 274 N.W.2d 918 (Minn. 1979) (finding that conviction for attempted theft by trick directly related to the operation of a massage parlor); In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987) (holding that embezzlement directly related to fitness to teach; teacher with 20 years of service terminated in spite of efforts to make restitution); In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987). [10] See, e.g., Green v. Missouri Pacific Railroad Co., 523 Fed. 2d 1158 (8th Cir. 1975), and discussion of early EEOC practice and policies in Love et al. supra note 5 at  § 6:4 (“Title VII – Applied to criminal records – Judicial interpretations (3d ed. 2018-2019, West/NACDL). [11] See Haw. Rev. Stat. §§ 378-2.5(b), (c) (an employer may withdraw a conditional offer of employment only if a conviction within the previous 10 years “bears a rational relationship to the duties and responsibilities of the position.”); Sheri-Ann S.L. Lau, Recent Development: Employment Discrimination Because of One’s Arrest and Court Record in Hawaii, 22 U. Haw. L. Rev. 709, 714-15 (2000). [12] See D.C. Code §§ 1-620.42, 1-620.43.  Public employers and private employers with 10 or more employees may not inquire into an applicant’s criminal record until after the employer has extended a conditional offer of employment, may not consider arrests or charges that are not pending and that did not result in a conviction, and may withdraw a conditional offer of employment based on an applicant’s conviction history only for a “legitimate business reason” that is “reasonable” in light of a multifactor test. The applicant may also file a complaint with the D.C. Office of Human Rights, which can bring administrative proceedings against an employer that it believes has violated the law and levy fines. [13] See Cal. Gov’t Code § 12952.  It is unclear what effect the enactment of § 12952 will have on DFEH regulations, also promulgated in 2017, providing that consideration of criminal history may violate FEHA if it has “an adverse impact on individuals on a basis protected by the Act, including, but not limited to, gender, race, and national origin.” Cal. Code Regs. tit. 2 § 11017.1(d)–(g).  Because the regulations are not coextensive with § 12952 and because they are rooted in a theory of liability not based directly on criminal history discrimination, it is possible that they may provide an alternate path to relief for some applicants disqualified due to criminal history. [14] Effective January 1, 2020, the Illinois Human Rights Act prohibits inquiries about, or discrimination in employment and real estate transactions, based on “arrest record,” defined as “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.” 775 Ill. Comp. Stat. Ann. 5/1-103 – 5/3-103, as amended by SB1780 (explaining how previously the law covered only employment, and only discrimination based on “the fact of an arrest” and expunged and sealed records). A claim of racial discrimination has also been sustained under this law where a criminal conviction was the articulated basis for a refusal to hire. See Bd. of Trs. v. Knight, 516 N.E.2d 991, 996-97 (Ill. App. Ct. 1987) (stating that no business necessity justified denial of employment as university police position to person convicted of single misdemeanor weapons charge; mitigating circumstances existed including time passed since conviction and record of responsible employment). [15] See Mass. Gen. Laws ch. 151B, § 4(9) (It shall be an unlawful practice for an employer “to request any information . . . regarding: (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information”). The law is enforced by the Massachusetts Commission against Discrimination, and procedures are set forth in Mass. Gen. Laws ch. 151B, § 5. [16] See supra note 5. [17] Beth Avery, Ban-the-Box, U.S. Cities, Counties, and States Adopt Fair Hiring Policies, National Employment Law Project (July 2019), https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/. Since this study was published, in 2020 the Virginia legislature swelled the roll of states that prohibit inquiry in public employment. See HB 757, 2020 Leg., (VI. 2020), https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB757&201+sum+HB757. [18] Avery supra note 17. In early 2020, the Maryland legislature overrode a veto by its governor to extend its ban-the-box law to private employers. See Guy Brenner and Caroline Guensberg, Maryland Legislature Overrides Governor’s Veto of “Ban the Box” Legislation, X Nat’l L. Rev. 214 (Feb. 2020) https://www.natlawreview.com/article/maryland-legislature-overrides-governor-s-veto-ban-box-legislation. [19] See CCRC Staff, Fair Chance Act advances in Congress, (Dec. 16, 2019), https://ccresourcecenter.org/2019/12/16/fair-chance-act-advances-in-congress/ [20] Id. [21] See Restoration of Rights Project, 50-State Comparison: Criminal Record in Employment & Licensing, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-and-employment/. [22] See Colo. Rev. Stat. § 24-5-101(3)(c), retaining exclusions for non-conviction records, and convictions that have been sealed, expunged or pardoned, and including for the first time convictions where “a court has issued an order of collateral relief specific to the employment sought by the applicant.” If none of the exclusions in (3)(c) apply, the agency “shall consider” the following factors in deciding whether to disqualify an applicant based on criminal record: (1) the nature of the conviction; (2) whether the conviction is “directly related” to the job; (3) the applicant’s rehabilitation and good conduct; and (4) time elapsed since conviction. Id. § 24-5-101(4). [23] See Anastasia Christman and Michelle Rodriguez, Research Supports Fair-Chance Laws, National Employment Law Project (August 2016), https://www.nelp.org/publication/research-supports-fair-chance-policies/; Washington Lawyers Committee for Civil Rights and Urban Affairs, The Collateral Consequences of Arrests and Convictions under D.C., Maryland, and Virginia Law (2014), http://www.washlaw.org/pdf/wlc_collateral_consequences_report.pdf; D.C. Council Comm. on the Judiciary and Public Safety, Report on Bill 20-642, the ‘Fair Criminal Records Screening Amendment Act of 2014’ at 3 (May 28, 2014); Council for Court Excellence, Unlocking Employment Opportunities for Previously Incarcerated Persons in the District of Columbia (2011), http://www.courtexcellence.org/uploads/publications/CCE_Reentry.pdf. [24] Researchers have found that ban-the-box policies may increase racial discrimination due to employers’ exaggerated impressions of racial differences in conviction outcomes, thereby artificially decreasing the number of qualified minority applicants who are given a second look. See, e.g., Amanda Agan and Sonja Starr, Ban the Box, Criminal Records, and Racial Discrimination: A Field Experiment, 133 Quart. J. Econ. 1, 195-235 (2018); Jennifer Doleac & Benjamin Hansen, The Unintended Consequences of “Ban the Box”: Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden, 38 J. Lab. Econ. 2, 321-74 (2020), https://www.journals.uchicago.edu/doi/abs/10.1086/705880?af=R&mobileUi=0&; see also Alana Semuels, When Banning One Kind of Discrimination Results in Another, The Atlantic (Aug. 4, 2016), https://www.theatlantic.com/business/archive/2016/08/consequences-of-ban-the-box/494435/. [25] See Love, et al. supra note 5 at §§ 6:18-6-29. [26] See Texas profile Part IV, Restoration of Rights Project, supra note 21.  Texas also relies on strict regulation of background screeners. Screeners are required to obtain records only from a criminal justice agency and must give individuals the right to challenge their accuracy. Screeners may not publish records whose disclosure is prohibited under another state law (e.g., records that have been expunged, or which are subject to an “order of nondisclosure”), and there is a civil remedy for violations. [27] See Morris M. Kleiner and Evgeny F. Vorotnikov, At What Cost, State and National Estimates of the Economic Costs of Occupational Licensing, Institute for Justice (Nov. 2018), https://ij.org/wp-content/uploads/2018/11/Licensure_Report_WEB.pdf; Stephen Slivinski, Center for the Study of Economic Liberty at Arizona State University, Turning Shackles into Bootstraps: Why Occupational Licensing Reform Is the Missing Piece of Criminal Justice Reform (Nov. 7, 2016), https://research.wpcarey.asu.edu/economic-liberty/wp-content/uploads/2016/11/CSEL-Policy-Report-2016-01-Turning-Shackles-into-Bootstraps.pdf. [28] The White House issued a report in July 2015 on occupational licensing, which noted that 25 states have standards requiring some kind of relationship between a license and an applicant’s criminal history, 25 states and the District of Columbia “have no standards in place.” See White House, Occupational Licensing: A Framework for Policymakers, 35–36 (July 2015), https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf. In April 2016, President Obama directed federal departments and agencies to ensure that federally-issued occupational licenses are not presumptively denied on the basis of a criminal record, and the Department of Justice announced support for technical assistance to states pursuing similar initiatives, as part of $5 million grant solicitation focused on reentry. See White House Press Secretary, Fact Sheet: New Steps to Reduce Unnecessary Occupation Licenses that are Limiting Worker Mobility and Reducing Wages (June 17, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/06/17/fact-sheet-new-steps-reduce-unnecessary-occupation-licenses-are-limiting. The extent to which reforms have been successful in the intervening two years is reflected by the fact that by 2020 only eight states had no standards in place: Alaska, Alabama, Massachusetts, Nevada, Ohio, Rhode Island, South Dakota, and Vermont. [29] In the 1970s, with public policy favoring encouraging employment opportunities for people with a criminal record, states began to enact laws that limit denial of licenses (and public employment) due to criminal convictions. Notable enactments included those in New Jersey (1968), Colorado (1973), Washington (1973), Hawaii (1974), Minnesota (1974), New York (1976), North Dakota (1977), Pennsylvania (1979), and Wisconsin (1981). See Love et al. supra note 5 at § 6:16. Many of these laws did little more than prohibit outright exclusion. Colorado’s law, for example, provides that a conviction for a felony or moral turpitude offense does not “in and of itself” prevent public employment or licensure (stating that with exceptions for certain sensitive positions), but may be considered in determining a person’s “good moral character.” Colo. Rev. Stat. § 24-5-101(2). Others are stronger. For example, North Dakota’s provisions prohibit denial of licensure unless there is a determination, considering a number of factors that a person is not sufficiently rehabilitated (with presumption of rehabilitation five years after completion of sentence) or the offense has a “direct bearing” on ability to serve. N.D. Cent. Code § 12.1-33-02.1. Minnesota has not substantially amended its law since it was enacted in 1974, and it was among the five top scorers in the ratings published in 2020 by the Institute for Justice. See infra notes 33 and 43. [30] See, e.g., New Jersey’s Rehabilitated Convicted Offenders Act of 1968, N.J. Stat. Ann. § 2A:168A-1; Minnesota’s Criminal Rehabilitation Act (1974), Minn. Stat § 364.01 et seq.; New Mexico’s Criminal Offender Employment Act of 1974, N.M. Stat. Ann. §§ 28-2-1 et seq. [31] Connecticut, Minnesota, New Mexico, New Jersey, and New York still retain the earlier structure of regulating public employment and licensing together. While several of these states have since amended their laws, the licensing law adopted almost half a century ago in Minnesota, see supra note 29, has changed little since its adoption, and it got high marks in the Institute for Justice’s 2020 report. See supra note 27. North Dakota and Virginia also still operate under detailed licensing regulations dating from the 1980s or earlier. Pennsylvania recently abandoned that structure in enacting a new chapter 31 of Title 68 to impose detailed substantive standards on its licensing agencies, though its new law still offers little by way of procedural protection for applicants with a record. See CCRC Staff, Pennsylvania expands access to 255 licensed occupations for people with a record, (July 14, 2020), https://ccresourcecenter.org/2020/07/14/pennsylvania-expands-access-to-255-licensed-occupations-for-people-with-a-record/. [32] While licensing was not the most well-publicized type of reform during the period of 2013-2016, new laws addressed licensing in four different ways: (1) seven states excluded certain records from consideration in licensing; (2) four states expanded the benefits of certificates of relief in licensing; (3) five states imposed new standards for license denials based on criminal record; and (4) one state provided greater oversight of licensing boards. See Collateral Consequences Resource Center, Four Years of Second Chance Reforms, 2013-2016 (2017), https://ccresourcecenter.org/2017/02/08/round-up-of-recent-second-chance-legislation-2013-2016/. [33] See Nick Sibilla, Barred from Working: A Nationwide Study of Occupational Licensing Barriers for Ex-Offenders,” Institute for Justice (May 2020), https://ij.org/report/barred-from-working/. At the time this report was published, three additional states had major reform bills awaiting their governor’s signature, all of which were later enacted. See CCRC Staff, note 31, supra. [34] The Institute for Justice initially released its model law as part of its Occupational Licensing Review Act (OLRA). See Institute for Justice, Model Occupational Licensing Review Law: Reforming Occupational Licensing Boards following NC Dental Board v. FTC, (2018), https://ij.org/activism/legislation/model-legislation/model-economic-liberty-law-1/. Later, the provisions of OLRA relating to criminal records were revised and extended as its Collateral Consequences in Occupational Licensing Act (CCOLA) (2019), https://ij.org/wp-content/uploads/2019/11/10-31-2019-Model-Collateral-Consequences-in-Occupational-Licensing-Act-2.pdf. See generally supra note 33 at 4. [35] NELP released its Model State Law as part of a report on barriers to licensing for people with a record. See Michelle Rodriguez and Beth Avery, Unlicensed and Untapped: Removing Barriers to State Occupational Licenses for People with Criminal Records, National Employment Law Project (2016), http://www.nelp.org/publication/unlicensed-untapped-removing-barriers-state-occupational-licenses. NELP issued a report on its progress in 2018: Maurice Emsellem, Beth Avery, & Phil Hernandez, Fair Chance Licensing Reform Takes Hold in the States, National Employment Law Project (May 15, 2018), https://www.nelp.org/publication/fair-chance-licensing-reform-takes-hold-states/. [36] Citations and descriptions of these laws can be found in the relevant state profiles from the Restoration of Rights Project, supra note 21. They are summarized in the RRP’s 50-state comparison chart on employment of licensing, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-and-employment/, which links to a longer description of each state’s law. Links to many of the amending bills are also posted on the website of the Institute for Justice, at https://ij.org/activism/legislation/state-occupational-licensing-reforms-for-people-with-criminal-records/. . [37] The regulatory schemes enacted by Kansas and Nebraska in 2018, by Mississippi, Nevada, and West Virginia in 2019, and by Iowa and Idaho in 2020, fall into this first-time category. Alabama’s 2019 law, modeled on the Uniform Collateral Consequences of Conviction Act, was also that state’s first regulation of licensing decisions. [38] For example, the laws enacted by Missouri and Pennsylvania in 2020 represented those states’ first regulation of occupational licensing since 1980 and 1979, respectively. In 2019, Arkansas, Kentucky, Maryland, North Carolina, Ohio, Oklahoma, and Texas also augmented licensing laws originally enacted in the 1970s. [39] The specific provisions of each state’s law are described and analyzed in the relevant profiles of the Restoration of Rights Project, supra note 21. Their terms may be compared through the 50-state chart at https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-and-employment/. See also the annual reports on legislative enactments issued by CCRC since 2017, collected at this link: https://ccresourcecenter.org/resources-2/resources-reports-and-studies/. [40] As of August 2020, 17 states allowed ex-offenders to petition a licensing board at any time, including before enrolling in any required training, to determine if their record would be disqualifying, 20 states had done away with vague criteria like “good moral character” for some or all licenses, 16 states had prohibited consideration of non-conviction records, 16 states had blocked licensing boards from denying people with a record a license to work unless their criminal record is “directly related” to the license sought, and eight states have instituted new reporting requirements. The website also collects information on which states prohibit consideration of certain convictions after a stated period of time.  See Institute for Justice, State Occupational Licensing Reforms for Workers with Criminal Records (last visited Aug. 1, 2020) https://ij.org/activism/legislation/state-occupational-licensing-reforms-for-people-with-criminal-records/ [41] Indiana’s licensing law is described at  CCRC Staff, Indiana enacts progressive new licensing law, (April 3, 2018), https://ccresourcecenter.org/2018/04/03/indiana-enacts-progressive-new-licensing-law/. Indiana was the only state to achieve an “A” rating in the Institute for Justice’s May 2020 “Barred from Working” grading of state laws. See supra note 33. The significance of extending regulation to licenses and permits issued by counties and municipalities is underscored in Amy P. Meek, Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level, 75 Ohio St. L.J. 1 (2014). [42] As amended by S2824, R.I. Gen. Laws § 28-5.1-14 applies a “substantial relationship” standard to licensing boards under most departments of state government, defines it in detail, excludes certain records from consideration (including non-convictions, misdemeanors, and felonies that are “substantially related”), allows applicants to establish rehabilitation by detailed standards, provides detailed procedures in the event of denial, suspension or revocation, and includes accountability standards. [43] CCRC Staff, Two southern states enact impressive licensing reforms, (Sept. 18, 2019), https://ccresourcecenter.org/2019/09/18/two-southern-states-enact-impressive-occupational-licensing-reforms/. The laws enacted by these two states were rated among the five strongest by the Institute for Justice in its May 2020 Barred from Working study. See supra note 33. [44] The Minnesota Criminal Rehabilitation Act (1974), Minn. Stat § 364.01 et seq., prohibits discrimination in public employment and licensing. It has only been amended once since its enactment, in 2013 to add text recognizing the special circumstances of veterans. The virtues of this half-century-old law were affirmed when Minnesota was judged among the top five states in the Institute for Justice’s May 2020 “Barred from Working” grading of state laws. See supra note 33. [45] See CCRC Staff, supra note 31. Pennsylvania’s licensing law, like its employment law, has strong substantive standards but almost no procedures to ensure these standards are complied with, remitting disappointed applicants to the courts. The law does require agencies to report their progress to the legislature in two years, so perhaps this will encourage compliance. [46] See Ala. Code § 12-26-5 (Occupational Licensing Order of Limited Relief); Wash. Rev. Code § 9.97.010 (Certificates of Restoration of Opportunity). Both these judicial certificates may result in removing a mandatory bar to licensure, but without a standard to guide discretionary decision-making thereafter, Alabama’s certificate appears toothless. Washington’s law otherwise imposes a “direct relationship” standard and allows only convictions within 10 years to be considered. [47] See Collateral Consequences Resource Center, Pathways to Reintegration: Criminal Record Reforms in 2019, pp. 24, 60-61 (2020), https://ccresourcecenter.org/wp-content/uploads/2020/02/Pathways-to-Reintegration_Criminal-Record-Reforms-in-2019.pdf. [48] See supra note 3. Read more

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.” I. Loss and Restoration of Voting and Firearms Rights[1] A. Voting rights The loss and restoration of the right to vote after a conviction depends upon state law, including for people with federal convictions.[2]  The Supreme Court has ruled that the Fourteenth Amendment to the Constitution permits states to permanently deny the vote based on a felony conviction.[3] That said, most states do not go so far. In two states (Vermont and Maine) conviction never results in loss of the right to vote. In 22 states and the District of Columbia the vote is lost only if a conviction (usually a felony) results in incarceration.[4]  In all but five of those 22 states, the period of disenfranchisement coincides with the period of actual incarceration.[5]  In the one of the five (Louisiana), reenfranchisement is delayed for a period after release.[6]  In the remaining four states (California, Connecticut, Idaho, and New York) disenfranchisement continues through parole—except that parolees in New York have since 2018 been allowed to vote while by virtue of executive pardon.[7] Another 22 states provide for loss of vote for a range of felony and certain misdemeanor convictions and restore the vote automatically either when a person completes the sentence or is discharged from supervision.[8]   Nine of these 22 states require a person to pay some or all conviction-related “legal financial obligations” (LFOs) (fines, fees, and restitution) before regaining the franchise.[9]  In 12 of the remaining 13 states in this group, discharge from supervision restores the vote, and LFOs may result in a scenario of delayed restoration of rights, depending on a person’s ability to pay.[10]  The wealth-based discrimination inherent in conditioning voting on payment of LFOs has been challenged on constitutional grounds in several states, notably including Florida.[11] Since Florida amended its constitution in 2018 to restore the vote automatically upon completion of sentence,[12] only four states (Iowa, Kentucky, Mississippi, and Virginia) now rely exclusively on the discretionary exercise of a constitutional power to restore the vote. These states have pursued differing restoration policies in recent years, with two (Virginia and Kentucky) restoring rights on an automatic or quasi-automatic basis, one (Iowa) restoring on a case-by-case basis through a petition-based system, and the fourth (Mississippi) showing no interest in restoration of the vote.[13]  All four of these “discretionary” states make provision for restoring the vote to people with federal or out-of-state convictions.[14] This national landscape reflects a growing consensus in the states that restoration of the vote is an important aspect of criminal justice reform.[15]  Since 2015, there has been a national trend toward expanding the franchise through changes in law and policy.  During this five-year period, 17 states and the District of Columbia have enacted a total of 26 laws either limiting disenfranchisement or encouraging the newly enfranchised to vote.  Of the 17, eight states revised their restoration laws to remove barriers related to supervision: Colorado, Maryland, Nevada and New Jersey limited disenfranchisement to a period of actual incarceration,[16] Louisiana restored the franchise to anyone who has not been incarcerated in the last five years pursuant to an “order of imprisonment” for a felony,[17] and three additional states (Delaware, Washington, and Arizona) removed an explicit financial payment condition from their restoration laws.[18]  Two more states (California and Oklahoma) and the District of Columbia removed barriers to voting related to incarceration or waiting periods,[19] and three additional states (Arkansas, Florida, and Wyoming) ended indefinite disenfranchisement for at least some individuals.[20]  Finally, two states passed laws initiating the process of constitutional amendment to enact (Iowa) or expand (California) automatic re-enfranchisement.[21]  In addition to measures expanding voter eligibility, five states passed laws requiring corrections officials to educate and inform people in prison or on supervision about their voting rights.[22]  More than half of the these new laws were enacted after January 1, 2019, so the trend toward making more convicted individuals eligible to vote appears to be accelerating. This trend toward restricting penal disenfranchisement is also evident in clemency policy. Since 2015, four governors have used their pardon power systematically to restore the vote and remove financial or supervision requirements.[23] During this same five-year period only one state acted to extend penal disenfranchisement. Florida’s June 2019 passage of SB7066, conditioning voting rights on full payment of LFOs, even if they have been converted to a civil lien, severely curtailed the ballot initiative by which 65% of state voters had approved automatic re-enfranchisement of most Floridians with a felony record just six months earlier.[24]  SB7066 has been challenged on federal constitutional grounds, along with the ballot initiative, which was later interpreted by the Florida Supreme Court to itself require payment of LFOs.[25] Challenges have also been brought against laws mandating payment of LFOs as a condition of regaining the vote in Alabama and North Carolina.[26] The Collateral Consequences Resource Center plans to file a friend of the court brief in the Florida litigation documenting the nationwide frequency with which unpaid LFOs may delay restoration of the vote or deny it indefinitely.[27]  This brief will document that in twenty states and the District of Columbia, LFOs have no bearing on eligibility to vote, and in 16 states LFOs potentially affect only the timing of re-enfranchisement.[28]  In some of these 16 states courts are required to consider ability to pay in setting and enforcing terms of supervision, and in others they have discretion to do so.  Of the four states that handle restoration of rights exclusively through the discretionary exercise of constitutional clemency, three currently have governors who evidently do not regard unpaid LFOs as disqualifying.[29]  Accordingly, there are at present only ten states whose laws mandate permanent disenfranchisement based on some or all outstanding court debt, regardless of ability to pay.  And only three of these states including Florida require payment of all LFOs associated with a disqualifying conviction; the remaining seven states require payment of certain financial obligations.[30] In summary, at mid-2020 the trend in state legislatures to expand opportunities for reenfranchisement rivals the trend toward expanding opportunities for people with a criminal record in the workplace.  Excluding Florida’s SB 7066, it has been almost a decade since any state passed a law narrowing access to the ballot box based on conviction.[31]  The law in almost half the states now reflects an appreciation of the social and economic value of allowing all those who are living in the community to participate in its governance.  Restoring the vote “may facilitate reintegration efforts and perhaps even improve public safety,” providing benefits both to individuals with a record and more broadly to their communities.[32]  A system linking penal disenfranchisement to actual incarceration is both easier to justify and easier to administer than a system that links the vote to other aspects of the sentence, much less one that makes voting depend upon a person’s ability to pay. Recognition of the real and symbolic importance of making voting rights part of a reintegration agenda is nothing new. Forty years ago, national law reform organizations like the Uniform Law Commission and the American Bar Association advocated for limiting and even abolishing felony disenfranchisement.[33]  Perhaps the country is slowly coming to that view. We agree with those who see no legal rationale or social justification for felony disenfranchisement, and few if any practical obstacles to allowing even prisoners to vote.[34]  This remnant of ancient civil death and Jim Crow should have no place in the modern American polity. B. Firearms Rights In every state except Vermont, the right to possess at least some firearms is lost after conviction of at least some felonies. Even in Vermont, a court may prohibit firearm possession as a condition of granting probation. The 50-state chart from the Restoration of Rights Project[35] attempts to chart a way through legal terrain that is even more complex and potentially treacherous than the one that governs penal disenfranchisement. It is more complex because federal law superimposes another layer of regulation on firearms possession after conviction, and because the right to possess firearms has a degree of constitutional protection even for people who are dispossessed by virtue of a conviction. It is more treacherous because the risk of criminal prosecution by one or both sovereigns is very real, while prosecutions for mistaken voting are considerably rarer (though even these have increased in recent years). Furthermore, while each state is entitled to enforce its own law on firearms dispossession within its borders, it is uncertain what effect relief granted in one jurisdiction will be given in another.[36] Just to sketch the general state law picture, in 28 states a person convicted of any felony loses the right to possess any firearm. A few of these 28 states extend dispossession to violent misdemeanors or domestic violence convictions. In 12 other states and the District of Columbia, only people convicted of specific crimes (usually violent, drug or sex crimes) lose any firearms rights. In six states (Alabama, Alaska, Connecticut, Indiana, Oklahoma, and South Carolina) only handgun rights are ever lost. In three states (Louisiana, New Jersey, and Tennessee) there are different rules for dispossession of long guns and handguns. In Vermont conviction does not affect the right to possess a firearm, but a court may prohibit a person from having a firearm as a condition of granting probation.[37] Provisions for regaining lost rights vary widely. In a minority of states dispossession is time-limited and restoration is automatic for at least some types of convictions. In 11 states, including Kansas, Michigan, Minnesota and Rhode Island, restoration is automatic for many convicted of nonviolent crimes as early as completion of sentence, or after a brief waiting period. In Montana, the only people not allowed to have firearms when they complete their sentences are those who used a dangerous weapon in their crime. In North Dakota, even people whose offense involved “violence or intimidation” automatically regain their firearms rights 10 years after completion of sentence. But in most states, firearms dispossession is indefinite, and everyone who lost rights must petition a court for discretionary relief or ask for a pardon. Some states mix and match the two approaches depending either upon the type of conviction or upon the type of firearm. In 11 of the 26 states in which all firearms rights are permanently lost upon conviction of any felony, a pardon is the exclusive restoration mechanism. In the other 15 states judicial relief is also authorized for at least some types of convictions, though expungement has a role in only a few (Arkansas, Missouri, Oregon, and Utah). Arizona reorganized its restoration scheme in 2019 so that courts may now grant relief for most felonies subject to differing waiting periods, but only the governor may restore rights to those convicted of “dangerous felonies.” In Tennessee, a pardon may restore rights to those who lost only handgun rights, but expungement is the only remedy available to those convicted of a violent or drug crime who lost all firearms rights. A few states (California, New York, Oklahoma) make no provision at all for restoring firearms rights to those convicted of violent crimes or offenses involving a dangerous weapon. According to a 2011 study by the New York Times of firearms restoration mechanisms across the country, courts in many jurisdictions restored rights with little consideration of an individual’s circumstances, while pardon boards and governors were more cautious. [38]  Even so, the Georgia Board of Pardons and Parole grants between 200 and 300 pardons every year specifically restoring gun rights, and the Nebraska pardon board has reported dozens of firearms pardons granted each year.[39] Separate and apart from state dispossession laws, federal criminal law also restricts firearm rights and privileges based on conviction in any U.S. jurisdiction. Under federal law, no one may possess any firearm (other than an antique) after conviction of a felony punishable by more than one year’s imprisonment, a misdemeanor punishable by more than two years’ imprisonment, or a domestic violence misdemeanor.[40]  For people with state-court convictions, the federal prohibition may be lifted by various state law relief mechanisms, including pardon, expungement, and general civil rights restoration (as long as the person is not barred from possessing firearms under state law), but the effect of specific state relief mechanisms on federal firearms rights is varied and complex.[41] In contrast, after a conviction in federal court, the federal ban can only be lifted by a presidential pardon.[42] The Supreme Court’s landmark 2008 decision in District of Columbia v. Heller, which recognized a federal constitutional right to possess a firearm “in defense of home and hearth,”[43] opened a new avenue of challenge to the application of dispossession statutes. Heller itself anticipated and sought to deflect such challenges by declaring them to be “longstanding” and “presumptively lawful,”[44] but some lower courts have characterized this statement as dictum, and scholars have questioned its historical accuracy.[45]  One federal court of appeals has upheld an “as applied” challenge to the categorical firearm ban by two individuals with dated state misdemeanors, but another federal appeals court reached the opposite conclusion in the case of a man convicted of felony credit card fraud.[46]  At least one state court has relied upon a “right to bear arms” provision of its state constitution in refusing to apply a newly enacted categorical dispossession statute to an individual whose conviction was decades old, when his firearm rights had been restored under an earlier law, and he had long since demonstrated rehabilitation.[47] In summary, in all but the six states that limit dispossession to handguns, conviction of some or all felonies results in loss of all firearms rights for varying periods of time, but usually indefinitely. At the same time, relief appears to be available in most states from the courts. However, in a substantial minority of states, and for all those convicted in federal court, the only way to regain firearms rights is through a pardon. To the extent dispossession is permanent or relief hard to obtain though this political channel, this collateral consequence looks more like punishment than regulation, and should be subject to constitutional challenges on this ground, particularly in light of recent Second Amendment jurisprudence. That courts are reluctant to go there is understandable, however, so it will be up to legislatures to devise acceptable and less complex forms of relief. *** [1] This report does not include a discussion of other civil rights lost because of conviction, notably the right to hold public office and the right to serve on a jury. In some states all three rights travel together, and in others they are handled differently. Interested readers are referred to the 50-state comparison chart from the Restoration of Rights Project, “Voting, Jury Service, Public Office & State Law on Firearms,” https://ccresourcecenter.org/state-restoration-profiles/chart-1-loss-and-restoration-of-civil-rights-and-firearms-privileges/. [2] In states where the right to vote is lost and regained by operation of law, federal and out-of-state convictions are generally subject to the same rules as in-state convictions. Connecticut is a notable exception. See Conn. Gen. Stat. Ann. § 9-46a(a) (federal and out-of-state convictions), § 9-46a(b) (Connecticut state convictions). The handful of states that still provide for discretionary re-enfranchisement typically allow those with federal convictions to regain the vote on the same terms as those with in-state convictions, though they may also give individuals the option of restoration in the jurisdiction of conviction.  See, e.g., Iowa governor’s website on clemency, Frequently Asked Questions, https://governor.iowa.gov/sites/default/files/documents/FAQ%20-%20Voting.pdf (“If your voting rights were restored in the State where you lost your rights because of a felony conviction, your voting rights are restored.”).  Arizona is unusual in denying access to discretionary judicial restoration to those with out-of-state convictions, though it allows those with federal convictions to apply to the courts where they reside. Cf. State v. Prince, 226 Ariz. 516, 530, 250 P.3d 1145, 1159 (2011) (“a juror convicted of an out-of-state felony whose civil rights have not been restored is disqualified from jury service by § 21-201(3)”). The specific provisions of state laws restoring the franchise are detailed in each state’s profile from the Restoration of Rights Project. [3] See Richardson v. Ramirez, 418 U.S. 24, 54 (1974); see also Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) (O’Connor, J.) (provisions restoring voting rights lost due to conviction are subject to constitutional challenges). For a summary of the legal and policy issues raised by laws disenfranchising people with felony convictions, see Nick Harpster and Michael S. Vaughn, Felon Disenfranchisement Laws: A Review of Current Policies, Challenges of Disenfranchisement Laws, and Recent Trends in Legislative and Legal Change, 52 Crim. L. Bull. No. 5 (2016). [4] In a few of these jurisdictions, people incarcerated for a misdemeanor or election-related misdemeanor may not vote. See, e.g., DC. Code § 1-1001.02(7); Mich. Comp. Laws § 168.758b; Utah Code Ann. § 20A-2-101(2)(b); see also S.C. Code Ann. § 7-5-120(B); Ky. Const. § 145(2). People in jail or prison who have not been convicted are never disenfranchised, although this may not be clear to corrections officials overwise responsible for facilitating the exercise of this civic duty.  On July 23, 2020, as part of a bill to reform policing and the administration of justice, the District of Columbia amended D.C. Code §§ 1-1001.02, .05 and .07 to restore the vote to all residents of the District in the custody of the D.C. Department of Corrections and the Federal Bureau of Prisons.  See DC Council Bill 23-0826 (July 7, 2020).  The bill is subject to 30-day review by Congress. [5] See CCRC’s forthcoming report, “Who Must Pay to Regain the Vote? A 50-State Survey” and forthcoming brief as amicus curiae in Jones v. DeSantis (11th Cir.) (citations will be updated when available). [6] Louisiana restores the franchise automatically for a person who has not been incarcerated in the last five years pursuant to any “order of imprisonment,” for a felony, or upon earlier completion of such an order.  La. Const. art. I, § 10; La. Stat. Ann. §§ 18:102(A)(1), 18:2(8). [7] See Executive Order 181 (A. Cuomo), April 18, 2018 (making all those released on parole automatically eligible for pardon to restore the vote), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_181.pdf.   In June 2020, the California legislature approved a constitutional amendment restoring the vote to parolees for consideration by California voters in November 2020. See 2019 Cal. A.C.A. No. 6, chaptered June 25, 2020. [8] Most of these 22 states explicitly provide for the situation of people with federal and out-of-state convictions. Some states except from automatic re-enfranchisement specific crimes involving serious violence or sexual offenses, others excepted public corruption or election law crimes, and still others except both. See, e.g., Article V § 2 of the Delaware constitution, excepting from automatic restoration those convicted of murder, bribery or similar public corruption, or a sexual offense. See 50-state comparison chart cited in note 1, supra [9] In addition, Connecticut requires payment of LFOs for out-of-state and federal convictions (but only discharge from prison and parole for in-state convictions). See supra note 5. [10] These 12 states do not allow nonpayment of LFOs to indefinitely deny reenfranchisement, but they do allow LFOs to delay it in certain circumstances, via early discharge for payment, delayed discharge for nonpayment, or both. Added to this group of 12 “delay” states are four others that disenfranchise only upon a sentence of imprisonment, because of the potential for early discharge from parole upon payment of LFOs (Idaho, California, New York, and Louisiana). Oklahoma is the one state in this group of 13 that reenfranchises after a fixed sentence period, regardless of payment of LFOs.  See supra note 5. [11] See notes 25 and 26, infra. [12] This provision excludes murder and sex offenses. See Fla. Const. art. VI, § 4; Brennan Center for Justice, Voting Rights Restoration Efforts in Florida, May 31, 2019, https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-florida. [13] Recent governors of Virginia and Kentucky have issued executive orders making restoration routine for most people in those states who have been discharged from supervision. See note 23, infra. Iowa’s recent governors have used a petition-based system, but in May 2020, with gubernatorial encouragement, its legislation initiated the process of amending its constitution to make restoration automatic upon completion of sentence. See Iowa Code §§ 48A.6, 48A.6(A). Mississippi’s governors and legislatures, both of which have authority under the state constitution to restore civil rights, have evidenced no interest in restoration of voting rights in recent years. Miss. Const. art. 5, § 124 (executive’s power to pardon limited in cases of treason and impeachment); art. 12, § 253 (restoration of civil rights by vote of 2/3 of the legislature). [14] Iowa, Kentucky, and Virginia give people with federal and out-of-state convictions access to their restoration process, or recognize restoration in the jurisdiction of conviction, while Mississippi allows those with federal and out-of-state convictions to vote without condition. See Middleton v. Evers, 515 So.2d 940, 944 (Miss. 1987) (disqualification not applicable if person was convicted in another state); Op. Miss. Atty. Gen. No. 2005-0193 (Wiggins, April 26, 2005). A few states rely on discretionary restoration in cases excluded from automatic restoration. See, e.g., Ariz. Rev. Stat. §13-908 (discretionary judicial restoration for people with more than one felony conviction and first offenders who have not paid restitution); Wyo. Stat. Ann. §§ 7-13-105(a) (people who are ineligible for automatic restoration must seek restoration from the governor); and the states that except from automatic restoration mentioned in note 7, supra. [15] For a general overview of reenfranchisement trends prior to 2015, see Morgan McLeod, Expanding the Vote: Two Decades of Felony Disenfranchisement Reform, The Sentencing Project (2018); Harpster & Vaughn, supra note 3. [16] Colo. Rev. Stat. § 1-2-103, amended by 2019 Colo. Legis. Serv. Ch. 283 (H.B. 19-1266); Md. Code Ann., Elec. Law § 3‑102, amended by 2016 Md. Laws Ch. 6 (H.B. 980 (2015)); N.J. Stat. Ann. §19:4-1, amended by 2019 NJ Sess. Law Serv. Ch. 270 (A. 5823). Nevada legislated twice during this period, replacing a complex re-enfranchisement system that required people with non-violent first offenses to pay restitution to regain their rights, and all others to seek restoration through discretionary action of a court or pardon board, with the end result that disenfranchisement is now limited to the period of actual incarceration.  Nev. Rev. Stat. § 213.157, amended by 2017 Nev. Laws Ch. 362 (A.B. 181) (eliminating restitution requirement), 2019 Nev. Laws Ch. 255 (A.B. 431) (limiting disenfranchisement to imprisonment). [17] La. Stat. Ann. § 18:102, amended by 2018 La. Sess. Law Serv. Act 636 (H.B. 265). [18] Delaware eliminated its requirement to pay LFOs to regain the vote. Del. Code Ann. tit. 15, § 6102, amended by 2016 Del. Laws Ch. 311 (S.B. 242).Washington eliminated its requirement that LFOs be paid in order be fully restored to the franchise, if five years have elapsed following completion of all non-financial requirements of the sentence.  Wash. Rev. Code § 29A.08.520; id. § 9.94A.637, amended by 2019 Wash. Legis. Serv. Ch. 331 (S.H.B. 1041). Arizona eliminated its requirement to pay LFOs (other than restitution) to obtain automatic restoration of the vote following discharge for a first felony offense, leaving unpaid restitution a potential source of wealth discrimination. Ariz. Rev. Stat. Ann. § 13-907, amended by 2019 Ariz. Legis. Serv. Ch. 149 (H.B. 2080). [19] California allowed those serving felony sentences in county jail to vote. Cal. Elec. Code § 2101, amended by 2016 Cal. Legis. Serv. Ch. 757 (A.B. 2466). Oklahoma clarified that those convicted of a felony may register to vote when they have “fully served their sentence of court-mandated calendar days” with no further waiting period. 26 Okla. Stat. Ann. § 4-101, amended by 2019 Okla. Sess. Law Serv. Ch. 112 (H.B. 2253). For D.C.’s recent enactment, see note 4. [20] Arkansas closed a loophole that had prevented juveniles charged as adults from regaining the vote;  Florida amended its constitution to restore the vote to all who have completed their sentences (excluding those with murder and sex offenses); and, Wyoming restored the vote automatically to those convicted of a single nonviolent felony upon “discharge” of sentence, broadening this relief on three different occasions between 2015 and 2018.  See Ark. Code Ann. § 16-93-622 (2019); Fla. Const. art. VI, §4(a) (2018); Wyo. Stat. Ann. § 7-13-105 (amended in 2015, 2017, and 2018). [21] See Iowa Code §§ 48A.6, 48A.6(A); 2019 Cal. ACA-6, chaptered June 25, 2020, supra note 6. [22] See, e.g., Cal. Elec. Code § 2105.5; Colo. Rev. Stat. § 17-2-102; 730 Ill. Comp. Stat. Ann. 5/3-14-1(a-3); Ill. Pub. Act 101-0441; N.H. Rev. Stat. Ann. § 504-A:12-a; Wash. Rev. Code § 72.09.275. [23] Since 2016, Virginia’s governor has regularly restored the vote upon completion of a term of supervision and currently does not require payment of LFOs. See Restoration of Rights, Secretary of the Commonwealth of Virginia (last accessed June 23, 2020 at 7:28pm), https://www.restore.virginia.gov/.  Kentucky’s governor issued an Executive Order automatically restoring the vote to all those with Kentucky convictions, excluding specified violent offenses, if they have completed probation and parole (“final discharge”), regardless of payment of restitution, fines, or other monetary conditions; those with pending felony charges or arrests are excluded.  Ky. Exec. Order No. 2019-003 (Dec. 12, 2019). Iowa’s current governor restores votes on a regular basis upon completion of sentence, including to those who owe LFOs who are current on a payment plan. See Voting Rights Restoration, Office of the Governor of Iowa, Kim Reynolds, https://governor.iowa.gov/services/voting-rights-restoration.  New York’s governor issued an Executive Order directing that individuals being released onto parole, or currently on parole “will be given consideration for a conditional pardon that will restore voting rights without undue delay.”  N.Y. Exec. Order No. 181 (2018). [24] SB7066, signed into law by Governor DeSantis in June 2019 and codified at Fla. Stat. § 98.0751(2)(a)(5), defined “completion of sentence to mean “full payment of fines or fees ordered by the court as part of the sentence or that are ordered by the court as a condition of any form of supervision . . . .” The law explicitly requires that the payment requirement “is not deemed completed upon conversion to a civil lien.”  Id. [25] The governor’s signature on SB7066 triggered a legal challenge in federal district court based upon several constitutional theories, including that the new law, as well as the ballot initiative, violate Equal Protection to the extent that they discriminate between those who are able to pay and those who are not.  The United States Court of Appeals for the Eleventh Circuit ruled, in affirming the district court’s preliminary injunction, that Florida cannot condition voting on payment of an amount a person is genuinely unable to pay. See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020). While the appeal of the preliminary injunction was pending, the Florida Supreme Court issued an advisory opinion that the ballot initiative requires payment of legal financial obligations to regain the vote. See Advisory Op. to the Governor Re: Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070 (Fla. 2020). After a full trial on the merits, the federal district court held that the State may condition voting on payment of fines and restitution imposed by the court at sentencing that a person is able to pay, but may not, consistent with the Equal Protection Clause, condition voting on payment of amounts a person is unable to pay.  Further, the court held that at least some of the financial obligations are taxes that cannot block access to voting consistent with the Twenty-fourth Amendment, whether a person is able to pay or not. See Jones v. DeSantis, 2020 WL 2618062 (N.D. Fla., May 24, 2020). On July 2, 2020, the 11th Circuit granted Florida’s request for en banc review of the district court’s decision and stayed its order; on July 16, the Supreme Court declined to lift the stay. Argument in the court of appeals is scheduled for August 18, 2020. [26] See Community Success Initiative v. Moore, No. 19-CVS-15941 (N.C. Gen. Ct. Just. filed Nov. 20, 2019); Thompson v. Merrill, No. 2:16-cv-783 (N.D. Ala. filed May 27, 2020). [27] See note 5, supra. [28] In these 16 states the vote is tied to completion of supervision, which may result in a temporary delay in reenfranchisement if a court or supervisory official determines that supervision should be extended to give a defendant some additional incentive to pay, e.g. to make a victim whole. Officials in some of these states must consider a person’s ability to pay in connection with fulfilling conditions of supervision, and officials may consider it in others. [29] See note 23, supra. [30] See CCRC’s forthcoming report, “Who Must Pay to Regain the Vote? A 50-State Survey” and forthcoming brief as amicus curiae in Jones v. DeSantis (11th Cir.) (citations will be updated when available). [31] See 2012 South Dakota Laws Ch. 82 (HB 1247), amending S.D. Codified Laws § 12-4-18 to disenfranchise individuals convicted after June 30, 2012, and sentenced to probation. Individuals convicted prior to July 1, 2012, remain disenfranchised only if sentenced to a term of imprisonment. In February 2020, the South Dakota legislature voted against limiting disenfranchisement to the term of supervision. See HB1247, https://legiscan.com/SD/bill/HB1245/2020. [32] Christina Beeler, Article, Felony Disenfranchisement Laws: Paying and Re-Paying a Debt to Society, 21 U. Pa. J. Const. L. 1071, 1088 (2019) (internal quotation marks omitted). [33] See American Bar Association, Standards on the Legal Status of Prisoners, Standard 23-8.4 (1983) (hereinafter ABA Standards); National Conference of Commissioners of Uniform State Laws, Model Sentencing and Corrections Act, §§ 4-112, 4-1003 (1979). The commentary to the ABA Standards noted that “little is gained by society” in disenfranchising prisoners while “much is accomplished by retaining and strengthening the ties of offenders with the free community.” [34] See, e.g., The American Law Institute, Model Penal Code: Sentencing § 7.03.  See also id. At comment b (“Although disenfranchisement has been justified as a fitting punishment for transgressing the rules of civil society, the legal justification for collateral consequences is that they serve regulatory functions, not punitive ones.”) [35] Restoration of Rights Project, “50-State Comparison: Loss & Restoration of Civil/Firearms Rights,” https://ccresourcecenter.org/state-restoration-profiles/chart-1-loss-and-restoration-of-civil-rights-and-firearms-privileges/. [36] See, e.g., Schoenherr v. Department of State, Div. of Licensing, 743 So. 2d 536, 537 (Fla. 2d DCA 1998)(deferring to Connecticut’s restoration of right to possess firearm); Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. 2013) (remanding for consideration whether giving effect in Tennessee to a Georgia pardon restoring firearms rights to a drug offender violates Tennessee’s public policy against restoring firearms rights to violent drug offenders).  See generally Wayne A. Logan, “When Mercy Seasons Justice”: Interstate Recognition of Ex-Offender Rights, 49 U. C. Davis L. Rev. 1 (2015) (surveying caselaw regarding interstate recognition); Love, Roberts & Logan, Collateral Consequences of Criminal Conviction: Law, Policy and Practice §§ 2:35, 3:22 and 7:24 (WEST/NACDL, 3d ed., 2018-2019). [37] See State v. Kasper, 566 A.2d 982, 984 (Vt. 1989); see also Jay Buckeye, Note, Firearms for Felons? A Proposal to Prohibit Felons from Possessing Firearms in Vermont, 35 Vt. L. Rev. 957 (2011). Persons convicted of a felony under Vermont law who have not been pardoned, or whose convictions have not been sealed or expunged, remain subject to federal firearms restrictions by virtue of the state’s failure to restore all three civil rights. [38] Michael Luo, Felons Finding It Easy to Regain Gun Rights, N.Y. Times, Nov. 13, 2011, https://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html. [39] See Georgia and Nebraska profiles, Restoration of Rights Project, https://restoration.ccresourcecenter.org/. [40] See 18 U.S.C. § 922(g). [41] See 18 U.S.C. § 921(a)(20); see also Caron v. United States, 524 U.S. 308 (1998); Love et al., supra note 36, § 2:35 (“Restoration of firearms privileges; relationship between state and federal dispossession laws”). See Restoration of Rights Project, 50-state comparison chart, supra note 35, Chart #2 (“Firearms Rights Under Federal Law”). There has been some disagreement in the federal courts about whether state restoration instruments must address firearms rights to remove the federal firearms bar, a subject that is too complex for treatment in this report. [42] See Beecham v. United States, 511 U.S. 368 (1994), discussed in Love et al., supra note 36, § 2:35. [43] District of Columbia v. Heller, 554 U.S. 570, 637 (2008). [44] 554 U.S. at 626-27. [45] See Love et al., supra note 36, § 2:36 (“Second Amendment challenges to felony dispossession laws”), notes 4 through 6. [46] Compare Binderup v. Attorney General, 836 F.3d 336, 353, 357 (3d Cir. 2016), cert. denied, 137 S. Ct. 2323 (2017) (government could not justify applying the bar to persons who had “distinguish[ed their] circumstances from those of persons in the historically barred class,” and that the petitioners’ crimes were “not serious enough to strip them of their Second Amendment rights”) with Hamilton v. Pallozzi, 848 F.3d 614, 626 (4th Cir. 2017), cert. denied, 138 S. Ct. 500 (2017) (holding that a Maryland resident convicted of a felony in Virginia, whose firearms rights had been restored in Virginia and under federal law, remained subject to Maryland’s dispossession statute without a Virginia pardon). [47] See Britt v. State, 681 S.E.2d 320 (N.C. 2009). Following the Britt decision, North Carolina amended its firearms law to permit individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, to petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights. N.C. Gen Stat. § 14-415.4. Read more