After 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies last year, the first significant record reforms of 2021 are occupational licensing laws enacted by Ohio and the District of Columbia. D.C.’s new law is particularly comprehensive, and applies both to health-related and other licensed professions in the District.
The new District of Columbia law, Act A23-0561, is described in detail in the DC profile from the Restoration of Rights Project. It provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the licensed occupation, as determined by a detailed set of standards; prohibits inquiry about a record until an applicant has been found otherwise qualified and then prohibits consideration of certain records (including non-conviction and sealed convictions); and provides procedural protections in the event of denial. The new law also establishes a pre-application petition process for individuals with a record to determine their eligibility, and requires the Mayor to report annually to the Council on each board’s record. The Institute for Justice has described the “landmark” new D.C. law as “the best in the nation, second only to Indiana.”
The new Ohio law, HB 263, is more complex and less protective than DC’s, requiring licensing boards to publish lists of two types of convictions: those that “shall” be disqualifying (overcome only by a court-ordered certificate) and those that “may” be found disqualify based on their “direct relationship” to the licensed occupation. Other convictions and non-conviction records may not be grounds for denying a license, and vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those “directly related,” the board must still consider certain standards linked to an applicants overall record that are linked to public safety, and may not deny after a period of either five or 10 years depending on the offense. In the event of denial, a board must provide procedural protections including written reasons and a hearing. These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019.
Michigan‘s governor also signed a series of bills regulating occupational licensure on the last day of 2020, which include some of the features of the schemes described above but retain the unfortunate disqualification standard of “good moral character.” While Michigan’s licensing law could use improvement, it contributed to the state’s earning the title of Reintegration Champion of 2020.
Our report on new legislation in 2020, documenting that 11 states enacted 19 licensing reform laws, noted that “[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy.” We reprint the discussion of 2020 licensing reform from our report here:
In the past week, there were two notable developments regarding the constitutionality of state sex offender registration schemes.
First, as noted by Douglas A. Berman at Sentencing Law and Policy, Michigan Attorney General Dana Nessel filed highly significant amicus briefs in two Michigan Supreme Court cases, “arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.” Both of the Michigan cases involve constitutional challenges under the Ex Post Facto Clause to the retroactive application of the state registration requirement. Michigan v Snyder, No. 153696; People v. Betts, No. 148981.
In the second development, U.S. District Judge W. Keith Watkins of the Middle District of Alabama on Monday held that Alabama’s sex offender registration law (“ASORCNA”) violates the First Amendment by branding state-issued ID cards with “CRIMINAL SEX OFFENDER” and imposing extensive internet-use reporting requirements. Doe v. Marshall, No. 2:15-CV-606-WKW (M.D. Ala. Feb. 11, 2019). This case presents an interesting twist on the now-vulnerable theory espoused by the U.S. Supreme Court and many states that sex offender registration is not “punishment.”
These two caselaw developments are discussed further below.
On January 24, the Michigan Supreme Court held the state’s sex offender registration scheme unconstitutional on due process grounds as applied to one Boban Temelkoski. Temelkoski had pleaded guilty under a youthful offender statute with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions. However, several years later a registration requirement was enacted and applied retroactively to his case. Because the court decided Temelkoski’s case on due process grounds, it did not need to address arguments that application of the registration statute to him constituted constitutionally impermissible punishment. However, the court hinted in dicta how it might decide that issue, stating that “It is undisputed that registration under SORA constitutes a civil disability.” While a win is a win, we must wait another day for a decision on the constitutionality of Michigan’s registration scheme under the Ex Post Facto Clause and the State’s version of the Eighth Amendment.
An analysis of the Temelkoski decision by Asli Bashir, a 2017 graduate of Yale Law School, follows.
Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
A federal appeals court has concluded that Michigan’s amendments to its Sex Offender Registration Act (SORA) “impose punishment” and thus may not constitutionally be applied retroactively. See Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016). Here is the concluding analysis from the Sixth Circuit’s unanimous panel decision reaching this result:
So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. In reaching this conclusion, we are mindful that [consistent with the Supreme Court’s holding in Smith v. Doe, 538 U.S. 84, 92 (2003)] states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment. But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.
A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.
We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument of tyranny.” The Federalist No. 84, supraat 444 (Alexander Hamilton). It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89;accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.
During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term.
Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term. He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief:
National Lawyers Guild Review Editor-in-Chief Nathan Goetting has published a thought-provoking piece in the most recent issue of the Review, commenting on America’s “moral panic” over sexual offenses, which has “created self-defeating policies, unconstitutional laws, and cruel punishments.” Among those punishments are a plethora of collateral consequences that stigmatize and shame without regard to actual risk. We reprint the editorial here in its entirety, with permission.
It should go without saying that human sexuality is rife with complexity and mystifying contradictions. It’s a puzzle palace from which all sorts of behaviors—routine, bizarre, and sometimes dangerous—can emanate. Yet our criminal laws and procedures regarding sex crimes respond to this swirling welter of incomprehensible impulses with stubborn and self-defeating simplicity. We choose to punish that which we fear to understand, as if learning what motivates the behavior is to show a little too much sympathy and solidarity with “perverts,” toward whom only contempt can be shown. As with suspected terrorists since 9/11, our mercilessness leaves no room for anything else, not even enlightened self-interest.
Michigan spends one in five tax dollars on corrections so the state continues to explore strategies to safely reduce these costs. In its most recent session, the legislature considered bold criminal justice reforms, but strenuous last minute objections from the Attorney General succeeded in halting much of the reform agenda. In the end, only a few reforms were implemented and most of them were passed in watered-down form.
The new laws include (1) the establishment of a Criminal Justice Policy Commission; (2) narrow expansion of set-aside eligibility to victims of human trafficking; and (3) authorization for Certificates of Employability for prisoners who complete certain in-prison training programs. A more ambitious (though still narrow) expansion of the set-aside law is currently on the Governor’s desk for signature. These “baby steps” leave lots of room for improvement, but constitute a blueprint for future reform efforts.
Jerry Brown reportedly regretted one of his 105 Christmas Eve pardons, after learning from an LA Times article that the recipient had recently been disciplined by federal financial regulators. He therefore announced that he was rescinding his grant, claiming that the pardon was not yet final because the Secretary of State had not signed the document evidencing it.
This is not the first time that a governor or president has had second thoughts about a pardon, but it is unusual for a chief executive to attempt to undo one that has been made public. Governor Brown’s attempt to retract the pardon may or may not be effective, but it certainly reflects unfortunate disarray in the administration of the pardon power in California for which other deserving pardon candidates may end up paying.