Tag: Missouri

A closer look at Indiana’s expungement law

More than four years ago, Indiana’s then-Governor Mike Pence signed into law what was at the time perhaps the Nation’s most comprehensive and elaborate scheme for restoring rights and status after conviction.  In the fall of 2014, as one of CCRC’s very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy.  Later posts on this site reported on judicial interpretation of the law.  Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois. We have been impressed by the evident enthusiasm for Indiana’s “expungement” law within the state, from the courts, the bar, the advocacy community, and even from prosecutors.  So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce.  We also wanted to see what light this might shed on what has brought to the forefront of reform so many politically-conservative states.  Spoiler alert: the Chamber of Commerce was one of the strongest proponents of the law. We expect to be able to post our account of the Indiana expungement law shortly after Labor Day.  In the meantime, we thought it might be useful to reprint our 2014 interview with former Rep. Jud McMillan, which has been among our most viewed posts. Indiana’s new expungement law the product of “many, many compromises” In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country.  Under the new law, courts are empowered to “expunge” most criminal records, after waiting periods keyed to the seriousness of the offense.  The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere.  This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation. We recently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states.  Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation.  But in an age of bipartisan support for criminal justice reform, apparently anything can happen.   Rep. McMillin told us how he was able to persuade his colleagues in the legislature by careful groundwork, and overcome opposition from prosecutors and courts by making what he described as “many, many compromises.” One of the most important of those compromises was limiting use of criminal records rather than limiting public access to them, at least in the case of more serious offenses. Before letting Rep. McMillan describe in his own words how he secured passage of this relief scheme, here is a brief description of the law’s most salient features. (A more detailed description can be found here.)     All criminal records (except convictions involving serious violence, public corruption, and sexual offenses) are eligible for expungement from the court of conviction, after waiting periods ranging from one year (for non-conviction records) to ten years (for the most serious eligible felonies). After the court has issued an expungement order, records not resulting in conviction and records of misdemeanors and minor felonies are automatically sealed.  After a record is sealed, even a prosecutor may not access it without a court order. Expunged records of more serious convictions “remain public,” although they must be “clearly and visibly marked or identified as being expunged.”  However, all expungement orders similarly limit the use to which a criminal record can be put, as described below. Expungement may be granted by the court without a hearing unless the prosecutor objects.  Those filing for expungement of a conviction must pay the filing fees required for filing a civil action ($141), and this requirement may not be waived. Defendants are not permitted to waive the right to seek expungement as part of a plea agreement. A petitioner may seek to expunge more than one conviction at the same time, but may be granted expungement only once in his or her lifetime. If the first petition fails, there is a three-year waiting period before a person may reapply, and the only convictions expungeable are those in the original petition. It is unlawful discrimination for any person to refuse to employ or license a person because of a conviction or arrest record that has been expunged or sealed, and a person may not be questioned about a previous criminal record except in terms that exclude expunged convictions or arrests. Expunged convictions are not admissible as evidence of negligence in a civil action against a person who relied on the expungement order, and they may not be reported by credit reporting companies. The Attorney General may enforce the provisions relating to credit reporting companies through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. The Indiana courts have published a detailed explanation of the law and sample petitions for expungement that are tailored to the particular categories of eligible cases, to enable a person to seeking expungement without hiring a lawyer. * * * * * * * * * Here is our interview with Rep. McMillin: How did you get interested in the subject of criminal records? As a former prosecutor, and now someone who does some criminal defense work while serving in the legislature, I think I have seen the justice system from several sides.  Also, as a fiscal conservative it just makes practical sense to me that when somebody has served their court-imposed sentence there has to be a pathway back into society for them. Without this, we can’t expect them to become productive members of society.  The Indiana Constitution requires our criminal justice system to be based upon the principles of reformation and not vindication. I firmly believe that our expungement law moves substantially in that direction. How did you build support for the concept of expungement among your colleagues in the legislature? This was a process that played out over several years.  We proceeded in incremental steps, building on existing law and gaining supporters from various constituencies. We started by expanding an existing provision of the Indiana code that allowed courts to reduce a minor felony to a misdemeanor upon completion of the sentence, to allow people to come back after a waiting period to get the felony reduced, as long as they had no further charges.  I thought if I could just start the conversation with a simple bill that did not involve more serious offenses I would be able to get people to see how detrimental having a felony conviction can be for someone who wants to get back into the work force.  I took a practical approach, and was able to persuade some of my fiscally conservative colleagues that there can be economic benefits through the reduction of recidivism.  After getting that initial language enacted I came back the next session to work on full expungement, and found that there was support on both sides of the aisle as many people were able to see the benefits. There were those who had general objections to the legislation, some for ideological reasons, some for practical reasons, but we were able to overcome all of them with solid logic when it came to debating this issue.  We were even able to win over some of the prosecutors, enough that the opposition of the holdouts didn’t derail the legislation’s chances.  One of the most effective supporters was the Indianapolis Chamber of Commerce, which helped me convince people that expungement could be beneficial to business owners and economy as a whole. Obviously there were a lot of compromises we had to make, and it’s not hard to see what some of them were, like the lifetime limit to one expungement, the prohibition on seeking expungement of offenses committed after a petition has been denied, and the filing fee that is hefty for many.  Certain violent and sexual offenses had to be excluded from coverage or it would have torpedoed the effort before we got it off the ground. It was sometimes difficult to give up some things just to get the bill passed, while still ending up with a law that actually made a difference. We were able to resist several offers to compromise that would have simply gutted the bill.  We had to keep our eye on the core purposes of the legislation, which are to restore rights and give people a fair chance in the workplace and elsewhere.  We will see how the law works.  If some of the compromises we made need to be revisited, we can do that.  In fact, in the 2014 session we made quite a number of reasonably minor adjustments in the law, notably to permit more government entities including licensing agencies access to sealed records. How were you able to defuse opposition from the prosecutors? Because I anticipated the prosecutors would be the main opponents, I reached out to them early in the process, and worked with the ones who were willing to consider the concept. Here again I took a practical view, asking if they really wanted people they had prosecuted to return to the system, or whether they wanted them to succeed.  I had to persuade them that expunging a record did not reflect badly on the prosecution or create problems for law enforcement.  While their ideas were substantially different than mine, I felt it was important to incorporate many of them, and so we were able to reach a middle ground. That is how we came to have a multi-tiered system, with limits on sealing for more serious offenses, a role for prosecutors in the expungement process, the possibility of unsealing in the event of a new crime, and a lifetime limit of one expungement.   This is not to say that prosecutors across Indiana ended up supporting expungement. In fact many of them remain its most ardent opponents. However, asking for their input early and making them a part of the process instead of a constant and united opponent was instrumental in getting the job done. What about other sources of opposition or support? Many judges objected and some of the clerks were opposed to the additional work that the legislation would make for them.  The credit reporting companies were also not happy but they did not mount any substantial resistance.  As noted, the business community was surprisingly supportive.  Many employers liked the protections afforded them in the bill — including not being held responsible for information there were not permitted to have.  Governor Pence was a supporter from the beginning.  Early in his term he adopted a slogan that “Indiana should be the worst place to commit a crime, but the best place to get a second chance.” This slogan fit perfectly into the concept of this legislation. How has the law been working in its first year? Once the law was passed, the courts took a proactive role in carrying out their new responsibilities.  They took it upon themselves to develop a variety of forms for different kinds of cases, and publish them on a website so that people could apply for expungement without the need to hire a lawyer.   Legal services organizations have been spreading the word around the state, and are helping to clarify what appears to have been some initial confusion because of the law’s complexity.  There have been a few kinks, and as I said we have already passed several bills to make slight adjustments mostly of a procedural nature.  I anticipate that there will more a few more tweaks this year.  Thankfully the concept has been received wonderfully by the public so making the changes at this point is relatively easy and meets little resistance. Why is the relief called “expungement” if many records remain open to the public? I get this question frequently, and yes I agree it is a bit confusing to use a term that ordinarily implies some limits on access.  The original concept was that an expungement order would seal all records except for law enforcement purposes.  But that was not an approach that I could sell, in or out of the legislature, especially for more serious offenses.  As the bill ended up with tiered approaches, there really was not a single term that fit the whole — and as we studied what other states do, I am not even sure the term “expungement” has a single meaning. Also, even if a record is actually destroyed, it may be impossible to ever remove all evidence of it.   In the end, I was convinced that “expungement” was the best term to use to ensure that people who need relief would take advantage of it.  There’s no doubt that most people believe that you only get a second chance if your record is clear in a literal sense.  But even where a record is sealed, our law does not permit people to deny that they were arrested or convicted; rather, they cannot be asked about a record that has been expunged.  In this way we were able to reconcile keeping the record open with the core concept of restoring rights.  By limiting the use of a record we hope to clear away the cloud that these individuals have been living under. What advice do you have for legislators in other states and for advocates who want to try to develop a comprehensive scheme like Indiana’s? To begin with, to pass a bill like this you have to have someone in a leadership role who really understands the inside and out of the criminal justice system, and who is willing to live and breathe this concept through the entire legislative process and see it all the way through to completion. You have to start the conversation very early, and learn patience. It takes a long time to convince people who may only have a passing interest (or no real interest at all) in something like this, and no personal experience with the justice system, to understand why it is a good idea and why they should take the perceived risk of supporting this concept. In the political world it is very easy for those who oppose this concept to get their hooks into legislators early by telling them that this is “soft on crime” and that it will damage them politically to support it. In order to combat this I think it is necessary for the legislator who is carrying the bill to spend one-on-one time sitting down with other legislators. While advocates are important and certainly should be recruited, I find that nothing is as persuasive as the legislators themselves discussing the concept.  The other really important thing is to secure the support of the business community.   You should also find examples of individuals who have been battling for years if not decades to be successful in society while carrying the weight of a criminal record. Their anecdotal testimony can be extremely powerful. I also recommend reaching out to those you anticipate will oppose the bill and asking them to help with the bill. If they are not on the inside helping they will be on the outside opposing. Even if the “help” they are giving is not always consistent with the concept you are trying to advance, you are still much better off having those people working with you on developing language than trying to kill any language that you come up with. It is helpful to defuse opposition if you couch the conversation in terms of the social and economic benefit to society rather than always talking about the benefit to the individuals who might seek expungement. It is very important to make people see that while our human compassion should want to give people a second chance, our duty is to be fiscally responsible to our constituents, and that for numerous reasons (recidivism, costs of incarceration, costs of providing welfare, public safety, etc.) this concept is the right one for all of our constituents. In the end, you really do have to be willing to compromise, recognizing that if you get the key concepts enacted you can always come back later and change the details.     Read more

New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction 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. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types.  The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process.  Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time.  Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible.  Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado’s new “order of collateral relief” provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction.  The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority.  These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<       Read more

Missouri expands expungement in a big way

Last week Missouri Governor Jay Nixon signed a bill that will dramatically expand the availability of expungement for people convicted of state crimes. The new law (SB-588), which will go into effect in 2018, extends expungement relief to a broad range of felonies and misdemeanors, and reduces the waiting period for expungeable felonies from 20 years to only 7 years following completion of sentence, and the waiting period for misdemeanors from 10 to 3 years. On the other hand, it will limit the number of times that a person may seek expungement during their lifetime and limit the effect of expungement. In particular, it will allow certain employers and licensing agencies to consider expunged convictions as a basis for disqualification, and in a few cases to disqualify automatically based on an expunged conviction. Under current law, only a handful of misdemeanors and a single felony (passing bad checks) are eligible for expungement. When the new law takes effect, all misdemeanors and all non-Class A felonies will be eligible, subject to a long list of excepted offenses. The list of exceptions includes more serious offenses such as “dangerous” and violent felonies, sexual offenses, and a number of weapons and corruption offenses. As the Riverfront Times reported last week, Once the law goes into effect, hundreds of non-violent, non-sexual crimes will be suddenly be eligible for expungement — and that means marijuana-related crimes as well. That’s cause enough for celebration, says Dan Viets, the Missouri coordinator for the National Organization for the Reform of Marijuana Laws. Viets was part of the team of prosecutors and defense attorneys who worked together to draft the law’s new language. “This law will allow many thousands of people who have a marijuana conviction on their public records to escape the lifelong disabilities such a conviction has caused in the past,” Viets said in a press release. For his part, Governor Jay Nixon had this to say about the new law: Missourians who have paid their debt to society and become law-abiding citizens deserve a chance to get a job and support their families. This bill represents a reasonable, balanced approach and I’m pleased to sign it into law today. The most significant changes in the state’s expungement scheme are described below. For citations to relevant sections, see our state guide to restoration of rights, pardon, sealing and expungement here. To be eligible, a person must still have no convictions during the waiting period, no pending charges, and must have satisfied all of the obligations related to the sentencing disposition, including payment of restitution. Significantly, under the new law, if a person has satisfied those criteria and the waiting period, then a presumption in favor of expungement is created, and may only be rebutted by a showing from the prosecuting attorney or victim that the petitioner is “a threat to the public safety of the state,” that expungement is not “consistent with the public welfare,” or that the “interests of justice” do not warrant expungement. This is a major change from current law, which creates no such presumption and gives the court discretion to determine whether expungment is consistent with the public welfare, and to deny the petition for any reason regardless of that determination. On the other hand, although expungement will be available to more people, it will be available to people less often than under current law. Under current law, there is no limit to the number of convictions that a person may seek to expunge during their lifetime, so long as expungement is not sought more than once in a given court. However, under the new law, misdemeanors may only be expunged twice in a person’s lifetime, regardless of the court in which relief is sought, and felonies may only be expunged once. As under existing law, expungement restores all rights lost as a result of conviction, including (we think) firearms rights: “The [expungement] order shall not limit any of the petitioner’s rights that were restricted as a collateral consequence of such person’s criminal record, and such rights shall be restored upon issuance of the order of expungement.” Expunged records will be “closed” under the new law, not destroyed.  Closed records are not available to the public, but they remain available to criminal justice agencies and to a number of public entities for use in screening out applicants for licenses or employment in sensitive areas such as private security, law enforcement, and care of children, the elderly, and the disabled. However, the new law does not change the existing limits on use of expunged records, which presumably apply to entities with access to them: “Notwithstanding any provision of law to the contrary, an expunged offense shall not be grounds for automatic disqualification of an applicant, but may be a factor for denying employment, or a professional license, certificate, or permit.” Closed records are also available to law enforcement for use in issuing firearm purchase and possession permits. But there is no indication that expungement does not remain effective to restore firearm rights lost as a result of conviction, as under existing law. Expungement will also still grant an individual the general right to deny the existence of an expunged conviction, subject to a number of exceptions. However, under the new law the list of exceptions will grow, to include banks, insurers, and any employer that is required by state or federal law to exclude applicants with certain convictions. In these three new categories, unlike all others, employers will be permitted to  disqualify an applicant automatically based on an expunged conviction. In spite of new limitations on the effect of expungement, the substantial expansion in the number of eligible offenses and the reduction in waiting periods will surely be good news to many Missourians that are having trouble finding employment as a result of their conviction. Read more

Expungement expansion round-up (2016 edition)

More and more states are enacting new expungement and sealing laws, or expanding existing ones, some covering convictions for the first time.  The first four months of 2016 alone saw courts given significant new authority to limit access to criminal records in four states, and bills have been introduced in several others that promise more new laws in months to come. In April, Kentucky authorized expungement of felonies for the first time, while New Jersey reduced waiting periods for some offenses and made expungement automatic for some others.  Also in April, Maryland’s Governor Hogan signed that state’s Justice Reinvestment Act, permitting expungement of misdemeanor convictions for the first time.  Beginning in November, Pennsylvania courts will have new authority to seal misdemeanor offenses, and follow-up bills have been introduced in both houses to make sealing automatic for most non-felony records after a waiting period.  There are also several pending proposals to significantly expand existing expungement laws in Oklahoma, Missouri, and Rhode Island. We take a closer look at each of these new expungement authorities below. The new laws evidence the growing momentum behind second-chance reforms.  They also show how expansion of expungement and sealing mechanisms can be an incremental process.  For example, the legislatures in Maryland and Pennsylvania first tested the waters by giving courts new authority to mitigate low-level conviction records in relatively limited ways, with both following up shortly after with proposals to increase both the availability and effectiveness of those mechanisms.  Meanwhile, states with fairly robust expungement mechanisms already in place, like New Jersey, Missouri, and Kentucky, have taken steps to make relief available sooner and to more people.  Relatedly, in the first four months of 2016, six more states enacted or expanded state-wide ban-the-box laws limiting inquiry about criminal records at early stages of the hiring process, bringing the total to 23. Perhaps the most significant thing about these legislative initiatives is the almost total absence from the debate of objections based on public safety concerns.  Indeed, to the extent the principal purpose of expungement laws is to increase employment opportunities for people with a criminal record, their proponents argue that they actually reduce recidivism.  As legislators and their constituents witness firsthand the additional benefits provided by each small expansion of expungement authority, they are increasingly willing to take those reforms a few steps further.  For a review of expungement laws in all 50 states, see here.      Newly enacted and newly effective legislation: Kentucky – HB-40 In April, Governor Matt Bevin signed HB-40, giving people convicted of certain non-violent Class D felonies or who have had received a full pardon the opportunity to petition to have their convictions vacated, charges dismissed, and records expunged.  Previously, expungement was only available for misdemeanors.  A waiting period of five crime-free years applies, and vacatur and expungement may only be sought once in a person’s lifetime (though multiple eligible felonies stemming from the same incident may be expunged under a single petition).  Expunged records are deleted from official databases (including law enforcement), will not show up in background checks, and need not be acknowledged.  The court and other agencies “shall reply to any inquiry that no record exists on the matter.”  Felony expungement also restores the right to vote.  The law will take effect in July. The law’s short waiting period and broad effect are good news to anyone with an eligible conviction, but the high $500 filing fee required to apply could make relief unattainable for many Kentuckians.  The irony is that the people most likely to benefit from the new law — those who have difficulty finding employment because of their record —  are the same people least likely to be able to afford the fee.  High filing fees have come recently under fire in Tennessee, where the $450 filing fee for expungement has become so prohibitive that groups have resorted to creating private funds to pay the fees on behalf of petitioners. You can view our guide to restoration of rights, pardon, expungement & sealing in Kentucky here; and our in-depth post on the new law here. New Jersey – P.L. 2015, c. 261 In April, P.L. 2015, c. 261 went into effect, authorizing immediate expungement following successful completion of drug court or court-ordered rehabilitation, allowing for early expungement of youthful drug offenses, reducing the waiting period for expungement of both misdemeanors (or “disorderly persons offenses,” as they are known in the Garden State) and felonies (“indictable offenses”), and allowing felonies and misdemeanors to be expunged at the same time.  The new law also makes expungement of non-conviction records automatic and immediate. The law’s drug court expungement provision is expected to have the greatest impact.  According to one article, “in the last 15 years, nearly 20,000 people have been enrolled in the state’s Drug Court program.”  Under the new law, anyone who successfully completes a court-ordered rehabilitation program under NJSA § 2C:35-14 may have the record expunged immediately upon discharge. Expungement is mandatory “unless [the court] finds that the need for the availability of the record outweighs the desirability of having the person freed from any disabilities associated with their availability.”  The law is retroactive, so that people who were successfully discharged prior to the new law’s effective date can petition the convicting court for expungement. Expungement under this provision is not necessarily permanent, though: Acess to the record may be restored if the person is subsequently convicted of a crime, and “no future expungements shall be granted.” In effect, this gives individuals only one bite at the expungement apple. The new law also allows persons convicted of low-level drug offenses when they 21 years old or younger to petition for expungement just one year after completion of their sentence if they have no other convictions and no probation or parole violations. The presumptive waiting period for felony and misdemeanor expungement through the normal route remains ten and five years, respectively.  However, the new law offers an “early pathway” to expungement:  If the court finds that expungement “is in the public interest, giving due consideration to the nature of the offense, and the applicant’s character and conduct since conviction,” then the court may expunge a felony after five years and a misdemeanor after three.  Though a person may only seek expungement once, up to three misdemeanors may be expunged at the same time, and, under the new law, up to two misdemeanors may be expunged at the same time as a single felony.  Previously, expungement of a misdemeanor precluded felony expungement, and conviction of a felony precluded misdemeanor expungement. If multiple offenses are expunged at once, the waiting period runs from the date of the latest conviction. The legislature had originally proposed to reduce the waiting periods for felonies and misdemeanors outright (five years for felonies and three years for misdemeanors).  The discretionary waiting period reduction that found its way into the new law was the result of a compromise with Governor Christie, who vetoed the original proposal in January, saying: As written, this bill would cut in half the presumptive waiting period to expunge indictable offenses, often felonies, from ten years to five years, and eliminate an important safeguard which allows a judge to consider whether granting an expungement is in the public’s interest. The current public interest exception to the presumptive waiting period is an effective and efficient way to help ex-offenders combat the collateral consequences of their offense, while also ensuring that public safety is not compromised. Taken as a whole, the new law represents a major overhaul of New Jersey’s expungement scheme, making it easier for people to clear their records and allowing them to do it sooner. Unfortunately, the new law did not expand upon the list of offenses that are eligible for expungement through the usual route.  In addition to violent felonies, most first and second degree non-violent drug crimes remain ineligible. You can view our guide to restoration of rights, pardon, expungement & sealing in New Jersey here. A “New Law Advisory” on the changes published by the Administrative Office of the Courts is available here. Maryland – Justice Reinvestment Act (SB-1005) Just this month, Maryland Governor Larry Hogan signed the Justice Reinvestment Act, a comprehensive criminal justice reform bill that authorizes courts to expunge misdemeanor offenses for the first time.  The new expungement authority follows closely on the heels of a law enacted last year that allowed for “shielding” of certain misdemeanors.  Records expunged under the new bill are subject to more expansive protections than those that are merely “shielded;” however, the waiting period for sealing is much longer. Under the new law, over 100 enumerated misdemeanors are eligible for expungement after ten crime-free years.  Eligible offenses include second degree assault, drug possession, prostitution, theft, disorderly conduct, various fraud offenses, and various regulatory offenses.  Second degree assault and “domestically related offenses” are subject an an extended 15-year waiting period.  Only 12 non-violent misdemeanors are eligible for shielding under the law enacted last year, but a record may be shielded after only three years. Expungement under the new law is discretionary, and a court can only grant a petition if sealing “is in the best interests of justice,” and the person does not pose a public safety risk.  Shielding is similarly discretionary, but may be granted under a lower “good cause” standard. Records that are expunged are afforded more protection than those that are shielded, which explains the heightened eligibility requirements that apply to expungement.  A record that is expunged may only be opened by court order and is destroyed after three years.  A person may not be required to disclose information about an expunged records to an employer, educational institution, or government licensing agency.  Additionally, a person cannot be denied employment or licensure solely because of a refusal to disclose an expunged record.  Shielded records are afforded far less protection in comparison: Though they are not publicly available and may not generally be used by employers or licensing boards, any employer or licensing agency that is required or authorized by law to inquire into a person’s criminal record may access a person’s shielded record, as may health occupation boards, child care facilities, and the medical marijuana commission, and others. Prior to the enactment of the new shielding and expungement laws, there was no way to hide or get rid of any adult criminal conviction, with small exceptions for nuisance offenses, decriminalized offenses, and pardoned non-violent first-offender convictions.  In spite of the legislature’s recent flurry of action, all felonies remain ineligible for expungement or shielding. The new law will take effect on October 1, 2017. You can view our guide to restoration of rights, pardon, expungement & sealing in Maryland here; and our in-depth post on the Mafryland “shielding” law enacted last year here. Pennsylvania SB-166 (2015) Beginning on November 14, Pennsylvanians will be able to seal the records of 2nd and 3rd degree misdemeanors and ungraded offenses under an “order for limited access,” thanks to a law enacted last year.  As was the case in Maryland before the passage of the shielding law, there was previously no way for Pennsylvanians to seal or expunge their conviction records (with narrow exceptions for certain elderly applicants and pardoned convictions). Sealing will be available after a ten-year waiting period, during which time the petitioner may not have been arrested or prosecuted for another offense.  People with certain convictions, including simple assault (except in the 3rd degree), four or more offenses punishable by imprisonment of one or more years, and any offense punishable by more than two years’ imprisonment, will be ineligible.   Sealing appears to be discretionary, though the law provides no standards to guide the court’s discretion. Sealed records will not disappear and will not be entirely confidential.  They will remain available to state professional and occupational licensing agencies and to agencies such as the Department of Human Services for child protective services uses, as well as to criminal justice agencies.  However, sealed records will be unavailable to the general public, including private employers and landlords, and, unless requested by an agency to whom disclosure is already authorized, “no individual shall be required nor requested to disclose information about the person’s [sealed] criminal history records.” The limited effect of sealing is understandable from a political perspective given that this is Pennsylvania’s first general authority for sealing convictions.  What is less understandable is the fact that an arrest for conduct not proven in court resets the ten-year waiting period — itself already relatively long compared to the waiting periods for sealing of minor convictions in other jurisdictions.  As discussed in the next part, the legislature is already considering broadening the effect of sealing, but there have been no proposals to amend the law to address the effect of arrests. You can view our guide to restoration of rights, pardon, expungement & sealing in Pennsylvania here. Pending legislation Pennsylvania SB-1197/HB-1984 Twin “Clean Slate” bills introduced in April would follow up on last year’s sealing bill by making make sealing automatic upon satisfaction of an eligibility waiting period:  Ten years for misdemeanors, five years for summary offenses, and seven years for juvenile adjudications.  Sealing of non-conviction records will be automatic and immediate.  The bills would also eliminate the exception under the current law that allows for most occupational and licensing boards to consider records that have been sealed. tisan sponsorship.  According to Community Legal Services of Philadelphia, both bills have received broad bi-partisan support, and indeed the Senate passed its bill unanimously not long after its introduction. Missouri SB-588 On May 11, the Missouri legislature passed a bill that would significantly reduce the waiting periods for both felony and misdemeanor expungement.  The bill is currently awaiting action from Governor Nixon, who said he will give it serious consideration. The bill would reduce the waiting period for felony expungement from 20 years down to seven.  Misdemeanor waiting periods would be reduced from ten years to three.  If the bill is approved, it is expected to drastically increase the number of expungement applications filed in the state.  One report notes that, “according to a financial analysis of the proposal, the additional number of people filing for expungement could trigger the hiring of hundreds of workers to process the requests.” The benefit of reduced waiting periods would come with a trade-off, though: Under the proposed law, a person would only be able to expunge one felony or two misdemeanors in their lifetime (although, multiple offenses resulting from the same indictment would be treated as a single expungement of the highest-level offense).  Under current law, there is no limit on the number of convictions that can be expunged, with the odd caveat that a person cannot receive more than one expungement order from the same court. You can view our guide to restoration of rights, pardon, expungement & sealing in Missouri here. Oklahoma HB-2397 House Bill 2397, which is currently in conference in Oklahoma’s Senate, would reduce the expungement waiting period for people sentenced to a term of imprisonment or suspended sentence from ten years down to five.  Additionally, people convicted of misdemeanors would be allowed to seek expungement immediately upon satisfaction of a fine of $500 or less, so long as imprisonment or a suspended sentence was not ordered.   The bill would also allow those convicted of up to two non-violent felonies that have been pardoned to seek expungement. You can view our guide to restoration of rights, pardon, expungement & sealing in Oklahoma here.  Rhode Island H-7536, S-2111 Two separate expungement bills are now in committee in the House and Senate.  The bill in the House, H-7536, would authorize courts to expunge up to five misdemeanors if a person has remained conviction and arrest-free for ten years and has never been convicted of a felony.  The current law only allows for expungement of first-offender misdemeanors.  The bill is chiefly backed by Attorney General Peter Kilmartin, a former police officer. The bill in the Senate, S-2111, would permit courts to expunge records related to a deferred sentence immediately upon compliance with all of the terms of the deferral agreement so long as the person has never been convicted of a crime of violence. Deferred sentencing records can be sealed under the current law, but expungement provides a slightly higher degree of protection than sealing. Under both bills, expungement would be contingent upon a person demonstrating “good moral character.” You can view our guide to restoration of rights, pardon, expungement & sealing in Rhode Island here. Read more

California and Missouri restore food stamp eligibility for persons with felony convictions

In the past two weeks, both California and Missouri have passed laws allowing persons with a felony conviction to receive assistance under the federal TANF and SNAP programs. Federal law makes felony conviction grounds for ineligibility for food assistance programs, though federal law also allows state legislatures to opt out.  States including Alabama and Virginia have also considered opting out of the ban. “In a lot of cases, the law enforcement community is supportive and feels this is a way to reduce recidivism,” said Elizabeth Lower-Basch, a senior analyst at the Center for Law and Social Policy, a liberal D.C. think tank. Lower-Basch noted that other states, including Alabama and West Virginia, have also considered changing their policies. “We’re moving in the right direction. –From The Huffington Post Read more