Tag: New Hampshire

More states enact major “second chance” reforms

In recent weeks, three more states — Colorado, Louisiana and Vermont — have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status. We are just now noting Wyoming’s enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws. In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way.  States have enacted several different types of “second chance” laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing. On May 25, Vermont Governor Phil Scott signed into law an expansion of the state’s expungement authority for both adult and juvenile offenders, reducing waiting periods and other eligibility criteria for qualifying felony and misdemeanor convictions.  The new law also authorizes courts to expunge non-conviction records 12 months after the conclusion of the case, without need for a petition from the defendant, and without regard to the nature of the offense.  This is the third time in recent years that Vermont has extended eligibility for expungement. On May 29, Colorado Governor Hickenlooper signed a bill extending the state’s existing authority for sentencing courts to waive application of collateral consequences affecting employment, licensing, and other opportunities and benefits, to make this relief available in all cases regardless of sentence.  Previously this waiver authority was available only in cases involving a community-based penalty.  Courts are authorized to take action as early as sentencing and throughout the period an individual is under sentence.  In this respect, the law resembles the authority proposed by the American Law Institute in the collateral consequences provisions of its new Mode Penal Code: Sentencing.  The Colorado law is described in detail in the Colorado profile from the Restoration of Rights Project. At the end of May, Louisiana Governor John Bel Edwards approved several “second chance” bills:  One new law extends voting rights to anyone under sentence for a felony who has not been actually incarcerated in the past five years; two additional laws make minor adjustments to the state expungement law, to exempt deferred adjudication cases from the 15-year eligibility waiting period for a second expungement, and to add to the requirements for filing an expungement motion.  Another new law requires the governor to conduct regular periodic reviews of the standards applied by occupational licensing agencies.  As finally enacted, this last-mentioned law substantially watered down provisions in earlier versions of the legislation that would have limited agency consideration of criminal records in licensing actions. Earlier this spring, Wyoming enacted a new provision of its general state licensing code establishing a “direct relationship” standard for consideration of conviction by all licensing agencies not otherwise subject to a specific contrary statutory standard. See Wyo. Stat. § 33-1-304.  See Enrolled Act 63 (March 2018), available at http://www.wyoleg.gov/2018/Enroll/SF0042.pdf.  This provision prohibits consideration of prior convictions that are more than 20 years old, except where the person is still under sentence or the sentence was completed fewer than 10 years ago, and unless the elements of the offense are “directly related to the specific duties and responsibilities of that profession or occupation.”  Among the new law’s policies is that agencies should ensure that applicants have an adequate opportunity to appeal a denial. Wyoming also amended more than a dozen specific professional and occupational licensing statutes to rescind vague qualifications like “good moral character,” and to substitute functional criteria specifically tying the nature of a particular crime to the licensed activity pursuant to a direct relationship standard.  Licensing schemes affected include those regulating teachers, guides and outfitters, engineers, veterinarians, and nursing home administrators.  Licensing standards for chiropractors, nurses, optometrists, dental hygienists, social workers, and marriage and family counselors and substance abuse counselors were also amended.  Securities dealers and investment advisers, insurance agents, and athlete agents are covered by the reforms. Legislatures in several other states have passed bills that are currently awaiting approval of the governor, including Illinois, New Hampshire, and Tennessee.  The only “second chance” legislation we know of that was disapproved by the governor is the South Carolina legislature’s unsuccessful attempt to authorize expungement of drug convictions. We expect again to provide a summary of all new laws enacted in 2018 toward the end of the year, and we will also be keeping the state profiles and other resources in the Restoration of Rights Project up to date in real time.       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

NH Supreme Court takes aim at federal felon-in-possession statute

In an important decision for firearms-related collateral consequences, the New Hampshire Supreme Court relied on the Second Amendment to carve out an exception to the so-called federal felon-in-possession statute, declining to follow relevant federal court precedents. At stake is whether state or federal courts have the last word on the scope of the exceptions in 18 U.S.C. 921(a)(20).  In DuPont v. Nashua Police Department, the court held that a man convicted of a misdemeanor DUI, who as a result lost his right to possess a firearm under state and federal law, was able to avoid federal firearms disability by virtue of the restoration of his state firearms rights, even though he lost none of the traditional “core” civil rights (vote, office, jury).  In order to get to this result, the court had to conclude that the right to possess a firearm is itself a civil right, whose loss and restoration under state law is sufficient to satisfy the “civil rights restored” requirement in 921(a)(20), thus creating a narrow but significant exception to the U.S. Supreme Court’s holding in Logan v. United States. While the holding in DuPont applies only to a limited class of misdemeanants (those who lost and regained state firearms rights), the decision may be the opening salvo in a state backlash against federal efforts to define the scope of state relief recognized in 921(a)(20). Gregory DuPont’s 1998 Massachusetts DUI carried a potential maximum prison sentence of two and a half years, thus rendering him ineligible, under both Massachusetts and federal law, to possess a firearm.  In 2005, the Massachusetts Firearm Licensing Review Board (FLRB) restored DuPont’s firearms rights, finding that he was “a suitable person to possess a license to carry firearms.”  In 2007, the City of Nashua (NH) issued DuPont a license to carry a pistol or revolver, and in 2009 the New Hampshire Department of Safety (DOS) issued him an armed security guard license. In 2013, when DuPont applied to the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for a Curios and Relics License, a background check revealed that the 1998 state conviction was disqualifying under federal firearms law.  As a result, the federal license was denied and DuPont’s state licenses were revoked.  The state trial court denied DuPont’s appeal, reasoning that DuPont could not “be deemed suitable to possess a license to carry a pistol or revolver” because, “[u]nder applicable federal law, which New Hampshire must follow under the Supremacy Clause of the U.S. Constitution, [he] cannot possess a firearm.”  The circuit court agreed, relying on Logan v. United States, 552 U.S. 23 (2007), to hold that because DuPont had never lost any of the “core” civil rights (vote, jury, office) he could not benefit from the “civil rights restored” exception under 18 U.S.C. § 921(a)(20)(B).  The court explained that the right to carry a gun “is a constitutional, not civil, right.” The state high court disagreed, relying on the Second Amendment to hold that Massachusetts’ restoration of his firearms rights was enough to bring him within the “civil rights restored” proviso: The Sixth Circuit has opined that Heller “suggests that a handgun possession ban . . . might infringe a civil right.” United States v. Sanford, 707 F.3d 594, 597 (6th Cir. 2012) . . . . In addition, the Supreme Court has referred, in an unrelated context, to the loss of the right to bear arms as the deprivation of a civil right. See Nat. Fedn. of Indep. Business v. Sebelius, 132 S. Ct. 2566, 2600 (2012) (noting that “[a]n individual who disobeys” a law passed under Congress’s Commerce Clause power “may be subjected to criminal sanctions . . . [which] can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections”). The court reasoned that when Congress used “civil rights restored” as a touchstone for regaining firearms rights it meant that “by reinvesting a person with core civic responsibilities, the state vouches for the trustworthiness of that person to possess firearms (unless that right is withheld).” Thus, as the petitioner puts it: “The right[s] to vote, hold office and sit on a jury are simply surrogates for an underlying state determination/vouching for a person’s trustworthiness to possess a firearm.” We find it unlikely that Congress intended to credit the restoration of “core rights” as indicative of trustworthiness, but exclude the restoration of the very right at issue – the right to possess firearms – from the trustworthiness calculus. Cf. Coram v. State, 996 N.E.2d 1057, 1077 (Ill. 2013) (Karmeier, J., writing separately) (opining that “whether a person previously convicted of an offense constitutes a present danger with a weapon going forward, and whether that individual’s rights to keep and bear arms should be restored . . . , logically, should be the core question” instead of “quibbling over what rights irrelevant to that question have been restored, or, as some cases would have it, how many of those rights”). Put another way, 921(a)(20) reflects “the general intent of Congress to redirect enforcement efforts against firearms owners that have a demonstrated potential for serious unlawful activity.”  The court quoted the Ninth Circuit’s statement in U.S. v. Valerio that “[b]y contrast to the right to vote, no civil right could be more relevant to a felon’s future dangerousness than the right to possess firearms.” 441 F.3d 837, 842 (9th Cir. 2006). The court therefore concluded that the “civil rights” contemplated by § 921(a)(20) must include the right to keep and bear arms, and that restoration of that civil right alone (if no others are lost) brings a conviction within the § 921(a)(20) exemption.  It distinguished Logan by pointing out that, unlike the the defendant in that case, DuPont had received a “status-altering dispensation,” a “token of forgiveness” from Massachusetts through the FLRB’s determination thatv his gun rights should be restored. As previously noted, the FLRB specifically found that the petitioner was “a suitable person to possess a license to carry firearms, and his right to possess a firearm therefore is fully restored in the Commonwealth.” Given our conclusion that the right to keep and bear arms is a civil right for purposes of § 921(a)(20), the petitioner has had one civil right “restored” in the Logan sense. Accordingly, we conclude that Logan does not exclude the petitioner from § 921(a)(20)’s exemption. Further, even though only one civil right was lost and restored, this was enough to bring petitioner’s 1998 conviction within § 921(a)(20)’s exemption, based on precedent holding that the exemption does not require a “full” restoration of rights. The FOPA amendment . . . exempted felons to whom the convicting jurisdiction extended a subsequent gesture of forgiveness, or partial forgiveness, by means of pardon, expungement, or restoration of civil rights. The theory was no doubt that such a subsequent forgiveness should be credited as an acknowledgment of rehabilitation or an affirmative gesture of goodwill that merited exemption from the firearms bar. . . . [T]he ultimate question is whether the state, by its “gesture of forgiveness,” has “vouche[d] for the trustworthiness of that person to possess firearms (unless that right is withheld).” . . .  The gesture of forgiveness here – explicit restoration of firearm rights – vouches for that trustworthiness more directly than any other. In asserting a state’s right to interpret the scope of the exemption in 921(a)(20), the New Hampshire court specifically declined to follow federal court decisions involving convictions for misdemeanor domestic violence, in which restoration of gun rights by itself was found insufficient to bring a prior conviction within the exemption. We decline to follow those cases. We conclude that our interpretation of § 921(a) better fulfills Congress’s purpose of “defer[ring] to a State’s dispensation relieving an offender from disabling effects of a conviction.” Logan, 552 U.S. at 37. Here, Massachusetts acted clearly and directly to remove the restriction the petitioner’s 1998 conviction had placed upon his civil right to keep and bear arms. We hold that Massachusetts thereby restored the petitioner’s civil rights within the meaning of § 921(a)(20).       Read more

State courts question mandatory lifetime sex offender registration

Notwithstanding the Supreme Court’s decisions in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) and Smith v. Doe, 538 U.S. 84 (2003), state courts are coming to different conclusions under their own constitutions about whether sex offender registration and notification laws constitute punishment for purposes of due process and ex post facto analysis.  The Pennsylvania Supreme Court is the most recent to invalidate mandatory registration requirements imposed on juveniles, but several state supreme courts have limited the retroactive application of registration requirements to adults under an ex post facto analysis. Juvenile registration requirements On December 29, 2014 the Pennsylvania Supreme Court ruled that the state Sex Offender Registration and Notification Act (SORNA) violates juvenile offenders’ due process rights through the use of an irrebuttable presumption of recidivism.  See In the Interest of J.B., 2014 Pa. LEXIS 3468 (Pa. 2014).  The court noted that “the common view of registered sexual offenders is that they are particularly dangerous,”  and that consequently registration “negatively affects juvenile offenders ability to obtain housing, schooling, and employment, which in turn hinders their ability to rehabilitate.”  Citing research demonstrating the difference between juvenile and adult offenders, notably where sex offenses are involved (“many acts of delinquency involve immaturity, impulsivity, and sexual curiosity rather than hardened criminality”), the court held that “individualized risk assessment, as used in other provisions of SORNA, provides a reasonable alternative means of determining which juvenile offenders pose a high risk of recidivating” so as to warrant their registration. Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebutable presumption. The Pennsylvania court joined the Ohio Supreme Court in invalidating lifetime sex offender registration requirements imposed on juveniles.  In re C.P., 967 N.E.2d 729 (Ohio, 2012) (invalidating on state and federal cruel and unusual punishment and procedural due process grounds automatic, lifetime registration imposed on juvenile tried in juvenile system). Meanwhile, federal courts have persisted in upholding categorical registration requirements imposed on juveniles under the Adam Walsh Act.  See U.S. v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012), cert. denied, 133 S. Ct. 234 (2012) (rejecting equal protection, cruel and unusual punishment, procedural and substantive due process challenges against automatic, lifetime registration). On the general issue of juveniles being subject to registration and notification requirements, see Amy E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1 (2013); Human Rights Watch, Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US, available at . http://www.hrw.org/reports/2013/05/01/raised-registry; Stephanie Forbes, Comment, Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases, 52 Wm. & L. Rev. 1717 (2011).  Adult registration requirements Adults have also caught a few breaks in state court from increasingly harsh registration and notification requirements.  In 2011, the Ohio Supreme Court granted a challenge to the state’s amended registration law under the state’s constitutional ban on non-remedial retroactive laws, finding that “all doubt has been removed” as to whether the state’s law is punitive in character. State v. Williams, 952 N.E.2d 1108 (Ohio 2011). Earlier, the Indiana Supreme Court held that the increasingly onerous features of Indiana’s law, including in-home visits by police and the requirement that registrants carry a personal identification card at all times, violated the state constitution’s ex post facto provision. Wallace v. State, 905 N.E.2d 371 (Ind. 2009).  See also State v. Letalien, 985 A. 2d 4 (Me. 2009)(more burdensome later-enacted registration requirement violated ex post facto); Doe v. Sex Offender Registry, 882 N.E. 2d 298 (Mass. 2008)(due process violation in failure to give man subjected to new registration requirement opportunity to show that he posed no risk).  For recent examples of state court invalidation of registration requirements under state ex post facto provisions, see Doe v. Dep’t of Pub. Safety & Corr. Servs., 40 A.3d 39 (Md. 2013); Starkey v. Okla. Dep’t of Corr., 305 P.3d 1994 (Okla. 2013).* As in situations involving juveniles, federal courts have persisted in finding that registration requirements fail to qualify as constitutional punishment, even in their augmented post-Adam Walsh Act form.  See, e.g., U.S. v. W.B.H., 664 F.3d 848 (11th Cir. 2011), cert. denied, 133 S. Ct. 524 (2012).  The state/federal duality is exemplified by the Alaska Supreme Court’s 2008 decision disagreeing with the Smith majority’s opinion that Alaska’s registration law was not punitive. See Doe v. State, 189 P.3d 999 (Alaska 2008). For a discussion of constitutional challenges to sex offender registration and notification requirements, and other sex offense-related residency and associational restrictions, see Chapters 2 and 3 of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (2013).  Wayne Logan will shortly be posting his new article on relief from registration requirements, discussed in an earlier post here. *NOTE:  See also Doe v. New Hampshire, ___ N.H. ___ , No. 2013-496 (2015)(lifetime-registration-without-review provision of state law, pursuant to which petitioner was denied public housing, made requirement punitive for ex post facto purposes; the requirement could be enforced against petitioner only if he was promptly given an opportunity for either a court hearing, or an administrative hearing subject to judicial review, at which he was permitted to demonstrate that he no longer posed a risk sufficient to justify continued registration.)   Read more