Tag: New Mexico

DC enacts progressive new record-clearing law

Until last month, the District of Columbia had one of the most complex and restrictive record relief laws in the country. D.C.’s sealing law even applied the same burdensome petition-based procedures, extended waiting periods, and onerous burdens of proof to non-conviction records that applied to convictions. In testimony before the D.C. Council in 2021, CCRC’s Margaret Love noted: “Compared to states across the country, DC’s record relief laws are very prohibitive and unusually complex.” CCRC’s Reintegration Report Card published in March 2022 commented that “the restoration laws in the District of Columbia are noteworthy for a remarkable study in contrasts: D.C. has extraordinarily progressive laws in civil areas like voting, employment, housing, and occupational licensing, and among the most regressive laws in the Nation in every category of criminal record relief, likely reflecting the heavy hand of the federal authorities that are responsible for most prosecutions under the D.C. Code.”

Last month, everything changed. The Second Chance Amendment Act of 2022 (D.C. Law 24-284, codified at D.C. Code § 16-801 et seq.), which became final after the required period of congressional review on March 16, 2023, gave the District one of the broadest record-clearing laws in the country, including both petition-based relief for all but the most serious violent felony convictions, and automatic relief for misdemeanors and non-conviction records.  D.C. now becomes the 11th U.S. jurisdiction to enact a “clean slate” law that applies to both conviction and non-conviction records.

The new D.C. record-clearing law is the product of more than two years of hard work by the D.C. Council and a broad coalition of advocacy groups in the District. When coupled with the District’s progressive civil restoration laws referenced above, this new law propels DC from middle-of-the-pack to the top tier of jurisdictions in the Nation where fair treatment of justice-affected individuals is concerned. It will certainly advance DC’s candidacy for Reintegration Champion of 2023.

Though D.C. Law 24-284 is enacted, it is unfunded, which means it cannot be used. Currently, the FY24 Budget Support Act of 2023 set the effective date for the Second Chance Act as 1/1/26 for most of the law and 10/1/29 for the automatic sealing provisions.

The new law’s specific provisions are described in greater detail below, and in the DC profile from CCRC’s Restoration of Rights Project.

The new D.C. law provides for petition-based sealing for all non-conviction records at disposition, for all misdemeanors after a five-year waiting period, and for all but a specified group of the most serious felony convictions after an eight-year waiting period.  The waiting period begins following completion of all aspects of the sentence, except that it does not require payment of fines and other court debt. The law also facilitates procedures: e.g., not all eligible records need be sealed at the same time, as under the old law, and there are no “disqualifying offenses” that could extend the waiting period even for non-conviction records.

It also eases standards, particularly for sealing non-conviction records: it deleted a provision allowing the court to consider “the weight of the evidence against the person” and any priors sealings of arrest records.  It specifically directs the court in all cases to consider “The community’s interest in furthering the movant’s rehabilitation and enhancing the movant’s reintegration into society through education, employment, and housing.” As noted, D.C.’s existing sealing law extended to same burdensome procedures and standards to non-conviction records that applied to sealing of convictions.

The new law makes sealing automatic beginning in 2027 for non-conviction records, and for most misdemeanor convictions after a 10-year waiting period. It also provides for automatic expungement of marijuana convictions effective January 1, 2025, and for expungement by petition on grounds of actual innocence. Provisions in existing law authorizing expungement for victims of human trafficking and sealing for juvenile defendants were not changed.

D.C. now joins the 19 states that have enacted automatic record-clearing relief for arrest records and other non-convictions.  More than half of these state laws have been enacted in the three years since publication of CCRC’s Model Law on Non-Conviction Records, which advocated for automatic expungement of all non-conviction records, including records with no final disposition, except for pending matters. Like CCRC’s model law, which was cited as authority by several parties during the hearings before the D.C. Council, the new D.C. law recommends restrictions on accessing, inquiring about, and commercially disseminating non-conviction records.

Sealed records are placed in a non-public file but remain available to law enforcement, courts, prosecutors, licensing agencies, public employers, and schools and child care facilities, to be used “for any lawful purpose.” Sealed records may also be used in civil litigation relating to the arrest or conviction, and may be made available to others “upon order of the Court for good cause shown.”  An individual whose record has been sealed may deny the arrest or conviction “for any purpose”, without penalty of perjury or other provision of the law for giving a false statement. This appears to be a change from the 2006 law, which required testimony about prior arrests and convictions “in response to an inquiry from one of the entities expressly authorized to access the records.” In other words, while certain entities may gain access to sealed records, the subject of the record may lawfully deny its existence without penalty.

The 2022 law imposes certain requirements on “criminal history providers” that provide criminal history background screening reports, requirements that mirror those provided by the federal Fair Credit Reporting Act.  It requires providers to provide the subject of a background report with a copy of the report and identify the source of the report, and to use at least two identifiers (e.g., birthdate and name); prohibits reporting records that have been sealed, expunged or set aside; and pohibits reporting information that has not been updated within 30 days of the report.  Complaints of a violation of these provisions may be filed with the DC Office of Human Rights (but not in court), and fines are specified for violations.

There are still ways that D.C.’s sealing law could be improved.  For example, there appears to be no good reason why sealed non-conviction records should remain available to employers and licensing agencies, and in most states they are not. Automatic relief should be extended to all convictions now subject to sealing by petition, and the waiting periods for both petition-based and automatic relief seem excessive by standards in recently enacted record-clearing laws.  See CCRC’s 2022 report on waiting periods, Waiting for Relief: A National Survey of Waiting Periods for Record Clearing (February 2022).  But those caveats aside, the new law represents the most substantial progress in record clearing of any U.S. jurisdiction since 2018, when North Dakota and New Mexico enacted a broad sealing scheme for the first time.  Congratulations to the D.C. Council!

 

 

 

 

Reintegration Champion Awards for 2021

Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing.  Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords.  (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state’s reintegration scheme in our Restoration of Rights Project.)

Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking:  Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation.

  • Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors.
  • Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking.

Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Read more

Dozens of new expungement laws already enacted in 2021

This year is turning out to be another remarkable year for new record relief enactments. In just the first six months of 2021, 25 states enacted no fewer than 51 laws authorizing sealing or expungement of criminal records, with another 5 states enrolling 11 bills that await a governor’s signature. Three of these states authorized sealing of convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing, and a number of additional states substantially expanded the reach of their existing expungement laws.

This post hits the highlights of what may well be the most extraordinary six-month period in the extraordinary modern period of criminal record reform that begin in 2013.  The only closely comparable period is the first six months of 2018, when 11 states enacted major reforms limiting consideration of criminal records in occupational licensing.  Further details of the laws mentioned below can be found in the relevant state profiles from the Restoration of Rights Project.

(An earlier post noted new occupational licensing laws in 2021, and subsequent ones will describe significant extensions of the right to vote so far this year, and summarize the more than 100 record reforms enacted to date.) Read more

New occupational licensing laws in 2021

In the first five months of 2021, seven states and the District of Columbia enacted nine separate laws improving opportunities for people with a criminal record to obtain occupational licenses. This continues a four-year trend begun in 2017 that has seen 33 states and the District of Columbia enact 54 separate laws regulating consideration of criminal record in the licensing process.

Our report on new legislation in 2020 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.” Laws enacted during this four-year period have “transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people.” The only period of law reform that rivals the present one came during the early 1970s, when many of the laws now being revised and extended were first enacted. The effectiveness of advocacy efforts by the Institute for Justice and National Employment Law Project in influencing this trend cannot be overstated.

So far during 2021, the U.S. jurisdiction to have enacted the most ambitious and comprehensive licensing scheme is the District of Columbia, and its new law (described in detail below) is one of the most progressive in the nation. New Jersey, New Mexico and Washington had not previously legislated in this area for many years, and all three extended and improved laws first enacted in the 1970s. Arizona, Georgia, Ohio, and Tennessee extended recently enacted laws, with Arizona legislating for the fourth time in this area in as many years!

The nine new laws are described below, and have been added to the state profiles and 50-state charts of the Restoration of Rights Project.

Read more

Bumper crop of new expungement laws expected in 2019

Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record.  (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.)  The first quarter of 2019 has already produced a baker’s dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last.  The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency.  Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature’s accession to Governor Ralph Northam’s request that it “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” which will immediately reinstate driving privileges to more than 627,000 Virginians.

This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures.  The two most significant new laws were enacted in Western states.  Utah’s HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records.  When it takes effect on May 1, 2020, it will be the nation’s second “clean slate” law in operation (Pennsylvania’s first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019).  Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment).

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

Introduction

4 year report coverSince 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.

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“Second Chances for Teen Offenders”

This New York Times editorial urges states to seal or expunge juvenile records “so that young offenders are not permanently impaired by their youthful transgressions.”  It describes a new study from the Juvenile Law Center that concludes “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to [juvenile] records.”

The first juvenile courts were established more than a century ago on the principle that children deserve special care under the law because they are vulnerable, because their transgressions tend to be nonviolent and because they can be expected, on the whole, to outgrow their youthful misbehavior.

These presumptions are borne out by data showing that 95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood. But because some juvenile court records remain open to the public when they should have been sealed or expunged, these young people can be denied jobs, housing and even admission to college.

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