Tag: New York

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 Jersey puts “fair chance housing” on the national agenda

People with a record frequently experience challenges in obtaining or maintaining housing. For those who have been incarcerated, on supervision, charged, and/or arrested, the background check for rental applications can be a persistent obstacle. Lack of stable housing is a major roadblock to successful reintegration into the community or the pursuit of social and economic opportunities. It is therefore encouraging that states have begun to enact laws limiting record-based disqualifications in housing decisions.

On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The NAACP New Jersey State Conference, Latino Action Network, Fair Share Housing Center, and New Jersey Religious Action Center of Reform Judaism led organizational advocacy for the measure. Senator Troy Singleton, one of the bill’s primary sponsors, cited the “staggering amount of data on the national level that shows securing housing is one of the key barriers to reducing recidivism,” according to the New York Times. “This measure will allow those who have paid their debt to society to move forward with their lives in a productive manner.” Another sponsor, Assemblyman Benjie Wimberly, noted that “We’re fighting generational poverty, homelessness, and hopelessness through social justice reform measures such as this one.”

With New Jersey’s legislation—following on the heels of laws enacted in 2019 in Colorado, Illinois, and New York, legislation in D.C. in 2017, and a slew of local ordinances since 2016— “fair chance housing” has arrived on the national reintegration agenda. While many states have adopted reforms that limit the use of criminal records in employment and occupational licensing, until these recent developments housing does not appear to have been a priority for lawmakers, at least at the state level.

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“Certifying Second Chances”

This is the title of a provocative new article by Cara Suvall, Assistant Clinical Professor of Law at Vanderbilt Law School, and Director of the Youth Opportunity Clinic.  The article, forthcoming in the Cardozo Law Review, catalogues and analyzes the costs and burdens that deter people from accessing certificates intended to enhance employment opportunities.  Professor Suvall focuses particular attention on certificate programs in Tennessee, Georgia, and New York, which vary widely in eligibility criteria, administration, and legal effect.  She highlights the learning, compliance, and psychological barriers that limit effectiveness of existing certificate programs, and describes proposals to lower those barriers.

Here is the abstract:

Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences—invisible punishments that inhibit opportunity in all facets of a person’s life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone.

But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out of reach. A major problem, I argue, is the administrative burdens involved in accessing these remedies. Because of these hurdles, people with fewer resources—the population that would most benefit from the help—are the ones most likely to find these second chances out of reach. The Article closely examines one increasingly popular type of second-chance program: certificate laws that remove employment barriers.

Building on recent research identifying the low usage rates of petition-based second-chance programs, this Article catalogues and analyzes the costs and burdens placed on people attempting to access employment certificates. Of particular concern is not only these low usage rates themselves, but also the identity of those least likely to access these interventions. Second-chance programs like employment certificates that provide a way forward for people with greater resources while leaving behind those without may be more harmful than helpful when placed in the larger context of mass criminalization and social change, even if they help the small number of individuals who do access them. In contrast, a well-designed second-chance initiative that appropriately considers administrative burdens and the way that interventions like employment certificates fit in to the broader picture of social change could provide short-term benefits to people with criminal records while also bolstering larger-scale reforms to the criminal legal system.

Illinois set to become fifth state to cover criminal record discrimination in its fair employment law

NOTE: Governor Pritzker signed S1480 into law on March 23.

In our recent report on criminal record reforms enacted in 2020, we noted that there were only four states that had fully incorporated criminal record into their fair employment law as a prohibited basis of discrimination. These states (New York, Wisconsin, Hawaii, and California) provide that employers can only disqualify a person based on their record if it meets a specific standard, such as being related to the work in question or posing an unreasonable risk to public safety. Illinois will become the fifth state to take this important step as soon as Governor Pritzker signs S1480.

Illinois has been working up to this, having amended its Human Rights Act in 2019 to prohibit employment discrimination based on “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.” With S1480, Illinois has now taken the final step of incorporating criminal record fully into the law’s structure, which includes authorization to file a lawsuit in the event administrative enforcement is unsatisfactory. A preliminary analysis of the new Illinois law indicates that it now offers more protection for more people with a criminal record in the employment context than any state in the Nation other than California.

The provisions of the Illinois bill, enrolled and sent to the governor for signature on February 12, are described below.  We then compare them with the laws in the four other states that incorporate criminal record into their fair employment law. This post notes the handful of additional states that have fortified their record-related employment protections in recent years, then summarizes relevant reforms that were enacted in 2020.

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Momentum grows to restore voting rights to people with a felony

Our new report on 2020 legislative reforms shows continued progress in state efforts to expand voting rights for people with a felony conviction. Despite a courtroom setback at the Eleventh Circuit, where a federal appeals court ruled that Florida’s landmark 2018 felony re-enfranchisement initiative does not restore the vote to people who owe court debt, two additional states and D.C. took major actions to restore voting rights to people convicted of a felony. Already in 2021, an impressive 19 states are considering bills to ease or eliminate prohibitions on voting based on a past conviction.

In 2020, California restored the vote to people on parole, via a ballot initiative amending the state constitution. Iowa‘s governor issued an executive order restoring voting rights to people convicted of most felonies after completion of incarceration and supervision. And the District of Columbia repealed felony disenfranchisement altogether so that even people in prison may vote. Since 2016, 19 states have taken steps to restore the right to vote for people with a felony and expand awareness about eligibility. 

In 2021, at least 19 state legislatures are considering bills that would expand the franchise to those with a conviction:

  • 5 states are considering measures to amend their constitutions or statutes to eliminate felony disenfranchisement entirely (Nebraska, Georgia, Massachusetts, Oregon, and Virginia). They would join Maine, Vermont, and D.C., as jurisdictions that have fully abandoned felony disenfranchisement. Connecticut also has a proposed bill that to eliminate disenfranchisement for certain felony offenses and restore the vote after incarceration for the others.
  • 10 states are considering bills to re-enfranchise individuals not presently incarcerated for a felony conviction: Alabama, Minnesota, Missouri, New Mexico, New York, Oklahoma, Washington, Texas, and Virginia (Alabama’s bill would do so 5 years after release). The Washington measure is sponsored by newly elected Rep. Tarra Simmons, believed to be the first Washington state lawmaker formerly convicted of felony.
  • The only 4 states remaining without a statutory mechanism for re-enfranchisement (Kentucky, Iowa, Mississippi, Virginia) are considering measures to restore the vote upon completion of incarceration and supervision, or earlier, for a disqualifying offense (in the case of Mississippi, after incarceration and parole only; in the case of Iowa, 5 years after completion of incarceration and supervision; Virginia has proposals to eliminate disenfranchisement completely or restore the vote upon release). These four states currently make re-enfranchisement wholly dependent upon discretionary gubernatorial action (or in Mississippi, discretionary legislative action).
  • In addition, Tennessee has a pending bill that would remove requirements that a person has paid all restitution and court costs, and be current on child support, before voting rights may be restored. Maryland and Missouri are considering bills to facilitate voting in jails for eligible individuals, and Maryland has another bill to require individuals released from correctional facilities and/or on community supervision to be informed that they are eligible to vote. Nebraska also has a pending bill to remove the two-year waiting period after completion of a felony sentence for voting rights restoration.

Our full report on 2020 criminal record reforms is available here. For an overview of loss and restoration of voting rights, see our Sept. 2020 national survey and our 50-state comparison chart. In addition, our Nov. 2020 report documents which states treat unpaid court debt as a barrier to regaining the vote.

Legislative update: third quarter 2019 sees more new licensing and expungement laws

In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction.  A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions.  Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing.  In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record.  Another area of progress was restoring voting rights.

Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions.  Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions).  (California enacted a “clean slate” law shortly after the beginning of the fourth quarter.)  At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.)

By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon.

All of the laws described briefly below are more fully analyzed in the context of the state’s overall restoration scheme, in the detailed profiles of the Restoration of Rights Project.

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NY judge rules police need court order to access sealed arrests

Last Tuesday, a New York court found that the New York Police Department’s routine use and disclosure of sealed arrest information violates the state’s sealing statute.  The case, R.C. v. City of New York, concerns plaintiffs whose information the NYPD used or disclosed after their arrests terminated favorably in dismissals or acquittals, after prosecutors declined to prosecute, or after cases resulted in non-criminal violations.  In New York City, over 400,000 arrests—nearly half of all arrests—were sealed between 2014 and 2016.  The lawsuit, brought by The Bronx Defenders, seeks to enforce the sealing statute’s protection of those records.

New York’s sealing statute—codified at Criminal Procedure Law §§ 160.50 and 160.55—requires that courts, prosecutors, and law enforcement agencies “seal” records when a case is terminated in a person’s favor or results in a non-criminal violation.  A “sealed” record “shall . . . not [be] made available to any person or public or private agency.”  The sealing requirement applies to “all official records and papers . . . relating to the arrest or prosecution . . . on file with the division of criminal justice services, any court, police agency, or prosecutor’s office.”  In addition, the statute requires that photographs and fingerprints be destroyed or returned to the formerly accused.

Despite the plain text of the statute, the NYPD has maintained, used, and disclosed information that should have been sealed, destroyed, or returned.  It has maintained this information in massive interconnected databases, some of which, like the “Domain Awareness System,” are deployed in every police precinct, on every officer smartphone, and in every police vehicle tablet.  It has used information in later police activity, allowing detectives to access and view sealed arrest information when investigating crimes.  And it has disclosed information both to prosecutors and the press—most prominently, about the victims of police shootings.

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Civil death lives!

The first and foremost collateral consequence in Colonial America was civil death; based on the grim fact that felonies were punished by execution, upon conviction, the law began to wrap up the convict’s affairs.  As the law developed, capital punishment ceased to be the default punishment, and civil death was seen as too harsh for a felon who might serve a probationary sentence instead of being executed or even going to prison at all.  The Rhode Island Supreme Court recently issued an opinion demonstrating that this ancient doctrine is not entirely obsolete.

In Gallup v. Adult Correctional Institutions, the court upheld dismissal of a complaint alleging that the state negligently allowed the plaintiff, a prisoner serving life, to be assaulted by another inmate.  The court pointed to the state’s civil death statute, which applies to prisoners serving life in an adult correctional institution. Such persons “shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction.”  Of U.S. jurisdictions, only Rhode Island, New York, and the Virgin Islands maintain civil death, and New York’s statute has many exceptions.  There is, accordingly, not much modern law on the scope of civil death statutes.

One wonders whether the Rhode Island statute could really extend to the full scope of its language; could a lifer be denied, for example, freedom of religion and speech under the U.S. and/or Rhode Island constitutions?  Suggesting that the answer is “no” is the fact that the court granted the plaintiff leave to plead a 42 U.S.C. § 1983 action based on the same underlying facts; the court recognized that a state statute cannot eliminate federal rights.

That acknowledgement raises the hard question of the extent to which the federal Constitution protects the property, right to marry, and “civil rights and relations” of even a person serving a life sentence.

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.

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New York surprises with broad new sealing law

Late Sunday night, the New York Senate finally passed the beleaguered 2017-18 budget bill, which was signed by Governor Andrew Cuomo the following day. And while the passage of the bill was good news to New Yorkers eager to avoid a government shutdown, it should be even better news to a significant number of New Yorkers with criminal convictions. Tucked away inside the massive bill is an unheralded provision creating the state’s first general sealing authority for adult criminal convictions. Previously, record sealing was available only for non-conviction records and diversion and drug treatment dispositions. Now sealing will be available for misdemeanors and all but the most serious felony offenses.

The new law, which takes effect in October, gives New York one of the most expansive record-closing authorities in the Nation, rivaling such traditional sealing centers as Massachusetts, Washington, and Minnesota.

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