Our new report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years. Typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law. These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases.
Waiting for Relief: A National Survey of Waiting Periods for Record Clearing
The waiting periods for misdemeanor convictions range from a high of 10 or 15 years in Maryland (depending on the nature of the offense) to 0 years in Mississippi (although only first-time offenses are eligible), with most states falling at the lower end of that range. Of the 44 states that authorize clearing of misdemeanor convictions, a near-majority have waiting periods of 3 years or less (19 states) and the vast majority have waiting periods of 5 years or less (35 states).
The waiting periods for felony convictions range from as high as 10 or 20 years in North Carolina to as low as 0-2 years in California, with most states falling at the lower end of that range. Of the 35 states that authorize clearing of felony convictions, a near-majority have waiting periods of 7 years or less (17 states).
Many waiting periods, notably longer ones, reflect a concept of record clearing via expungement or sealing as “recognition of successful rehabilitation and reason to terminate legal disqualifications and disabilities.” In recent years, however, many states have shortened waiting periods in recognition of the constructive role that record clearance plays in facilitating reentry and rehabilitation, reasoning that individuals “need the most assistance immediately after release from prison or termination of sentence.” The seven (7) states that have enacted a general conviction sealing authority for the first time since 2018 have generally (though not invariably) provided shorter waiting periods than states with more venerable systems.
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.
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.
The 2019 legislative session saw two Southern states enact impressive new laws limiting the ability of occupational licensing boards to exclude qualified applicants based on their criminal record. North Carolina and Mississippi each passed strong new substantive and procedural licensing rules, and both of the new laws show the influence of the Model Law developed by the Institute for Justice. Both states have now eliminated vague “good moral character” criteria, and extended procedural protections that should make it substantially harder for boards to deny licenses based on criminal history.
As a result of these bills, both states now prohibit disqualification from licensure unless a crime is “directly related” to the license involved, both require written reasons in the event of denial, and both provide for a preliminary determination as to whether an individual will be favorably considered. In North Carolina’s case, this “predetermination” is binding on the board when the applicant later applies. North Carolina’s new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record.
In 2019, the following additional states have enacted new restrictions on the occupational licensing process: Arizona, Arkansas, Florida, Nevada, Ohio, Texas, Utah and West Virginia. All told, in the past eight months 14 states have enacted 18 laws regulating occupational licensing in one form or another, with Texas accounting for five of the 18. These new laws are described in the relevant state profiles of the RRP, and they will be discussed in greater detail in our year-end report. They will also be incorporated into the updating of our general survey of U.S. relief and restoration mechanisms (“Forgiving and Forgetting in American Justice”), which is now underway.
There are currently only three on-line collections of collateral consequences, one national and two state-specific (Ohio and North Carolina). All three can be searched and sorted, and all three are regularly updated, making them indispensable practice tools for lawyers and essential guides for advocates and people with a criminal record. Each of these inventories is described below by the individuals who helped create them and now administer them. They explain how the inventories were created and how they are maintained, and how they operate to inform and assist people interested in understanding the legal and regulatory restrictions that affect people with a criminal record, as well as the lawyers and other advocates who assist them.
Note that the three inventories each deal differently with the problem of linking specific consequences with the crimes that trigger them. Ohio’s CIVICC inventory has the greatest granularity, allowing searches by specific provision of the state criminal code. North Carolina’s C-CAT inventory is somewhat less specific, linking specific collateral consequences with the “crime characteristics” that make the consequence applicable, including the type and degree of crime. The national inventory (NICCC) is less specific still, stating triggering offenses for each consequence in terms of broad categories of crimes (e.g., “any felony” or “crimes of moral turpitude”). This approach not only reflects the way most state laws imposing collateral consequences are drafted (Ohio consequences are a conspicuous exception), but it also has the advantage of allowing cross-jurisdictional comparisons and analysis.
The descriptions that follow confirm that a great deal of time and money, not to mention the commitment of dedicated and skilled professionals, goes into keeping the inventories current, given the passage of new laws every year. Thankfully, much legislating nowadays is in the direction of helping people avoid or mitigate these consequences, through judicial certificates and record-sealing mechanisms, rather than imposing further burdens and restrictions. (See the CCRC report on 2018 laws, and its recent interim survey of laws enacted already in 2019.)
“The Supreme Court’s Mixed Signals in Packingham” is the title of a thoughtful comment by Bidish Sarma analyzing the Supreme Court’s recent decision in Packingham v. North Carolina, recently published on the American Constitution Society website. (An early analysis of the Packingham decision by Wayne Logan appeared on this site on June 20.) Mr. Sarma proposes that “the time has come to ask whether society’s ‘war’ on sex offenders who have already completed criminal sentences has gone too far.”
While the Packingham holding is confined to the First Amendment issues raised by North Carolina’s broad restrictions on access to “an astounding range of websites (including news websites, WebMD and Amazon),” Sarma singles out a sentence in Justice Kennedy’s opinion suggesting a broader underlying concern about the constitutionality of sex offender consequences:
Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”
Departing from its customary reluctance to find fault with laws singling out convicted sex offenders for harsh treatment, after they have completed their sentences, the Supreme Court in Packingham v. North Carolina yesterday struck down a state law making it a felony for registered sex offenders to access commercial social networking websites. The petitioner in Packingham, a registered sex offender, violated the North Carolina law when after learning that a traffic ticket against him had been dismissed in court he posted the following message on his Facebook.com personal profile:
Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!
Packingham was convicted and thereafter challenged his conviction on First Amendment grounds, arguing that the law violated his right to free speech.
The Supreme Court ruled on June 19, without dissent, that sex offenders cannot constitutionally be barred from social-networking sites. SCOTUSblog’s Amy Howe introduced the Court’s ‘s holding in Packingham v. North Carolina as follows:
In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation, because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.
This morning the Supreme Court considered whether sex offenders may constitutionally be barred from internet access to social networking sites like Facebook and Twitter. Lester Packingham, who was required to register as a sex offender after pleading guilty to taking “indecent liberties” with a minor when he was a 21-year-old college student, ran afoul of a North Carolina criminal statute when he praised God on Facebook for the dismissal of his traffic tickets.
At least five Justices expressed some degree of skepticism over broad restrictions on what Justice Elena Kagan called “incredibly important parts” of the country’s political and religious culture, some questioning the premise that the law is necessary to prevent sexual abuse of minors. Justice Kennedy noted the many ways in which the North Carolina statute seems to violate the First Amendment. “Let me count the ways,” he said, invoking Elizabeth Barrett Browning.
Some justices noted that criminal convictions can have lasting consequences. “Some states prohibit ex-felons from voting,” Justice Ruth Bader Ginsburg said. “Some states and the federal government prohibit keeping and bearing arms. Those are constitutional rights.” David T. Goldberg, a lawyer for Mr. Packingham, said those restrictions had a basis in history and logic. They were nothing like “taking away people’s First Amendment rights,” he said.
In this early post from SCOTUSblog, Amy Howe notes high points of the argument, whose full transcript of the argument is posted here. Adam Liptak predicted at the New York Times that the North Carolina law will be found unconstitutional before the end of the Court’s Term in June. What this might portend for other restrictions on sex offenders’ constitutional rights – like the exclusionary zones, also imposed by North Carolina, and also held unconstitutional on First Amendment grounds by the Fourth Circuit in December – remains to be seen.
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.