Tag: Ohio

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 Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors.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: Alabama – Enacted first state record-clearing authority applicable to misdemeanor convictions and pardoned felonies, and extended non-conviction sealing. California – Gave retroactive effect to automatic conviction sealing law enacted in 2019. (This new law may be the most consequential of any enacted last year in terms of its impact on criminal records in the state, and it was done without fanfare or publicity.) District of Columbia – Enacted a comprehensive scheme to limit consideration of criminal record in occupational licensing. Illinois – Added employment discrimination based on conviction to the state Human Rights Act, authorized voter education for prisoners. New Jersey – Enacted a landmark fair housing bill; made some improvements to its 1970’s-era occupational licensing law; and, provided for automatic record clearing in connection with marijuana legalization. (New Jersey was our Reintegration Champion for 2019, but evidently is not resting on its laurels.) New Mexico – Improved 1970’s-era public employment and licensing law; authorized expungement of marijuana convictions; and, enacted a substantial part of the Uniform Collateral Consequences of Conviction Act, limiting and providing relief from collateral consequences. Ohio – Expanded eligibility for record-clearing; significantly improved occupational licensing law. Virginia – Authorized petition-based and automated record-clearing of non-convictions and convictions, including convictions for marijuana possession; restored vote upon release by executive order and took steps to amend constitution to this end. Washington – restored vote upon release from prison; amended occupational licensing standards for health professions; repealed driver’s license suspension based on outstanding financial obligations Low marks go to three states that enacted no record reform laws at all in 2021. While there are six other states in this category this year, the legislatures of Alaska, Massachusetts, and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. The profile of each state’s restoration of rights scheme from CCRC’s Restoration of Rights Project is linked above (except for the states that made no progress). The profiles contain citations and links to the relevant new laws so that interested individuals can check their specific terms. 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. Comprehensive licensing scheme enacted by the District of Columbia Act A23-0561, signed by Mayor Muriel Bowser on January 15, 2021, imposed a detailed regulatory scheme on many occupational licenses issued by the District of Columbia, including health-related professions. The new law is one of the broadest and most comprehensive in the country in the judgment of both CCRC and the Institute for Justice. The 2021 law provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the occupation for which the license is sought. (Under prior law a license could be denied if a conviction “bears directly upon the fitness” of the person to be licensed.) References to “good moral character” in prior law were struck. The new law also prohibits a board from inquiring into or considering an applicant’s criminal conviction until after the applicant is found to be otherwise qualified. After such inquiry, it may not consider a conviction that has been sealed, expunged, vacated, or pardoned, a juvenile adjudication, or non-conviction information, or one that whose elements are not found by “clear and convincing evidence” to be “directly related” to the occupation. In making this determination, a board must consider specific factors relating to the circumstances of the offense, the individual’s other record, evidence of rehabilitation, and “the District’s interest in promoting employment opportunities for individuals with criminal records.” Before denying a license based on a conviction a board must notify the applicant about the reasons for denial and offer a hearing, describe the information that may be provided to demonstrate rehabilitation and fitness, give the applicant an opportunity to respond, and issue a final decision within 45 business days after it receives a response. The board must also provide information on legal resources along with a hearing notice. The 2021 law also establishes a pre-application petition process for individuals to determine their eligibility based on a criminal conviction, which must be completed within 90 days. (The law does not state whether an affirmative conclusion at this preliminary stage is binding on the board.) This law applies to licenses issued by D.C.’s Department of Consumer and Regulatory Affairs and Department Health, but not occupations regulated outside of these agencies, including attorneys, teachers, notaries, taxi drivers, funeral directors, boxers, commercial drivers, and insurance agents. The Mayor must submit a report to the Council by January 1, 2022, identifying the statutory and regulatory collateral consequences of criminal records and recommendations for their mitigation or elimination. And, by January 1 of each year, the Mayor must submit to the Council a report with data relating to each board regulating health-related and non-health-related occupations. Significant revisions of existing general licensing laws 1. Arizona As modified in 2021 by HB 2787 (the fourth licensing law in three years), standards for disqualification now provide that an agency may refuse licensure to a person based on their criminal record only if a conviction “specifically and directly relates to the duties and responsibilities of the occupation” (except for offenses involving moral turpitude defined to include serious and violent offenses) and “the person, based on the nature of the specific offense that the person was convicted of and the person’s current circumstances, including the passage of time since commission of the crime, “is more likely to reoffend by virtue of having” the license than not. The 2021 amendments also require that certain records may not be considered: non-conviction records, including record of participation in a diversion program; a conviction that was sealed, expunged or pardoned; a juvenile adjudication; and a non-violent misdemeanor. 2. Georgia Existing law allowed licensing boards to deny licensure where a person was on community supervision, without requiring the person’s crime to be “directly related” to the occupation for which licensure was sought. SB-114 added supervision status to list of dispositions for which direct relationship is required. The new law does not apply to those on supervision for a felony crime against a person, including battery or assault, or for a crime requiring sex offense registration. 3. New Jersey Until 2021, New Jersey’s 1970’s-era law governing licensure by dozens of state licensing boards (most health-related licenses, accountants, architects, engineers, cosmetology, and many others) provided that boards could deny or suspend licensure upon conviction “of a crime of involving moral turpitude or relating adversely” to the regulated occupation. P.L.2021, c.81 (S942), modified the standard for denial or suspension of licensure by these state licensing agencies to “a direct or substantial relationship to the activity regulated by the board or is of a nature such that certification, registration or licensure of the person would be inconsistent with the public’s health, safety, or welfare . . . .” 4. New Mexico The 1974 Criminal Record Employment Act in force prior to the 2021 amendments prohibited licensing boards from considering non-conviction records. As amended in 2021 by SB2, NM’s licensing agencies are precluded from considering convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.” In addition, while “misdemeanors not involving moral turpitude” were omitted from the list of crimes that may never be considered, misdemeanors were also omitted from the provision allowing convictions to be considered if “directly related” to the license in question.  The revisions leave open the possibility that a misdemeanor could be grounds for denying licensure as a teacher or child care provider only if they involved drug trafficking or child abuse. The 2021 amendments also omitted an alternative basis for disqualification based on insufficient rehabilitation.  5. Ohio Ohio’s existing law required licensing agencies to list crimes that mandate disqualification. As further amended in 2021 by HB 263, boards must list convictions that “may” be disqualifying, and other convictions and non-conviction records may not be grounds for denying a license. Vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those “directly related,” the board must still consider certain standards linked to an applicant’s overall record that are linked to public safety and may not deny after a period of either five or 10 years depending on the offense. In the event of denial, a board must provide procedural protections including written reasons and a hearing. These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019. 6. Tennessee The 2018 Fresh Start Act was amended in 2021 by SB768 to provide specific criteria governing a licensing board in determining the fitness of a person for licensure based on their criminal record, including the relationship of the crime to the ability performs the duties of the occupation, and evidence of the person’s rehabilitation.  (The FSA already included a “direct relationship” standard.)  The 2021 Act also deleted “a rebuttable presumption that the prior conviction relates to the fitness of the applicant or licensee” if the conviction was for a Class A, Class B, or certain Class C felonies, or if the felony conviction required registration as a sex offender or animal abuser. 7. Washington A 2021 law provides that each licensing agency shall allow potential applicants for a license to receive a “preliminary determination” as to whether their criminal record will be disqualifying. See 2021, ch. 194 (HB1399). No fee may be charged. This determination must be made within two months, and if it is negative must be accompanied by a statement of reasons. Another provision of HB1399 states that a licensing agency “may disqualify an individual from obtaining a professional license, government certification, or state recognition if it determines the individual’s conviction is related to the occupation or profession unless the individual has requested and received a [Certificate of Restoration of Opportunity (CROP)].” See Section 3 of 2021, ch. 194 (HB 1399). It is not clear whether this law was intended to lower the “direct relationship” standard in § 9.96A.020(2). Another 2021 law gave new protections to employees of long-term care facilities, setting forth time limits beyond which certain theft and assault convictions will not be disqualifying. See 2021 Ch. 219 (HB1411). The CROP law was also amended to give protection to these employees. Read more

Two significant new occupational licensing laws enacted in 2021

After 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies last year, the first significant record reforms of 2021 are occupational licensing laws enacted by Ohio and the District of Columbia.  D.C.’s new law is particularly comprehensive, and applies both to health-related and other licensed professions in the District. The new District of Columbia law, Act A23-0561, is described in detail in the DC profile from the Restoration of Rights Project.  It provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the licensed occupation, as determined by a detailed set of standards; prohibits inquiry about a record until an applicant has been found otherwise qualified and then prohibits consideration of certain records (including non-conviction and sealed convictions); and provides procedural protections in the event of denial. The new law also establishes a pre-application petition process for individuals with a record to determine their eligibility, and requires the Mayor to report annually to the Council on each board’s record.  The Institute for Justice has described the “landmark” new D.C. law as “the best in the nation, second only to Indiana.” The new Ohio law, HB 263, is more complex and less protective than DC’s, requiring licensing boards to publish lists of two types of convictions: those that “shall” be disqualifying (overcome only by a court-ordered certificate) and those that “may” be found disqualify based on their “direct relationship” to the licensed occupation. Other convictions and non-conviction records may not be grounds for denying a license, and vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those “directly related,” the board must still consider certain standards linked to an applicants overall record that are linked to public safety, and may not deny after a period of either five or 10 years depending on the offense.  In the event of denial, a board must provide procedural protections including written reasons and a hearing.  These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019. Michigan’s governor also signed a series of bills regulating occupational licensure on the last day of 2020, which include some of the features of the schemes described above but retain the unfortunate disqualification standard of “good moral character.” While Michigan’s licensing law could use improvement, it contributed to the state’s earning the title of Reintegration Champion of 2020. Our report on new legislation in 2020, documenting that 11 states enacted 19 licensing reform laws, 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.”  We reprint the discussion of 2020 licensing reform from our report here: In 2020, 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies. Four states (Idaho, Iowa, Missouri, and Rhode Island) regulated licensing agencies statewide for the very first time; two other states (Utah and West Virginia) improved upon their first venture into licensing regulation in 2019; and Pennsylvania made improvements in licensing standards originally adopted in an earlier era of reform in the 1970s. These enactments continue a trend begun in 2017 that has transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people. As explained in our national report The Many Roads to Reintegration, these licensing reforms are particularly important in supporting reintegration, since studies have shown that more than 25% of all jobs in the United States require a government-issued license.  Occupational licenses offer a gateway to the middle class, particularly for people who may have learned a trade or gained a skill while in prison. The new wave of licensing reforms resurrects a progressive approach to occupational opportunity that dates from the 1970s.  In recent years it has been strongly influenced by model legislation developed by the Institute of Justice (IJ), a libertarian public interest law firm, and the National Employment Law Project (NELP), a workers’ rights research and advocacy group.  Despite their origin in differing regulatory philosophies, the IJ and NELP model laws reflect a similar approach:  they 1) limit the kinds of records that may result in disqualification, rejecting vague “good moral character” and other criteria irrelevant to competence; and 2) insist that individual denials be grounded in findings of rehabilitation and public safety with rigorous due process guarantees, making agency procedures more transparent and accountable.  In the IJ model, applicants may seek binding preliminary determinations of qualification, and agency compliance is monitored by disclosure and reporting requirements. Some of the more familiar provisions of these new laws are drawn from the IJ or NELP models: Preliminary determination: Providing for a preliminary determination of qualification, for a small fee with quick turnaround and written reasons Relevant standards: Deleting vague standards like “good moral character” in favor of standards likely to evidence low risk and rehabilitation Prohibited considerations: Barring consideration of certain types of records and other types after a specified time Transparency: Requiring agencies to publish a list of disqualifying convictions and to provide written reasons for rejection in individual cases Accountability: Including reporting requirements intended to monitor agency compliance. The new occupational licensing laws in 2020 are summarized below: Colorado enacted the “Occupational Credential Portability Program,” which authorizes approval of an application for reciprocal licensure by anyone licensed in another jurisdiction, apparently without regard to whether they meet Colorado’s standards for licensure that relate to consideration of criminal record, unless they have committed an act that would be grounds for disciplinary action in Colorado (HB 20-1326). Colo. Rev. Stat. §§ 12-20-202(3)(a), (b), (f)(III). In addition, HB 20-1424 creates “social equity licenses” to operate legal marijuana businesses, available to people who: (1) themselves or their family members were arrested, convicted, or subject to a civil forfeiture for a marijuana offense; (2) have a low income; or (3) live in an “opportunity zone” or “disproportionate impacted area.” Iowa had no general law regulating consideration of criminal record in occupational licensing prior to 2020. HF 2627 adds a new section to Chapter 272C of the Iowa Code to impose an unusually robust and license-specific “direct relationship” test on all but a few health-related licenses. Each covered board must provide a list of offenses that “directly relate[] to the duties and responsibilities of the profession,” and may not deny a license based on non-conviction records or any finding that an applicant “lacks good character” or “suffers from moral turpitude.” Iowa Code Ann. §272C.15. Under the new section, an agency “shall grant” an exception to an individual “who would otherwise be denied a license due to a criminal conviction” if the individual is determined to be rehabilitated and an “appropriate candidate for licensure” based on a list of factors that include the nature and seriousness of the crime, the passage of time, and other mitigating or aggravating factors. There is a rebuttable presumption that an applicant is “rehabilitated” five years after release from incarceration unless the conviction was for certain violent or sexual crimes. The board shall consider whether a “certification of employability” has been issued and any letters of reference. A prospective applicant may petition for a preliminary determination, for which a board may charge a fee of $25. Grounds for denial must be in writing, and the applicant must be given an opportunity to appeal and informed that evidence of rehabilitation will be considered on reapplication. The board’s findings on each criterion specified must be “sufficient for review by a court.” The board has the burden of proving direct relationship. An individual may be requested to submit a “complete criminal record,” which includes the complaint and judgment for each conviction. Idaho had no general law regulating consideration of criminal record in occupational licensing, prior to 2020. SB 1351 adds a new chapter 94 to Title 67 of the Idaho Code, inter alia establishing a committee “to study and review occupational licensing and certification laws in general in order to determine, as applicable, how the legislature may be able to ease occupational licensing barriers while still protecting the public health and safety.” The new law authorizes a non-binding preliminary determination as to whether a person’s conviction would be disqualifying, and establishes a multi-factor test to determine whether a person’s criminal record is “currently relevant to the applicant’s fitness” to engage in the occupation. A license may not be denied on the basis of “vague or generic terminology related to a criminal conviction, including but not limited to ‘moral turpitude’ or ‘moral character.'” “Where such terms appear in code or rule with respect to a criminal conviction, a licensing authority shall conduct a relevancy evaluation pursuant to subsection (1) of this section.” The “relevancy” standard was inserted in a variety of licensing chapters as a basis for denial or revocation of a license, replacing a formulation that permitted adverse action based on “conviction of any felony, or conviction of any other crime involving moral turpitude.” It was also inserted into the rules of the division of human resources and the personnel commission that regulate public employment in the state. Louisiana’s SB 354 provides for issuing a card to individuals leaving prison that includes a list of all vocational licensing and certification programs completed while incarcerated. Michigan enacted a series of bills applicable to occupational licensure to limit agency consideration of certain types of criminal record. HB 4488 and related bills retained the standard of “good moral character” as a basis for restricting licenses to those with a criminal record but limited it for most licenses to exclude non-convictions, misdemeanors that do not carry a prison term, and convictions “unrelated to an individual’s capacity to serve the public.”  The new law requires each licensing agency to specify the crimes that are likely to fall into the last-mentioned category. They must also provide a statement of reasons in the event of denial (“including a complete record of the evidence upon which the determination was based”), an opportunity to appeal, and judicial review. An annual report must be submitted with the number of applications denied because of lack of good moral character and a summary of the convictions on which denials were based. Missouri provided very little protection to a person with a criminal record in the licensing process prior to 2020. The Fresh Start Act (HB 2046) requires that a disqualifying criminal record must be “directly related” to the license, also specifying that certain violent crimes “shall” be considered “directly related” to whatever license is involved even if sentence is not imposed. Drug crimes “may” be disqualifying for certain occupations, while fraud offenses “may” be disqualifying for other occupations. If convicted of a lesser included offense, the period of disqualification as “directly related” lasts only for four years after release from incarceration. “Direct relationship” is determined by a multi-factor test. Applicants may apply for a preliminary determination that is binding on the agency. If a person is denied a license, they have a right to a hearing, as well as written findings addressing each factor on which the agency relied sufficient for a reviewing court. “In any administrative hearing or civil litigation authorized under this subsection, the licensing authority shall carry the burden of proof on the question of whether the applicant’s criminal conviction directly relates to the occupation for which the license is sought.” The new law does not apply to significant classes of licenses, including teachers, various health professionals, accountants, real estate brokers and agents, and peace officers. Pennsylvania enacted SB 637 to bolster its weak occupational licensing law dating from the 1970s. SB637 supersedes any law that disqualifies an individual for a license or provides for “good moral character” findings, requires that there be a “direct relationship” between the crime and the profession and whether licensing the individual poses a public safety risk, as determined by an “individualized assessment” under a long list of specified factors. It excludes those convicted of sexual offenses from health care licensure and establishes a separate set of standards for those convicted of violent crimes. Prohibits consideration of juvenile adjudications, non-conviction records, and records of convictions that have been expunged or sealed). It also authorizes restricted licenses for applicants who cannot immediately demonstrate fitness due to a criminal conviction, and it provides for a “preliminary determination” for applicants considering undergoing training for a license, which is binding unless the crime is one on the list of crimes “directly related,” in which case it may be subject to further inquiry when a formal application is filed. The law falls short in not ruling out consideration of dated or minor convictions, although it does rely on a public safety standard for denial of a license and gives those recently released from prison a chance to demonstrate their abilities. While existing law requires boards to defend record-related denials with written reasons, neither old nor new law provides an opportunity for an administrative appeal, requiring a disappointed applicant to file a lawsuit. Rhode Island enacted its first generally applicable law regulating the occupational licensing process, extending it as well to professional and business licenses issued by state agencies. S 2824 applies a “substantial relationship” standard to licensing boards under most departments of state government, establishes standards for determining substantial relationship, excludes certain records from consideration, allows applicants to establish rehabilitation by detailed standards, provides detailed procedures in the event of denial, suspension or revocation, and includes accountability standards. Records that may not be considered include non-conviction records, juvenile records, expunged records, records of misdemeanors that may not be punished by incarceration, and any crime that is not substantially related. If a licensing authority intends to deny, suspend, or revoke an occupational license solely or in part because of a conviction, the person must be given reasons in writing, and if the conviction is “substantially related” an analysis under each of the criteria. The person must be permitted to respond and given an opportunity to appeal. Every agency must post on its website each year a report with “(1) the number of applicants granted licenses, the number of applicants denied licenses for any reason, and, to the extent available, the demographic breakdown of the applicants, including race, ethnicity, and gender, and city or town of residence; and (2) The number of applicants denied solely, or in part, because of a criminal conviction. The law took effect on January 1, 2021. Utah’s legislature acted to enhance a 2019 law that provided for a preliminary determination of qualification for licensure applicable to many state licensing boards, upgrading its standard for decision-making from “reasonable relationship” to “substantial relationship.” SB 201 takes regulation of licensing a step further, establishing heightened standards for consideration of licensure of applicants with criminal records. Licensing boards must “provide individualized consideration to the applicant or licensee,” and “determine whether the criminal conviction bears a substantial relationship to the applicant’s or licensee’s ability to safely or competently practice the occupation or profession.” In this determination the board will “consider the applicant’s or licensee’s current circumstances” measured by a number of the customary factors such as age when offense committed, time since conviction, and various indicia of rehabilitation. Applicants are provided an opportunity to appeal a denial. § 58-1-402. Certain convictions are per se “not evidence of unprofessional conduct,” including non-convictions, and convictions where seven years have passed since release from incarceration without a conviction or guilty plea. Convictions for violent and sexual crimes, and for fraud or embezzlement are excepted. § 58-1-501(4). Vermont has very weak regulation of occupational licensing agencies, allowing denial or discipline for “unprofessional conduct” based on “[c]onviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession.” 233 did nothing to tighten this standard, providing only that its licensing boards must offer interested persons a pre-application determination regarding whether their criminal background will be disqualifying. This request shall provide documentation related to the individual’s conviction or convictions, evidence of rehabilitation, and identification of the profession or professions for which the individual seeks licensure. An applicant would pay a $25 fee for this so-called “second chance determination,” and this fee would be deducted from the license application fee if the applicant does thereafter seek licensure. The new law applies to the professions and occupations regulated by the Office of Professional Regulation, the Department of Environmental Conservation (for well drillers), the Standards Board for Professional Educators, the Board of Medical Practice, the Electricians’ Licensing Board, and the Plumbers’ Examining Board. Washington enacted HB 2870 to create a “social equity program” to reduce barriers to entry to the cannabis industry for individuals and communities most adversely impacted by the enforcement of cannabis-related laws. West Virginia enacted two laws (HR4352 and HR4353) extending regulation enacted in 2019 to a variety of different licenses, applying a “rational nexus” standard for denial, lifting mandatory bars after five years, and authorizing a preliminary determination. Read more

Searchable on-line inventories of collateral consequences: How they operate and how they are maintained

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.)   NATIONAL INVENTORY OF COLLATERAL CONSEQUENCES (NICCC) by Josh Gaines (CSG) The National Inventory of Collateral Consequences of Conviction (NICCC) is a searchable online database that catalogs collateral consequences imposed by the statutes and regulations of all 50 states, the federal system, Puerto Rico, and the District of Columbia and U.S. Virgin Islands.  The NICCC was originally commissioned by Congress in 2007, and compiled over a four-year period by the American Bar Association’s Criminal Justice Section.  In 2017 the Council of State Governments Justice Center took charge of the project’s maintenance under the National Reentry Resource Center, a project of the Bureau of Justice Assistance.  In 2018, after updating content and reformatting the original structure to facilitate access and use, the Justice Center re-launched the NICCC. Based on lessons learned from the project’s earliest years, the 2018 overhaul rebuilt the NICCC website by significantly revising the database’s structure and functionality. The new format improves the NICCC in two major ways:  1) It expands access to a broader audience of criminal justice stakeholders, particularly reentry service providers and justice-involved individuals, and 2) it helps promote the future viability and sustainability of the NICCC. The first improvement was a response to the growing demand for collateral consequences information from stakeholders with less formal legal knowledge than the policy-makers and legal practitioners that the NICCC was originally designed to serve.  The solution was to identify each consequence in the database through a set of searchable plain-language keywords that point to the various rights, benefits, opportunities, and fields of employment the consequence impacts.  More intuitive search features were also added to make it easier for users to find relevant consequences regardless of their level of technical expertise.  Additionally, the way that consequences are described in the database was significantly revised to support the new search features and make the information easier to understand. The second improvement was a response to the realities of maintaining a database as enormous and complex as the NICCC, which catalogs over 40,000 provisions of law that are always changing from year to year.  The challenge was to organize the data in a way that would create an efficient review and updating process, without significantly compromising the utility of the database or its content.  The addition of keywords and other ease-of-use features went a long way toward making this possible. But the biggest obstacle to efficient maintenance was determining how to maintain the statutory and regulatory text accompanying each entry that would need to be updated as the laws change. That challenge was resolved by eliminating statutory text and instead providing direct links to state or trusted sources of law.  In addition to solving a major maintenance hurdle, this approach has the added benefit of presenting users with the most current version of the law rather than a potentially out-of-date statutory excerpt. Over a year’s worth of work went into implementing these changes and initial reactions have been overwhelmingly positive. The NICCC is receiving increased attention from both policymakers and the reentry community, and improvements to accessibility have positioned the Justice Center to provide effective outreach and training about the NICCC and collateral consequences to a far broader audience.  The improvements will also allow the NICCC, going forward, to remain as current as states’ legislative schedules permit. Work on the NICCC, and the engagement surrounding it, has demonstrated the continued need for reliable, current, and accessible information about collateral consequences.  The number of collateral consequences, and of people subject to them, continues to grow even as states take steps to mitigate the negative effects of a criminal record.  Inventories like the NICCC shine a spotlight on these barriers, increasing their profile in policy discussions, and providing various users with critical information that was largely unavailable before.  The continued maintenance and refinement of the NICCC aims to build on these achievements with aid and input from stakeholders across the criminal justice community.   NORTH CAROLINA’s C-CAT by John Rubin (UNC-SOG) In 2012, the Indigent Defense Education Program at the School of Government, The University of North Carolina-Chapel Hill, launched the Collateral Consequences Assessment Tool, which we call C-CAT for short. C-CAT is a searchable database, accessible online at no charge, of formal collateral consequences imposed or authorized by North Carolina law. Each entry includes a description of a specific consequence, such as revocation or suspension of a job license, along with the characteristics of the crimes that trigger the consequence, whether the consequence is mandatory or discretionary, and the duration of the consequence, among other information. Initially, we thought the tool would be of greatest use prospectively, helping criminal defense attorneys, judges, prosecutors, and others in the criminal justice system understand the potential repercussions of criminal convictions of different offenses. We learned that many others use the tool, including professionals assisting with reentry of people who already have a criminal conviction. The tool also has helped policy makers understand the magnitude of the barriers that collateral consequences pose. An important takeaway for a resource like C-CAT is that it requires ongoing work and funding. We developed C-CAT with financial support from the Z. Smith Reynolds Foundation for legal research and technical assistance. Individual donations have so far enabled us to maintain the database and employ a research attorney to keep the law up to date. Based on feedback from reentry professionals and other users who are not lawyers, we also believe it would be worthwhile to develop a more user-friendly “C-CAT 2.0.” The strength of C-CAT is that it accurately and thoroughly untangles the extensive, complicated, and sometimes bewildering tangle of laws that impose collateral consequences.  To develop, maintain, and improve a tool such as C-CAT, ongoing funding is essential. Fortunately, the Indigent Defense Education Program at the School of Government is currently able to handle the load. Given the importance of understanding the impact of collateral consequences for justice-involved individuals, we continue to believe the end-product is worth the effort.   OHIO’s CIVICC by Pamela Thurston (OJPC) The Ohio CIVICC database is an ongoing project of the Ohio Justice and Policy Center (OJPC, which provides database content) in partnership with the Ohio Public Defender’s office (OPD, supplying the technical infrastructure).  The work began in March 2010, and the experimental CIVICC website first went online about a year later.  Currently CIVICC contains 1092 “civil impacts” of conviction, of which 684 have been newly enacted and/or amended since March 2011. CIVICC is an online public resource, anonymous and free of charge.  Its “relational database” structure enables users to see which collateral consequences are linked to which specific offenses under Ohio law.  This approach has been both necessary and possible in Ohio, in part because consequences that affect wide swaths of business activity and employment are triggered by specific offenses listed in the relevant statutes (in some cases more than 100 offenses per consequence).  CIVICC’s two-way search capability adds complexity to the database design and the labor of building it, but the feature is also much in demand.  Currently, more than half of all searches on CIVICC begin with an Offense search.  For each offense that can be either a felony or a misdemeanor depending on the facts, CIVICC displays two lists of related consequences:  one set likely to apply after a misdemeanor conviction for the offense, and the much longer list of impacts that may follow a felony conviction for the same offense. For each civil impact in the database, CIVICC supplies a context and summary name, a note about its duration, whether it is mandatory or discretionary, and a link to the official text of the operative statute or rule.  A detail page for each impact also provides a searchable narrative description, a list of triggering offenses or offense types, and the type of case outcome that will cause it to apply.  Users need to know that many collateral consequences in Ohio can be triggered by events well short of a conviction: some by a conviction that has been officially “sealed” or “expunged,” some by successful completion of a diversion program, and some by mere arrest or indictment. CIVICC was originally intended to be (1) a criminal defense tool, (2) a reentry resource, and (3) an instrument for analyzing and shaping public policy.  Experience has shown that it is in fact used for all these purposes.  System reports show that online queries come from community organizations, employers, courts, government agencies, public library users, public defenders, treatment providers, law firms and academic institutions, both within and outside Ohio.  OJPC’s own use of CIVICC has included helping individuals with criminal record to obtain record sealing, expungement and/or certificates of relief from Ohio courts; helping community colleges align their course offerings and career guidance with the needs of individual students; helping employers and workforce agencies avoid the twin hazards of over- and under-inclusion; and supporting constructive policy change through public reporting,[1] amicus briefs and legislative testimony. Capacity limits, both financial and human, present the greatest challenges to CIVICC’s ideal completion and vitality.  OPD consistently devotes tremendous electronic resources to hosting CIVICC and keeping it sound; but ever-tighter budget restrictions limit its capacity to make technical improvements in logic and interface.  For OJPC, project grants funded CIVICC’s initial design and construction but could not sustain it as a public utility.  Current funding for database content comes from a publicly-bid contract with the Ohio Department of Rehabilitation and Corrections – a sensible approach because that agency leads the statewide Ex-offender Reentry Coalition, whose public members are among CIVICC’s most constant users.  The state contract funds about 1100 hours of work on CIVICC per year.  In a state with a less active legislature and a less complex agency infrastructure, 1100 hours of qualified attorney time might well keep CIVICC accurate and up to date.  Ohio, however, proliferates new and amended laws and rules at a dizzying pace.  CIVICC presently contains 1149 criminal offenses and 1092 civil impacts, embodied today in 43,677 database records.  With this many records and the rapid pace of legislative and regulatory change, 1100 attorney-hours are not enough to complete the database expansion still needed and also ensure the timely updating of its existing content. This tension could evaporate if the Ohio legislature and regulatory agencies were to heed the voices calling for a reduction in collateral consequences in lieu of their continual expansion.  I don’t anticipate that happening soon, but several legislative changes in recent years have diminished CIVICC’s website traffic by reducing the number of people who need to use it – a positive sign.  Further changes in law might address concerns about the proliferation of “informal” collateral consequences.  New laws providing for automatic expungement of many convictions after a specified number of years – a change consistent with research findings – would greatly restrict the opportunities for excluding workers based on a criminal record, whether formally or informally.  Until such changes occur, however, I believe CIVICC will be a needed resource in Ohio.   [1]  A recent example is the report Wasted Assets: the cost of excluding Ohioans with a record from work,” by Michael Shields of Policy Matters Ohio and Pamela Thurston of Ohio Justice and Policy Center, http://bit.ly/WastedAssets. 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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). New Mexico’s Criminal Records Expungement Act (CREA) for the first time authorizes courts in that state, upon application, to limit public access to adult records, including both felonies and misdemeanors, as well as non-conviction records.  HB 370, signed by the governor on April 3 and effective January 1, 2020, provides graduated eligibility waiting periods depending upon the seriousness of the offense, and applies to all but a handful of crimes.  Other highlights from the new record-closing laws include expanded sealing eligibility for adults in Kentucky and West Virginia, and for juveniles in Nebraska and Wyoming. Occupational licensing reforms were enacted in Ohio and Utah that regulate how licensing boards may consider criminal records, continuing a recent push for reform in this area.  Both states will now allow individuals to request at any time a preliminary determination whether their record would disqualify them from holding a license.  Ohio will also require licensing boards to publish on the internet a list of all criminal offenses for which a conviction would disqualify a person.  In addition, New Mexico extended its “ban-the-box” law to private employment, requiring employers to delay consideration of an applicant’s criminal history in the hiring process. Finally, South Dakota streamlined its clemency process by allowing two members of the pardon and parole board to make clemency recommendations to the governor (rather than a majority of the nine-member board). The 13 new laws enacted to date in 2019 are described in further detail below, and have been added to the state profiles in the Restoration of Rights Project.  We will be tracking restoration bills throughout the year, and will report periodically in this space – particularly when a significant new law is enacted. RECORD-CLEARING RELIEF  Utah – Clean slate; effect of expungement On March 28, 2019, Utah Governor Gary Herbert signed HB 431, a highly significant “clean slate” law that will automate expungement or deletion of a variety of criminal records when it takes effect on May 1, 2020.  Acquittals and dismissals with prejudice are eligible.  Certain infractions, misdemeanor convictions, and pleas in abeyance are eligible under a complex set of criteria.  Automated relief will apply both to cases adjudicated on or after May 1, 2020, and to cases adjudicated before that date, with separate procedures for each category.  77-40-116(1)(a) and (1)(b).  A more detailed explanation of this new law can be found in the Restoration of Rights Project, Utah profile. On March 25, 2019, Governor Herbert signed HB 90 (effective May 14, 2019) that makes clear that an applicant with an expunged criminal record seeking employment from a private employer “may answer a question related to an expunged criminal record as though the action underlying the expunged criminal record never occurred.”  § 34-52-301.  The new law also clarifies that a public employer may not make an inquiry related to expunged criminal history—and an applicant may answer such a question “as though the action underlying the expunged criminal record never occurred,” except for preexisting exemptions for certain types of public employers, volunteer work, or when consideration of criminal history is required by law.  § 34-52-201.  More information can be found in the Restoration of Rights Project, Utah profile. New Mexico – First general authority to expunge adult records In 2019, New Mexico enacted a comprehensive law authorizing expungement (sealing) of most non-conviction records, and of conviction records for all but a limited number of crimes, including those involving serious violence and sexual assault.  See HB 370, signed into law not yet codified.  Effective January 1, 2020, the Criminal Record Expungement Act (CREA) authorizes courts to limit public access to most non-conviction records after a one-year waiting period, as long as no charges are pending against the individual.  Courts are also authorized to limit public access to the record of most convictions after waiting periods ranging from two to ten years, depending upon the seriousness of the offense, with no intervening convictions.  The court must find that “justice will be served by an order to expunge,” applying a multi-factor test.  Under current law, New Mexico law contains no judicial authority to seal adult records, and an administrative authority to seal non-conviction records applies only to some misdemeanors.  Upon taking effect, CREA will give New Mexico one of the broadest record-closing authorities in the Nation.  More information about this important new law can be found in the Restoration of Rights Project, New Mexico profile. West Virginia – Expanded eligibility for expungement to some felonies On March 25, 2019, West Virginia Governor Jim Justice signed into law SB 152, which will significantly expand the availability of expungement when it becomes effective on June 7, 2019.  The law extends eligibility for expungement beyond the limited class of youthful misdemeanants that benefit under existing law, and also makes certain felonies eligible for expungement relief for the first time.  (It repeals a 2017 law that authorized reduction of these felonies to misdemeanors, but withheld expungement.)  Violent and sexual crimes are ineligible.  Under the new law, persons convicted of eligible misdemeanors may petition for expungement one year after conviction, or completion of incarceration or supervision if later.  The waiting period is extended to two years for persons convicted of more than one eligible misdemeanor, and to five years for eligible felonies.  Persons who have completed substance abuse treatment or graduated from a state-approved job training program may seek relief after an abbreviated waiting period (90 days for a single misdemeanor; one year for multiple misdemeanors; three years for felonies).  Employers required by state or federal law to conduct a background check may access expunged convictions.  More information can be found in the Restoration of Rights Project, West Virginia profile. Kentucky – Expanded expungement eligibility and procedural reforms   On March 26, 2019, Kentucky Governor Matt Bevin signed SB 57 (effective June 26, 2019), which makes several changes to Kentucky’s expungement law, expanding non-conviction and felony eligibility.  First, the new law will make charges dismissed without prejudice eligible for expungement after a 5-year waiting period (under current law, such charges cannot be expunged).  § 431.076.  Second, certificates of eligibility will no longer need to be sought prior to a petition to expunge a non-conviction record (but are still required for a conviction record). Third, the new law expands eligibility to vacate, dismiss, and expunge class D felony convictions.  A 2016 law had made a specific list of class D felony offenses eligible (or multiple eligible felonies stemming from a single incident).  Prior to that, Class D felonies were only eligible if adjudication was deferred.  Under SB 57, any Class D felony or a “series” of such felonies will be eligible, except for violations of Ky. Rev. Stat. Ann. §§ 189A.010 (DUI), 508.032 (domestic assault), or 519.055 (impersonating a peace officer), abuse of public office, a sex offense, an offense committed against a child, or an offense that resulted in serious bodily injury or death.  § 431.073.  If a prosecutor objects to expunging a Class D felony from this expanded set of offenses, the applicant must show by clear and convincing evidence at a hearing that vacating the judgment and expunging the record is consistent with public welfare and safety, supported by the applicant’s behavior since conviction, and warranted by the interests of justice.  Id.  More details about this law can be found in the Restoration of Rights Project, Kentucky profile. Nebraska – Automatic sealing of juvenile records expanded On March 27, 2019, Nebraska Governor Pete Ricketts signed LB 354 (effective three months after the legislature adjourns in 2019), which makes a host of changes to facilitate the sealing of juvenile records.  Most notably, this new law expands automatic juvenile sealing (which already covers non-conviction dispositions) to include satisfactory completion of juvenile probation, supervision, or other treatment or rehabilitation program or a county court probation or sentence.  Neb. Rev. Stat. § 43-2,108.03.  More details about this law can be found in the Restoration of Rights Project, Nebraska profile. Wyoming – Juvenile expungement procedures strengthened On February 15, 2019, Wyoming Governor Mark Gordon signed HB 44, which makes several changes to strengthen Wyoming’s juvenile expungement laws, effective effective July 1, 2019. These changes include the following.  No filing fee may be charged for a petition to expunge juvenile records.  A state or municipality may petition to expunge juvenile records.  Prosecutors have 20 days to object to a petition for juvenile expungement, after which the court may summarily grant the request.  A minor admitted to a diversion program or granted a deferral, or whose arrest, charges, or disposition do not result in conviction or adjudication, may petition to expunge municipal and circuit court records in the same manner as juvenile records.  Expungement of juvenile records (and certain municipal and circuit court records involving minors) is defined to mean destruction of records.  More details can be found in the Restoration of Rights Project, Wyoming profile. Virginia – Automatic expungement for absolute pardons On February 27, 2019, Governor Ralph Northam signed HB 2278, which takes effect on July 1, 2019.  This new law will entitle a person who receives an “absolute” pardon to automatic judicial expungement—no petition need be filed with the court.  Va. Code Ann. § 19.2-392.2(I).  (Absolute pardons are generally granted only for innocence.)  More details can be found in the Restoration of Rights Project, Virginia profile. OCCUPATIONAL LICENSING Ohio – Preliminary determination of whether record disqualifies from occupational licensure; publication of disqualifying convictions On December 27, 2018, the Ohio Legislature enrolled SB 225, which became law 10 days later without action by the governor.  Effective April 5, 2019, anyone who has a conviction may request at any time that a licensing authority determine whether the conviction disqualifies the person from obtaining an occupational or professional license.  Ohio Rev. Code Ann. § 9.78(B).  A fee of no more than $25 may be charged.  Id.  Within thirty days of receiving a request, the licensing authority must inform the person of its decision (the decision is not binding if the licensing authority determines that the person’s convictions differ from what was included in the request).  Id.  In addition, licensing authorities must make available on the internet a list of all criminal offenses for which a conviction would disqualify a person from obtaining a license.  § 9.78(C).  More details can be found in the Restoration of Rights Project, Ohio profile. Utah – Preliminary determination of whether record disqualifies from occupational licensure On March 25, 2019, Utah Governor Gary Herbert signed a law that will allow a person with a criminal record to apply at any time for a determination of whether their record would disqualify them from obtaining a license in an occupation or profession regulated by Title 58 of the Utah code, when it takes effect on May 14, 2019.  See HB 90; Utah Code Ann. § 58-1-310.  A fee may be charged.  Within 30 days of receipt of a completed application,  the Division of Occupational and Professional Licensing must make a written determination, and the decision may include additional steps the individual could take to qualify for a license.  Id.  This new law also amends the definition of “unprofessional conduct” in § 58-1-501(2), based on which a license may be denied or restricted.  Existing law defines “unprofessional conduct” to include, among other things, a plea or conviction for a crime of moral turpitude or a crime that bears a “reasonable relationship” to safe or competent performance of the occupation.  § 58-1-501(2).  The new law replaces “reasonable relationship” with “substantial relationship.”   See id; HB 90.  More details can be found in the Restoration of Rights Project, Utah profile. EMPLOYMENT New Mexico – Ban-the-box in the private employment On April 3, 2019, New Mexico Governor Michelle Lujan Grisham signed SB 96, which will extend “ban-the-box” to include private employers when it goes into effect.  Under the new law, if a private employer uses an employment application, the employer may not make an inquiry regarding an applicant’s criminal history.  (Enacted as new section of N.M. Stat. Ann. § 28-2-1, et seq.)  Nonetheless, an employer “may take into consideration an applicant’s conviction after review of the applicant’s application and upon discussion of employment with the applicant.”  And an employer may notify the public or an applicant that the law or the employer’s policy could disqualify an applicant with a certain criminal history from particular positions.  Id.  More details can be found in the Restoration of Rights Project, New Mexico profile.  (Note that the ban-the-box law applicable to public employers in New Mexico is considerably more protective of individuals with a record, prohibiting inquiries until the applicant has been selected as a finalist, and disallowing consideration of non-conviction records and misdemeanors not involving “moral turpitude.”)  CLEMENCY South Dakota – Streamlined clemency process On February 5, 2019, South Dakota Governor Kristi Noem signed HB 1005, which authorizes a hearing panel of two Board members appointed by the chair to make clemency recommendations to the governor.  See HB 1005 (repealing the requirement in S.D. Codified Laws § 24-13-4.6 that commutation and pardon recommendations be made by a majority of the nine-member board, and making conforming amendments to §§ 24-15A-10 and 24-15A-11).  A new provision of § 24-15A provides for review of a panel’s decision to deny a pardon recommendation by the full Board, which may “adopt, modify, or reject the panel’s denial and recommend a pardon.”   More details can be found in the Restoration of Rights Project, South Dakota profile. MISCELLANEOUS  Virginia – Reinstatement of drivers’ licenses  An amendment to Virginia’s 2019 budget bill specifically requested by Governor Ralph Northam to “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” was accepted by the legislature on April 3, 2019.  See HB 1700.  When this law becomes effective on July 1, it will immediately reinstate driving privileges to more than 627,000 Virginians.    Read more