Tag: Pennsylvania

First fair chance licensing reforms of 2024

Expanding employment opportunities in licensed occupations has been a priority for criminal record reformers in the past half dozen years. Happily, fair chance licensing reforms also appear less politically controversial than some others, with Midwestern states like Iowa and Indiana among the most progressive in the Nation in their treatment of justice-impacted license applicants and licensees. In the first three months of 2024, two more Midwestern states (South Dakota and Nebraska) enacted comprehensive changes to their licensing laws, while a third state (Pennsylvania) was poised to close a major loophole in its licensing scheme. These reforms continue a nationwide trend that since 2017 has seen 43 states and the District of Columbia enact 79 separate laws* to limit state power to deny opportunity to qualified individuals based on their criminal history. Significant legislation is under serious consideration in half a dozen additional states, so we expect this year to produce another bumper crop of fair chance licensing laws. The new laws are described briefly below, and additional details can be found in the relevant state profile from the Restoration of Rights Project. South Dakota In February, South Dakota became the most recent state to enact a uniform approach to licensing justice-impacted individuals. SB 57. As we noted in 2022 in The Many Roads from Reentry to Reintegration report, South Dakota was one of only 3 states that had “no general law or regulations setting limits on how licensing boards may consider an applicant’s criminal record.”  But now, under SB 57, licensing boards may only disqualify applicants with a criminal history if they have been convicted of a crime that “directly relates” to the license at hand, in which case the agency must consider whether “the applicant or licensee has been rehabilitated to the extent that the person no longer poses the kind of risk to the profession or occupation associated with that type of conviction.” Boards are further prohibited from considering non-conviction records, or convictions that have been pardoned, sealed, or expunged. The new law also requires boards to provide applicants with an opportunity for a hearing before denial, and a right to appeal the board’s decision. Critically, SB 57 also establishes a preliminary determination process that allows potential applicants to petition a board to see if their record would be disqualifying before they invest in any costly training or coursework. Nebraska A few weeks after South Dakota adopted its first-time reforms, Nebraska produced an expansive overhaul of its licensing restrictions that resulted in some of the nation’s strongest protections for justice-impacted people seeking licensure. Nebraska’s LB 16 strengthens the protections offered by the new South Dakota law by authorizing denial only if a conviction “directly and specifically” relates to the occupation; if obtaining a license “would pose a direct and substantial risk to public safety because the individual has not been rehabilitated;” and, starting next year, only if a license applicant or licensee has been convicted of an offense on a list of 27 serious violent or fraud offenses. The new Nebraska law forbids consideration of non-conviction records or records that have been expunged, set aside, sealed, or pardoned.  If more were required, the new law prohibits consideration of convictions older than 3 years if no prison sentence was imposed, and three years after release from prison if it was — unless the conviction is one of the 27 potentially disqualifying convictions defined in the statute. Nebraska’s scheme builds on its 2018 Occupational Board Reform Act, which established the policy of the state to protect the “fundamental right of an individual with a criminal history to obtain an occupational license, government certification, or state recognition of the individual’s personal qualifications.” That law included a  process for a preliminary determination to ascertain future eligibility  The 2024 law excludes a number of licensing agencies from the reach of Nebraska’s licensing reforms, including those previously enacted in 2018, an unfortunate limitation in an otherwise impressive reform. The 2018 law and its current extension are described in detail in the Nebraska profile from the Restoration of Rights Project. Pennsylvania A third significant licensing reform was put in place in Pennsylvania, where its State Bureau of Professional and Occupational Affairs released regulations to limit the ability of licensing boards to reject qualified applicants based on their criminal history. In 2020, the state required each board to develop a list of crimes considered “directly related”  to the license sought. Conviction of one of these crimes would create a “rebuttable presumption” that licensure of that individual would pose a substantial risk to public safety, without regard to how long ago the conviction occurred. Perhaps predictably, and without general guidance from the State, individual boards stretched the limits of their authority, proposing long lists of crimes to be directly related to the licenses they issue. The potential damage done to thousands of individuals – particularly those with older criminal records — was described in an extended piece posted last fall by Community Legal Services of Philadelphia.  Responding to the concerns exoressed by advocates, the State Bureau eliminated hundreds of these proposed offenses on grounds that they bore only an attenuated relationship to the particular license. More significantly, convictions more than 5 years old are no longer to be considered “directly related.” “These regulations will allow people who do not present risk to move on to better jobs and provide better lives for their families. They will also help businesses fill job openings with fully qualified workers,” said Sharon Dietrich, Litigation Director for Community Legal Services, which spearheaded the coalition that backed the new regulations. “We thank the Shapiro Administration and the boards and occupations for issuing these win-win regulations.” Final approval of these regulations by the Pennsylvania Independent Regulatory Review Commission is expected at its public meeting on April 18. For further details, see our post from July 2020 as well as the Pennsylvania profile in the RRP. Previews: There are additional important fair licensing reforms being seriously considered in several states, including Alabama, Colorado, Georgia, Kentucky, Massachusetts, and New York.  We hope our readers will alert us to others. ________________________________________________________________________ *Our count is based on the listing in footnote 237 of The Many Roads from Reentry to Reintegration, supplemented by our annual reports on new laws enacted since that report was published in March 2022.   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

How Utah Got Automatic Expungement

Editor’s note: We are pleased to publish this fascinating account of how one state transformed its record relief system in little more than a year from a standing start, written by a person who had a central role in the transformation.      In March of 2019, Utah Governor Gary Herbert signed HB 431, Utah’s Clean Slate law.  At the time, this made Utah the third state in the nation to pass a law automating the criminal record expungement process.  That law went into effect on May 1, 2020, but due to COVID-19, implementation efforts were delayed.  Several months later, implementation is back on track, and it is now anticipated that Utah’s state agencies will begin clearing court and repository records of non-convictions and qualifying misdemeanor convictions by the end of March. Preliminary estimates suggest that hundreds of thousands of people across the state will have their records expunged automatically. What follows is a story about how Utah, one of the reddest states in the nation, came to adopt such a generous and efficient record relief system. As someone who was involved in that process from the beginning, I hope it will be helpful to others seeking to push their own states in that direction. The Case for Clean Slate Perhaps the most tragic thing about the number of people struggling with the collateral consequences of a criminal record is that, in many states, so many are eligible to clear their records but so few ever make it through the process.  The petition-based systems that exist in most states are costly, confusing, and cumbersome.  Utah is no exception. While Utah’s eligibility criteria for expungement are quite generous (allowing for multiple felony and misdemeanor records to be expunged), the expungement process is expensive and time-consuming.  In most cases, individuals must hire an attorney to understand the complex eligibility criteria and procedural requirements. Then they must apply for and obtain from the Utah Bureau of Criminal Identification (BCI), a “certificate of eligibility,” which expires after 90 days and involves additional cost. Then they must travel to several municipal courthouses across the state to file their paperwork in person, and potentially go back to court later for a full hearing before a judge if either the prosecutor or the victim objects. From start to finish, the process can take more than a year to complete.  As a result, only around 2,000 expungement petitions are filed statewide each year, which represents a small percentage of those who are eligible. The Path to Clean Slate Utah’s Clean Slate story starts with jobs.  In 2018, Utah’s unemployment rate was under 3%, one of the lowest rates in the nation.  I remember sitting in the back of courtroom, listening to a judge ask a defendant whether he worked.  The individual said no, and the judge said, “Well why not?  In this economy, if you can breathe, you can find a job.”  But that wasn’t quite true.  While jobs were plentiful, one thing was still keeping people out of the work force: criminal records. In December 2017, I was working as the Criminal Justice Advisory Council Director for Salt Lake County.  I received a phone call from the Department of Workforce Services, with a request to put on a criminal record expungement workshop for job seekers.  The Department explained that while Utah’s economy was one of the best in the nation, criminal records continued to be a huge barrier to employment. In my former life, I was a public defender, and had some experience with criminal record expungement work, since Utah has offered expungement on a fairly broad basis for several decades. I told the Department that I did not think that a workshop telling people how to navigate Utah’s complicated petition-based expungement process was going to be very effective, nor did I think that the target audience was likely to have the resources necessary to navigate it. But I was excited about the interest and wanted to do something.  Instead, I asked whether the Department would be interested in trying to do something different: putting on an “Expungement Day” event.  Unlike other expungement clinics, the goal of “Expungement Day,” would be to bring the lawyers, courts, criminal repository, and community partners into one room, and work together to try to streamline the criminal record expungement process into a single day, allowing anyone who showed up to leave with a clean record. This turned out to be an ambitious goal.  Representatives from the administrative agencies, defense attorneys, prosecutors, judges, and people with records, gathered around one table.  While they worked in different parts of the same system, many of these people had not met before.  We talked about what barriers we would need to overcome to clear a person’s record in one day.  We’d need money.  Lots of attorneys.  Pre-screening.  Prosecutors.  Judges.  BCI on site.  Fingerprint pads.  Printers. We decided to do it.  With the help of the Utah Bar Foundation and a lot of private law firms, we raised almost $20,000, so we could provide eligible individuals with expungements that were totally free of charge.  We recruited volunteer attorneys and rented a big warehouse. Our goal was to get 50 clients to sign up.  I worked with the Mayor’s Communications Director to publish this story in our local paper.  “Call [this number] to sign up,” it said.  It was my office number.  A few hours later, my phone started ringing.  It didn’t stop for close to a month, and I couldn’t keep my voicemail empty.  In total, we received close to 500 phone calls from people across the state wanting help clearing their criminal records. I knew there weren’t enough legal aid resources in our state, but the need was eye-opening to me.  We registered dozens of people for the event and somewhat reluctantly, told people we would also try to accommodate walk-ins—anyone who wanted to come wait in line in case of a no-show or in case the volunteer attorneys finished early with a registered participant and had extra capacity. Expungement Day was on April 5, 2018.  It will probably continue to be one of the most impactful days of my professional career.  Hundreds of people lined up to receive services.  It takes about 6 hours to drive the length of our state, and some people had driven all night to attend.   Some people were able to leave with clear records that day, but a lot of people weren’t.  We had to turn hundreds of people away. There was so much momentum coming out of the event, that we wanted to do more.  By working together to examine the petition-based process from start to finish, we realized just how broken our system was.  I did a google search to try to figure out what else people were doing across the country.  That is how I learned about Sharon Dietrich, and Pennsylvania’s Clean Slate effort to automate the process.  Their bill hadn’t passed yet, but it looked likely.  I thought we should do it in Utah.  I asked Representative Eric Hutchings, who served on our County’s Criminal Justice Advisory Council, whether he would run the bill.  He said we would.  We took the issue to the rest of the Council, and there was overwhelming support. After a lot of meetings with the key agencies and several months of work, we built a coalition of advocacy groups on the right, center, and left.  With the help of the Crime and Justice Institute, and the newly formed National Clean Slate Initiative, we engaged our statewide Chamber of Commerce, which became a key supporter and champion for the bill as a way to increase our talent pool.  We worked with prosecutors and law enforcement officers all across the state, many of whom testified in support of the bill.  People with records showed up to share their stories. And Clean Slate passed.  Unanimously. Utah’s Clean Slate Law In a nutshell, Utah’s Clean Slate law automates the criminal record expungement process, meaning that an individual with a qualifying record will no longer have to petition the court for relief.  Instead, two government agencies—the Utah Administrative Office of the Courts and the Utah Department of Public Safety, will work together to identify eligible records, and expunge them automatically.  What this means in practical terms is that the record will no longer be available to the public, or to most state employers, and the person may respond to inquiries about their criminal history as if the conviction had never occurred. Utah’s Clean Slate law applies to non-conviction records, most class B and class C misdemeanor offenses, and class A drug possession offenses.  Individuals with these offenses will be eligible to have their records automatically expunged after a waiting period of 5-7 years, depending on the severity level of the offense.  In other words, individuals who qualify for Clean Slate relief will not have to pay or do anything.  The government will identify their criminal records and expunge them.  People with ineligible convictions, including any felonies, will still have to go through the petition process. Implementation Efforts and Challenges Our law isn’t perfect and is the product of lots of compromise.  One of the most heart-breaking compromises we had to make is that individuals with outstanding legal financial obligations in connection with the eligible case are not eligible for relief.  The numbers are not in yet, but I think this will disqualify thousands of people.  Pennsylvania just eliminated this requirement, and I’m hoping we will eliminate ours in the future. People ask me all the time how implementation is going.  It hasn’t always been easy.  For starters, we weren’t expecting a global pandemic to hit us in the middle of our implementation period.  As in other places, COVID-19 slammed the court system, slashed budgets, and overwhelmed a technology team that was faced with the challenge of turning a largely in-person process into a virtual one.  In the midst of this crisis, it’s sometimes been hard to keep Clean Slate a priority. We’ve also encountered challenges with court records.  In Utah, as in many other places, court records are case-based, not person based, so you have to match the cases to a person before you can determine whether someone is eligible for relief.  And we’re struggling with data integrity issues (old records, missing birth dates or dispositions, social security numbers or names that don’t quite match, or are off) that sometimes make it challenging to determine whether a case is eligible for automatic clearance. So, we have work still left to do.  But it’s possible. Code for America is helping the courts identify eligible records, and we are launching a website and public education campaign to raise awareness about the law and help people determine whether they have qualified. Having been through this journey from the beginning, I am a Clean Slate believer.  Utah is one of the reddest states in the nation, and support for this law was unanimous.  Our country is so divided, but this was an issue that everyone could get behind, because belief in second chances exists across ideologies and political party lines. Clean Slate is the product of a broken petition-based process that denies opportunity to millions nationwide.  It’s broken everywhere and record clearance processes won’t truly be meaningful and accessible to people until they are fixed.  So, if you’re thinking about making changes to your expungement law, you should think about Clean Slate. Resources: Click here for a detailed report on Utah’s Expungement Day and how it led to our Clean Slate legislative campaign. Click here to see a short video about Utah’s Clean Slate law. Click here for more information about the National Clean Slate Initiative. About the Author Noella Sudbury is a lawyer, former public defender, and policy advisor.  She is the owner and founder of Sudbury Consulting, LLC.  She works in Utah and nationally on policy issues, and offers technical assistance, research, and campaign support on criminal justice reform and access to justice issues. Read more

Report card on licensing laws finds progress, but still a way to go

The Institute for Justice, a leader in advocacy for reforming occupational licensing laws, has just issued a major new report grading the states on the opportunities they give to people with a criminal record.  The press release and links are below.  We are not at all surprised that Indiana got the best grade—or that so many states “tied for dead last.” Coincidentally, the legislatures in Iowa, Missouri, and Pennsylvania have in recent days sent broad new occupational licensing reform measures to their governors’ desks, so at least three states seem poised to climb out of IJ’s basement.     Stay tuned for an update of our own survey of employment and licensing laws nationwide, which will be part of the revised Forgiving and Forgetting report that we expect to issue in a few weeks.  In the meantime, many congratulations to IJ for its pioneering law reform work on behalf of people with a record. IJ press release: Barred from Working: People with Criminal Records Are Unfairly Denied Licenses to Work New Nationwide Report Offers the Most Comprehensive Look at the Occupational Licensing Barriers Facing Ex-Offenders Arlington, Va.—Even as states debate opening the economy back up, millions of Americans with criminal records are still locked out of the job market. Today, nearly one in five workers needs a license to work, while one in three Americans has a criminal record of some kind. Providing the most in-depth and up-to-date look at this intersection between occupational licensing and the criminal-justice system, a new report from the Institute for Justice (IJ), Barred from Working, analyzes and grades the legal protections offered to ex-offenders who apply for licenses to work. Many state laws fail to make the grade: just nine states received a B- or better. Indiana ranked as the best state in the nation, earning the report’s only A grade. Meanwhile, six states—Alabama, Alaska, Nevada, Rhode Island, South Dakota, and Vermont—all tied for dead last due to their utter lack of protections for former felons seeking licenses. “An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Legislative Analyst Nick Sibilla, who authored the report. “Undoubtedly, some license restrictions make sense: No one wants child molesters working in daycare centers or school bus drivers with DUIs. But as this report shows, many licensing barriers have little basis in common sense or public safety and unfairly deny a fresh start to countless Americans.” Grading all 50 states and the District of Columbia across 10 different criteria, Barred from Working identifies numerous methods that states use to block licenses to otherwise qualified individuals: Nine states let boards disqualify applicants on the basis of any felony, even if it’s completely unrelated to the job at hand. In 21 states, boards are free to deny licenses without ever considering whether an applicant has been rehabilitated. In more than 30 states, applicants with criminal convictions can be denied licenses based on their perceived “good moral character” or “moral turpitude,” vague terms that let boards act capriciously. For instance, IJ is currently challenging a Pennsylvania law that requires “good moral character” for licensed cosmetologists, but not for licensed barbers. Boards in 34 states can disqualify applicants for past arrests that didn’t result in a conviction, a practice that subverts the presumption of innocence. Ex-offenders also face a staggering lack of due process during the application process. In 12 states, applicants have no guaranteed right to appeal a board’s decision, nor are boards required to issue their decisions in writing. And just two states—Indiana and Mississippi—expressly require licensing boards to bear the burden of proof when considering if an applicant’s criminal record is “directly related” to the license at hand. Barred from Working is the latest salvo in IJ’s fight for second chances. On Friday, IJ filed a lawsuit on behalf of Dario Gurrola, who first fought fires at a juvenile-detention fire camp in California, but can’t work as a full-time firefighter because of his criminal record.  Last month, IJ submitted comments to the Small Business Administration, urging that it drop criteria that unfairly excluded many entrepreneurs with criminal records from Covid-19 loan relief; some of those rules have since been loosened. IJ has also developed model legislation to eliminate licensing barriers for people with a record and helped secure recent reforms in Arizona, Nebraska, New Hampshire, North Carolina, Idaho, and Utah. Nationwide, 30 states have enacted reforms since 2015, with further reforms pending in six states. Read more

PA high court will again review sex offender registration

Two years ago, the Pennsylvania Supreme Court shook up long-settled orthodoxy by ruling that the state’s sex offender registration law, otherwise known as SORNA (Sexual Offender Registration and Notification Act) was punishment. The case, Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2018), presented the Court with two questions: whether people who committed their crimes before the adoption of the law could continue to be registered without running afoul of the state Constitution’s Ex Post Facto Clause, a fairness doctrine that prevents governments from retroactively applying greater punishments to conduct than could have been applied at the time of the crime; and, second, whether the law more broadly violates due process by unfairly labeling a person as sexually dangerous without first proving that fact and without giving the person an opportunity to challenge that message. While the Court answered the first question with a resounding yes, it punted on the second. The effect of that decision meant that although Pennsylvania was forced to reduce the length of registration for many people who had committed their crimes many years before, or in many cases remove them from the registry altogether, it did little to change how the law would be applied moving forward.  SORNA was largely left undisturbed for the roughly 1500 new people added to the registry every year.  The due process issue left undecided by the Pennsylvania high court in Muniz is now again before that court, and this time it will be harder to avoid deciding it. One of the first people to be required to register under the new law was the defendant in Commonwealth v. Torsilieri.   Torsilieri was convicted by a jury of a non-consensual sexual offense. He had no prior record, the jury acquitted him of the most serious charges, and according to the trial judge he did not pose a risk of committing other crimes. Yet, SORNA automatically required him to register for the remainder of his life. He is now 27. Not willing to accept that consequence, Torsilieri filed a pre-sentence motion seeking to bar his registration under nine different theories. Specifically, he relied on the Pennsylvania Constitution’s Declaration of Rights, which treats the right to reputation as fundamental and deserving of the same protections our federal constitution affords to life, liberty and property.  He also raised other claims under the state and federal constitutions, notably that SORNA is overbroad on its face and therefore cannot be applied to anyone without violating their rights to due process. Although many of his specific claims have been raised by others seeking to challenge SORNA in the past, as we described more fully in earlier posts, the real strength of Torsilieri’s case is that he decided not to rely on legal arguments alone. He knew that facts matter, and that the facts are on his side. In support of his claims, he hired three of the world’s leading experts to present evidence that SORNA is overbroad and ineffective. The evidence and agreement is overwhelming, and importantly the state did not even attempt to rebut it. Torsilieri established that not all people convicted of sexual crimes are alike, and that many pose no more risk to the community of committing another sexual offense than people convicted of any other crime, from drug possession to theft. Most people now required to register will never reoffend, and even the few people who do, will do so within the first 10 years of their release. Moreover, he showed that SORNA does not keep us safe. It creates merely an appearance of safety, while in truth the law threatens the community by making those on the list second class citizens, thereby depriving them of the key things that reduce risk of reoffending, like jobs, family, and community reintegration. On August 31, 2018, the trial court issued an 80 page opinion adopting the experts’ evidence and finding that SORNA violates both state and federal Due Process as well as a number of other constitutional provisions. The government appealed to the State Supreme Court. Now, the Pennsylvania Supreme Court must address the broader question left undecided in Muniz: whether Pennsylvania’s current version of SORNA may constitutionally brand people with a contemporary scarlet letter without sufficient due process.  Or, if the law remains punitive, does it violate a host of other constitutional protections which accompany punitive laws, such as the prohibition on cruel or unusual punishments. Before even addressing the key legal arguments, however, the Court must decide whether and to what extent it must consider the expert’s evidence. While the State challenges the import of the evidence, it is unlikely that the Court will seek to revisit foundational law establishing the primacy of judicial review. Despite a strong preference for deference to legislative fact-finding, no court and no standard of review has ever required the abdication of the courts’ independent responsibility to ensure that laws depriving fundamental rights do not overstep constitutional bounds. It is unlikely this Court will accept the State’s position that it should not consider the expert’s opinion.   Even so, however, the Court has its job cut out for it.  Because Torsilieri won below, in order to save SORNA the Court must address each of his claims. While Muniz sheds light on the Court’s thinking that SORNA has overstepped constitutional bounds beyond its retroactive application, it is not clear which if any legal avenue the Court might pursue if it once again strikes down the law, this time in a case decided after its enactment.  If the Court strikes down SORNA under a due process theory, the Legislature will be tasked with reexamining the law’s fundamental premise – that all ex-offenders are and will permanently remain “high risks” to the community. That reexamination is precisely what appellee seeks. A decision on the case is expected sometime in early 2020. Read more