Tag: relief

UPDATED: 50-State Chart on Relief from Sex Offender Registration

We have completed an overhaul of our 50-State chart on relief from sex offender registration obligations, to bring it up to date and ensure that it is thorough and accurate.  This chart documents the duration of sex offender registration requirements, as well as legal mechanisms for early termination from such requirements. In conducting this review, we have identified a handful of states that have, since the chart was last revised in November 2017, expanded the availability of relief from sex offender registration requirements, including for people who have successfully completed diversionary dispositions, people with serious disabilities, and people who are registered based on out-of-state offenses.  These recent changes in the law, incorporated in the chart, are summarized below. In 2018, Missouri enacted SB 655, substantially revising its sex offender registration scheme in a manner expected to reduce the number of people who are required to register.  Previously, all sex offender registrants were required to register for life, and the only mechanisms for relief were either: 1) a petition to the court 10 years after registration for people with certain non-violent offenses, or 2) a petition 2 years after a guilty finding for certain consensual youthful sex offenses.  Under the new scheme, which follows federal guidance, registrants are classified as tier I, II, or III, with Tier I requiring 15 years of registration, Tier II requiring 25 years, and Tier III requiring life.  Mo. Rev. Stat. §§ 589.400, .401.  Tier I registrants may petition for a 5-year reduction of their 15-year registration obligation after 10 years with a “clean record,” and Tier III registrants for a juvenile adjudication may petition for removal after 25 years with a “clean record.”  Id.  One reason the new law is seen as likely to reduce the number of registrants in the state is that Tier I registrants under the new scheme comprise a substantially larger number of offenses than those authorized to petition for 10-year removal under the old law.  (One puzzling provision of the new § 589.401 is one that authorizes Tier II registrants to petition for relief after 25 years, the point at which their registration obligation would otherwise expire automatically.  §§ 589.400(4)(2), 589.401(4)(2).  We must assume this is a drafting error.) In 2019, Tennessee enacted HB 624, which allows a person who is required to register due to a diversionary plea, to obtain termination of registration requirements upon successful completion of the term of judicial diversion and dismissal of the charges.  §§ 40-39-207(a)(1) and (c). Also in 2019, Utah enacted HB 298, which adds a new provision authorizing people who are currently required to register for a period of 10 years after termination of sentence to petition the court for an order to be removed from the registry as early as 10 years after being sentenced to probation or committed to a community-based residential program, or 10 years after release from incarceration to parole, as long as the person commits no further serious offense, completes treatment, pays restitution, and otherwise complies with the terms of registration.  Compare § 77-41-105(3)(a) with § 77-41-112(1)(b).  This law, effective in May 2019, is likely to result in earlier termination of a registration obligation for people convicted of less serious offenses. In 2018, Colorado enacted SB 26, which allows a registrant who suffers from a severe disability that is permanently incapacitating, to petition to discontinue registration.  § 16-22-113(2.5).  Georgia and Virginia have similar laws.  SB 26 also authorizes Colorado residents who are required to register because of an out of state conviction (which requires registration in the jurisdiction of conviction), to petition a Colorado court to discontinue the registration requirement if the person would not be required to register had the conviction occurred in Colorado.  § 16-22-103(3). Read more

DOJ on the fence about appealing federal judge’s expungement order

On June 23, the U.S. Attorney wrote to Judge Gleeson informing him that the government had not yet finally decided whether to appeal his May 21 expungement order in Doe v. United States, and requesting an opportunity to address the scope of the order in the event the appeal is withdrawn.  The government’s letter, reproduced in its entirety below, indicates that the government has been discussing with the FBI how the order might be modified to “effectuate the Court’s intention of precluding the petitioner’s prospective employers from learning of her health care fraud conviction” while also allowing the government “to pursue legitimate law enforcement objectives.”  Those objectives appear to relate to the arrest and prosecution of two of Ms. Doe’s codefendants who remain in fugitive status after more than a decade.  On June 24, in an order granting the government’s request, Judge Gleeson suggested that the government bring any concerns about the scope of the order to the court’s attention even while the appeal is pending. Here is the text of the government’s June 23 letter:  The Office continues to discuss internally whether to pursue an appeal of the Court’s Orders and, given the date (nearly thirty days from entry), the government has filed the notice to preserve its appellate rights. In addition, the government has been consulting with counsel to the Federal Bureau of Investigation concerning proposed modifications to the Court’s May 21 and 22 Orders that will both effectuate the Court’s intention of precluding the petitioner’s prospective employers from learning of her health care fraud conviction and will allow the government to pursue legitimate law enforcement objectives, including the arrest and prosecution of Jean Maxon Lucien and Frantz Mevs, two of the petitioner’s codefendants who absconded following their arrests in the underlying case, United States v. Lucien, 00-CR-1274 (JG), and who remain at large. Because the government has filed a Notice of Appeal to preserve its rights in this case, however, the Court may currently be divested of jurisdiction to modify its May 21 and 22 Orders. Accordingly, the government respectfully requests that, if the Office or the Department of Justice ultimately determines that an appeal is not warranted in this case, the Court afford the government the opportunity to address the scope of the Court’s ordersand the implementation of them as currently written, which would substantially burden the government and have unintended consequences in related criminal proceedings. Here is the text of the court’s June 24 order: The government’s application in its letter dated June 23, 2015 [DE 15], requesting an opportunity to address the scope of the order and its implementation in the event the appeal is withdrawn, is granted. Assuming the correctness of the government’s assertion that I lack subject matter jurisdiction (even concerning the form of the remedial order), I respectfully suggest that the government bring any concerns with regard to the order to the Court’s attention, even while the appeal is pending. At the very least, it would afford this Court the opportunity to provide the Court of Appeals its view regarding the issues raised. If the government is willing to work out a solution that will “preclud[e] the petitioner’s prospective employers from learning of her health care fraud conviction” as long as it will not impede its prosecution of Ms. Doe’s fugitive co-defendants, this will be very good news to the many people with federal convictions who have had similar difficulty in getting and keeping employment but whose criminal cases are entirely resolved.    Read more

Minnesota’s sweeping new expungement law takes effect

Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched. The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that.   It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues.  The standard for granting expungement remains that under current law, requiring the court to balance private and public interests. While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance. Here is an explanation of the new law’s specific provisions.  Overview: The new law revamps Minnesota Statute 609A, which currently allows for the sealing of certain drug charges, juveniles who were prosecuted as adults, and criminal proceedings not resulting in convictions or guilty pleas (i.e., dismissals and acquittals). The new law will allow courts to seal records of those who have successfully completed diversion programs, as well as those who were convicted of petty misdemeanors, misdemeanors, gross misdemeanors, and certain low-level non-violent felonies. This expansion of the statutory remedy grants courts the authority to seal records held by executive branch agencies such as the Bureau of Criminal Apprehension (the primary source of criminal information for employment, professional licensure, and housing background checks), the Department of Human Services, and the police. This addresses a major gap that for the last several years has rendered the criminal expungement remedy illusory for the majority of petitioners. Eligibility: Under the new law, persons will be eligible for a “full expungement” (sealing of both judicial and executive branch records) in the following situations:[1] 1) All pending actions or proceedings resolved in the petitioner’s favor (i.e., by acquittal or dismissal); 2) Completion of all terms of a diversion or stay of adjudication, and petitioner has not been charged with a new crime for at least one year since successful completion of program or stay; 3) Conviction of a petty misdemeanor or misdemeanor conviction (or stayed sentence), and petitioner has not been convicted of a new crime for at least two years since completion of sentence;[2] 4) Conviction of a gross misdemeanor conviction (or stayed sentence) and petitioner has not been convicted of a new crime for at least four years since completion of sentence;[3] 5) Conviction of specified low-level, non-violent felonies (or stayed sentence) and petitioner has not been convicted of a new crime for at least five years since completion of sentence. The fifty eligible felonies range from fairly common fifth degree controlled substance and sale of simulated controlled substance offenses, as well as theft of $5000 or less, receiving stolen goods, and aggravated forgery, to more obscure matters such as rustling and livestock theft and altering livestock certificate. The exhaustive list of eligible felonies can be found at Minn. Stat. 609A.02(b)1-50. Standard:  As under current law, expungement remains an extraordinary remedy granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with 1) the possible disadvantages to the public and public safety if the record were sealed and 2) the burden on courts and public authorities to issue, enforce, and monitor an expungement order. To this end, courts may grant select records expunged while leaving others unsealed. However, if a prosecutor agrees to the sealing of a criminal record, the court must (“shall”) expunge the record in eligible cases without requiring a petition unless it determines the interests of the public and public safety outweigh the record bearer’s interests. Crime Victims: The new bill also grants further relief to individuals whose criminal matters were a result of victimization: if the court finds that the context and circumstances of the underlying crime indicate a nexus between the criminal record and the person’s status as a crime victim, the expungement shall restore the person to his or her status prior to the arrest. In doing so, the person shall not be guilty of perjury if he or she fails to acknowledge the record in response to any inquiry made for any purpose. In making the determination, the court may request a statement from a victim services organization or licensed health care provider. See Minn. Stat. 609A.03 subd. 6a. Confirmation of Expungement: Helpfully, the new bill allows for the petitioner to request each agency and jurisdiction that receives the order granting expungement send a letter to the petitioner confirming that the record has been expunged. See Minn. Stat. 609A.03 subd. 8. Remedy for Violated Order: The new bill allows for an individual whose record has been expunged to bring an action under Minnesota’s Data Practices Act against a government entity that knowingly opens or exchanges the expunged record. See Minn. Stat. 609A.04.  Private Data Mining Records: The new bill closes the gap on private data mining records: if a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record. Minn. Stat. 332.70 subd 3a. Employer and Landlord Protection: The new bill extends further protection for employers and landlords who hire or rent to individuals with expunged criminal histories: information relating to a criminal history record of an employee, former employee, or tenant that has been expunged prior to the act giving rise to the civil action may not be introduced as evidence in a civil action against a private employer or landlord. See Minn. Stat. 609A.03 Subd. 5 (e). Housing Eviction Expungements: The new bill allows the court to expunge records relating to a housing eviction at the time judgment in favor of the defendant is entered, or any time thereafter upon motion of the defendant. Minn. Stat. 504B.345, subd 1 (c)2. Limitations of Criminal Record Expungement Order: While the new law allows for more records to be sealed, it also grants criminal justice agencies the authority to open, use, and exchange sealed records without a court order, for investigation, prosecution, sentencing, or probation, or other correctional purposes. If the expunged record had been an acquittal or dismissed matter, the agency must obtain an ex parte court order to access the record. Further limitations include the accessibility of expunged records of conviction without a court order for purposes of evaluating prospective employees within criminal justice agencies and for background checks in education-related employment, unless the expungement order is directed specifically at the Board of Teaching or the licensing division of the Department of Education. The court may also order an expunged record opened upon request by the victim of the underlying offense, if the court has found that the record is substantially related to a matter for which the individual who has been victimized is before the court. Notably, the expunged record that is opened or exchanged remains subject to the expungement order in the hands of the person receiving the record. That is, the record may not be used or shared outside the purposes listed above. Juvenile Record Expungement: For matters resolved in juvenile court, petitioners can file for an expungement under Minn. Stat. 260B.198 subd. 6. Not unlike 609A, the juvenile statutory remedy preexisted the new law; however, its vague language (allowing the courts to expunge an “adjudication of delinquency at any time it deems advisable”) was recently interpreted by the Minnesota Supreme Court to grant the lower court the ability to seal only the order adjudicating the juvenile delinquent, rather than the entire executive branch agency’s file (e.g., the arrest record or the charging document), rendering the remedy essentially meaningless.[4] However, as of January 1st, 2015, the court may expunge all records relating to a juvenile delinquency matter at any time if the expungement of the record would yield a benefit to the individual that outweighs the detriment to the public and public safety in sealing the record and the burden on the court and public agencies in issuing, enforcing, and monitoring the order. See Minn. Stat. 260B.198 subd. 6 paragraph (b) 1-8 for indicia the court will consider in making the determination.   * * * * * * * * *   [1] The Volunteer Lawyers Network’s Chris Hanrahan addresses ambiguities of timing and notice in his article, Using the New Second Chance Expungement Law. Josh Esmay from the Council on Crime and Justice offers quick tips to petitioners in this Minnesota Public Radio article. [2] The bill specifically excludes from expungement relief any convictions for domestic abuse, sexual assault, violations of orders for protection, no contact orders, and harassment restraining orders, and stalking. However, this exclusion (Minn. Stat. 609A.02 subd. 3(c)) is set to expire on July 15, 2015. [3] See above. [4] See In re Welfare of J.J.P., 831 N.W.2d 260 (Minn. 2013) Read more

Clean slate remedies help overcome collateral consequences

Eliza Hersh, director of the Clean Slate Clinic at the East Bay Community Law Center and one of CCRC’s contributing authors, has co-authored a most persuasive op ed in the LA Times, which we are pleased to reprint here in full.   Should a shoplifting conviction be an indelible scarlet letter? Not in California What exactly is the appropriate punishment for someone who commits a low-level, nonviolent crime? Should a conviction for minor drug possession, shoplifting or writing a bad check result in a lifetime of stigma and denied opportunities, or do people with criminal records deserve a second chance? In November, California voters took a clear stand on these issues when they passed Proposition 47 and reclassified eight nonviolent felonies to misdemeanors for people without prior serious convictions. Proposition 47 allows for the resentencing of many who have been convicted of such crimes, reducing the amount of time they serve, lowering state and county incarceration costs and chipping away at decades of overly punitive criminal-justice policies. But this common sense reform alone won’t necessarily change the lifelong punishment experienced by many people with a criminal record. Today, a criminal record — even for a low-level misdemeanor or infraction — acts like an indelible scarlet letter. Until relatively recently, employers, landlords and others rarely requested criminal records, which could be accessed only by sifting through physical files in a local courthouse. With the post-9/11 push for more background checks, the advent of online databases and the steep increase in the number of people with convictions, criminal records have become a serious barrier to employment, housing, education and other forms of civic participation for millions of Californians. New fair-chance hiring laws help reduce discrimination against people with criminal records by removing conviction history questions from initial job applications and postponing background checks until later in the process. But California has an additional remedy. Laws long on the books allow judges to dismiss old convictions, a recognition that people who have successfully completed their sentences should be free to rejoin society without disabling consequences. The dismissal remedy doesn’t erase the record completely, and it is not available in all cases, but it can restore rights and reduce barriers for many people. People who have successfully completed their sentences should be free to rejoin society without disabling consequences.- These dismissal laws, however, are obscure and complex. The process can require a lot of paperwork and a court appearance, or even multiple appearances in more than one county. As a result, far too many Californians remain saddled with convictions that are otherwise eligible for dismissal. The East Bay Community Law Center, a teaching law office affiliated with UC Berkeley School of Law, tries to address these problems. Since establishing its Clean Slate Clinic a decade ago, the center has helped several thousand people obtain record-clearing remedies with the aim of reducing the collateral consequences of convictions and lowering the risk of recidivism. Under the supervision of attorneys, law students interview the clinic’s clients, draft their declarations, prepare them for court hearings and, if necessary, later represent them in civil and administrative proceedings to redress unlawful discrimination in employment, housing and professional licensing. The process can be long and emotional. People with criminal records are grappling with painful episodes from the past and hopeful aspirations for the future. But the results can be equally rewarding. While Berkeley law students have been serving clean-slate clients, University of California researchers have been studying the results. We already know that clean-slate interventions increase a person’s ability to get a job and provide him or her with a profound sense of relief: No more skeletons in the closet. But the benefits go far beyond that: In surveys, focus groups and in-depth interviews, people who’ve had their records cleared express a sense of accomplishment (increased confidence and self-esteem), a sense of hope (a focus on the future) and a sense of agency (control over their lives). Significantly, the clean-slate process itself — not just the outcome — appears to create a kind of status enhancement ritual, or rite of passage, helping people move from their old life into a new one. Proposition 47 takes an important step toward addressing the consequences of mass incarceration in California. Tens of thousands of people will benefit from it. The Legislative Analyst’s Office estimates that the state and counties will each save hundreds of millions of dollars annually as a result of lower incarceration rates. But rebuilding lives and communities will not flow automatically from the new law. As we take additional measures to reverse the most damaging effects of our tough-on-crime policies, we will need to invest time and resources in clean-slate programs that help people with criminal records go through the challenging process of re-integrating into our families, communities and society. Read more

Relief from sex offender registration and notification requirements

Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan’s work. You can find the chart at this link.   Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time: 2:42. Sex offense-related collateral consequences — Constitutional challenges to registration and community notification laws:  post-application challenges Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years,[1] states typically afford only very limited opportunity to registrants to exit registries. South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification;[2] only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.”[3] In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses.[4] In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25),[5] and in several states select registrant groups can seek early relief.[6] Early relief, however, can be less than it seems:  in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry;[7] ten- and 25-year class registrants must satisfy their terms.[8] Petition criteria and procedures vary considerably among the states,[9] and to date the lack of opportunity for relief has not triggered constitutional concern.  In In re Jimmy M.W.,[10] for instance, the petitioner was placed on the West Virginia registry in 1998 as a result of pleading no contest to sexual abuse in the third degree, a misdemeanor, for touching the breast of a fourteen-year-old girl.  Because the conviction involved a minor, the state required that the petitioner register for his lifetime.[11] In 2012, after remaining compliant with registration requirements for fourteen years, and marrying the victim and raising children with her, petitioner’s effort to be removed from the registry was rebuffed by a state trial court.[12] The state’s highest court affirmed, reasoning that state law did not extend any opportunity for relief to lifetime registrants such as petitioner, and neither the U.S. nor West Virginia Constitutions required any such opportunity.[13] Finally, to date, courts have been disinclined to conclude that the effects of RCN qualify as “custody” sufficient to trigger federal habeas corpus coverage.[14]   [1] Under the Adam Walsh Act, the following registrants can have their statutorily designated RCN periods reduced: (i) Tier I (usually subject to 15-year period) reduced by five years if “clean record” for ten years (ten-year total duration) and Tier III juveniles (usually subject to lifetime period) reduced to twenty-five years if “clean record” for twenty-five years (twenty-five year total duration). See 42 U.S.C.A. §16915(b)(2),(3). [2] S.C. Code § 23-3-460 (2014). [3] S.C. Code § 23-3-430(F). [4] See, e.g., Ala. Code § 15-20A-24 (2014); S.D. Code § 22-24B-19 (2014); Neb. Code § 29-4005(1)(b)(i) (2014). [5] See, e.g., Ariz. Stat. § 13-3821(D); D.C. Code 22-4002 (2014); Va. Code § 9.1-910 (2014). [6] See, e.g., Fla. Stat. § 943.0435(11) (2014); N.D. Stat. § 12.1-32-14(16); Wyo. Stat. § 7-19-304 (2014). [7] Haw. Rev. Stat. § 846E-10(e). [8]. Id. at § 846E-10(b). [9] See Wayne A. Logan, Database Infamia: Exit from the Sex Offender Registries, 2015 Wis. L. Rev.___ (2015)(forthcoming). [10] 2014 WL 24042298 (W. Va. 2014). [11] Id. at *1. [12] Id. at *3. [13] Id. [14] See Wayne A. Logan, Federal Habeas in the Information Age, 85 Minn. L. Rev. 147 (2000). Read more