Tag: sealing

Automated sealing nears enactment in Pennsylvania

[NOTE:  On June 30, HR 1419 was signed into law as Act 56.  Its provisions have been incorporated into the Pennsylvania profile of the Restoration of Rights Project.] On Friday June 22, the Pennsylvania legislature took its final step toward passage of the so-called Clean Slate Act of 2018, delivering to Governor Wolf a bill (HR 1419) that he has already indicated he will sign.  When enacted, the Act will be the first state law providing for automated sealing of at least some conviction records, sparing individuals with qualifying records the trouble and expense of filing a formal petition for relief with a court.  Congratulations are due to the Community Legal Services of Philadelphia and the Center for American Progress for their sustained efforts over several years to enact this ground-breaking legislation, which will provide relief for “hundreds of thousands of Pennsylvanians with old and minor criminal convictions or who were arrested but not convicted.”  Their press release, linked here, notes that “[t]he bill enjoyed remarkably broad support, including from legislators and advocacy groups that rarely find common ground.”   As soon as HR 1419 has been signed into law, we expect to incorporate into the Restoration of Rights Project a full analysis of its relevant provisions, which are fairly complex, and which become effective on different dates.  In the meantime, we note below what appear to be the bill’s most salient features. In addition to authorizing automatic sealing through an “order for limited access,” HR 1419 retains existing authority for sealing by individual petition, and expands the range of cases eligible for relief through petition.  It does this in several ways: It makes certain misdemeanors eligible for sealing for the first time; It shortens the 10-year eligibility waiting period by having it run from conviction as opposed to completion of sentence, and makes only convictions that occur within that period disqualifying, as opposed to any arrests, as under present law (though all financial penalties must be satisfied – a provision not explicitly in existing law); It cuts back substantially on the kinds of prior convictions that will make individuals ineligible for relief under present law; It further limits dissemination of sealed conviction records, so that licensing agencies will not longer be routinely permitted access once a sealing order has been issued. It clarifies and amends the laws providing for dissemination of non-conviction and juvenile records by police departments.  However, by far the most noteworthy and unusual provision of the bill is its provision for automatic computer-assisted identification and sealing of eligible conviction records, obviating the need for any initiating court action by the subject of the records.  While a few states now authorize automatic sealing of some non-conviction records, no state extends automatic sealing relief to adult convictions, or even to non-conviction records on as extensive a basis as Pennsylvania will when HR 1419 is signed into law.  As noted below, some though not all of the expanded eligibility criteria for sealing by petition also apply to this so-called “clean slate” sealing. HR 1419 spells out a procedure by which the Administrative Office for state courts and the State Police will identify eligible cases, giving local district attorneys an opportunity to object.  Lists of cases deemed eligible for automatic sealing will be submitted on a regular monthly basis to commonwealth courts.  The courts will then issue a blanket “order for limited disclosure” applicable to each listed case, so that individuals will not have to file a court petition or pay a filing fee in order to have their record sealed. The bill also authorizes automatic sealing of records that did not result in conviction. Finally, the bill specifies the process going forward whereby the Administrative Office of the Courts and the State Police will identify through computerized search techniques the cases that are eligible for automatic sealing, and submit to the commonwealth courts on a regular basis lists of these cases for a judicial sealing order. Even after passage of the new law, there will still be cases in which an individual must file a petition in order to obtain sealing relief.  This is because not all cases eligible for sealing by petition will also be eligible for automatic sealing, notably because of differences in the types of prior offenses that are disqualifying.  For example, a prior felony or serious misdemeanor conviction at any time will disqualify an individual from consideration for automatic sealing, whereas only the most serious prior felonies will disqualify an individual for sealing by petition, and then most only for a limited period of time.  Conversely, all “summary” offenses are eligible for automatic sealing after 10 years.  (These minor offenses are not mentioned in the law providing for sealing by petition, but they are eligible for expungement after five arrest-free years.). The amendments enlarging eligibility for sealing by petition are effective December 26, 2018, while many other provisions of the Act are effective June 28, 2019.  The courts and state police are directed by law to identify all cases eligible for automated sealing between June 28, 2019 and June 27, 2020.  Indications are that implementation will be done in phases during that period. Note:  Thanks to Sharon Dietrich, a major force behind the Clean Slate Act, for reviewing the above description of the new law.   Read more

Dissecting the REDEEM Act

The REDEEM Act, introduced in the US Senate in March by Senators Corey Booker (D–NJ) and Rand Paul (R–KY), seeks to expand employment opportunities for those with federal criminal records by giving federal courts sealing authority. Because courts have generally held they do not have inherent authority to seal records — at least where an arrest or conviction is valid — the Act would open an entirely new avenue of relief from many of the collateral consequences that result from a federal arrest or conviction. While in the past similar bills have not made it out of committee, the attention that criminal justice reform is currently receiving on the national political stage and the REDEEM Act’s bipartisan support could give the Act a fighting chance. The Act, as introduced, is not without its flaws. Chief among them are its vague definition of what crimes are eligible for relief, the broad discretion courts would have to deny relief for eligible offenses, the significant exceptions to the confidentiality of sealed records, and the uncertain effect of sealing on collateral consequences. The good news is that the Act’s defects are not structural and can be easily remedied through the legislative process. This post contains a nuts and bolts overview of the Act. In subsequent posts, we will take a closer look at ways the Act could be improved.  Since the procedures and eligibility criteria applicable to adult and juvenile offenses differ in significant ways, we look at each in turn. I. Adult offenses A. Eligibility With the exception of waiting periods, the same eligibility standards apply to both conviction and non-conviction records. Eligible offenses Sealing is generally available for “covered nonviolent crimes,” a category that excludes many (though not all) crimes involving physical force, most sex offenses, and many crimes against minors.  Crimes of violence that are ineligible for sealing are defined at 18 U.S.C. § 16: The term “crime of violence” means– (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Given the uncertain contours of this definition, it will often be unclear whether a specific offense constitutes an ineligible crime of violence under § 16. The definition, which is incorporated into a number of federal statutes, has already generated considerable litigation. Much more can be expected if the Act becomes law without closing off the potential for argument over the eligibility status of specific offenses. Ineligible sex offenses are listed at 42 U.S.C. § 16911, and also include a number of non-sexual crimes against minors. Section 16911 offenses are more clearly defined than crimes of violence, though ambiguity will still exist in some cases since many of the offenses listed in § 16911 are defined by conduct and without reference to any particular federal criminal statute or to elements of the offense. Examples include crimes against a minor “involving” false imprisonment or use of a minor in a sexual performance, descriptions that could refer to several specific federal crimes. Prior convictions Sealing is unavailable to anyone convicted of an ineligible felony offense at any time and to anyone convicted of more than two eligible felonies (including those that have been sealed). Interestingly, non-federal “nonviolent crimes” are not considered for eligibility purposes, though what constitutes such an offense is not clear since the language used does not track that used to define eligible offenses (“covered nonviolent offense”). Multiple convictions related to the same act or committed at the same time are considered a single conviction for eligibility purposes.  Additionally, unless the court determines that treating the convictions as a single offense is not in the public interest, up to three convictions may be treated as one if they relate to the same indictment, information, or complaint; were all committed within a three month period; or were addiction-related. Waiting Period Conviction records may only be sealed after a person has fulfilled every requirement of his or her sentence. If sentenced to prison or supervision for an eligible offense, a person may not petition until 1 year after release from prison or supervision, whichever is later. No waiting period applies to non-conviction records. B. Procedure and burdens The same procedures and standards apply to both conviction and non-conviction records. A petition for sealing may be filed in any U.S. district court.  Upon filing, the court must notify the U.S. attorney that prosecuted the offense and any person the petitioner seeks to have testify in support of the petition. A hearing on the petition must be held within 6 months unless the government agrees to a waiver of hearing, in which case a determination on the petition must be made by the court within six months. For the the court to deny an otherwise valid petition, the government must show that: (I)(aa) the interest of public knowledge and safety; and (bb) the legitimate interest, if any, of the Government in maintaining the accessibility of the protected information, including any potential impact of sealing the protected information on Federal licensure, permit, or employment restrictions” outweighs the petitioner’s interest regarding: (II)(aa) the conduct and demonstrated desire of the petitioner to be rehabilitated and positively contribute to the community; and (bb) the interest of the petitioner in having the protected information sealed, including the harm of the protected information to the ability of the petitioner to secure and maintain employment. In making this determination, the court may consider all evidence and testimony offered by the petitioner, their witnesses, and the prosecutor. However, the court may not consider an arrest, prosecution, or conviction for non-federal non-violent or non-sexual offenses. If a petition for sealing is denied, a person must wait two years before petitioning again to seal records of the same offense. C. Effect A sealed record is rendered unavailable to public examination, except by court order. [1]. A sealed “offense and any arrest, criminal proceeding, conviction, or sentence relating to the offense shall be treated as if it never occurred,” except as otherwise specified in the Act. Records that are sealed must be labeled as such and physically closed.  The court must seal its own paper and electronic copies of the record and must send copies of the sealing order to “each entity or person known to the court that possesses a record containing protected information that relates to the offense, including each law enforcement agency and public or public or private correctional or detention facility.”  Those entities must then seal the record and submit written certification of sealing to the court, which then notifies the petitioner. It is a misdemeanor to “intentionally make or attempt to make an unauthorized disclosure of any protected information from a record that has been sealed,” though significant exceptions apply. [2] Sealed records may be disclosed for the purpose of conducting background checks for law enforcement employment and for employment that a federal agency has designated as a “national security position” or “high-risk public trust position.” This means that records will be available to a great number of federal agencies, government contractors, and other employers like nuclear power plants, and others required to access classified information. Sealed records may also be disclosed to the military for “the purpose of vetting an enlistment or commission, or with regard to any member of the Armed Forces.” Law enforcement agencies and the Attorney General may access sealed records for prosecutorial/investigatory purposes, and prosecutors may disclose records pertaining to potential witnesses in federal or state criminal or delinquency proceedings. Additionally, the Attorney General (who is required to maintain a non-public record of all records sealed under the act) may disclose a sealed record upon determining “that disclosure is in the interest of justice, public safety, or national security.” The Act provides no standards governing the AG’s use of this authority — something that will hopefully be addressed in committee. A person whose record has been sealed is immune from civil or criminal liability for perjury, false swearing, false statements with respect to that record, except before entities to which disclosure is authorized by the act. Otherwise, sealing confers no special rights and appears not to have a restorative effect on any rights lost as a result of conviction or arrest.  Though the Act does provide that an offense or proceedings that is sealed “shall be treated as if it never occurred,” it is not clear how a person can enforce that right against third parties like employers or licensing boards seeking to use the fact of an arrest or conviction in a hiring or licensing decision. To underscore that point, there are no provisions in the Act that address employment and licensing discrimination against persons with sealed records. There are also no provisions addressing the status of records maintained by commercial criminal record providers. [3] It is worth emphasizing that the Act does not make clear what if any effect a sealing order has on the myriad collateral consequences arising under state and federal law.  Hopefully this and other uncertainties about the legal effect of a sealing order can be addressed as the bill goes through the committee process.      II. Juvenile offenses Records of eligible juvenile delinquency adjudications are automatically sealed after a waiting period (or earlier, upon petition) and may be expunged upon petition (automatically in some instances). Juvenile records for eligible offenses that did do not result in a delinquency finding are automatically expunged. Juvenile offenses eligible for sealing and expugement are those that do not qualify as violent crimes under 42 U.S.C. § 5603(27), or as sex offenses under 42 U.S.C. § 16911. The definition of “violent crimes” under § 5603(27) is much narrower and clearer than the definition that applies to adult offenses. the term “violent crime” means- (A) murder or nonnegligent manslaughter, forcible rape, or robbery, or (B) aggravated assault committed with the use of a firearm   Ineligible juvenile sex offenses are defined in the same manner as adult offenses. A. Sealing Records of eligible delinquency adjudications are automatically sealed by court order three years after completion of sentence if a person has no subsequent convictions during the waiting period and no charges are pending against the person. Unlike adult sealing, there is no limit on the number of juvenile adjudications that may be sealed, nor on sealing following conviction for an ineligible offense. A delinquency record may be sealed earlier than three years upon petition. Procedures for early sealing petitions are the same as those applicable to adult petitions, with the following exceptions: Instead of balancing interests, the court determines whether to grant a petition by considering a number of factors including the nature of the offense, age of the petitioner at commission, subsequent criminal involvement, adverse consequences that may face the petitioner if sealing is not granted, and evidence offered by the prosecutor. No burdens are specified, and there is no prohibition on considering non-federal charges, convictions, or adjudications. The effect of juvenile sealing (both automatic and early) is identical to that of adult record sealing. B. Expungement In addition to sealing, juveniles may also have eligible records expunged. Expungment has the same effect as sealing, but with additional protections. Expunged records must be physically destroyed by the courts and each entity or person in possession of the record, and there are no exceptions that allow for disclosure of expunged records for any purpose. The courts, law enforcement, and any agency that provided treatment or rehabilitation services to the juvenile subject to court order must respond to any inquiry about the existence of an expunged record in the negative, and a person cannot be required to disclose the existence of their own expunged record. Expungement of juvenile records is automatic[4] in some instances, and discretionary in others. Records of delinquency adjudications for crimes committed by a person younger than 15 are automatically expunged upon turning 18. Records of arrests and proceedings resulting in dismissal or a “not delinquent” findings are also automatically expunged. While expungement of “not delinquent” records is required at disposition, no time-frame is specified for dismissal records. A person found delinquent for a crime committed after turning 15 may petition for expungement in the same manner in which they would petition for early sealing. The same procedures and considerations applicable to early sealing apply, except that there is no requirement that a person complete any ordered detention or supervision prior to filing an expungement petition.   You can find the full text of the REDEEM Act here, and Senator Booker’s press release describing the Act’s intent here.  Check back soon for a more detailed look at some of the specific issues raised by the Act.     [1] The act does not specify the basis for issuing such an order. [2] The Act does not specifically define what disclosures are “unauthorized.” While disclosure of a record held by any entity that received a copy of the sealing order from the court would presumably qualify, whether disclosure by an entity that did not receive such an order qualifies is unclear (though one would expect that some notice of sealing in some form would be required for prosecution of unlawful disclosure). It is also unclear whether an entity in possession of a sealed record can confirm that a record exists without revealing the actual contents of the record.  Entities required to expunge a juvenile record under a different section of the Act are explicitly required to deny the existence of an expunged record, but there is no similar provision that applies to sealed records. [3] Though the court can apparently order sealing by any entity known to possess a a record, the fact that identical records are maintained by numerous and often unknowable commercial criminal information providers means the Act will likely be ineffectual at completely purging records from their databases. [4]  Though the law describes expungement in some instances as “automatic,” and states that such “expungement shall not require any action by the person whose records are to be expunged,” expungement is not effective by operation of law.  For crimes committed under the age of 15, and where charges were dismissed, the Attorney General is obligated to file a motion for expungement in the district court, and the court is required to grant the motion. In proceedings where a juvenile is found not delinquent, the court is required to issue an expungement order concurrently with a not delinquent finding.     Read more

Ohio pardons provide “only forgiveness, not forgetfulness”

On January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records.  In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states.  The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.” “Only forgiveness.”  Is pardon then such a second class prize?  What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred?  If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do. As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself). In January 2011, Governor Ted Strickland pardoned James Radcliff’s five dated convictions (which included “a 1982 felony conviction in Franklin County for breaking and entering a donut shop while possessing a screwdriver”) in recognition of his 30 years of law-abiding conduct.  A month later Radcliff went to court to have his record sealed, even though the sheer number of his crimes put him outside the category of people authorized to pursue that relief under Ohio Rev. Code Ann. §§ 2953.31.  The court of appeals thought Radcliffe’s record of rehabilitation “deserves redemption,” and ordered that his petition be granted. The government appealed, arguing that the court had no inherent power to seal a record of conviction, even a pardoned one.  The high court held that “if he is to have that redemption, it must come from the General Assembly.” Earlier decisions of the Ohio Supreme Court had found inherent judicial power to expunge or seal convictions, but that was before the legislature entered the conversation to define with some precision exactly what convictions it wanted courts to be able to seal.  The enactment of sealing legislation meant there was no longer a role for the court to take an independent view of the matter.  Over and above the detailed sealing law, the Radcliffe court pointed out that the legislature had also made certain provisions for retaining pardon documents, noting that “[t]he fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it.” In determining that courts had no power independent of statute, the Ohio high court expressed disappointment over the legislature’s failure to provide for a broader sealing remedy in cases like Mr. Radcliff’s: Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. . . . . The pardon does not wipe the slate clean. If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act. The majority associated itself with the Pennsylvania Supreme Court in stating that “[a] pardon without expungement is not a pardon.”   The three dissenting justices thought it “unnecessary in this case to state the proposition so unequivocally,” though they thought there was enough left of the inherent judicial power to order expungement in the “unusual and exceptional circumstances” of a pardon. In concluding that courts have no inherent authority to seal pardoned convictions, the Ohio court is in good company.  The Supreme Court of Mississippi recently came to a similar conclusion about the limits of judicial authority in closing records, so that pardon in that state also “provides only forgiveness, not forgetfulness.” In this regard, it seems worth noting that a majority of states do not authorize sealing or expungement of pardoned convictions.  Of those that do, it is by statute in all but three states (Indiana, New Jersey, and Pennsylvania).  Even a presidential pardon provides “only” forgiveness. It appears that a national discussion of the relative merits of forgiving and forgetting as a way of restoring rights and status may be well underway. NOTE: It seems anomalous that Ohio law would provide for “forgetting” out-of-state and federal convictions by authorizing Ohio courts to seal them, but not for “forgiving” them through a Certificate of Qualification for Employment.  (See today’s post on CQE’s here.) How will an Ohio court enforce its sealing order directed to a foreign jurisdiction?   Read more

Expungement resources now online from Papillon Foundation

Most people with a criminal record have a general understanding of the value of expunging or sealing their criminal records.  However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy.  The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past.    Prior to 2008, Alan Courtney was an California attorney. As a specialist in transactional law, he had no particular experience with the obstacles faced by those trying to rebuild their lives after a criminal conviction. That all changed in 2008 when Courtney found himself behind bars for a white-collar felony conviction. There, Courtney witnessed firsthand how difficult overcoming those obstacles can be and how hopeless the prospects of those faced with them can seem. He recalls: Over and over again, inmates would tell stories of how they could not get a job, could not go to school, could not get housing, could not provide for their families, and how their lives were doomed.  Family members spoke of the harshness and severity of not only the prison, but life after. Upon his release in 2011, Courtney was faced with some of the challenges he had heard so much about from his fellow inmates.   No longer able to practice law, he decided to devote much of his time to helping others overcome the barriers to reentry. The Foundation, a non-profit organization founded by Courtney and his wife, was the result of those efforts.  Its primary mission is to provide free information to help individuals expunge or seal their criminal records and mitigate the collateral consequences that accompany them.  As expressed on its website, the Foundation’s goal is to “create a compassionate opportunity for people who want to clean up their criminal record for a fresh beginning.” To Courtney, offering those of limited means the tools and materials they need to seek relief on their own is essential to fostering hope in the face of the uncertainty posed by reentry. The Foundation’s name reflects this sentiment: “Papillon” is the name of the titular character in the 1973 film that depicts a man’s unshakable will to survive while incarcerated in a hellish French prison colony. The Foundation’s presence is largely virtual, the cornerstone of the organization being its expansive website that provides a wealth of practical information about record-sealing in all U.S. states and territories, as well as many foreign jurisdictions. For those looking to leave their criminal histories in the past, the site’s go-to pages are the easy to understand summaries of each state’s relief mechanisms and eligibility standards. These summaries are supplemented by a long list of links to official instructions, forms, and statutes as well as links to state-specific how-to guides and contact information for legal aid organizations. To provide an example of the exhaustiveness of these resources, the California page contains 13 links to expungement self-help guides, 41 links to county-specific forms and instructions, 21 links legal aid and reentry organizations, links to official state-wide sealing and clemency forms, and instructions on how to request copies of your own record, among many other things. The site also provides “know your rights” information about private criminal record providers, contact information for advocacy resources, and a number of relevant studies and reports. To someone visiting the site for the first time, the amount of information available can be overwhelming; but if you’re looking for usable information to guide you through the expungement or sealing process, there’s a good chance you’ll find it here by digging around a bit.  Fortunately, Courtney tells us that the website will soon be updated with a new design that will make it easier for people to find the forms and instructions necessary to clear their criminal record. Courtney is careful to emphasize that the Foundation does not provide legal advice or referrals to lawyer, though the site does have a list of legal aid organizations who do restoration of rights work. The Papillon Foundation’s website is a truly impressive resource, and we will be watching its future growth and development. An obligatory word of caution, though: Our own experience maintaining the state-by-state resources posted on the CCRC has shown that keeping abreast of all of the legal developments regarding expungement, sealing, and other relief is a monumental task. This is a complex area of the law, and it is one that seems to be in a constant state of flux. As such, those interested in obtaining relief would be well-advised to seek legal advice, from a legal aid office or clean slate clinic for those of limited means, to make sure than any information from unofficial sources is accurate and up to date. Read more

Louisiana’s new expungement law: How does it stack up?

Louisiana has far and away the largest prison population of any state in the country (847 per 100,000 people — Mississippi is second with 692 per), but until last year there was little that those returning home after serving felony sentences could do to unshackle themselves from their criminal records and the collateral consequences that accompany them. While Louisiana has for years authorized expungement of misdemeanor convictions and non-conviction records, the only relief available to convicted felony offenders was a governor’s pardon — very few of which have been granted in Louisiana in recent years. Most people convicted of a felony in the state, no matter how long ago and no matter how serious the conduct, were stuck with it.* That’s why we were interested to learn that in 2014 Louisiana enacted a brand new freestanding Chapter 34 of its Code of Criminal Procedure to consolidate and extend the law governing record expungement to many felonies. We decided to find out what the new law offers to those with felony records, and how it stacks up against the three other new comprehensive expungement schemes in Arkansas, Indiana, and Minnesota. We found that while a relatively large number of people with felony convictions are newly eligible for expungement relief, the law’s effectiveness is hampered by 1) unreasonably long waiting periods and 2) limited effectiveness in mitigating collateral consequences related to employment and licensure. Waiting periods   According to its preamble, the ostensible purpose of the new Louisiana law is to “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.” See Art. 971. The law states an aim to provide relief from post-9/11 restrictions on TWIC credentials necessary to work in ports or on vessels under the federal Maritime Transportation Security Act of 2002.  Id. However, its eligibility waiting period seem inconsistent with these purposes: A felony record may not be expunged until ten years after completion of sentence, which itself may be many years after leaving prison.  Such a long waiting period is not likely to do much to “break the cycle of recidivism” or address the issues facing those “reentering the community” from prison. Even misdemeanants have to wait five years after completion of sentence to apply. Moreover, because the federal MTSA only restricts eligibility for TWIC credentials only for a ten-year period for most offenses, the new law does nothing to ease restrictions on maritime employment. By the time a person with a felony conviction becomes eligible for expungement, their TWIC eligibility has already been restored. The waiting periods for felony expungement under the three other comprehensive new expungement laws are shorter — though still long enough to make us question their utility in reducing recidivism or assisting reentry.   Eligibility for felony expungement in Indiana is three to five years years from completion of sentence or eight years after conviction (unless the prosecutor agrees to a shorter period) and five years after conviction for a misdemeanor.  In Minnesota the waiting period for expungement of all eligible felonies is five years after completion of sentence (two years for misdemeanors).  Arkansas allows “sealing” of felonies five years after completion of sentence, though misdemeanors are eligible for sealing as soon as the sentence is completed. (Compare the relief available as early as sentencing under the Vermont Uniform Act and Colorado’s new drug expungement laws.) A Louisiana record may not be expunged if the person has been convicted of a crime during the waiting period, or has charges pending. The same is true in Indiana and Minnesota. Like Minnesota, Louisiana places no limit on the number of felonies that may be expunged during a person’s lifetime, though in Louisiana a felony may only be expunged once every 15 years.  In Indiana, a person may seek expungement of multiple offenses through one expungement petition, but only one petition may be granted in a person’s lifetime. In Arkansas, an individual may only “seal” one felony conviction. Eligible offenses Unreasonable waiting periods aside, the Louisiana law takes a relatively expansive approach to eligibility, especially compared to the limits Arkansas and Minnesota place on the types of felonies that are eligible for relief.  Under Louisiana’s law, the only felonies that cannot be expunged are those for violent offenses, sex offenses, crimes against minors, and drug trafficking offenses (mere possession with intent to distribute is eligible for expungement). The only other jurisdiction with comparable scope is Indiana, which has similar limitations on violent offenses and sex offenses, but places no limit on the types of drug convictions that may be expunged and does not bar expungement of crimes against minors. Minnesota allows expungement of a list of enumerated minor non-violent felony offenses, and only minor drug distribution offenses may be expunged (most possession-only offenses are eligible).  Arkansas limits sealing to Level C and D felonies. Standards Under Louisiana’s new law, expungement is mandatory if a person meets all of the eligibility requirements.  This is also the case in Indiana for misdemeanors and minor felonies, though not for more serious crimes.  Minnesota and Arkansas require a judicial finding based on a balancing test.  In Minnesota, a felony can only be expunged if the court determines that the benefits of an expungement to the person seeking it are commensurate with concerns of the public and public safety, and with the burden on courts and public authorities to issue, enforce, and monitor an expungement order. In Arkansas, an order to seal records depends on a court’s determination that it is “in the interest of justice” based on consideration of a menu of factors. The fact that an expungement is mandatory in Louisiana if the eligibility requirements are met also means that expungement may be granted without a hearing. A hearing must be held only if the prosecutor or law enforcement objects to the expungement request on grounds of ineligibility. A hearing is generally required in Minnesota and Arkansas. Use of expunged records  Where Louisiana’s law looks most different from the other three laws is in its relatively limited legal and practical effect insofar as employment and licensing is concerned. Expungement of a felony conviction record in Louisiana essentially does two things: 1) It prohibits the state from disclosing records to the general public (as in almost all other states, the record remains available to law enforcement, prosecutors and courts); and 2) it relieves a person of any obligation to disclose the record, or the fact of the record’s expungement. The Louisiana law does not have a restorative effect on any rights lost (most basic civil rights are otherwise restored automatically upon completion of sentence), nor does it restrict the use of expunged records by licensing authorities or employers.  It has no effect on sex offender registration and does not restore handgun rights (long gun rights are not lost) — except, surprisingly, in domestic violence offenses. Though Louisiana’s law generally prohibits the state from releasing expunged records to the public, the law provides some significant exceptions. Most notably, it specifically allows disclosure of expunged records to a number of specified licensing boards, including those governing health care, the insurance industry, social work, and the bar, all of which are authorized to consider criminal records when making licensing determinations. It also allows disclosure for the purpose of screening applicants for licenses and employment involving the care or supervision of children.  Accordingly, while Louisiana’s law permits individuals whose records have been expunged to deny that they have been convicted, the range of permissible disclosures by the state qualifies this benefit. The other three states also allow expunged records to be used as predicate offenses, and for sentencing and sex offender registration purposes.   However, all three states restrict how an expunged record may be used by private and public entities in evaluating eligibility for employment, licensure, and other opportunities.  Indiana’s law is by far the most expansive, prohibiting employers, licensing boards, and anyone else from discriminating against a person based on a record that has been expunged, and even from asking about such a record.  Minnesota takes a similar approach by prohibiting discrimination, but only as it applies to public employment and licensing (with a large and growing list of excepted employers and licensing boards). Under Arkansas’s Criminal Offender Rehabilitation Act, a licensing board may not disqualify a person based on an “expunged” record — though, since Arkansas’ new law now styles what was once known as an “expungement” a “sealing,” it is unclear what affect this provision currently has.  Indiana and Minnesota additionally encourage hiring of those with expunged records by prohibiting admission of expunged convictions as evidence of negligence in negligent hiring actions. The Louisiana law contains no analogous provisions. Third party providers of records The Louisiana law does make some attempt attempt to addresses the problem posed by third party dissemination of expunged records, but it does so in a way that is likely to be ineffective in practice. The law prohibits private providers of criminal records (other than news organizations) from disseminating expunged records, but only if they have been put on notice by the subject of the expunged record. This notice must be sent by certified mail and contain a certified copy of the expungement order. Until a particular provider receives notice from the recipient of an expungement, the provider is entirely free (at least under state law) to disseminate the record to anyone, even if they have other notice it has been expunged. To ensure that expunged records do not reach a potential employer, a person would have to give notice to each and every private provider out there. This a practical impossibility, of course, but, even if it could be done, it would be ineffective because the only providers obligated by receiving notice are those that are not governed by the federal Fair Credit Reporting Act (FCRA). Considering that a vast majority of private providers of criminal records are subject to FCRA, it is hard to see why this provision was included at all. The Indiana and Minnesota laws offer significantly greater protection against irresponsible private providers.  Here again, Indiana’s law is the stronger, placing a blanket prohibition on dissemination of expunged records by “criminal history providers.” This prohibition is unqualified: Dissemination is prohibited whether the provider has notice of it or not, putting the onus on the provider rather the individual. The Minnesota law occupies a middle ground, prohibiting dissemination by a “business screening service” if the service has notice of the expungement from any source.  Arkansas’s law does not address the issue of third party providers of records. Conclusion Louisiana’s new expungement law represents a significant and commendable move toward giving those with criminal records a chance to regain opportunities lost as a result of conviction. However, although it expands eligibility for expungment to a relatively large number of people, and makes relief mandatory upon a determination of eligibility, its benefits are limited by long waiting periods and limited legal effect. If Louisiana is serious about expanding employment opportunities to those with felony convictions, it would do well to enact measures limiting dissemination and use of expunged records by employers and other third parties, as Indiana, Minnesota, and (to a more limited extent) Arkansas have done.  Until expungement in Louisiana is more than a mechanism to limit official disclosure of records, those who might otherwise be eligible to apply for it may wonder whether it is worth the trouble and expense.   * Louisiana does have a quirky law from 1981 that permits the Bureau of Criminal Identification and Information to remove the records of anyone over the age of 60 “from active dissemination to eligible agencies” so long as the person hasn’t been arrested for 15 years. The removal isn’t mandatory, though, so it offers little comfort to anyone young or old.   Read more