Tag: utah

Bumper crop of new expungement laws expected in 2019

Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record.  (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.)  The first quarter of 2019 has already produced a baker’s dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last.  The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency.  Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature’s accession to Governor Ralph Northam’s request that it “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” which will immediately reinstate driving privileges to more than 627,000 Virginians. This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures.  The two most significant new laws were enacted in Western states.  Utah’s HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records.  When it takes effect on May 1, 2020, it will be the nation’s second “clean slate” law in operation (Pennsylvania’s first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019).  Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment). New Mexico’s Criminal Records Expungement Act (CREA) for the first time authorizes courts in that state, upon application, to limit public access to adult records, including both felonies and misdemeanors, as well as non-conviction records.  HB 370, signed by the governor on April 3 and effective January 1, 2020, provides graduated eligibility waiting periods depending upon the seriousness of the offense, and applies to all but a handful of crimes.  Other highlights from the new record-closing laws include expanded sealing eligibility for adults in Kentucky and West Virginia, and for juveniles in Nebraska and Wyoming. Occupational licensing reforms were enacted in Ohio and Utah that regulate how licensing boards may consider criminal records, continuing a recent push for reform in this area.  Both states will now allow individuals to request at any time a preliminary determination whether their record would disqualify them from holding a license.  Ohio will also require licensing boards to publish on the internet a list of all criminal offenses for which a conviction would disqualify a person.  In addition, New Mexico extended its “ban-the-box” law to private employment, requiring employers to delay consideration of an applicant’s criminal history in the hiring process. Finally, South Dakota streamlined its clemency process by allowing two members of the pardon and parole board to make clemency recommendations to the governor (rather than a majority of the nine-member board). The 13 new laws enacted to date in 2019 are described in further detail below, and have been added to the state profiles in the Restoration of Rights Project.  We will be tracking restoration bills throughout the year, and will report periodically in this space – particularly when a significant new law is enacted. RECORD-CLEARING RELIEF  Utah – Clean slate; effect of expungement On March 28, 2019, Utah Governor Gary Herbert signed HB 431, a highly significant “clean slate” law that will automate expungement or deletion of a variety of criminal records when it takes effect on May 1, 2020.  Acquittals and dismissals with prejudice are eligible.  Certain infractions, misdemeanor convictions, and pleas in abeyance are eligible under a complex set of criteria.  Automated relief will apply both to cases adjudicated on or after May 1, 2020, and to cases adjudicated before that date, with separate procedures for each category.  77-40-116(1)(a) and (1)(b).  A more detailed explanation of this new law can be found in the Restoration of Rights Project, Utah profile. On March 25, 2019, Governor Herbert signed HB 90 (effective May 14, 2019) that makes clear that an applicant with an expunged criminal record seeking employment from a private employer “may answer a question related to an expunged criminal record as though the action underlying the expunged criminal record never occurred.”  § 34-52-301.  The new law also clarifies that a public employer may not make an inquiry related to expunged criminal history—and an applicant may answer such a question “as though the action underlying the expunged criminal record never occurred,” except for preexisting exemptions for certain types of public employers, volunteer work, or when consideration of criminal history is required by law.  § 34-52-201.  More information can be found in the Restoration of Rights Project, Utah profile. New Mexico – First general authority to expunge adult records In 2019, New Mexico enacted a comprehensive law authorizing expungement (sealing) of most non-conviction records, and of conviction records for all but a limited number of crimes, including those involving serious violence and sexual assault.  See HB 370, signed into law not yet codified.  Effective January 1, 2020, the Criminal Record Expungement Act (CREA) authorizes courts to limit public access to most non-conviction records after a one-year waiting period, as long as no charges are pending against the individual.  Courts are also authorized to limit public access to the record of most convictions after waiting periods ranging from two to ten years, depending upon the seriousness of the offense, with no intervening convictions.  The court must find that “justice will be served by an order to expunge,” applying a multi-factor test.  Under current law, New Mexico law contains no judicial authority to seal adult records, and an administrative authority to seal non-conviction records applies only to some misdemeanors.  Upon taking effect, CREA will give New Mexico one of the broadest record-closing authorities in the Nation.  More information about this important new law can be found in the Restoration of Rights Project, New Mexico profile. West Virginia – Expanded eligibility for expungement to some felonies On March 25, 2019, West Virginia Governor Jim Justice signed into law SB 152, which will significantly expand the availability of expungement when it becomes effective on June 7, 2019.  The law extends eligibility for expungement beyond the limited class of youthful misdemeanants that benefit under existing law, and also makes certain felonies eligible for expungement relief for the first time.  (It repeals a 2017 law that authorized reduction of these felonies to misdemeanors, but withheld expungement.)  Violent and sexual crimes are ineligible.  Under the new law, persons convicted of eligible misdemeanors may petition for expungement one year after conviction, or completion of incarceration or supervision if later.  The waiting period is extended to two years for persons convicted of more than one eligible misdemeanor, and to five years for eligible felonies.  Persons who have completed substance abuse treatment or graduated from a state-approved job training program may seek relief after an abbreviated waiting period (90 days for a single misdemeanor; one year for multiple misdemeanors; three years for felonies).  Employers required by state or federal law to conduct a background check may access expunged convictions.  More information can be found in the Restoration of Rights Project, West Virginia profile. Kentucky – Expanded expungement eligibility and procedural reforms   On March 26, 2019, Kentucky Governor Matt Bevin signed SB 57 (effective June 26, 2019), which makes several changes to Kentucky’s expungement law, expanding non-conviction and felony eligibility.  First, the new law will make charges dismissed without prejudice eligible for expungement after a 5-year waiting period (under current law, such charges cannot be expunged).  § 431.076.  Second, certificates of eligibility will no longer need to be sought prior to a petition to expunge a non-conviction record (but are still required for a conviction record). Third, the new law expands eligibility to vacate, dismiss, and expunge class D felony convictions.  A 2016 law had made a specific list of class D felony offenses eligible (or multiple eligible felonies stemming from a single incident).  Prior to that, Class D felonies were only eligible if adjudication was deferred.  Under SB 57, any Class D felony or a “series” of such felonies will be eligible, except for violations of Ky. Rev. Stat. Ann. §§ 189A.010 (DUI), 508.032 (domestic assault), or 519.055 (impersonating a peace officer), abuse of public office, a sex offense, an offense committed against a child, or an offense that resulted in serious bodily injury or death.  § 431.073.  If a prosecutor objects to expunging a Class D felony from this expanded set of offenses, the applicant must show by clear and convincing evidence at a hearing that vacating the judgment and expunging the record is consistent with public welfare and safety, supported by the applicant’s behavior since conviction, and warranted by the interests of justice.  Id.  More details about this law can be found in the Restoration of Rights Project, Kentucky profile. Nebraska – Automatic sealing of juvenile records expanded On March 27, 2019, Nebraska Governor Pete Ricketts signed LB 354 (effective three months after the legislature adjourns in 2019), which makes a host of changes to facilitate the sealing of juvenile records.  Most notably, this new law expands automatic juvenile sealing (which already covers non-conviction dispositions) to include satisfactory completion of juvenile probation, supervision, or other treatment or rehabilitation program or a county court probation or sentence.  Neb. Rev. Stat. § 43-2,108.03.  More details about this law can be found in the Restoration of Rights Project, Nebraska profile. Wyoming – Juvenile expungement procedures strengthened On February 15, 2019, Wyoming Governor Mark Gordon signed HB 44, which makes several changes to strengthen Wyoming’s juvenile expungement laws, effective effective July 1, 2019. These changes include the following.  No filing fee may be charged for a petition to expunge juvenile records.  A state or municipality may petition to expunge juvenile records.  Prosecutors have 20 days to object to a petition for juvenile expungement, after which the court may summarily grant the request.  A minor admitted to a diversion program or granted a deferral, or whose arrest, charges, or disposition do not result in conviction or adjudication, may petition to expunge municipal and circuit court records in the same manner as juvenile records.  Expungement of juvenile records (and certain municipal and circuit court records involving minors) is defined to mean destruction of records.  More details can be found in the Restoration of Rights Project, Wyoming profile. Virginia – Automatic expungement for absolute pardons On February 27, 2019, Governor Ralph Northam signed HB 2278, which takes effect on July 1, 2019.  This new law will entitle a person who receives an “absolute” pardon to automatic judicial expungement—no petition need be filed with the court.  Va. Code Ann. § 19.2-392.2(I).  (Absolute pardons are generally granted only for innocence.)  More details can be found in the Restoration of Rights Project, Virginia profile. OCCUPATIONAL LICENSING Ohio – Preliminary determination of whether record disqualifies from occupational licensure; publication of disqualifying convictions On December 27, 2018, the Ohio Legislature enrolled SB 225, which became law 10 days later without action by the governor.  Effective April 5, 2019, anyone who has a conviction may request at any time that a licensing authority determine whether the conviction disqualifies the person from obtaining an occupational or professional license.  Ohio Rev. Code Ann. § 9.78(B).  A fee of no more than $25 may be charged.  Id.  Within thirty days of receiving a request, the licensing authority must inform the person of its decision (the decision is not binding if the licensing authority determines that the person’s convictions differ from what was included in the request).  Id.  In addition, licensing authorities must make available on the internet a list of all criminal offenses for which a conviction would disqualify a person from obtaining a license.  § 9.78(C).  More details can be found in the Restoration of Rights Project, Ohio profile. Utah – Preliminary determination of whether record disqualifies from occupational licensure On March 25, 2019, Utah Governor Gary Herbert signed a law that will allow a person with a criminal record to apply at any time for a determination of whether their record would disqualify them from obtaining a license in an occupation or profession regulated by Title 58 of the Utah code, when it takes effect on May 14, 2019.  See HB 90; Utah Code Ann. § 58-1-310.  A fee may be charged.  Within 30 days of receipt of a completed application,  the Division of Occupational and Professional Licensing must make a written determination, and the decision may include additional steps the individual could take to qualify for a license.  Id.  This new law also amends the definition of “unprofessional conduct” in § 58-1-501(2), based on which a license may be denied or restricted.  Existing law defines “unprofessional conduct” to include, among other things, a plea or conviction for a crime of moral turpitude or a crime that bears a “reasonable relationship” to safe or competent performance of the occupation.  § 58-1-501(2).  The new law replaces “reasonable relationship” with “substantial relationship.”   See id; HB 90.  More details can be found in the Restoration of Rights Project, Utah profile. EMPLOYMENT New Mexico – Ban-the-box in the private employment On April 3, 2019, New Mexico Governor Michelle Lujan Grisham signed SB 96, which will extend “ban-the-box” to include private employers when it goes into effect.  Under the new law, if a private employer uses an employment application, the employer may not make an inquiry regarding an applicant’s criminal history.  (Enacted as new section of N.M. Stat. Ann. § 28-2-1, et seq.)  Nonetheless, an employer “may take into consideration an applicant’s conviction after review of the applicant’s application and upon discussion of employment with the applicant.”  And an employer may notify the public or an applicant that the law or the employer’s policy could disqualify an applicant with a certain criminal history from particular positions.  Id.  More details can be found in the Restoration of Rights Project, New Mexico profile.  (Note that the ban-the-box law applicable to public employers in New Mexico is considerably more protective of individuals with a record, prohibiting inquiries until the applicant has been selected as a finalist, and disallowing consideration of non-conviction records and misdemeanors not involving “moral turpitude.”)  CLEMENCY South Dakota – Streamlined clemency process On February 5, 2019, South Dakota Governor Kristi Noem signed HB 1005, which authorizes a hearing panel of two Board members appointed by the chair to make clemency recommendations to the governor.  See HB 1005 (repealing the requirement in S.D. Codified Laws § 24-13-4.6 that commutation and pardon recommendations be made by a majority of the nine-member board, and making conforming amendments to §§ 24-15A-10 and 24-15A-11).  A new provision of § 24-15A provides for review of a panel’s decision to deny a pardon recommendation by the full Board, which may “adopt, modify, or reject the panel’s denial and recommend a pardon.”   More details can be found in the Restoration of Rights Project, South Dakota profile. MISCELLANEOUS  Virginia – Reinstatement of drivers’ licenses  An amendment to Virginia’s 2019 budget bill specifically requested by Governor Ralph Northam to “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” was accepted by the legislature on April 3, 2019.  See HB 1700.  When this law becomes effective on July 1, it will immediately reinstate driving privileges to more than 627,000 Virginians.    Read more

First crop of restoration laws enacted in 2018

In 2017, state legislatures produced a bumper crop of laws restoring rights and opportunities, with 24 separate states enacting new legal mechanisms to facilitate reentry and reintegration.  Based on pending bills and laws already enacted this year, 2018 promises to be similarly productive.  In March, the governors of Florida, Utah and Washington all signed into law new measures expanding their existing restoration schemes.  Washington enacted a ban-the-box law applicable to both public and private employment, and both Florida and Utah expanded their laws authorizing expungement of non-conviction records.  These new authorities are described in the post that follows, and can be seen in the context of related laws in the state profiles in the Restoration of Rights Project. While none of these first enactments of 2018 is particularly remarkable standing alone, they deserve mention as harbingers of things to come.  More than thirty additional states have restoration bills pending, and half a dozen of these are well along in the enactment process.  We will be tracking restoration bills through the year, and will report periodically in this space – particularly when a significant new law is enacted.  We also hope to produce in 2018 another annual report on Second Chance Laws enacted during the year, as resources permit. Washington – Ban-the-box applicable to public and private employment In March 13, 2018, Governor Inslee signed into law HR 1298, prohibiting public and private employers from inquiring about criminal record until after a determination that the person is otherwise qualified for the position.  The new section of Title 49 (Labor Code) will not apply to employers required or permitted by law to conduct background checks, including financial institutions, to employers of vulnerable populations, or to non-employee volunteers. The new ban-the-box provision supplements existing provisions of Washington law that permit employers and licensing agencies to consider a conviction record only if within the last 10 years and then only the crime “directly relates” to the employment or license sought.  In addition, court-issued Certificates of Restoration of Opportunity (CROP) prohibit employers and licensing agencies from disqualifying individuals based on criminal conviction, and protect against negligent hiring liability. Washington’s laws regulating consideration of conviction in employment and licensing are set forth in the profile from the Restoration of Rights Project. Florida – Acquittals now eligible for immediate expungement  HB 1065, signed into law 3/27/18, expands eligibility for immediate court-ordered “expunction” (destruction) to cases where a person has been acquitted by a judge, or has had a verdict of not guilty rendered by a judge or jury, by-passing the requirement under existing law that such a record must first be sealed for 10 years.  Under existing law, immediate expunction is available only if all charges are dismissed before trial.   Other existing eligibility requirements remain in place:  only those who have had no prior convictions or expungements are eligible, and those charged with violent or sex offenses are ineligible. These changes are effective October 1, 2018. Florida’s scheme for sealing and expungement is set forth in the RRP profile. Utah – Expansion of authority to expunge non-conviction records.  Under Utah law in effect prior to March 19, 2018, a person was able to apply for expungement of arrest or other non-conviction records only if no charges were filed or charges were dismissed with prejudice.   SB 62 as enacted now authorizes courts to expunge records where the entire case is dismissed without prejudice or without condition as long as (1) the prosecutor consents in writing to the issuance of a certificate of eligibility OR (2) at least 180 days have passed since the date of dismissal.   Under the new authority, a court is required to issue an order of expungement if the court finds by clear and convincing evidence that the prosecutor provided written consent and has not filed and does not intend to refile related charges.  A person seeking expungement may reapply for a certificate of eligibility if the court denies the original petition based on the prosecutor’s intent to refile charges and charges are not refiled within 180 days of the date the court denies the original petition.  Requires the prosecutor opposing expungement of a case dismissed without prejudice or without condition to have a good faith basis for the intention to refile the case.  Clarifies that the Department of Public Safety is prohibited from counting pending or previous infractions, traffic offenses, or minor regulatory offenses when determining whether to grant a certificate of eligibility for expungement; that only fines and interest ordered by the court related to the conviction for which expungement is sought must be paid in full before expungement may be ordered; and, that fines or fees arising from pending or previous infractions, traffic offenses, or minor regulatory offenses are not counted when determining expungement eligibility. Utah’s scheme for sealing and expungement is set forth in the RRP profile.   Read more

New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types.  The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process.  Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time.  Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible.  Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado’s new “order of collateral relief” provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction.  The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority.  These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<       Read more

50-state guide to expungement and sealing laws

The 50-state chart of judicial relief mechanisms from the NACDL Restoration of Rights Resource, which is also posted on this site, is a comprehensive survey of all authorities for judicial relief in the states and federal system. We wanted to bring it to our readers’ attention in light of the new federal interest in helping individuals with a criminal record overcome barriers to employment and licensing through clearing their records. The National Clean Slate Clearinghouse, recently announced as part of President Obama’s reentry initiative, will “provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” This joint project of the Labor and Justice Departments will doubtless make it a first priority to survey the laws providing judicial and other relief in different states, to determine what sort of assistance lawyers will need to neutralize the adverse employment consequences of conviction, though the courts or otherwise.  We hope these resources will prove useful in that effort. Note that terminology and procedure differ significantly from state to state, so that those interested in more specific information about the scope, operation and effect of a particular state’s laws should consult the state-by-state profiles accessible through the Resources tab on the home page of this site.  For example, while the term “expungement” may involve destruction of records in a few states (e.g., Pennsylvania), more frequently it means a limited restriction on public access to records.  For example, in Kansas certain employers and licensing agencies continue to have access to criminal records notwithstanding an expungement order from the court.  In Indiana “expungement” entails no limit of public access at all — although some records may be sealed after expungement.  In some states a judicial set-aside or vacatur involves a sealing of the record (e.g., Michigan, Washington) but in others it doesn’t (e.g., California).  Most jurisdictions authorize sealing or expungement of non-conviction records upon petition to the court. In the past few years a number of states have modified their provisions for sealing or expungement of records, but most of these new laws reach only minor offenses or non-conviction records, and frequently involve long eligibility waiting periods that defeat their usefulness for reentry purposes. Conspicuous exceptions are the comprehensive new judicial relief schemes enacted in Indiana and Minnesota, and Arkansas’ reorganization and expansion of its existing expungement laws. A few states, notably Kansas and Utah, have broad expungement laws dating from the 1970s. Note that there is no statute providing for expungement of federal convictions, and almost no authority to limit access to non-conviction records — a circumstance that has led several federal sentencing courts to consider expungement through their ancillary jurisdiction. The most well-known of these cases is U.S.v. Jane Doe, now on appeal in the Second Circuit, in which Judge John Gleeson ordered expungement of a fraud conviction of a woman he had sentenced 13 years before.  (Briefs in the Doe case are available here.) Read more