On January 10 we posted our annual report on new laws enacted in 2022 to restore rights and opportunities to people with a record of arrest or conviction. Like our earlier reports, it documents the steady progress of what we characterized two years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.
This year’s criminal record reforms bring the total number of separate laws enacted in the past five years to more than 500. Posted below is our fourth annual legislative Report Card recognizing the most productive states in 2022.
Reintegration Awards for 2022
While more than a handful of states enacted noteworthy laws in 2022, two states stand out for the quantity and quality of their legislation: California and Oklahoma share our 2022 Reintegration Champion award for their passage of at least two major pieces of record reform legislation.
- California – Enacted a whopping 11 new laws, including the broadest general record clearing law in the nation, a direction to courts to effectuate clearing of marijuana records, removal of restitution as a bar to clearing criminal records, easing access to judicial certificates of rehabilitation, and simplification of the process for certifying people with criminal records to work in community care. California’s governor also vetoed a bill that would have facilitated background screening by eliminating court-imposed restrictions on online access to personal identifying information.
- Oklahoma – Enacted a major automatic record clearing law and the most sweeping update to an occupational licensing scheme of any state in the country this year. Oklahoma also passed a significant law allowing young people who successfully complete the state’s youthful offender program to have their charges dismissed and expunged.
Another eight states earned an Honorable Mention for their enactment of at least one significant new record reform law: Read more
Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing. Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords. (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state’s reintegration scheme in our Restoration of Rights Project.)
Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking: Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation.
- Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors.
- Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking.
Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Read more
NOTE: Governor Pritzker signed S1480 into law on March 23.
In our recent report on criminal record reforms enacted in 2020, we noted that there were only four states that had fully incorporated criminal record into their fair employment law as a prohibited basis of discrimination. These states (New York, Wisconsin, Hawaii, and California) provide that employers can only disqualify a person based on their record if it meets a specific standard, such as being related to the work in question or posing an unreasonable risk to public safety. Illinois will become the fifth state to take this important step as soon as Governor Pritzker signs S1480.
Illinois has been working up to this, having amended its Human Rights Act in 2019 to prohibit employment discrimination based on “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.” With S1480, Illinois has now taken the final step of incorporating criminal record fully into the law’s structure, which includes authorization to file a lawsuit in the event administrative enforcement is unsatisfactory. A preliminary analysis of the new Illinois law indicates that it now offers more protection for more people with a criminal record in the employment context than any state in the Nation other than California.
The provisions of the Illinois bill, enrolled and sent to the governor for signature on February 12, are described below. We then compare them with the laws in the four other states that incorporate criminal record into their fair employment law. This post notes the handful of additional states that have fortified their record-related employment protections in recent years, then summarizes relevant reforms that were enacted in 2020.
We’ve noted in recent posts the numerous states that, just in the past three or four months, have enacted broad occupational licensing reforms affecting people with a criminal record. Many of these new laws have been influenced by a model developed by the Institute for Justice (IJ), a libertarian public interest law firm that has been litigating and lobbying to reduce barriers to work for more than two decades. In turn, states like Indiana, Kansas, Tennessee and Wisconsin have built upon IJ’s model to enact even more progressive schemes intended to ensure that people with the requisite professional qualifications will not be unfairly excluded based on a record of arrest or conviction.
Now IJ has incorporated many of these progressive refinements into its original model licensing law, the Occupational Licensing Review Act (OLRA), and broken out the provisions relating to criminal records into a free-standing model act specifically directed at managing collateral consequences in the occupational licensing context, the new Collateral Consequences in Occupational Licensing Act (CCOLA).
On April 16, Wisconsin Governor Scott Walker signed into law Act 278, making his state the sixth in the past two months to establish new rules on consideration of criminal record in the context of occupational and professional licensure. Effective August 1, 2018, licensing boards in Wisconsin will be prohibited in most cases from denying or revoking a license based on arrests or pending charges, and required to justify in writing any adverse action based on conviction. Boards will also be required to give applicants a preliminary determination as to whether a particular conviction will be disqualifying.
Indiana, Arizona, Massachusetts, Nebraska and Tennessee have all recently enacted laws regulating how licensing boards treat arrests and convictions, in some cases with strikingly similar features, as described in recent posts here and here. The conviction-related provisions of the model occupational licensing law proposed by the Institute for Justice are reflected in almost all of these new laws, though many of them go even farther to discourage unwarranted discrimination affecting as much as 25% of the U.S. workforce.
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.
Last month the Wisconsin Supreme Court held in State v. Lemere that the Sixth Amendment does not require defense counsel to advise a client that a conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the Sixth Amendment right to counsel, since it reflects differing views in state high courts.
In an unusual case involving judicial failure to warn about the immigration consequences of a guilty plea, the Wisconsin Supreme Court has held that the likelihood of inadmissibility (as opposed to deportation) was sufficient to set aside three guilty pleas entered more than a decade before. State v. Valadez, 216 WI 4 (Jan. 28, 2016). The decision suggests that it may be possible to challenge guilty pleas years after the fact, in any jurisdiction where a statute or court rule requires the court to warn about immigration consequences before accepting a guilty plea.
As part of budget deliberations, the Wisconsin Legislature’s Joint Finance Commitment approved a provision that would allow courts to remove records of certain dismissed charges from the computerized statewide records system.
Under current law, although certain conviction records of youthful defendants may be expunged, anomalously dismissed charges remain accessible. The new provision would allow a judge to order removal of a record from the internet site if all charges have been dismissed; all charges carried a maximum penalty not exceeding six years of imprisonment; none of the charges were classified as violent crimes; and the charges were filed before the defendant attained age 25. These are the same criteria that apply to expungement of youthful convictions.
People who would benefit from the change include people whose only contact with the criminal justice system was a case that was ultimately dismissed after they went through deferred prosecution or a first offenders program.
The new law would apply retroactively, thus allowing individuals to apply for removal from the website of charges dismissed before the effective date of the provision. The redaction of records would apparently apply only to records accessible on the website, not to court records accessible through the local clerk of court, nor to arrest records accessible through law enforcement agencies.
The state budget still awaits approval by both houses of the Legislature and by the Governor, who has broad authority for line-item vetoes.