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).
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).
In recent weeks, three more states — Colorado, Louisiana and Vermont — have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status.
We are just now noting Wyoming’s enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws.
In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way. States have enacted several different types of “second chance” laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing.
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.