Category: Administrative law

President Biden orders DOJ to facilitate voting for people in federal custody or under supervision

On election day in 2016, Crystal Mason, a Texas mother of three, cast a provisional ballot. She was unaware that Texas considered her ineligible to vote because she was on federal supervised release at the time. Six months later she was arrested. A year and a half later, she was convicted of voter fraud and sentenced to five years in prison. Mason, who is Black, believes that her prosecution was “politically and racially charged.” An appeals court upheld the conviction, ruling that whether Mason knew she was ineligible to vote was irrelevant to the case against her. She is pursuing further appeals. At trial, one of Mason’s supervision officers, Ken Mays, testified that he had not informed her that she could not vote in Texas while on federal supervised release because it was not part of standard procedure: “That’s just not something we do.” Now, a few years later, a new executive order issued by President Joe Biden will change standard procedure to require the notice Ms. Mason never received. The order also directs the Justice Department to facilitate voting for people in federal custody or on supervision who are eligible to vote in their state of residence. In recent years, there has been growing attention to the racist origins of felony disenfranchisement, to its racially disparate effect, and to how restoration of voting rights strengthens our democracy. This past Sunday, March 7, 2021, was the 56th anniversary of “Bloody Sunday,” an infamous day when Alabama troopers violently beat civil rights marchers—including the late John Lewis, civil rights leader and longtime member of Congress—on the Edmund Pettus Bridge in Selma. While delivering an address to mark the occasion, President Biden announced that he had issued an Executive Order directing every federal agency to promote access to voting. The Order includes an ambitious directive to the Attorney General to provide voter education materials to hundreds of thousands of individuals in federal custody, under federal supervision, or formerly incarcerated, and to facilitate voting for those who are eligible under state law. See Sec. 9 (“Ensuring Access to Voter Registration for Eligible Individuals in Federal Custody”). This represents “the first time the federal government has ever taken action to ensure justice-involved voters can participate equally in our democracy.” As Crystal Mason’s case demonstrates, many people with a record lack clear information about their eligibility to vote, due to misinformation and the complexity of state laws and policies governing voting rights for people with a record. (CCRC documents and explains these laws and policies in our 50-state resources.) Further, eligible voters in jail and prison face practical challenges that often make registration and voting difficult or impossible. Newly-confirmed Attorney General Merrick Garland will surely direct sufficient resources and expertise to implementing this directive. The result could be a radical expansion of voting education and access for millions of individuals with federal criminal records, with ripple effects benefiting tens of millions with state criminal records. Moreover, given the widespread racial disparities in the criminal justice system, this effort could significantly improve access to voting for Black communities and other communities of color, issues that Garland prioritized at his Senate confirmation hearing. This article briefly outlines the state of the law governing loss and restoration of voting rights due to conviction. It then reviews the specifics of Biden’s directive, discussing its potential impact on four groups: (1) individuals in the custody of the Federal Bureau of Prisons; (2) individuals detained in jails under contracts with U.S. Marshal Service; (3) individuals under the supervision of the Office of Probation and Pretrial Services in the Administrative Office of U.S. Courts; and (4) formerly incarcerated individuals. Loss and restoration of voting rights due to conviction Currently, voting rights depend upon state law, for people with both state and federal convictions. The following chart roughly outlines current state law regarding loss and restoration of voting rights due to conviction: Loss of voting rights 2 states, D.C., and Puerto Rico do not disenfranchise based on conviction; 19 states disenfranchise based on a felony conviction with a sentence of incarceration; 3 states disenfranchise upon any conviction with a sentence of incarceration; 21 states disenfranchise upon a felony conviction; 2 states disenfranchise upon a conviction for a listed offense; and 3 states disenfranchise upon a felony conviction or a conviction for certain misdemeanors. Restoration of voting rights 2 states, D.C., and Puerto Rico do not disenfranchise based on conviction; 18 states restore voting rights upon release from custody for the disqualifying conviction; 3 states restore voting rights upon completion of incarceration and parole (or earlier) for the disqualifying conviction; 13 states restore voting rights upon completion of incarceration and supervision for the disqualifying conviction; 10 states restore voting rights upon completion of incarceration, supervision, and payment of (some or all) court debt for the disqualifying conviction; and 4 states restore voting rights only by a discretionary exercise of executive clemency. (In addition to the statutory restoration mechanisms above, voting rights may be restored in any state by executive clemency.) Our more detailed 50-state chart is available here and individual state information with citations are here. A recent report by The Sentencing Project estimates that 5.17 million people are currently disenfranchised due to a felony conviction, with disproportionate impacts on Black and Brown communities. This figure does not include additional people in 9 states who remain disenfranchised solely due to unpaid court debt, a barrier with obvious socioeconomic impacts. There has been a flurry of reforms in this area during the last five years. Just since 2016, 19 states have taken steps to restore the right to vote for people with a felony and expand awareness about eligibility. This year alone, at least 19 state legislatures are considering bills to further expand the franchise for those with a conviction. The House of Representatives passed a bill last week that, if enacted, would limit conviction-based disenfranchisement in federal elections to persons currently incarcerated for a felony conviction. (Congress has the constitutional authority to regulate federal elections, including eligibility to vote based on a conviction record.) President Biden’s new executive order is poised to significantly expand awareness of voting eligibility. Notably, it will also facilitate voting for those who are eligible, a particular challenge for those in custody, and those reentering society. 1.  Individuals in the custody of the Federal Bureau of Prisons First, the executive order directs the Attorney General to “establish procedures, consistent with applicable law, to provide educational materials related to voter registration and voting and, to the extent practicable, to facilitate voter registration, for all eligible individuals in the custody of the Federal Bureau of Prisons.” Of the 151,703 individuals currently incarcerated by the Federal Bureau of Prisons, most are not eligible to vote, since they are probably incarcerated for a felony conviction, which disqualifies them from voting in at least 46 states (plus 2 others, depending on the offense). But those who are eligible can receive indispensable assistance to exercise their voting rights from custody. The executive order further provides that “educational materials should also notify individuals leaving Federal custody of the restrictions, if any, on their ability to vote under the laws of the State where the individual resides and, if any such restrictions exist, the point at which the individual’s rights will be restored under applicable State law.” Our 50-state chart and additional state-specific information is perhaps the most up-to-date national survey of this information. Determining the point at which voting rights will be restored under applicable state law will be fairly straightforward in 40 states. As discussed above, 2 states do not revoke voting rights due to conviction and 18 states restore the vote immediately upon release from incarceration. Another 3 states restore voting rights upon completion of any parole or earlier, and 13 states do so upon completion of any remaining supervision. An additional 4 states never restore lost voting rights unless a person obtains executive clemency (or, in the case of Mississippi, legislative clemency). The governors of 3 of these states currently restore voting rights for many people upon completion of supervision, pursuant to executive orders. However, for the remaining 10 states, determining the point at which voting rights are restored can be quite complex. This is because these 10 states require satisfaction of legal financial obligations associated with a disqualifying conviction to regain the vote: 4 states require payment of all court debt and 6 states require payment of specific types of debts. For people with in-state convictions, there are significant administrative barriers for determining how much is owed, whether the debt falls into a disqualifying category (i.e. restitution, fine, cost, etc.), and whether it is associated with a disqualifying conviction—challenges illustrated in great detail during last year’s federal litigation regarding Florida’s voting restoration system. For people with out-of-state convictions, some states require a person to regain their voting rights in the jurisdiction of conviction, whereas others require that they meet the requirements where they reside and propose to vote. In the latter case, procedures can be unclear or impracticable for demonstrating that court debt for an out-of-state conviction has been satisfied (a problem illustrated in detail by a recent legal complaint filed by the Campaign Legal Center on behalf the Tennessee Conference of the NAACP and five residents). 2.  Individuals in jails under federal authority The second part of Biden’s directive relating to people in federal custody requires the Attorney General to “establish procedures, consistent with applicable law, to ensure the United States Marshals Service includes language in intergovernmental agreements and jail contracts to require the jails to provide educational materials related to voter registration and voting, and to facilitate voting by mail, to the extent practicable and appropriate.” Of the roughly 631,000 people detained in local jails at a given time, about 24,000 people are held for the U.S. Marshals, according to the Prison Policy Initiative (PPI). Therefore, while Biden’s executive order would bring awareness to and facilitate voting for only a small fraction of those held in jails, it could indirectly improve the voting landscape for people in many detention facilities, since federal detainees are held in facilities spread throughout the United States. PPI reports that most people in jail are legally eligible to vote but in practice usually cannot, because of factors such as widespread misinformation about eligibility, a range of barriers to voter registration, and challenges to casting ballots. Some states, like Illinois, have recently enacted legislation to facilitate voting in jails, and the DOJ’s efforts could spur further advancements. 3.  Individuals under federal supervision and formerly incarcerated The next part of Biden’s directive requires the Attorney General to “establish procedures, consistent with applicable law, for coordinating with the Probation and Pretrial Services Office of the Administrative Office of the United States Courts to provide educational materials related to voter registration and voting to all eligible individuals under the supervision of the Probation and Pretrial Services Office, and to facilitate voter registration and voting by such individuals.” The Probation and Pretrial Services Office supervises people in pretrial services, including pretrial release and diversion; and people on post-conviction supervision, including probation and supervised release. On September 30, 2019, there were 237,510 individuals under the office’s supervision, including 108,606 in pretrial services and 128,904 under post-conviction supervision. Many of these individuals are likely eligible to vote, particularly those in pretrial services, and those on post-conviction supervision who are serving a misdemeanor sentence or who reside in the 18 states that restore the vote after release from custody, or in the two states and D.C. that don’t disenfranchise at all. 4.  Obtaining voter identification for those formerly incarcerated  The last part of Biden’s directive requires the Attorney General to “take appropriate steps, consistent with applicable law, to support formerly incarcerated individuals in obtaining a means of identification that satisfies State voter identification laws, including as required by 18 U.S.C. 4042(a)(6)(B).” A “bureaucratic maze” in the federal government leaves many incarcerated individuals without identification upon their release, according to The Atlantic. Helping released individuals obtain ID is important not only for overcoming voting barriers, but for successful reentry more generally, including obtaining housing and employment. Conclusion While President Biden’s executive order will not limit or eliminate conviction-based disenfranchisement under state laws, it has the potential to transform a primary barrier to voting for many people with a record: lack of awareness about who is and who is not eligible to vote. The confusion that currently prevails is laced with intimidation and fear caused by state prosecutions of people who make innocent mistakes about their eligibility, like Crystal Mason whose case was described in the introduction. By implementing a robust program to inform and empower the hundreds of thousands, or millions, of voters or potential voters who pass through federal custody and supervision in the coming years, the Justice Department can help revive its earlier reputation as a stalwart protector of voting rights in the states. Read more

Applying for SBA COVID-19 relief with a criminal record in 2021

Last Updated: September 9, 2021 In December 2020, Congress authorized additional COVID-19 financial relief for small businesses and nonprofits, available through the Small Business Administration (SBA). The SBA’s two primary programs for COVID-19 financial relief are the Paycheck Protection Program (PPP), which provides forgivable loans to small businesses and nonprofits to help keep their staff employed during the crisis; and the COVID-19 Economic Injury Disaster Loan (EIDL) program, which provides advances and loans to small businesses and nonprofits that experience a temporary loss of revenue due to COVID-19. After the first COVID-19 relief bill, the CARES Act, funded these programs in March 2020, the SBA imposed broad criminal history restrictions on applicants. In the face of pressure, the administration relaxed those restrictions several times over the course of the following months.  In March 2021, the Biden Administration removed an additional restriction.  In this post, we review those developments and describe the SBA’s current criminal history policies, also available on the SBA’s website (PPP and EIDL). To summarize, as a result of developments to date, the SBA now excludes from PPP relief only a narrow category of people with a criminal record: those 1) actually incarcerated or with pending felony charges; or 2) convicted, pleaded guilty or nolo contendere to, or commenced any form of parole or probation within the last 5 years for certain financial felonies. The category of those excluded from EIDL relief is broader: 1) anyone convicted of any felony within the past five years, and 2) anyone with any sort of pending criminal charges. We conclude with a series of recommended changes to the laws governing SBA loans that affect people with a criminal record, and to related SBA regulations and policies.  These recommendations include consideration of how a loan applicant’s criminal record is treated in the rules and policies governing the SBA’s general lending programs under Section 7(a) and 7(b) of the Small Business Act, whose only mention of criminal record is to authorize the SBA to “verify the applicant’s criminal background, or lack thereof,” including through an FBI background check. In Spring 2020, after Congress first authorized hundreds of billions of dollars for small business relief during the early months of COVID-19, the SBA, by rule and by policy, imposed unusually broad and frequently changing restrictions on applicants with an arrest or conviction history. It applied even more restrictive policies on application forms than in published regulations. Alerted to the problem by emails from affected small business owners, we identified and described the relevant policies, and collaborated with a consortium of other organizations to persuade the SBA to roll back these restrictions. As we documented, these criminal history restrictions, neither required nor contemplated by Congress, impeded access to the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan (EIDL) program, for small business owners, sole proprietors, and nonprofits. Paycheck Protection Program Facing a chorus of criticism, and the introduction of a bipartisan Senate bill to roll back most of the PPP criminal history restrictions, SBA eased some of them, in a limited fashion, on June 12. Shortly thereafter, multiple federal lawsuits were filed challenging the PPP restrictions. On June 24, SBA further relaxed them, this time in a far more significant fashion, notably making the business owners who had sued eligible. The change came less a week before the June 30 final deadline to apply for the original round of PPP. A day before the deadline, a federal judge ruled that the SBA’s criminal history restrictions, except for the June 24 policy change, were likely unlawful. The court extended the deadline, but only for those who had sued. Shortly thereafter, Congress extended the PPP application deadline to August 8 for everyone, giving many newly eligible business owners their first opportunity to apply. After Congress authorized a new round of PPP funding in December, the SBA reopened the program on January 11 for first-time participants, and on January 13 for certain business who are eligible to apply for Second Draw PPP Loans. The SBA’s criminal history restrictions reflecting the June 24 policy change, excluded applicants if: An owner of 20 percent or more of the equity of the applicant is presently incarcerated or, for any felony, presently subject to an indictment, criminal information, arraignment, or other means by which formal criminal charges are brought in any jurisdiction; or has been convicted of, pleaded guilty or nolo contendere to, or commenced any form of parole or probation (including probation before judgment) for, a felony involving fraud, bribery, embezzlement, or a false statement in a loan application or an application for federal financial assistance within the last five years or any other felony within the last year. See Interim Final Rule on Paycheck Protection Program as Amended by Economic Aid Act (published on Jan. 14, 2021 in the Federal Register); see also FAQs for Lenders and Borrowers (effective Dec. 9, 2020). On March 3, 2021, following an announcement from the Biden White House, the SBA removed the one-year lookback restriction related to non-financial fraud felonies, consistent with bipartisan Congressional support for reducing criminal history restrictions in the Paycheck Protection Program. Therefore, the current policy excludes an applicant if: An owner of 20 percent or more of the equity of the applicant is presently incarcerated or, for any felony, presently subject to an indictment, criminal information, arraignment, or other means by which formal criminal charges are brought in any jurisdiction; or has been convicted of, pleaded guilty or nolo contendere to, or commenced any form of parole or probation (including probation before judgment) for a felony involving fraud, bribery, embezzlement, or a false statement in a loan application or an application for federal financial assistance within the last five years. Economic Injury Disaster Loans For most of 2020, SBA was nontransparent about its criminal history restrictions for COVID-19 Economic Injury Disaster Loans (EIDL) and advances. According to an alleged leak of documents on May 3, 2020 (which we believe was reliable), the SBA for some time had been denying applicants if they had ever been arrested, unless the arrest was for a misdemeanor and occurred more than 10 years ago. On May 20, 2020, an SBA spokesperson, without disputing the authenticity of the leaked documents, nonetheless stated that their information “is incorrect. An applicant with a felony conviction in the last 5 years would be declined.” Several months later, in an FAQ published on September 8, 2020, the SBA finally disclosed its criminal history restrictions for COVID-19 EIDL, which were broader than the May 20, 2020 spokesperson’s statement (and broader than the PPP restrictions): Applicants [for COVID-19 EIDL] may be declined if they have been convicted of a felony in the past five years; or ever been engaged in the production or distribution of any product or service that has been determined to be obscene by a court…are currently suspended or debarred from contracting with the federal government or receiving federal grants or loans; and/or those who are presently subject to an indictment, criminal information, arraignment, or other means by which formal criminal charges are brought in any jurisdiction. Those restrictions remained operative through at least FAQs that were effective Feb. 4, 2021. However, in new FAQs published and effective September 8, 2021, SBA incorporated the current criminal history restrictions of the Paycheck Protection Program into the COVID-19 EIDL program, replacing all previous guidance: Ineligible entities:…. • Any 20% or more owner of the applicant currently incarcerated • Any 20% or more owner of the applicant presently subject to an indictment, criminal information, arraignment, or other means by which formal criminal charges are brought in any jurisdiction for any felony • Any 20% or more owner of the applicant, within the last 5 years, for any felony involving fraud, bribery, embezzlement, or a false statement in a loan application or an application for federal financial assistance, has 1) been convicted; 2) pleaded guilty; 3) pleaded nolo contendere; or 4) commenced any form of parole or probation (including probation before judgment)? • Any 20% or more owner of the applicant, in the past year, has been convicted of a felony committed during and in connection with a riot or civil disorder or other declared disaster…. See FAQ Regarding COVID-19 EIDL (effective Sep 8, 2021). Preexisting SBA 7(a) Requirements The 7(a) statute authorizes the SBA to “verify the applicant’s criminal background, or lack thereof,” including through an FBI background check. An SBA regulation makes ineligible “[b]usinesses with an Associate who is incarcerated, on probation, on parole, or has been indicted for a felony or a crime of moral turpitude.” An SBA policy statement goes beyond this regulation to makes ineligible businesses with an Associate currently under specified forms of diversionary or conditional dispositions, order of protection, a sex offender registry, or facing any charges in any jurisdiction. This policy statement further provides that various principals of a business “must be of good character.” (The “good character” determination requires disclosure and documentation of: 1) current charges; 2) arrests in the past 6 months; and 3) any (excluding minor vehicle violations) convictions, guilty and no contest pleas, or placement on pretrial diversion or any form of parole or probation, at any time. Expunged and sealed records must be disclosed. A person may then be approved if they have satisfied all sentencing conditions and do not have a felony conviction, misdemeanor conviction for a crime against a minor, recent misdemeanor conviction, or recent charges. Otherwise, in any of these situations, the SBA requires that they undergo an FBI fingerprint background check followed by an individual “good character” determination by the SBA.) Recommended reforms Along with the Justice Roundtable, we recommend that the Biden Administration and the 117th Congress make the following changes in the SBA’s Paycheck Protection Program and 7(a) Loans: Executive Branch Proposals The SBA should thoroughly review and revamp its general 7(a) rules and policies to remove any exclusions based on criminal history. The SBA should ensure that if any criminal history restrictions remain in regulations, the restrictions in policy documents and application forms for the Paycheck Protection Program (PPP) and other loans within the general 7(a) program are no broader than the regulations require. Legislative Proposals Amend the Small Business Act to prohibit the SBA from excluding people from eligibility for 7(a) loan assistance based on criminal history. Strengthen the Paycheck Protection Program Second Chance Act (S.3865), a bipartisan Senate bill that would prohibit many criminal history restrictions for PPP relief, by removing categorical exceptions for applicants with an equity ownership of 20 percent or more who are incarcerated or were convicted of certain felonies. Note: This post was originally posted on Jan. 21, 2021, and has been updated to reflect that on March 3, 2021, the SBA issued new rules removing a one-year look-back restriction related to non-financial fraud felonies, and that on September 8, 2021, the SBA issued new guidance for COVID-19 EIDL. Read more

Legislative Report Card: “The Reintegration Agenda During Pandemic”

CCRC’s new report documents legislative efforts in 2020 to reduce the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. In total, 32 states, D.C., and the federal government enacted 106 bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a record. Our Legislative Report Card recognizes the most (and least) productive state legislatures last year. Hands down, Michigan was the Reintegration Champion of 2020 with 26 new record reform laws, while Utah was runner-up, and seven other states were commended for their work. LEGISLATIVE REPORT CARD This year Michigan gets the top mark as our Reintegration Champion for the most consequential legislative record of any state in 2020, enacting a remarkable 26 bills addressing record relief, diversion, occupational licensing, driver’s license suspension, sex offense registration, and public benefits. Most notably, Michigan’s new “clean slate” record relief scheme is even more ambitious than the reform that earned New Jersey the title of Reintegration Champion in 2019. Like New Jersey, Michigan substantially expanded the number of convictions eligible for petition-based sealing and directed the development of an automated sealing system applicable retroactively to a wide range of misdemeanor and felony convictions going back decades. Unlike New Jersey’s automation program, which has no timetable for coming online, the Michigan scheme by law must be made operational within two years. Michigan also significantly expanded record relief for juvenile records and marijuana offenses. In other relevant reforms, Michigan limited the kinds of criminal records that can be considered by occupational licensing agencies, barred suspension of driver’s licenses for a range of legal violations unrelated to dangerous driving, repealed bans on federal food and family assistance due to felony drug convictions, and revised its sex offender registration scheme. Utah is runner-up for our Reintegration Champion award, based on a prolific legislative record that addressed issues as various as diversion, occupational licensing, and record-sealing in a total of seven separate laws. Utah’s productive 2020 followed an equally productive 2019, when its legislature authorized automated expungement of many misdemeanor convictions and non-conviction records and took major steps toward regulating occupational licensing agencies. Honorable mention for a productive legislative season goes to seven states. California, Louisiana, and Virginia each enacted a number of new authorities intended to promote reintegration, and California restored the vote to parolees by a ballot measure amending the state’s constitution. Virginia’s legislature deserves special recognition for having enacted 10 separate laws after many years of producing little or nothing related to restoration of rights. Idaho, Iowa, Missouri, and Rhode Island all passed impressive schemes to regulate consideration of criminal record in occupational licensure for the first time. Low marks go to four of the states that enacted no record reform laws at all in 2020. While there are many states in this category this year, likely because of the distractions and burdens of the pandemic, the legislatures of Alaska, Kansas, Massachusetts, and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2019, a year when almost every other state passed at least some law limiting access to and use of criminal records. We conclude by noting that many of 2020’s new laws were enacted after state legislatures were virtually shut down by the pandemic. (Indeed, several provisions of the most recent federal pandemic stimulus bill qualify for inclusion in this report.) This seems to us evidence that criminal record reform is now regarded as central to the Nation’s legislative agenda. We anticipate that in the coming year Congress and states that have been comparatively cautious in their recent law-making will be inspired to take larger steps to limit discrimination based on criminal record, as they see what more ambitious jurisdictions have already been able to accomplish. — The full report is available here. A more comprehensive 50-state grading system is incorporated into our national report The Many Roads to Reintegration and accompanying Reintegration Report Card. Read more

“The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020”

In each of the past five years, CCRC has issued an end-of-year report on legislative efforts to reduce the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life.[i] These reports document the progress of what has become a full-fledged law reform movement to restore individuals’ rights and status following their navigation of the criminal law system. Our 2020 report, linked here, shows a continuation of this legislative trend. While fewer states enacted fewer laws in 2020 than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda. In 2020, 32 states, the District of Columbia, and the federal government enacted 106 legislative bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a criminal record. As in 2019, in 2020 a majority of the new laws involve what we have come to call “record relief,” measures that operate directly on the criminal record itself to reduce its negative effect. Record relief may limit public access through expungement or sealing, vacate or pardon the conviction, or avoid a conviction record through diversion or deferral of judgment. Other restoration laws regulate discretionary decisionmakers that control access to the workplace, public benefits, and education. Still others expand the franchise, and curb driver’s license suspensions based on unpaid court debt or grounds unrelated to driving offenses. Also, again this year we publish a legislative Report Card recognizing the most (and least) productive state legislatures in 2020. Hands down, Michigan was the Reintegration Champion of 2020 with 26 new record reform laws, while Utah was runner-up, and seven other states were commended for their work. We will publish this Report Card separately tomorrow. The body of the report itself provides topical discussions of last year’s reform measures, followed by an appendix documenting the laws by jurisdiction. More detailed analysis of each state’s laws is available in the CCRC Restoration of Rights Project. (A general roundup of criminal justice reforms in 2020 is also available at The Appeal’s Political Report.) *** Looking ahead to 2021 The legal landscape at the end of 2020 shows states continuing to experiment with different types of relief to advance a reintegration agenda. The crisis of the pandemic may have slowed the legislative momentum seen in 2019, but it certainly did not bring it to a halt. Approaches to record reform continue to vary widely from state to state, with respect to the type of relief, the specifics of who is eligible for it, the mechanics of delivery, and its effect. Yet despite this variety it is clear that there has been no flagging in the lively national conversation about how best to limit unwarranted record-based discrimination. In 2021, we predict a continuing expansion of record-clearing opportunities, both for conviction and non-conviction dispositions. We also expect additional efforts to automate record relief, which in turn will necessitate simplification of eligibility criteria and improved records management by courts and repositories, which should lead to better coordination of state and federal records systems and more reliable criminal background checks. Elimination of bars to occupational licensing will also continue to be a top priority, given the bipartisan support for these regulatory reforms. So will expansion of diversionary and deferred dispositions, which we were pleased to see in the Business Roundtable’s “second chance agenda.” We also hope for continued progress toward restored voting rights for—at the very least—all citizens living in the community, without regard to whether they have completed the terms of their sentence or paid off court-ordered financial obligations.  Other issues that should be addressed by the states are the extension of fair employment and housing laws to cover discrimination based on criminal record, matters of particular importance during a pandemic and economic crisis. Finally, we hope that Congress will work to develop and make available to people with federal convictions the same type of statutory restoration mechanisms that are available for people with state convictions, to supplement if not largely replace presidential pardons as a routine record relief mechanism. For example, the absence of any statutory or administrative mechanism for restoring firearms rights to people with a federal conviction has swelled pardon case backlogs at the Justice Department in the past 25 years, and this issue should be addressed by the incoming administration. Congress could also usefully expand the existing federal deferred adjudication statute[ii] to cover any probation-eligible offense, since avoiding a conviction record is infinitely preferable to trying to neutralize one after the fact. Another area that Congress should reconsider is how federal statutes treat state non-conviction dispositions like diversion and deferred adjudication, including under the immigration laws, Fair Credit Reporting Act, Small Business Administration assistance, and criminal history provisions of the Federal Sentencing Guidelines.[iii] In short, in 2021 we expect to see a continuation of recent years’ commitment to fair treatment of people with a criminal record, in legislatures, in state houses, and in courts. In this regard, three projects we intend to focus on this year are improving access to petition-based felony expungement, putting together a set of best practices for court-managed diversionary programs, and advising jurisdictions in developing a reasonably attainable legislative package of record reforms. We will develop an agenda of statutory and regulatory reforms for the federal system as well. We will also look for opportunities to advocate for improvements in specific laws and record relief programs, and to participate as amicus curiae in promising litigation involving restoration of rights. Throughout, we will encourage a conversation about the vexing problem of unclear and inconsistent terminology that frustrates the development of a consistent national record relief policy.  And, of course, we will continue to update the Restoration of Rights Project as laws are enacted, report periodically on significant new authorities, and sum up each year’s work at its conclusion. The full report is available here. [i] See CCRC annual reports on new legislation describing new restoration and record relief laws from 2013 through 2019, accessible at https://ccresourcecenter.org/resources-2/resources-reports-and-studies/: Pathways to Reintegration: Criminal Record Reforms in 2019 (2020); Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018 (2019); Second Chance Reforms in 2017: Roundup of new expungement and restoration Laws (2018); Four Years of Second Chance Reforms, 2013 – 2016: Restoration of Rights & Relief from Collateral Consequences (2017). [ii] 18 U. S. C. § 3607, the so-called Federal First Offender Act. [iii] See Federal laws that give effect to state relief mechanisms, Federal: Restoration of Rights & Record Relief, CCRC Restoration of Rights Project (Last updated Nov. 2, 2020), https://ccresourcecenter.org/state-restoration-profiles/federalrestoration-of-rights-pardon-expungement-sealing/#E_Federal_laws_that_give_effect_to_state_relief_mechanisms. Read more

SBA throws in the towel and Congress extends the PPP deadline

After Congress authorized hundreds of billions of dollars for small business relief during COVID-19, the Small Business Administration (SBA) by rule and by policy imposed restrictions on applicants with an arrest or conviction history.  As we have documented, these SBA barriers, neither required nor contemplated by Congress, unlawfully impeded access to the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan (EIDL) program.  Over many weeks, the Administration stubbornly defended those barriers.  Finally, facing a bipartisan chorus of criticism including from members of Congress, and lawsuits in federal court, the Administration threw in the towel. On June 12, shortly after the SBA eased some of the PPP restrictions, lawsuits were filed in federal court by several Maryland business owners challenging those restrictions.  On June 24, SBA further relaxed its PPP barriers, this time in a far more significant fashion, notably making the business owners who had sued the SBA eligible.  But the latest policy change came with less a week before the June 30 application deadline. Then, just one day before the deadline, a federal judge ruled that the SBA’s criminal history restrictions on PPP, except for the June 24 policy change, were likely unlawful.  The court extended the deadline to apply, but only for the small business owners who had sued. In a dramatic finale, Congress extended the PPP application deadline to August 8 for everyone.  This extension, signed into law on July 4, gives business owners made eligible under the June 24 policy a meaningful opportunity to learn about their eligibility and complete the application process.  A good outcome all around, thanks to the many people who refused to take no for an answer! Specifically, the federal court held that the SBA’s criminal history exclusions issued in April 15 and June 12 regulations were likely arbitrary and capricious because they “contain no explanation for the criminal history exclusion.”  In contrast, the court found that the June 24 regulation “provides a reasoned explanation for a more limited criminal history exclusion.”  The more limited exclusion excludes applicants who answer yes to either of the following questions, per the current application form: 5. Is the Applicant (if an individual) or any individual owning 20% or more of the equity of the Applicant presently incarcerated or, for any felony, presently subject to an indictment, criminal information, arraignment, or other means by which formal criminal charges are brought in any jurisdiction? 6.  Within the last 5 years, for any felony involving fraud, bribery, embezzlement, or a false statement in a loan application or an application for federal financial assistance, or within the last year, for any other felony, has the Applicant (if an individual) or any owner of the Applicant 1) been convicted; 2) pleaded guilty; 3) pleaded nolo contendere; or 4) commenced any form of parole or probation (including probation before judgment)? “I am grateful for a legal outcome that gives me a chance to apply for this loan instead of excluding me unfairly because of my former incarceration,” said Sekwan Merritt, one of the plaintiffs, owner of Lightning Electric.  “It is critical for business owners like myself to have the same opportunity to get this crucial funding.” “The SBA must not repeat this injustice in any future aid programs, and we hope that the clear message sent by today’s ruling will insure that they won’t,” said Claudia De Palma, staff attorney at the Public Interest Law Center.  “The ruling rightly calls the SBA’s previously broad exclusions of business owners with criminal records unlawful,” said ReNika Moore of the ACLU.  “The SBA must do away with policies that exclude Black and Brown entrepreneurs.” Experience in the past three months has shown how counterproductive such policies can be.  People turn their lives around and start small businesses, only to be shut out of emergency assistance programs with little or no explanation. These restrictions also result in disparate racial impacts, given longstanding institutional racism in the criminal justice system.  A study conducted by three economists and published by University of Michigan Institute for Social Research, looked at data from seven states and found that the SBA’s original PPP criminal history exclusions had a disparate impact, with Black and Hispanic men, and Black women, experiencing higher than average exclusion from PPP eligibility. Looking ahead to what small business owners with records may expect from the SBA in the future, we will work to ensure that SBA does not forget the lessons learned during the past three months.  At a minimum, the SBA should accord the same treatment to applications from people with criminal records under future stimulus programs, as well as the regular 7(a) and 7(b) small business loan programs, as it is now willing to accord them in the final stage of PPP applications.  We will continue to work for the elimination of all categorical bars based on criminal record for small business funding, occupational licenses, and other government benefits.  But for this stage, it was a good outcome all around thanks to the many people who would not take no for an answer! Read more