Category: Commentary

A closer look at racial disparities in California’s automatic record clearing

Numerous studies have demonstrated how Black Americans are treated more harshly at every stage of the criminal legal system—from over-policing to overcharging to more punitive sentencing. New research from California shows how eligibility limitations on criminal record relief perpetuate racial disparities in the criminal justice system, and have a disproportionately adverse effect on Black Americans. The study, by Alyssa Mooney, Alissa Skog, and Amy Lerman, and published in Law & Society Review, examined recent legislative changes to criminal record relief laws in California, one of the first states to automate relief. The study assessed the equity of California’s existing automatic record relief laws by examining the share of people with criminal records who are presently eligible for automatic record clearing, and variations across racial and ethnic groups. The authors found that 20% of all those convicted of any offense between 2000 and 2016 were eligible for automatic relief. An additional 33% were eligible to petition the court for relief, and 47% were ineligible for any relief at all by virtue of the nature of their conviction or terms of their sentence. But the study also found eligibility was lowest among Black people, with only 15% qualifying for automatic relief, and 29% for petition-based relief. Meanwhile, 21% of White people with convictions qualify for automatic relief, and another 35% are eligible by petition. As in other states, the California legislature has limited the types of convictions that are eligible for record relief, generally excluding those who spent time in state prison for more serious felonies. Because of the state prison limitation, the study shows 30% of Black people in California will never get relief from their records, compared to 15% of White people and 19% of people with convictions overall. In addition, if all ineligible felony convictions are factored in, the ineligibility rate increases to 40% for Black people, 28% for White people and to 32% overall. (Incomplete sentences, pending charges, and variable waiting periods make it hard to calculate eligibility percentages exactly, while missing data creates another set of problems.) The study then considered how several hypothetical changes to current California law would affect racial equity in eligibility for record clearing. First, the authors examined the effect of incorporating convictions currently eligible only by petition into automatic relief. Then the study considered the effects of automatically granting record relief after seven years for convictions now ineligible for any relief. Finally, the study considered the result if both of these changes were enacted. The study found that making relief automatic in cases where it is now “discretionary” (i.e., petition-based) would increase eligibility from 15% to 44% of Black Californians and from 21% to 56% of White Californians—but this would double the racial disparity for automatic relief from 6% to 12%. Enacting a seven-year “sunset” rule (making relief automatic seven years after completion of sentence) for those currently excluded from any record-clearing relief would would reduce disparity slightly by increasing overall eligibility to 58% of Black Californians and 63% of White Californians. If both of these potential reforms were enacted, eligibility for automatic relief would increase to 64% of Black Californians and 70% of White Californians. While some racial disparity remains, it would be no greater than the differential under existing law — and, more significant, the absolute number of people who qualified for automatic record relief would greatly increase. The study’s authors suggest that other states that have automated some record relief likely have similar racially disparate outcomes because felony convictions are largely excluded from eligibility. The study also points out that California also has a particular challenge in effectuating its new provisions for automatic record clearing, since many county agencies do not report the outcomes of criminal cases to the California Department of Justice. Because the DOJ administers automatic record relief by sending lists of eligible cases to courts, people with convictions in counties that do not report disposition data will be left without the relief for which they are legally eligible. Since the initial publication of the study, the California legislature has passed a bill, SB 731, that would incorporate several of the authors’ proposed reforms, which Governor Newsom is expected to sign into law. Another enrolled bill, SB 1106, will make additional cases eligible by removing at least some outstanding court debt as a bar to relief. CCRC will publish a comprehensive review of that legislation when it becomes law. The study’s authors plan to revise their eligibility estimates this fall, based on the new legislation. Read more

Forum on governmental barriers to small business financing for people with a criminal history

We are delighted to announce a program where a panel of experts will discuss the barriers faced by small business owners and managers with a criminal history in obtaining government-sponsored loans. This virtual program will take place on November 18 from 12:00-1:15pm (EST), and is sponsored by the Georgetown Center for Business and Public Policy as part of its Georgetown on the Hill series. Register for the event here. The program–which we helped organize along with Georgetown’s PIVOT Program–will focus on the broad criminal history restrictions in rules and policies of the U.S. Small Business Administration. These policies came to the public’s attention in the early days of the pandemic, when thousands of small businesses were denied PPP and other relief authorized by the CARES Act. While many of these restrictions were eventually rolled back in response to widespread criticism, similar restrictions in the SBA’s general lending programs remain, restrictions that influence state and private lending as well. The program on November 18 will explore the origins, scope, and justification for these restrictions. Panelists include a former high-ranking SBA official, a small business owner who successfully challenged the PPP restrictions in court, a scholar who has argued that the SBA restrictions contravene civil rights law, and the CCRC’s Deputy Director David Schlussel, who contributed to the bipartisan campaign in the spring of 2020 that led the SBA to abandon many of its exclusionary policies. We hope that everyone interested in collateral consequences, notably those related to access to business capital, will register for the program. The Georgetown announcement describing the program is reproduced below. Understanding Governmental Barriers to Small Business Financing for People with a Criminal Record Date: Thursday, November 18, 2021 – 12:00pm to 1:15pm Location: Zoom Seminar (register for link) New businesses are a key driver to economic growth, but individuals seeking to start these businesses face a number of challenges. For individuals with a criminal history these challenges of establishing and growing a new business increase dramatically. Indeed, a particularly stifling series of federal regulations and policies are currently in place that impose broad criminal history restrictions on access to government-sponsored business loans. Last year, the U.S. Small Business Administration (SBA) imposed broad criminal history restrictions on COVID-19 relief, leading to criticism from the public and members of Congress. Successive decisions by the Trump and Biden Administrations rolled back of most of these restrictions on emergency relief, but similar policies remain in the SBA’s general lending programs. Given that about one third of adult Americans have an arrest or conviction record, of whom a disproportionate percentage are people of color, it is important to reconcile this population’s limited access to government-sponsored business capital with the emerging public policy of encouraging reintegration and second chances. At this Georgetown on the Hill event, a panel of experts moderated by Crystal Francis, Program Manager, Georgetown University Pivot Program, will discuss the economic and social impact of these restrictive policies in a forum with Q&A. Panelists will consider the issues that arose when the policies were applied to pandemic relief funds; the possible correlation between criminal history and creditworthiness; and the elements of a “fair chance” approach to business lending. Panelists include: Taja-Nia Henderson, Professor of Law, Rutgers University Law School Sekwan Merritt, Entrepreneur and Owner, Lightning Electric, a Baltimore-Based Electrical Contractor Chris Pilkerton, Chief Legal and Regulatory Strategy Officer for the Accion Opportunity Fund, and former Cabinet member and head of the U.S. Small Business Administration David Schlussel, Deputy Director, Collateral Consequences Resource Center This forum is part of the Georgetown Center for Business and Public Policy’s Georgetown on the Hill series at which we convene policymakers, academics, and industry experts to discuss important economic policy issues of the day. Read more

CCRC’s First Newsletter

Dear Subscribers, We write with an update on our continued work to promote public discussion of restoration of rights and opportunities for people with a record. Highlights from this year’s work are summarized below, including roundups of new legislation, case studies on barriers to expungement, policy recommendations, and a new “fair chance lending” project to reduce criminal history barriers to government-supported loans to small businesses. We thank you for your interest and invite your comments as our work progresses. Fair Chance Lending Starting a small business is increasingly recognized as a pathway to opportunity for individuals with an arrest or conviction history—particularly given the disadvantages they face in the labor market. Yet many structural barriers remain to these individuals, including from a series of little-known federal regulations and policies that impose broad criminal history restrictions on access to government-sponsored business loans, notably by the U.S. Small Business Administration (SBA). To illuminate and help reduce these barriers, our organization recently launched a new “Fair Chance Lending” project. We hope to show that—rather than broadly exclude individuals with a criminal history—officials should draw record-based restrictions as narrowly as feasible, facilitate access to resources, and celebrate entrepreneurial efforts, consistent with growing national support for reintegration and fair chances in civil society. The SBA’s record-related lending policies came into focus in the spring of 2020 when the agency imposed remarkably broad criminal history restrictions on hundreds of billions in financial relief for small businesses and nonprofits authorized through the CARES Act in response to COVID-19. We researched the issues in detail and joined a large bipartisan group of organizations calling on the SBA to revise its restrictions. This project is a continuation of that work, with an expanded look at small business loan programs more generally. Reintegration Reform Returns to Pre-Pandemic Levels in First Half of 2021 CCRC staff in July completed a roundup of record relief legislation in the first half of 2021. Thirty states enacted 101 pieces of legislation to mitigate collateral consequences. The legislation includes work in restoring access to voting rights, record relief, limiting the influence of criminal records in issues of employment and licensure, housing, and many other areas. Much of this new legislation was quite significant. For example, Alabama, Arizona, and Virginia joined the 38 other states that now allow sealing or expungement of at least some misdemeanor and felony convictions. Arizona also became the thirteenth state to authorize its courts to issue judicial certificates of relief. Connecticut enacted an automatic record clearing law and limited ineligibility for voting and jury service to the period of actual incarceration for a felony. New Jersey enacted the most comprehensive fair chance housing legislation to date. Arnold Ventures highlighted our roundup of new state legislation in this article. While much of the action came from state governments, the Biden Administration took some steps to mitigate collateral consequences. However, Congress has continued a decade long trend of little activity in this area. Given the health and economic harms of the pandemic, there is a particular need for state and federal lawmakers to adopt the policies recommended by CCRC to support opportunities for people with a record (see Reintegration Agenda below). Marijuana Expungement and Legalization in Early 2021 CCRC in the Spring partnered with the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law to document and produce maps and graphics about recent state marijuana legalization and criminal record expungement policies. The report covers four states (New Jersey, New Mexico, New York, and Virginia) who legalized recreational marijuana in 2021 and included automatic expungement provisions into their legislation. Further, all four states also included legislation to promote social equity, primarily through directing tax revenue and legal marijuana business opportunities into communities most affected by criminal law enforcement. Access Barriers to Felony Expungement by Petition CCRC has started to take a closer look at state-by-state barriers to expungement, partnering with Beth Johnson and the Rights and Restoration Law Group (RRLG) to create a survey of barriers to expungement. The survey covers barriers in four primary areas: resources and knowledge, eligibility, process, and effectiveness.  We expect that detailed case studies across multiple states will expand understanding of these barriers and help drive policy change.  When these case studies reveal the daunting barriers to petition-based felony expungement that, as a practical matter, limit relief to a small percentage of those eligible — barriers that may be difficult and costly to overcome — it may encourage adoption of automated relief systems. 1. The Case of Illinois In February RRLG produced a case study of Illinois, using this survey. While Illinois legal aid resources are well-funded and standardized application forms are used statewide, most courts do not inform defendants about the availability of sealing as required by law. In addition, complete and accurate criminal history records are hard for individuals to obtain because the Illinois courts are decentralized. While eligibility for felony sealing is very broad, and waiting periods are brief and uniform for all eligible offenses.  However, the waiting period begins anew with any new conviction, including even misdemeanor driving offenses.  As to process barriers, the study found that many specific aspects vary from jurisdiction to jurisdiction, and frequently impose unnecessary burdens on petitioners.  Finally, on effectiveness, the study found that while most public and private employers and licensing agencies are prohibited from considering sealed records by the state human rights law, regulated employers that are required to do background checks are broadly exempted and there is no single source of information to identify those exempted employers. In addition, courts that sell their records in bulk to background screeners do not monitor purchasers to ensure that sealed records are removed. There is no private right of action for unlawful disclosure of sealed records. 2. The Case of Utah  CCRC partnered with Noella Sudbury in July to continue our series of case studies. Noella also used the survey tool to analyze Utah’s expungement law and policy in terms of four categories: resource and knowledge, eligibility, process, and effectiveness. As Utah moves to implement automatic expungement for non-conviction and misdemeanor conviction records, the time seems ripe for tackling barriers to the petition-based process for felony expungement in Utah.  Access to legal aid for expungement services is extremely limited, particularly in rural areas, and eligibility criteria are extremely complex and confusing.  Before filing a petition for expungement in court, individuals must first apply for and obtain a certificate of eligibility from Utah’s Department of Public Safety for each offense sought to be expunged, a process that is costly, burdensome, and time-consuming.  Certain state agencies continue to have access to expunged records, and Utah’s courts, like many others, sell their records in bulk to third parties, including background check companies, and there is no private right of action for unlawful disclosure of expunged records. CCRC currently has a team of practitioners studying the expungement process in Tennessee, and we hope to have a report on that state before the end of the year. A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, and Employment As national and political support grows for more beneficial policies in reintegration, and states continue to implement a diverse array of policies, Congress must follow their lead. Federal records continue to hinder people with previous convictions who do not have access to relief mechanisms present in most states. CCRC recommends in this report that the Biden administration and Congress pursue an ambitious agenda in four primary categories; record relief, access to federal public benefits, employment and licensing, and voting rights. The Reintegration Agenda During the Pandemic; Criminal Record Reforms in 2020 and 2021 CCRC’s annual legislative reports have documented enactments authorizing record relief and mitigating collateral consequences. 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. While these measures represent a slight reduction in legislation as compared to the last two years, given the challenges of the pandemic, they still demonstrate a growing public commitment towards restoration of rights after arrest or conviction. This report offers a comprehensive overview of each state’s legislative efforts, which in conjunction with report cards also published by CCRC, demonstrates which states are making significant progress and which states are lagging in supporting reintegration for people with a record. An interim report for the first half of 2021 showed a return to pre-pandemic legislating, with 30 states and the District of Columbia enacting an extraordinary 101 new laws to mitigate collateral consequences. Six more bills awaited a governor’s signature.  It appears that legislative momentum in support of facilitating reintegration has returned to the pre-pandemic pace of 2019. Overall, at mid-year 2021 we could report that the 30 months between January 1, 2019, and July 1, 2021, produced an astonishing total of 361 laws aimed at neutralizing the adverse effect of a criminal record, plus more than a dozen additional executive actions and ballot initiatives. Restoration of Rights Project As always, CCRC continuously updates its Restoration of Rights Project project with the most recent law and policy changes for each state around the country. The materials cover loss and restoration of civil and firearms rights; pardon, expungement and other record relief; and consideration of criminal records in employment, licensing, and housing. Our state-by-state guides and 50-state comparisons help individuals, practitioners, policymakers, scholars, and journalists understand the current landscape and advocate for change. The rest of 2021 offers a fantastic opportunity to continue efforts towards reform, and we hope that you will continue to engage with CCRC moving forward. This work has been made possible by the generosity of Arnold Ventures and we thank them for their support. Best wishes, Collateral Consequences Resource Center Margaret Love, Executive Director David Schlussel, Deputy Director Jack Keating, Intern Read more

Federal policies block loans to small business owners with a record

Starting a small business is increasingly recognized as a pathway to opportunity for individuals with an arrest or conviction history—particularly given the disadvantages they face in the labor market. An estimated 4% of small businesses in the United States have an owner with a conviction (1.5% have a felony conviction). Small businesses provide “a vital opportunity for those with a criminal record to contribute to society, to earn an honest profit, and to give back to others.” They also frequently employ people with a record and help reduce recidivism. A growing number of organizations and government programs are devoted to supporting individuals with a record in building their own businesses. Yet many structural barriers remain, including a series of little-known federal regulations and policies that impose broad criminal history restrictions on access to government-sponsored business loans, notably by the U.S. Small Business Administration (SBA).  A recent article illustrates the steep challenges faced by business owners with a record by telling the stories of several entrepreneurs who were either denied an SBA loan or were discouraged from even trying for one because of a dated felony conviction.  One of those entrepreneurs comments: “You might do five years, ten years, one year, but you pay for it until you’re in the grave.” To illuminate and help reduce these barriers, our organization is working to develop a new “Fair Chance Lending” project. We hope to show that—rather than broadly exclude individuals with a criminal history—officials should draw record-based restrictions as narrowly as feasible, facilitate access to resources, and celebrate entrepreneurial efforts, consistent with growing national support for reintegration and fair chances in civil society. The SBA’s record-related lending policies came into focus in the spring of 2020 when the agency imposed remarkably broad criminal history restrictions on hundreds of billions in financial relief for small businesses and nonprofits authorized through the CARES Act in response to COVID-19. The SBA’s pandemic relief programs were massive: in fiscal year 2020, the agency distributed $525 billion through the Paycheck Protection Program (PPP) and $211 billion through the Economic Injury Disaster Loan (EIDL) program. But hundreds of thousands of small businesses and nonprofits were barred by the SBA from accessing these funds through shockingly extensive criminal history restrictions not required or suggested by statute, with disproportionate impacts on Black and Latino/Latinx communities. A recent RAND study found that just one aspect of these restrictions—the disqualification from PPP relief of all businesses with an owner or “associate” with a felony conviction within the previous five years—excluded an estimated 212,655 small businesses with 343,198 employees. When we began to write about SBA’s restrictions on COVID-19 relief shortly after the passage of the CARES Act, our servers crashed because of the level of public interest, requiring us to update our systems. Thousands of business owners emailed us, with a wide variety of disqualifying records and types of businesses, desperate for help, fearful of publicly discussing their predicament lest their backgrounds be exposed. We researched the issues in detail and joined a large bipartisan group of organizations calling on the SBA to revise its restrictions. The SBA, also facing public pressure from impacted individuals, a bipartisan group of lawmakers, and litigation, rolled back most of the restrictions it had imposed, with the Trump Administration loosening restrictions on multiple occasions over the course of 2020 and the Biden Administration making additional changes in early 2021. Despite the massive impact of these restrictions on the first round of emergency relief, the SBA did not initially explain or attempt to justify them. When sued in June 2020, the SBA defended its rule on grounds that criminal history can speak to an applicant’s “higher likelihood of reincarceration” and “potential for misuse of funds.” See Defy Ventures v. U.S. Small Business Administration, 469 F. Supp. 3d 459, 476 (D. Md. 2020). Despite the easing of record-related restrictions on COVID-19 relief, the SBA continues to maintain extensive criminal record barriers in its general business loan and disaster assistance programs which are summarized below. The SBA treats criminal history as a credit risk, despite the absence of any evidence to support that position or statutory authority for it.1 While the agency has awarded a handful of grants in recent years to community-based organizations working with formerly incarcerated entrepreneurs, its general lending programs all but preclude loans to the entrepreneurs themselves. In addition to its various lending programs, the SBA provides training, contracting opportunities, and other forms of assistance to small disadvantaged businesses through the 8(a) Business Development Program, which allows participants to take advantage of set-aside and sole-source contracts to help aspiring entrepreneurs compete for positions as government contractors. The 8(a) Program allows for, and often requires, consideration of applicants’ criminal backgrounds as part of a mandate that applicants have “good character.” In contrast, the SBA’s rural-focused sister agency, the U.S. Department of Agriculture, appears to administer its various lending programs to farmers and ranchers with narrowly-tailored criminal history restrictions tied to specific statutory provisions.2 The SBA’s criminal history restrictions very likely contribute to racial inequalities in the economy. The SBA’s criminal history restrictions on COVID-19 relief led to documented racial disparities. The SBA’s comparable criminal history restrictions in its general loan programs almost certainly have similar effects, particular given the well-documented racial disparities in the instance of criminal records in general. The SBA makes little effort to justify its broad policy-based restrictions, which heightens their contrast with the targeted statutory restrictions that apply to rural-focused lending programs administered by the USDA. The criminal record restrictions in the SBA’s lending programs are described in greater detail below. Criminal record restrictions in the Small Business Administration’s lending programs The SBA 7(a) and 504 programs The SBA’s most common business loan, through the 7(a) program, guarantees a large percentage of a loan provided by a private lender. The SBA’s development company program, the 504 program, provides long-term, fixed rate financing for major fixed assets through Certified Development Companies. Both programs authorize individual loans of up to $5 million. In fiscal year 2020 alone, the SBA provided $22.5 billion in loans through the 7(a) program and $5.8 billion through the 504 program. An SBA regulation makes ineligible for either program “[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.” SBA’s policy statement applicable to both programs imposes additional blanket restrictions, also making ineligible businesses with an associate currently under specified forms of diversionary or conditional dispositions, an order of protection, registered with a sex offense registry, or facing any criminal charges in any jurisdiction. This policy statement further provides that various individuals associated with the business must also be “of good character,” as determined by the SBA (this includes any proprietor, general partner, officer, director, managing member of a limited liability company, owner of 20% or more of the equity of the Applicant, Trustor, or any person hired to manage day-to-day operations). Each of these persons must disclose and provide documentation about: (1) any arrests in the past six months; and (2) any criminal offense (excluding minor vehicle violations), any convictions, guilty pleas, no contest pleas, or any placements on pretrial diversion or any form of parole or probation, at any time. All expunged and sealed records must be disclosed. If any person has not satisfied all sentencing conditions (which may include payment of court debt), the applicant is not eligible for a loan. A lender may proceed with a loan (assuming all other requirements are met) if all the documented criminal records are older than six months and involve either: a non-conviction or a misdemeanor conviction not involving a crime against a minor. However, if any person has: a prior felony conviction that was not reduced to a misdemeanor, a prior misdemeanor conviction for a crime against a minor, or, within the previous six months, either a misdemeanor conviction or charges filed, they are required to complete an FBI fingerprint background check and undergo an individualized character determination by the SBA—before a lender may process the loan. It is unknown how often lenders actually proceed with the FBI/SBA process at that point rather than simply deny the application. It is also unknown how often the SBA finds that such a person meets the “good character” requirement in its policy statement. 2. The SBA microloan program The SBA’s microloan program, which provides loans of up to $50,000 through authorized nonprofit community-based intermediaries, imposes narrow criminal history restrictions. The SBA distributed $85 million through this program in fiscal year 2020. Regulations provide that businesses are ineligible only if they have an associate who is incarcerated or under indictment for a felony or crime of moral turpitude, or on probation or parole for certain offenses. The SBA’s policy statement for the microloan program does not impose any additional blanket restrictions or good character requirements, although it vests discretion with the lender to determine whether to lend to an applicant with a criminal record other than the disqualifying records described above. 3. The SBA disaster loan program The SBA’s disaster loan program, which provides long-term, low-interest loans to recover from disasters, also includes criminal history restrictions. First, an applicant is not eligible by statute if an owner was convicted in the previous year of a felony during and in connection with a riot or civil disorder or other declared disaster. Second, the applicable SBA policy statement states that it will not approve a loan if the applicant or principal owner is presently on parole or probation following conviction of a “serious criminal offense” (unless, for partnerships, corporations, and limited liability entities, the offense was unrelated to the business and the individual will divest all interest in the business). Third, the SBA requires that all of the following persons undergo a “character evaluation”: proprietors, limited partners who own 20% or more interest,  general partners, or stockholders or entities owning 20% or more voting stock, if they have any current charges pending, have been arrested in the previous six months, or if they have for any criminal offense excluding minor vehicle violations, any convictions, guilty pleas, no contest pleas, or any placements on pretrial diversion or any form of parole or probation. A detailed explanation about the records must be provided, including unpaid fines and fees. An application can be processed without an FBI fingerprint check only if the disclosed criminal activity “is both minor in nature and was committed more than 10 years ago.” Otherwise, an FBI background check must be completed. Finally, the SBA will make a determination of whether the person is “of good character.” (Note that separate criminal history requirements apply to COVID-19 disaster loans.) *** In the coming months, we plan to continue this work by conducting further research on SBA, USDA, and state policies, convening conversations between stakeholders, and issuing policy recommendations on this important issue. 1 The Small Business Act authorizes the SBA to “verify [a loan] applicant’s criminal background, or lack thereof,” and authorizes the conduct of an FBI investigation of loan applicants. See 15 U.S.C. §636(a)(1)(B).  But neither this provision nor any other law requires that a background check be conducted as a condition of making a loan, much less does it require the agency to treat criminal history as a measure of creditworthiness.  Cf. 13 C.F.R. §120.150(a) (SBA regulation stating that it will consider “character” and “reputation” in determining if an applicant is “creditworthy”). The only statutory criminal history restriction on SBA loan applicants that we can identify is a half-century old exclusion from 7(b) disaster loans of persons convicted in the year prior to application of a felony “during and in connection with a riot or civil disorder.” See Department of Housing and Urban Development (HUD) Act of 1968, P.L. 90-448 § 1106(e). In addition, the SBA, and every other federal agency, is subject to a government-wide provision that can result in disqualification from federal loans and grants for a period of time based on certain drug convictions. See 21 U.S.C. § 862 (denial of federal grants, contracts, loans, and licenses based on court-imposed and mandatory debarments based on convictions for trafficking or possessing controlled substances). 2 Record-related barriers covering USDA lending programs appear to be few and targeted, rooted in statutes, and triggered by specific offenses. See, e.g., 21 U.S.C. § 889 (conviction for planting, cultivation, growing, producing, harvesting, or storing a controlled substance triggers prohibition for that crop year and four succeeding crop years on access various USDA loan, grant, payment and contract programs); 7 C.F.R. § 718.6 (same); 7 U.S.C. § 2209j (permanent or 10-year debarment from USDA programs for fraud in connection with USDA programs); 2 C.F.R. § 417.865 (same). One of the USDA’s business loan programs, for example, the Business & Industry (B&I) Loan Guarantees program, described by the USDA as “similar” to the SBA 7(a) program but targeted to rural businesses, does not appear to contain any additional criminal history restrictions except an optional bank “character” review that is not specifically linked to criminal record. See 7 C.F.R. § 5001.202 (“When applicable, a [lender’s] evaluation [of an applicant] may include the character of persons with management control or a 20 percent or more ownership interest in the borrower.”). In addition, the USDA, like every federal agency, is subject to government-wide provisions that can result in disqualification from federal loans and grants for a period of time based on specific types of criminal convictions. See note 1. Read more

“The Mark of Policing: Race and Criminal Records”

This is the title of an important symposium piece by Eisha Jain published by the Stanford Law Review, in which she urges that “racial reckoning in policing” include consideration of the negative credentialing effect of arrest records. Using the sociological framework of “marking,” Jain shows how unjustified arrests “both magnify and conceal race-based discrimination.” She argues that “Reckoning with race in the criminal justice system requires recognizing that the problem is not just the police: It is with a legal regime that entrenches racial subordination through criminal records.” The good news is that many of the criminal record reforms of the last several years provide for automatic or expedited expungement or sealing of non-conviction records. (See our 50-state chart on “Process for expunging or sealing non-convictions” and our Model Law on Non-Conviction Records recommending automatic expungement.) But the bad news is that even the laws streamlining the sealing of non-conviction records in two dozen states frequently fail to extend to records of uncharged arrests, which can linger in police files and repositories long after court records have been sealed. In the hands of police agencies, they may lead to further policing abuses. Disseminated through background checks and the internet they limit employment, housing, and other opportunities. When considering how to neutralize the effect of non-conviction records, jurisdictions must concern themselves with this neglected source of racial inequity. Here is the abstract of Professor Jain’s article: This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records. Arrests alone—regardless of whether they result in convictions—create criminal records. Yet because the literature on criminal records most often focuses on prisoner reentry and on the consequences of criminal conviction, it is easy to overlook the connections between policing decisions and collateral consequences. This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing. The marking framework recognizes that the government creates a negative credential every time it creates a record of arrest as well as conviction. Such records, in turn, trigger cascading consequences for employment, housing, immigration, and a host of other areas. The credentialing process matters because it enables and conceals race-based discrimination, and because a focus on the formal sentence often renders this discrimination invisible. This Essay considers how adopting a credentialing framework offers a way to surface, and ultimately to address, how race-based policing leaves lasting marks on over-policed communities. See the full essay here. Read more