Category: Diversion/deferred dispositions

Business community endorses broad second-chance agenda

The Business Roundtable, which represents the CEOs of major U.S. companies, yesterday issued corporate and public policy recommendations to advance racial equity and justice in the wake of 2020’s triple crises disproportionately impacting communities of color: pandemic, recession, and protests in response to police violence.  The policy recommendations have six themes: employment, finance, education, health, housing, and the justice system.  The justice system policy report was developed with the assistance of CCRC’s Margaret Love and David Schlussel, who provided general advice in connection with the Roundtable’s consideration of second-chance policies. The second-chance recommendations are extremely encouraging, signaling the business community’s embrace of a broad agenda for alleviating barriers to economic and social opportunities for people with a criminal record. The Roundtable endorsed specific pending federal legislation dealing with automatic expungement, judicial certificates of relief, fines and fees reforms, and prison education and training programs.  The Roundtable also expressed support for expanding federal and state deferred adjudication (judicial diversion) policies, limiting the dissemination of dated conviction records in background checks, “banning the box” in hiring in all states, and relaxing state and federal hiring and occupational licensing bans. As part of its action agenda, the Roundtable has committed to partnering on the creation of a business coalition to advance second-chance hiring by employers. Coalition members will exchange best practices, learn from subject matter experts, and develop and deploy tools to improve second-chance hiring, as part of a workforce diversity strategy. Our recent national report, “The Many Roads to Reintegration,” which surveys the current state of the law on many of the issues addressed by the Roundtable recommendations–including employment, licensing, expungement, judicial certificates, deferred adjudication, and other forms of record relief–is available here. The Roundtable’s full set of justice system recommendations are listed below. Business Roundtable: “Justice System” Prison Education & Training “Business Roundtable endorses the Promoting Reentry through Education in Prisons (PREP) Act of 2019, which would strengthen education and workforce training programs for incarcerated individuals.” “Business Roundtable reaffirms its 2019 endorsement of the Restoring Education and Learning (REAL) Act of 2019, which would extend Pell Grants eligibility to inmates.” Criminal Record Relief “Business Roundtable supports expansion of deferred adjudication policies as well as congressional reforms that authorize federal courts to avoid conviction and prison sentences for, and to extend expungement to, a broader class of defendants.” “Business Roundtable  endorses the Clean Slate Act of 2019, which would automatically expunge certain non-violent federal records.” “Business Roundtable endorses the RE-ENTER Act of 2019, which would grant federal courts the authority to issue a certificate of rehabilitation for certain federal crimes.” “Business Roundtable supports reforms to the Fair Credit Reporting Act to restore the seven-year limit on dissemination of conviction records by credit reporting companies, a limit that now applies only to non-conviction records.” Employment & Occupational Licensing “Business Roundtable will partner on the creation of a business coalition to advance second-chance hiring by employers.” “Business Roundtable supports passage of ‘Ban the Box’ legislation in all states, which would require removal of criminal records inquiries from employment applications.” “Business Roundtable supports reforms to federal and state statutes that prohibit hiring or licensure of individuals who have been convicted of, or entered pretrial diversion for, certain crimes unrelated to public safety.” Fines & Fees “Business Roundtable endorses the State Justice Improvement Act of 2020, which would provide technical assistance to states to create more equitable justice system fee structures.” “Business Roundtable endorses the Driving for Opportunities Act of 2020, which would incentivize states to repeal laws that suspend driver’s licenses for unpaid justice-related fees.” Policing: “Business Roundtable calls on Congress to commit to pass bipartisan policing reform that aligns with the principles of data collection and transparency, accountability, standards, training, and community engagement.” Read more

“The Many Roads to Reintegration”: A 50-state report on laws restoring rights and opportunities

We are pleased to release a new report describing the present landscape of laws in the United States aimed at restoring rights and opportunities after an arrest or conviction. This report, titled The Many Roads to Reintegration, is an update and refresh of our previous national survey, last revised in 2018. The report covers voting and firearms rights, an array of record relief remedies such as expungement and pardon, and consideration of criminal record in employment and occupational licensing. In each section of the report we assign a grade to each state for each type of relief. We collate these grades to produce an overall ranking on the nine categories that we graded. That ranking is reproduced below. We are encouraged by the amazing progress that has been made in the past few years toward neutralizing the effect of a criminal record since the present reform era got underway less than a decade ago. The last two years in particular have produced a bumper crop of new laws in almost every U.S. jurisdiction. Some of our top performers have been long-time leaders in promoting reintegration, including Illinois, Utah, and Minnesota. But some of the most progressive lawmaking has come from states newer to the field, like Nevada, Colorado, and North Dakota. These and the other states in our Top Ten set an example that we hope will inspire other jurisdictions in the months and years to come. The executive summary of the report is reprinted below. The full report is available in PDF and HTML formats. Voting, Record Relief, Employment & Licensing The report considers remedies for three of the four main types of collateral consequences: loss of civil rights, dissemination of damaging record information, and loss of opportunities and benefits, notably in the workplace.[1] Its first chapter finds that the trend toward restoring the vote to those living in the community—a long-time goal of national reform organizations and advocates—has accelerated in recent years. Further reforms may be inspired by the high-profile litigation over Florida’s “pay-to-vote” system, which shines a national spotlight on financial barriers to the franchise. This chapter also finds that systems for restoring firearms rights are considerably more varied, with many states providing relief through the courts but others requiring a full pardon. The second chapter deals with laws intended to revise or supplement criminal records, an issue that has attracted the most attention in legislatures but that has benefited the least from national guidance. It is divided into several parts, based on the type of record affected (conviction or non-conviction) and the type of relief offered (e.g. pardon, expungement, set-aside, certificates, diversion, etc.). The wide variety in eligibility, process, and effect of these record relief laws speaks volumes about how far the Nation is from common ground. The third chapter concerns the area in which perhaps the most dramatic progress has been made just since 2018: the regulation of how criminal record is considered by public employers and occupational licensing agencies. Legislatures have been guided and encouraged by helpful model laws and policies proposed by two national organizations with differing regulatory philosophies: The Institute for Justice, a libertarian public interest law firm, and the National Employment Law Project, a workers’ rights research and advocacy group. Regulation of private employment has also been influenced by national models, although to a lesser extent and more needs to be done in this area. This report makes clear that substantial progress has been made in the past several years toward devising and implementing an effective and functional system for restoring rights and status after arrest or conviction. The greatest headway has been made in restoring rights of citizenship and broadening workplace opportunities controlled by the state. The area where there is least consensus, and that remains most challenging to reformers, is managing dissemination of damaging criminal record information. Time will tell how the goal of a workable and effective relief system is achieved in our laboratories of democracy. Grading and Ranking the States After our discussion of each type of relief, we assign a grade to each state, D.C., and federal law. In an appendix, we collate these grades to produce a ranking of states and D.C. on the nine categories that we graded.[2] That ranking is below. Our grading judgments deserve a comment. Gabriel Chin’s introduction to the report describes the operational features of a desirable relief system: accessible, effective, coordinated, fair, and administrable. Because we have not studied the actual operation of the relief systems in the report, we cannot say for certain whether or to what extent any of them deliver on these five features. Our grades are based solely on the text of each state’s law, leaving more nuanced judgments to practitioners, researchers, and the law’s intended beneficiaries. Hopefully, these grades will challenge, encourage, and inspire additional reforms in the months and years ahead. National Ranking of Restoration Laws 1 2 3 4 5 5 7 8 8 10 10 12 12 12 15 15 17 18 18 18 18 18 23 23 23 26 27 27 27 30 30 32 33 34 35 36 36 36 39 40 41 42 42 44 44 46 46 48 49 50 51 Illinois California Utah Minnesota Connecticut Nevada Colorado Delaware New York North Dakota Pennsylvania New Hampshire New Jersey Oklahoma Massachusetts New Mexico Indiana Louisiana Nebraska Rhode Island Vermont Washington Arkansas Kentucky Ohio North Carolina Idaho Michigan Tennessee Missouri Wisconsin Georgia Mississippi Hawaii Maryland Arizona Oregon South Carolina Maine District of Columbia Kansas Montana West Virginia South Dakota Virginia Iowa Wyoming Texas Alabama Alaska Florida *On October 5, 2020, some grades and rankings were revised, based on further review for our new resource: “The Reintegration Report Card.” NOTES [1] This report does not cover the fourth main type of consequence: limits on personal freedom—including sex offender registration, civil commitment, and immigration consequences. Relief mechanisms for these are quite complex and built into the law of each issue. We offer a 50-state comparison chart for relief from sex offender registration, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-relief-from-sex-offender-registration-obligations/. For resources on immigration consequences, see https://www.ilrc.org/crimes. With respect to the third type of consequence: loss of opportunities and benefits, this report covers laws providing relief for employment and occupational licensing (the two areas most subject to relief under state law), but does not cover housing, government benefits, or other opportunities. [2] The nine categories graded are: loss and restoration of the vote, pardon, conviction relief (felony and misdemeanor graded separately), judicial certificates, deferred adjudication, non-conviction records, employment, and occupational licensing. In determining these rankings, each of the nine categories was assigned equal weight, except that deferred adjudication and certificates of relief were each assigned 50% weight. We did not grade restoration of firearms rights because the laws were too varied to helpfully compare. Read more

Non-conviction records: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available. In July, we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report by publishing draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing.” We also published “pardon policy and practice” and “deferred adjudication” sections of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society. Today we are publishing a third section of the record relief chapter on non-conviction records: arrest and court records that can create lifelong barriers in employment, housing, and other areas of daily life. More than half the states still require a restrictive and burdensome court procedure to expunge or seal non-convictions. Our Model Law on Non-Conviction Records recommends automatic expungement of these records, an approach that has been enacted in 17 states. Later this week we will publish additional sections of this chapter, on conviction relief, judicial certificates, and juvenile records. We expect to publish the entire “Many Roads” report by the end of the month. A PDF of the section on non-convictions is available here. The full text follows, with end notes. II(B)(1). Non-Conviction Records When a person is arrested, the police generate a record and send it to a state’s central repository. Many arrests do not lead to charges. If charges are filed, they may be dismissed by the prosecutor or by the court. Increasingly, people are placed in diversion programs, with or without a plea, where completion of specified requirements results in dismissal. Occasionally, the accused goes to trial and is acquitted, or prevails on appeal. These are all scenarios that do not result in conviction, yet each produces a criminal record that may result in a litany of adverse consequences for its subject.[1] Sometimes there is no indication in the official court or repository files of whether or how an arrest or charge was resolved, but the record remains open, the matter apparently still pending, which may seem to an employer or landlord more ominous than a closed case.[2] It is particularly disturbing, at a time when so many Americans have taken to the streets to protest police violence and racism, that in most states the mere fact of an arrest will leave a person with a criminal record that is hard to erase, creating long-term barriers to employment and housing, and in other areas of daily life. Protesters should not wind up with a lifelong criminal record.[3] In 2019, we published a Model on Law on Non-Conviction Records.[4] Drafted in consultation with an advisory group of lawyers, judges, lawmakers, academics, policy experts, and advocates, the model law provides policy guidance on limiting access to and use of non-convictions. The conventional expungement or sealing process requires a burdensome and expensive court procedure that only a small percentage of those who are eligible will ever complete. Instead, our model recommends automatic expungement of all non-conviction records, including records with no final disposition, except for pending matters. The model also sets out recommended restrictions on accessing, inquiring about, and commercially disseminating non-conviction records. Consistent with these recommendations, 15 states now automatically expunge or seal most non-conviction records. California and North Carolina will join this group when their recently enacted laws go into effect in 2021.[5] Of these 17 laws, 10 were enacted in the last five years alone: Kentucky and North Carolina (2020); California, New Jersey, and Utah (2019); New Hampshire, Pennsylvania, and Vermont (2018); Montana (2017); and Nebraska (2016). The other seven states are Alaska, Connecticut, Maine, Michigan, New York, South Carolina[6], and Wisconsin. Some of these laws provide relief at the time of disposition and others after a waiting period. While these reforms are promising, some states do not cover dispositions like uncharged arrests or dismissals without prejudice, or relief may be prospective only (i.e. California), requiring affected individuals to file a court petition to obtain relief. Those gaps can be filled through subsequent lawmaking. For example, in New York, a progressive 1970s-era law provided for sealing of non-convictions at disposition by the court, but uncharged arrests frequently languished in the state records repository because the police or prosecutor neglected to indicate that the matter would not proceed.[7] In 2019, New York made undisposed cases confidential after five years, providing relief for people with uncharged arrests and other matters stuck in limbo.[8] In addition to the 17 states that have automatic sealing, 7 states expedite non-conviction relief through motions filed at the time of dismissal or acquittal without any waiting period (Colorado, Illinois, Massachusetts, Mississippi) or through a simplified administrative procedure (Delaware, Hawaii, Idaho).[9] But 26 states and D.C. still require a court petition process before they will seal or expunge non-convictions, an approach increasingly seen as inappropriate and unnecessary for this category of records. Many of these jurisdictions unreasonably restrict eligibility and impose burdensome procedural hurdles such as filing fees and contested hearings.[10] The federal system and Arizona completely lack a non-conviction expungement law, though Arizona allows non-convictions to be notated as “cleared” if the subject can show that the charge was “wrongful.”[11] Federal law provides no relief at all.[12] For these 26 petition-based states, restrictive eligibility criteria may include disqualifications based on some unrelated record, such as a prior conviction or prior record-sealing, a current registration obligation, or a bare arrest during a waiting period. For example, in Florida, a prior conviction in a Florida court for any felony or a list of specified misdemeanors, including as a minor, disqualifies a person from sealing or expungement, as does a prior sealing or expungement of any kind.[13] The District of Columbia has one of the most restrictive schemes, applying similar complex eligibility criteria to conviction and non-conviction records alike, including multiple waiting periods and disqualifying arrests and convictions, ending with a discretionary decision by a judge.[14] Other states limit eligibility based on the type of offense or nature of the non-conviction disposition. For example, Alabama does not allow violent felony charges to be expunged unless the person was acquitted after trial.[15] In one high profile 2019 case, the state dropped capital murder charges before trial after surveillance footage exonerated the accused, but the record was categorically ineligible for expungement because the now-failed charges were violent felonies. Alabama’s attorney general acknowledged that the case “may draw light to a situation in which the [expungement] statute could be amended,” but no steps have apparently been taken to do this.[16] A few states, including Idaho, Virginia, and Wyoming, do not permit deferred adjudication cases to be expunged, no matter the offense. Some of the 26 petition states require satisfaction of court debt, such as costs and fees, as a prerequisite to expungement, despite the lack of a conviction in the case.[17] Iowa’s requirement to pay all court debt as a precondition to expungement was challenged by a woman who could not afford to pay the $718 court-appointed attorney fee imposed when her case was dismissed.[18] After the Iowa Supreme Court rejected her argument that this represented unfair wealth discrimination, we filed an amicus brief encouraging the U.S. Supreme Court to take up the case, but the petition was declined.[19] Unlike states that expunge non-convictions at the time of disposition on an automatic basis (i.e. New Jersey) or upon request (i.e. Colorado), the petition-based states usually have waiting periods—during which, in some states such as Missouri, an otherwise-eligible person must remain conviction-free or the waiting period begins anew. The length of time varies from days (180 in Wyoming) to a year (Indiana) to multiple years (3 in Missouri). Sometimes a state’s regular waiting period is extended for serious charges (D.C.), uncharged arrests (Nevada), or charges dismissed without prejudice or following diversion or deferred adjudication (Alabama). In a few cases, the person may not even be arrested during a recent period (i.e. Oregon requires a three-year arrest-free period, excluding the arrest sought to be expunged). The petition process itself is usually costly as a result of filing fees, background fees, the demanding production of law enforcement and court records, collection of evidence of good character, and/or formal service on prosecutors, etc.[20] A formal court hearing may be required at which the prosecutor and alleged victims may oppose relief—either in every case or if an objection is filed. Sometimes the requirement of a hearing is left entirely up to the court. Some petition states have a generous standard of review for those petitioning to expunge non-convictions (Indiana, for example, requires the court to grant relief to eligible applicants unless charges are pending against them,[21] and Nevada applies a rebuttable presumption in favor of sealing[22]). But other states apply a broad discretionary standard more commonly found in the conviction context. Oregon, for instance, requires the court to determine “that the circumstances and behavior of the applicant…warrant setting aside” and sealing the non-conviction record—the same discretionary standard that Oregon applies to conviction records.[23] The end result of all these barriers is not only exclusion but also deterrence. The unreasonable call for completion of costly, intimidating, and time-intensive tasks, such as document production and service of process, means that many thousands will resign themselves to simply living with the fact of a record. Years after charges were dismissed, very few will want to have to hire a lawyer again and make a trip back to the police station and courthouse, especially if they have since moved out of town or to another state. So it is encouraging that so many additional states have moved towards automatic or streamlined expungement of non-convictions in recent years, a trend that will hopefully continue to accelerate. But it is disturbing, particularly at a time when large-scale protests have produced thousands of arrests, that more than half the states retain antiquated petition systems in urgent need of reform.   End Notes [1] See, e.g., Anna Roberts, Arrests as Guilt, 70 Ala. L. Rev. 987, 997–1000 (2019); Benjamin D. Geffen, The Collateral Consequences of Acquittal: Employment Discrimination on the Basis of Arrests Without Convictions, 20 U. Pa. J. L. & Soc. Change 81 (2017); Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev. 809, 821–844 (2015). [2] The FBI’s Interstate Identification Index system, compiled from state repository submissions, was “missing final disposition information for approximately 50 percent of its records” as of 2006. U.S. Dept. of Justice, Office of the Attorney General, The Attorney General’s Report on Criminal History Background Checks 3 (June 2006), https://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf. [3] See Margaret Love & David Schlussel, Protesting Should Note Result in a Lifelong Criminal Record, Wash. Post (June 15, 2020), https://www.washingtonpost.com/opinions/2020/06/15/protesters-should-not-get-lifelong-criminal-record/. [4] Model Law on Non-Conviction Records (Collateral Consequences Res. Ctr. 2019), https://ccresourcecenter.org/model-law-on-non-conviction-records/. [5] See 50-State Comparison: Expungement, Sealing & Other Record Relief, Collateral Consequences Resource Center, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/. [6] Expungement is automatic for non-convictions disposed in Magistrate or Municipal Court, but a petition is required if disposed in other courts. See S.C. Code Ann. § 17-22-950. [7] See N.Y. Crim. Proc. Law § 160.50. [8] Id. § 845-C. New York lawyers who served as Advisors to the model law project explained the high percentage of undisposed cases in repository and court records systems in that state as the product of reporting requirements that are unclear and/or unenforced, mistakes made along the way by various actors in the criminal justice system, and the vagaries of official record-keeping that make it look as though the individual has an open, pending case or undisposed charge, when that is not true. Just as one example, multiple charges in a criminal case may be resolved by a plea to one of them, or to a charge added to the docket for purposes of disposition, while charges other than the pled-to charge may remain on court records as “not disposed yet,” although in fact they have been covered by a plea. This can have serious consequences for the subjects of these records if they are asked to list their criminal convictions, since they would likely and understandably leave these non-conviction records out. Once a background check is run they may be accused of lying or falsifying applications, be denied the jobs, licenses, employment clearance, apartments, college or law school admission they seek, and be branded as not credible. See Model on Law on Non-Conviction Records n. 25 (Collateral Consequences Res. Ctr. 2019), https://ccresourcecenter.org/model-law-on-non-conviction-records/. [9] See supra note 4. [10] Id. [11] Ariz. Rev. Stat. § 13-4051(A). [12] Federal law has a narrow expungement authority that applies to first-offense drug deferred adjudication for persons under 21, 18 U.S.C. § 3607(a), and some courts have held that federal courts have inherent ancillary authority to expunge records where an arrest or conviction is found to be invalid or a clerical error is made. See, e.g., United States v. Jane Doe, 833 F.3d 192 (2d Cir. 2016), vacating 110 F. Supp. 3d 448 (E.D.N.Y. 2015) (collecting cases); United States v. Crowell, 374 F.3d 790, 792-93 (9th Cir. 2004), cert. denied, 543 U.S. 1070 (2005). [13] Fla. Stat. Ann. §§ 943.0585. [14] See D.C. Code §§ 16-801, 16-803 (waiting period of two to four years; various prior or subsequent criminal records are disqualifying or extend the waiting period by 5 or 10 years; waiting periods for all of a person’s arrests and convictions must be satisfied unless a person waives right to seal the arrests and convictions; court must find that sealing is “in the interests of justice” under a multi-factor balancing test). For example, in what may be a unique concession to the power of the prosecutor’s office in criminal cases, and D.C.’s federal prosecutors in particular, ineligibility for sealing of a non-conviction record based on a prior disqualifying offense may be waived “except when the case terminated without a conviction as a result of the successful completion of a deferred sentencing agreement.” D.C. Code § 16-803(2)(A), (B). [15] See Miss. Code Ann. §§ 99-15-59; Ala. Code §§ 15-27-1, 15-27-2. [16] Steven Dilsizian, “I-Team: Attorney General Steve Marshall Addresses Alabama Expungement Law,” WAA31 ABC (May 7, 2019), https://www.waaytv.com/content/news/Alabama-Attorney-General-Steve-Marshall-addresses-state-expungement-law-509604601.html. [17] See, e.g. Iowa Code § 901C.2(a)(2). [18] See State v. Doe, 927 N.W.2d 656 (Iowa, 2019). [19] See id.; Amicus Brief of Collateral Consequences Resource Center et. al in Support of Petition for Certiorari, No. 19-169 (U.S. 2019), available at https://www.supremecourt.gov/DocketPDF/19/19-169/115174/20190909162439215_190903%20for%20E-Filing.pdf. In a subsequent case, the Iowa Supreme Court rejected the state’s argument that the court debt requirement extends to any debt owed in any case, holding that a person only need to pay off the debt in the case sought to be expunged in order to be eligible. See Doe v. State, No. 19–1402 (Iowa, May 22, 2020). [20] See, e.g., Ohio Rev. Code Ann. §§ 2953.52; 22 Okla. Stat. Ann. § 18(A)(7). [21] Ind. Code § 35-38-9-1. [22] Nev. Rev. Stat. § 179.2445. [23] Or. Rev. Stat. § 137.225(3). Read more

Deferred adjudication: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available. In July, we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report by publishing draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing.” Yesterday we published “pardon policy and practice,” a section of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society. Today we are publishing a second section of the record relief chapter on deferred adjudication, a disposition whose goal is to divert individuals away from a conviction record at the front end of a criminal case. Next week we will publish additional sections of this chapter, on expungement, record-sealing, set-aside, judicial certificates, and juvenile records. We expect to publish the entire “Many Roads” report by the end of the month. A PDF of the section on deferred adjudication is available here. The full text follows, with end notes. II(B)(2). Diversion and Deferred Adjudication An increasingly popular record relief strategy involves diverting individuals away from a conviction at the front end of a criminal case. Diversion offers a less adversarial means of resolving an investigation or prosecution through compliance with agreed-upon community-based conditions leading to termination of the matter without conviction. Diversionary dispositions are described in the Model Penal Code: Sentencing as a way to “hold the individual accountable for criminal conduct when justice and public safety do not require that the individual be subjected to the stigma and collateral consequences associated with conviction.”[1] In this understanding, diversion can function as a means to accountability and rehabilitation, rather than as retribution for its own sake.[2] The effectiveness of diversionary dispositions in furthering these goals has not been studied in depth, but existing research suggests their promise.[3] Diversion may also be employed in cases where the extent of culpability is not clear, to allow for a mutually-acceptable outcome for the prosecutor and individual. While terminology and program characteristics vary, there are two primary types of diversion: pure diversion (prosecutor-managed) and deferred adjudication (court-managed). One or both of these dispositions are authorized in every jurisdiction.[4] Pure diversion, sometimes also called deferred prosecution, is controlled by the prosecutor and may commence before or after the filing of criminal charges. Typically, it involves an agreement between the prosecutor and an arrested or charged individual that successful completion of a community-based program will terminate the criminal investigation or prosecution. While a court may be involved in approving the terms of a diversion agreement, particularly if it involves use of court supervisory or treatment resources, the prosecutor decides whether a person may participate in diversion and has complied with conditions of the agreement, so as to avoid further prosecution. Pure diversion may result in a formal decision not to prosecute (“nolle prosequi”), and the record of the defendant’s arrest and any charges may be subject to court-ordered dismissal and sealing. If the person was never charged, there may be no court record to seal, and state laws may or may not provide for limiting public access to uncharged arrest records in a state repository and law enforcement agency.[5] Deferred adjudication is designated variously in state codes,[6] and varies also in how it is administered from state to state. But it is most saliently distinguished from pure diversion by the more formal involvement of the court in managing the criminal case after charges have been filed. It often requires a plea, admission, or finding of guilt, and always includes a period of probation and/or other conditions administered by the court, with the court deferring entry of a judgment of conviction. The prosecutor may have a say in which defendants are given the option of a deferred disposition, and in a few states even a dispositive one, but the key legal difference between the two dispositions is that the court determines whether the defendant has complied with conditions when adjudication or sentencing has been deferred, so to warrant vacating any plea and dismissing the charges. Nowadays, dismissal of the charges generally includes sealing of the record, frequently but not always at disposition. The discussion that follows focuses on deferred adjudication rather than prosecutor-controlled diversion, as the latter frequently operates informally in accordance with the policies of a specific prosecutor’s office and typically does not involve a formal court proceeding, other than placing the diversion agreement on the record. This section also does not discuss record relief mechanisms by which courts are authorized to reduce felony convictions to misdemeanors after completion of conditions, dispositions that resemble deferred adjudication in offering an alternative way of encouraging compliance and making the record eligible for expungement, but that do not have the advantage of avoiding a record of conviction.[7] Deferred adjudication first became popular in the 1970s as an efficient case management tool for prosecutors reluctant to divert entirely, and a way of maximizing the possibility that some defendants could be steered out of the justice system entirely so as to avoid the collateral consequences of a conviction.[8] (Avoidance of collateral consequences was of course considerably easier in the days before digitization of criminal records and the near-universal practice of background checking.) There are pluses and minuses both for criminal defendants and for the prosecution in these types of dispositions: for defendants there is the prospect of a “clean slate” if they can manage to comply with sometimes-onerous conditions, which may include substantial financial costs for supervision or required programs, and for prosecutors there is the prospect of swift and potentially harsh consequences if a defendant fails.[9] At the same time, the long-term benefits for the community of this sort of conviction-avoidance setup for at least some defendants have been established in the research literature.[10] While every state offers some form of diversion,[11] only two states (Kansas and Wisconsin) do not authorize their courts to defer adjudication in any cases involving criminal charges. This appears to represent a significant expansion of an important record remedy just in the two years since an earlier prior version of this report was published in 2018, when we identified 13 states that made no provision for deferred adjudication.[12] In those two years, states have expanded eligibility for court-managed diversionary dispositions and made sealing more generally available after successful completion. Some states have also eliminated the requirement of a guilty plea to avoid having this disposition trigger federal collateral consequences, as some federal laws and policies—including immigration law—treat diversionary pleas as convictions, even if no judgment of conviction is ever entered by the court.[13] The map accompanying this section shows that 20 states now make deferred adjudication broadly available, in many cases for any offense eligible for a probationary sentence and without regard to prior record, leaving it up to the court (and in some states also the prosecutor) to determine the appropriateness of the disposition on a case-by-case basis.[14] Alabama and Georgia are included in this category because of their extensive system of intervention courts that are administered on a county-by-county basis.[15] All but one of these 20 states (Idaho) authorize sealing upon successful completion, though Texas requires a 2-to-5-year waiting period in some cases before the court will issue an Order of Nondisclosure.[16] In many of the 20 states, a court-managed diversion program has existed for years, though programs have recently been expanded or reorganized to target certain populations, like veterans and individuals with mentally health needs.[17] The next category of 13 states is distinguishable from the first by varying restrictions on eligibility based on offense charged or prior record and, for many, limits on record relief.[18] Florida and Louisiana alone in this group allow someone with a prior felony conviction to participate, but both restrict sealing (Florida for almost any prior record and Louisiana by a 10-year waiting period). Illinois has a 5-year wait to seal, and Iowa and Wyoming do not allow sealing at all. Pennsylvania and Delaware restrict eligibility for their “probation before judgment” programs to misdemeanor-level cases. Another group of 16 states, D.C. and the federal system offer deferred adjudication only in specialized types of cases, typically drug cases where the defendant has no prior record. As previously noted, only Kansas and Wisconsin make no provision at all for court-managed diversion. The only federal statute authorizing deferred adjudication was enacted in 1984 and adheres to the narrowest eligibility model, with relief narrowly targeted to youthful offenders.[19] In recent years federal courts have implemented various programs to divert and defer criminal defendants,[20] but there is little authority for these programs in federal statutes and no evidence of Congressional interest even in expanding the limited statutory authority that does exist. In the end, as the public appetite for punitive justice policies fades in the states, and a public commitment to clean slate outcomes grows stronger, it is likely that governments will focus more resources on community-based accountability and rehabilitative programs as opposed to punitive custodial penalties. In this environment we can expect that jurisdictions will expand reliance on court-managed diversionary programs, and that we can expect to see additional states joining the 20 whose programs are “broadly inclusionary.” There have been only a few research studies of these programs, but those that do exist have found them effective in promoting desistance, employment, and earning outcomes at least for some populations.[21] As the adverse consequences of a conviction record show no signs of abating, studying conviction-avoidance mechanisms like deferred adjudication should be a research priority for the academy. Further information about deferred adjudication procedures and eligibility can be found in in the state-by-state profiles in the Restoration of Rights Project (http://restoration.ccresourcecenter.org).   [1] See American Law Institute, Model Penal Code: Sentencing (2017) §§ 6.06(2) (“Deferred Adjudication”), 6.04(2) (“Deferred Prosecution”) (same quoted phrase except “charge and” are inserted before conviction). Because one goal of this model law is to introduce more transparency and structure into a prosecutor’s administration of pure diversion, the section on deferred prosecution is considerably more detailed than the one dealing with court-managed diversion. These schemes may have been modeled on Section 301.5 of the 1962 Model Penal Code, which provides that upon successful completion of a period of probation, the court may order that the judgment “shall not constitute a conviction for the purpose of any disqualification or disability imposed by law upon conviction.” Diversionary schemes have antecedents even in the early 20th century. See, e.g., Marks v. Wentworth, 85 N.E. 81, 82 (Mass. 1908) (if “the object of the probation seems to the court to have been accomplished, in such a way as not to require any punishment of the defendant, either for his own reformation or in the interests of the public, the court may finally dispose of the case by a dismissal of it”); C. S. Potts, The Suspended Sentence and Adult Probation, 1 TEX. L. REV. 188, 190 (1923) (discussing 1913 law; “[i]f defendant is not convicted of another felony during the time assessed as punishment by the jury, he may make application for a new trial and have the case dismissed.”); Report of Committee C of the American Institute of Criminal Law and Criminology: Adult Probation Parole and Suspended Sentence, 1 J. AM. INST. CRIM. L. & CRIMINOLOGY 438, 443 (1910) (“we strongly recommend that after successful probation the indictment or complaint should be dismissed of record.”). [2] See Margaret Love, Jenny Roberts, and Wayne Logan, Collateral Consequences of Criminal Conviction: Law Policy and Practice § 7:22 (“Deferred adjudication and other diversionary dispositions”) (West/NACDL, 3d ed. 2018-2019); Margaret Love, Alternatives to Conviction: Deferred Adjudication as a Way of Avoiding Collateral Consequences, 22 Fed. Sent’g Rep. 6 (2009). [3] See, e.g., Michael Mueller-Smith and Kevin Schnepel, Diversion in the Criminal Justice System (January 17, 2019) (studying short- and long-term outcomes of deferred adjudication in Harris County, Texas, and finding notable benefits for young Black men with no previous involvement in the justice system), https://sites.lsa.umich.edu/mgms/wp-content/uploads/sites/283/2019/01/Diversion.pdf; Ted Chiricos et al., The labeling of convicted felons and its consequences for recidivism (17 Sept., 2007)(studying recidivism outcomes of withheld adjudications in Florida), https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9125.2007.00089.x. [4] See Pretrial Diversion, National Conference of State Legislatures (September 28, 2017), available at http://www.ncsl.org/research/civil-and-criminal-justice/pretrial-diversion.aspx (providing statutes for 48 states and the District of Columbia); S.D. Codified Laws §§ 23A-3-35, 23A-3-36, 23A-27-12.2, 23A-27-13. The one state that apparently lacks diversion by statute, North Dakota, provides for diversion by court rule. See N.D. R. Crim. P. 32.2. [5] See Collateral Consequences Resource Center, Model Law on Non-Conviction Records § 2(a)(Dec. 2019), https://ccresourcecenter.org/model-law-on-non-conviction-records/. [6] See, e.g., Ark. Code § 16-93-1206 (“suspended imposition of sentence”); Cal. Penal Code §§ 1000 & 1000.8 (“deferred entry of judgment”); Colo. Rev. Code § 18-1.3-102 (“deferred sentencing”); 11 Del. Cod. § 4218 (“probation before judgment”); Conn. Gen. Stat. § 54-56e (“accelerated pretrial rehabilitation”); Hawaii Rev. Stat. § 853-1 (“deferred acceptance of guilty plea”); Maryland Code, Criminal Procedure § 6-220 (“probation before judgment”); Mass. Gen. Laws ch. 278, § 18 (“continuance without a finding”); N.Y. Crim. Proc. Law § 170.55 (“adjournment in contemplation of dismissal”); N.D. Cent. Code § 12.1-32-02(4) (“deferred imposition of sentence”); Ohio Rev. Code § 2951.041 (“intervention in lieu of conviction); Tex. Code Crim. Proc. art. 42A.102 (“deferred adjudication community supervision”); Utah Code Ann. 77-40-104 (“plea in abeyance”); 18 U.S.C.A. § 3607 (“pre-judgment probation”). [7] See, e.g., Cal. Penal § 17(b) (“Wobbler” charged as a felony may be reduced to a misdemeanor); Idaho Code. Ann § 19-2601(3) (reduction of felony to misdemeanor); Minn. Stat. § 609.13, subd. 1 (same); N.D. Cent. Code § 12.1-32-02(9) (same). [8] See, e.g., Yale v. City of Independence, 846 S.W.2d 193 (Mo. 1993) (“The obvious legislative purpose of the sentencing alternative of suspended imposition of sentence is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow.”); State v. Schempp, 498 N.W.2d 618, 620 (S.D. 1993) (noting that the purpose of suspended imposition of sentence is “to allow first-time offender to rehabilitate himself without the trauma of imprisonment or the stigma of conviction record”). See generally Love, Alternatives to Conviction, note 2 supra at 6. [9] See, e.g., Amy Yurkanin, “Leniency for sale? Alabama offers first offenders a second chance — at a price,” AL.com, Oct. 9, 2017, updated Mar. 7, 2019, https://www.al.com/news/2017/10/dismissal_for_sale_programs_of.html. See generally Nat’l Ass’n of Criminal Def. Lawyers, America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform 11 (2009), available at http://www.nacdl.org/criminaldefense.aspx?id=20191 (“Although procedures vary, the hoops through which participants must jump result in dismissals for relatively few defendants. Profound consequences flow from every failure.”). Commenting on the perils of exposing ill-equipped defendants to the high cost of failure under the Texas deferred adjudication law, a practitioner in that state recalled that prosecutors value it as an option because it is available to a broader group of offenses than regular probation (and they have lobbied to keep it that way), and particularly because the defendant retains their full exposure to the underlying penalty. So a deferred for burglary (a first degree felony) can be violated with limited due process and get the 50 years the prosecutor wanted in the first place. They tell the baby DAs that deferred is the easy way to send someone to prison “because you know they’re going to screw up.” [10] See note 3, supra. [11] See note 4, supra. [12] See Margaret Love, Joshua Gaines & Jenny Osborne, Forgiving & Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights 13 (Aug. 2018 rev.), https://ccresourcecenter.org/wp-content/uploads/2017/10/Forgiving-Forgetting-CCRC-Aug-2018.pdf It is likely that several of the 13 states reported as having no deferred adjudication authority in fact had such a program through a drug or other intervention court. [13] See, e.g., Or. Rev. Stat. § 475.245 (eliminating the requirement of a plea or admission to avoid triggering deportation under 8 U.S.C. § 1101(a)(48)); Colo. Rev. Stat. § 18-1-410.5 (authorizing vacating guilty pleas in diversion cases on grounds that they were entered without adequate advice of counsel). Among the other federal laws and policies that treat diversionary dispositions as a conviction if the person was required to plead guilty or admit facts sufficient to establish guilt, even if the plea has been withdraw and the case dismissed, are federal sentencing guidelines, U.S.S.G. § 4A1.2(f) and the federal Fair Credit Reporting Act, 15 U.S.C. § 1681c(a), as construed by Aldaco v. RentGrow, Inc., 921 F. 3d 685 (7th Cir. 2019). The federal banking laws independently consider diversionary dispositions to be convictions without regard to a guilty plea, see 15 U.S.C. § 1892(a)(1)(A), but the FDIC has recently proposed to amend its interpretive policy document to give effect to expungement and sealing, which should provide states with incentive to amend some of the deferred adjudication provisions that require waiting periods before sealing or do not provide for sealing at all. See Federal profile, Restoration of Rights Project, Section III(B)(3)(b). [14] The 20 states whose courts have broad deferred adjudication authority are: Alabama, Colorado, Georgia, Idaho, Massachusetts, Maryland, Maine, Mississippi, Missouri, Nebraska, New Mexico, New York, North Dakota, Rhode Island, Tennessee, Texas, Utah, Vermont, Washington, and West Virginia. Details of these laws and statutory citations are available in the relevant state profiles from the Restoration of Rights Project. [15] Alabama diversion courts are established and administered county-by-county under a general state-wide authority, and eligibility criteria and conditions are established locally. The courts have reportedly had broad participation and, in many cases, considerable success both for defendants and for the government. But participation in deferred programs may come at a high price, both literally and figuratively, and lead to more severe punishments for those who are unable to pay. See Yurkanin, “Leniency for sale?”, supra note 9. Georgia’s system of “Accountability Courts,” authorizing diversion in non-property and drug crimes, is similarly structured. https://cjcc.georgia.gov/accountability-court-program. See Ga. Code Ann. §§ 35-3-37(h)(2)(C), 15-1-20(b). In contrast, the administration of Mississippi’s intervention courts is centralized and governed by state statute. [16] In Texas, people charged with non-violent misdemeanors who are discharged following “deferred adjudication community supervision” are eligible for an automatic OND, although the court may deny relief in specific cases. Those denied automatic relief, along with those charged with felonies and serious and repeat misdemeanors, may seek relief after a waiting period, two years for misdemeanants and five years for felonies. See Tex. Code Crim. Proc. art. 42A.102; Tex. Gov’t Code § 411.0725.  [17] Our report on laws enacted in 2019 states: In 2019, 18 states enacted 26 laws creating, expanding, reorganizing, or otherwise supporting diversionary and deferred dispositions, to enable individuals charged with crimes to avoid a conviction record. These new authorities reflect the clear trend across the country toward increasing opportunities to steer certain categories of individuals out of the system, through informal diversions, specialized treatment or intervention courts, or completing probation conditions while judgment is deferred, or sentence suspended. Laws enacted in 2019 extended this favorable treatment to juveniles, military service personnel and veterans, persons with mental illness, drug and alcohol users, human trafficking victims, caregivers of children, and even certain persons charged with sex offenses See Collateral Consequences Resource Center, Pathways to Reintegration: Criminal Record Reforms in 2019 at 21, https://ccresourcecenter.org/wp-content/uploads/2020/02/Pathways-to-Reintegration_Criminal-Record-Reforms-in-2019.pdf; see also CCRC, Four Years of Second Chance Reforms, 2013-2016 (2017), https://ccresourcecenter.org/wp-content/uploads/2017/02/4-YEARS-OF-SECOND-CHANCE-REFORMS-CCRC.pdf. [18] States in this category are Alaska, Arkansas, Delaware, Florida, Hawaii, Iowa, Kentucky, Louisiana, Montana, Oklahoma, Pennsylvania, and Wyoming. [19] See 18 U.S.C.§ 3607 (deferred adjudication if a person charged with drug possession has no prior drug conviction, with expungement only if the offense was committed under the age of 21). [20] A 2017 report from the United States Sentencing Commission (USSC) catalogues various programs managed by federal courts that are geared to avoiding a prison sentence, though perhaps not always a criminal record. See Federal Alternative-to-Incarceration Court Programs (September 2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20170928_alternatives.pdf. That report describes generally analogous state problem-solving court programs but does not focus on statutory deferred adjudication options aimed at avoiding conviction and generally leading to expungement of the record. Perhaps because federal law contains only one narrow authority for deferred adjudication (18 U.S.C. § 3607, sometimes referred to as the Federal First Offender Act), the USSC report does not address non-incarceration outcomes that avoid a conviction record. Curiously, it does not suggest the potential usefulness of such outcomes in reducing recidivism or proposed further study of these issues. Such a study has been suggested on several occasions by the Practitioner’s Advisory Group to the USSC. [21] See note 3, supra. Read more

SBA eases some criminal history barriers and faces litigation

*UPDATE (7/7/20):  “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) imposed restrictions on applicants with an arrest or conviction history.  We have written much in recent weeks about how these barriers, neither required nor contemplated by Congress, impede access to the two major relief programs for small businesses, nonprofits, and independent contractors: the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan (EIDL) program. Following the introduction of a bipartisan Senate bill to roll back most of these barriers, Treasury Secretary Steven Mnuchin agreed on June 10 to revise the PPP restrictions.  On Friday, June 12, SBA issued new regulations and application forms to ease some of the barriers in the PPP.  The changes are more limited than the proposed Senate bill, and continue to reflect an SBA overreach in its approach to loan applicants with criminal records, at a time when we are nearing the June 30 closing date to apply for this much-needed assistance. Meanwhile, two lawsuits have been filed against the SBA in federal court in Maryland, asserting that the SBA’s criminal history restrictions are beyond the agency’s authority, arbitrary and capricious, and contrary to the text of the CARES Act.  The first lawsuit, filed on June 10, is brought by The New Civil Liberties Alliance on behalf of a corner store in Hagerstown, Maryland, which was denied PPP assistance based on its owner’s 2004 felony conviction, for which he is on parole.  The second lawsuit, filed on June 16 by the ACLU, Public Interest Law Center, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs, also asserts that the restrictions fall hardest on minority businesses due to the impact of over-criminalization on communities of color.  The suit is on behalf of the owner of an electrical contracting business on parole for a 2012 drug conviction, a graphic designer with pending misdemeanor charges, and a nonprofit that provides job and entrepreneurial training for currently and formerly incarcerated individuals.  None of the business owner plaintiffs in these two lawsuits would be eligible under the SBA’s new policies, which we analyze below.  (Further information on the lawsuits is also below.) The new SBA policies announced last week reduce the range of past felony records that are disqualifying.  The original policies (reflected in an April 15 Interim Final Rule and the original PPP application form) disqualified “any owner” of an applicant who had, in the last five years, for any felony, been convicted, pled guilty or nolo contendere, or who had been placed on pretrial diversion or any form of parole or probation, including probation before judgement. The new policies exclude a smaller set of past felony records, with additional focus on offenses that are arguably more relevant to federal financial assistance.  Per the new regulation, an applicant is now disqualified based on a past felony record, if, within the last 5 years, “an owner of 20 percent or more of the equity of the applicant,” has been convicted of 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, convicted of any other felony.  But the PPP application form, revised on June 12, again goes further than the rule, extending exclusion to applicants with “any owner” who, for the above offenses during the specified time periods, “1) been convicted; 2) pleaded guilty; 3) pleaded nolo contendere; or 4) been placed on any form of parole or probation (including probation before judgment).”  Further, the new application form leaves in place the existing disqualification of applicants with an owner of 20% or more of the equity who is “currently subject to criminal charges, incarceration, probation, or parole.” These new policies purport to rescind the previous disqualification of people who were placed in “pretrial diversion,” based on a commitment to do so made by Sec. Mnuchin to Senator Cory Booker.  An SBA bulletin states: “The application also eliminates pretrial diversion status as a criterion affecting eligibility.”  In fact, on June 11, the SBA had already struck the words “pre-trial diversion” from the previous application form.  But, evidently inconsistent with the Secretary’s commitment, the SBA will continue to disqualify people for felony records associated with bare guilty pleas and probation before judgment, which are often elements of pretrial diversion programs.  Further, the catch-all exclusion of anyone “currently subject” to charges or supervision certainly includes many people participating in pre-trial diversion programs, including for misdemeanor charges.  And it appears to extend to the business owner plaintiffs in the two Maryland lawsuits. Finally, it is not clear if the above changes will apply to EIDL disaster loans, which have been subject to undisclosed and seemingly arbitrary and evolving criminal history restrictions. The SBA’s easing of some restrictions to the Paycheck Protection Program appears to be a modest improvement in the agency’s treatment of applicants with a record, but efforts in Congress would go considerably further.  We hope that those legislative efforts will be pursued, since even as modified the SBA’s policies fall considerably short of compliance with the CARES Act. *** The ACLU’s press release announcing its suit can be found here: https://www.aclu.org/press-releases/aclu-civil-rights-organizations-sue-small-business-administration-excluding-business The complaint can be found here: https://www.aclu.org/legal-document/defy-ventures-et-al-v-united-states-small-business-administration A video on the filing can be found here: https://www.youtube.com/watch?v=dwnqEv7__mc&feature=youtu.be The NCLA’s press release announcing its suit can be found here: https://nclalegal.org/2020/06/ncla-sues-small-business-administration-for-denying-ppp-loans-to-applicants-with-criminal-histories/ The complaint can be found here: https://nclalegal.org/wp-content/uploads/2020/06/NCLA-Complaint-Carmens-Corner-Store-v.-SBA-1.pdf Read more