Category: New legislation

California becomes third state to adopt “clean slate” record relief

On October 8, Governor Newsom signed into law AB 1076, the so-called “Clean Slate Act,” authorizing automatic record relief in the form of set-aside or sealing for individuals with certain convictions and arrests under California law.  The new law supplements but does not supplant the existing system of petition-based relief, and applies to convictions and arrests occurring after the bill’s effective date of January 1, 2021.  Eligibility for automatic relief under the new law is similar to but not precisely coincident with eligibility under existing law.  The new law also for the first time prohibits courts and the state repository from disclosing information about conviction records that have been granted relief, except where specifically authorized, whether under the new automatic process or the older petition-based system. California is now the third state to adopt general “clean slate” record relief, after Pennsylvania (2018) and Utah (2019).  While the automatic feature of the new law has prospective effect only, its limits on disclosure will, when effective, apply to all conviction records that have at any time been dismissed or set aside, whether automatically or by petition, as well as to all arrests and other non-conviction records that have been sealed.  The specific features of AB 1076 are described in detail in the following comment posted on October 3. Governor Newsom also on October 8 signed two other bills that affect collateral consequences:  SB 310 amends Section 203 of California’s Code of Civil Procedure to make people convicted of a felony eligible to serve of a trial jury unless incarcerated or under supervision, or required to register as a sex offender based upon a felony conviction; and AB 1394 repeals a law requiring that juveniles pay a fee to have their records sealed. California poised to become third state to adopt “clean slate” record relief October 3, 2019 On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation.  If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize “clean slate” record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.)  The specific provisions are described generally below, and more fully after the break. AB 1076 would not modify eligibility for relief under California’s existing petition-based scheme of judicial remedies for people with criminal records, primarily via dismissal and set-aside for convictions and sealing for non-conviction records.  Rather, effective January 1, 2021, it would create a new automatic process obviating the requirement of an individually-filed petition or motion in most cases.  Eligibility for relief under this new automatic process would be similar but not identical to eligibility under the existing petition-based process, both for convictions and for non-convictions.  If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession). A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records:  it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law.  As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository.  This would change in 2021, if this law is enacted.  (Most non-conviction records are now eligible for sealing by petition under California law.)  Note that, like most state repositories, California’s repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users. The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce “barriers to employment and housing opportunities for millions of Californians.”  They point to the key findings of J.J. Prescott and Sonja Starr’s 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court.  While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan. If California’s new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions.  For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic.  (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.)  For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense.  Prosecutors and probation officers may object to automatic conviction relief in individual cases on “based on a showing that granting such relief would pose a substantial threat to the public safety,” and such an objection may be tested in a court hearing. A major shortcoming of AB 1076 — in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only.  That is, relief is automatic only for arrests and convictions occurring after the law’s effective date.  Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief.  Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021.  Presumably these changes were based on financial and logistical considerations.  The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year.  Moreover, the bill’s effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it “would need the implementation date to be delayed to July 1, 2023 for proper implementation.”  Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021. Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted. We will now describe in detail California’s clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105. Arrests A person arrested on or after January 1, 2021, is eligible for automatic relief if any of the following is true: The arrest was for a misdemeanor and either the charge was dismissed, the person was acquitted of any charges, or at least 1 year has elapsed since the arrest and there is no indication that criminal proceedings have been initiated; The arrest was for a felony punishable by imprisonment in county jail, and either the person was acquitted of any charges, or at least 3 years have elapsed since the arrest and there is no indication that criminal proceedings have been initiated; or The person successfully completed one of various specified diversion programs. Cal. Penal Code section 851.93.  (Note: this excludes an arrest for a felony punishable by imprisonment in state prison and dismissed cases where the arrest was for for a felony punishable by imprisonment, unless the person successfully completed a specified diversion program.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with arrest records that are eligible for relief, and “shall grant relief” if such information is present in the records.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of arrests granted relief and the percentage of arrests for which the state summary criminal history information does not include a disposition. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “arrest relief granted,” and the date.  The arrest “is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to that arrest accordingly,” except that relief does not affect: a person’s obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer; the ability of a criminal justice agency to access and use records, or a district attorney to prosecute an offense within the applicable statute of limitations; a person’s authorization to own or possess a firearm; any prohibition from holding public office; or the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria. Starting on February 1, 2021, courts “shall not” disclose information concerning the arrest or case to any person or entity, in any format, except to the subject of the arrest, a criminal justice agency, or under one of the exceptions above. Convictions A person convicted on or after January 1, 2021, is eligible for automatic relief if otherwise eligible under existing law, and if each of the following conditions are also true: the person is not required to register under the Sex Offender Registration Act; the person does not have an active record for local, state, or federal supervision; based on information in the DOJ record, it does not appear that the person is currently serving a sentence for any offense and there is no indication of pending criminal charges; and there is no indication that the conviction resulted in a sentence of incarceration in state prison, and either: (1) the defendant was sentenced to probation, and, based on DOJ’s records, appears to have completed probation without revocation; or (2) the defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based on DOJ’s records, appears to have completed their sentence, and at least 1 year has elapsed since the judgment. Cal. Penal Code section 1203.425.  Nonetheless, even if a person is eligible, the prosecutor or probation department may file a petition to prohibit automatic relief “based on a showing that granting such relief would pose a substantial threat to the public safety.”  The petition must be filed by 90 days before eligibility, and the court must give notice to the defendant and conduct a hearing within 45 days.  (A person denied automatic relief can still petition for relief under existing law.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with conviction records that are eligible for relief, and “shall grant relief, including dismissal of a conviction,” if such information is present in the records, unless a petition to prohibit relief has been granted.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of convictions granted and prohibited from automatic relief. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “relief granted” and the date.  A person granted relief “shall be released from all penalties and disabilities resulting from the offense of which the person has been convicted,” except that the relief does not affect: the provisions of Section 13555 of the Vehicle Code; the obligation to disclose a criminal conviction in response to a direct question contained in a questionnaire or application for employment as a peace officer, public office, or for contracting with the California State Lottery Commission; the ability of a criminal justice agency to access and use records; the jurisdiction of the court over a subsequently filed motion to amend the record, petition or motion for postconviction relief, or collaterally attack a conviction; a person’s authorization to own or possess any firearm; a prohibition from holding public office; the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria; eligibility to provide, or receive payment for providing, in-home supportive services; or pleading and proof of the prior conviction in any subsequent prosecution of the defendant. Starting on February 1, 2021, courts “shall not” disclose information concerning the conviction to any person or entity, except to the person granted relief, to a criminal justice agency, or under one of the exceptions above.  In addition, a sentencing court “shall advise” a defendant of the provisions of this section, as well as the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon. Finally, by amendments to Cal. Penal Code section 11105(p)(2)(A) that are effective January 1, 2021, the state records repository system is prohibited from disclosing conviction records that have been dismissed or set aside, whether automatically or by petition, in response to certain requests for background information to be used for employment, licensing or certification.  Exceptions in existing law where background checks are authorized by law apply (including law enforcement employment, health care licensure, and a variety of other authorized situations). When effective, these non-disclosure provisions apply without regard to when or by what process relief was granted. Both sections of the clean slate law make clear that they do not limit any petitions, motions, or orders for relief authorized or required under existing law. Read more

California poised to become third state to adopt “clean slate” record relief

On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation.  If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize “clean slate” record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.)  AB 1076 creates a parallel eligibility scheme that overlaps but is not exactly coincident with the petition-based system, as well as a new procedure for automatic relief.  The specific provisions are described generally below, and more fully after the break. AB 1076 would not modify eligibility for relief under California’s existing scheme of judicial remedies for people with criminal records, via sealing as well as dismissal and set-aside.  Rather, effective January 1, 2021, it would create a new process obviating the requirement of an individually-filed petition or motion in most cases.  If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession). A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records:  it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law.  As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository.  This would change in 2021, if this law is enacted.  (Most non-conviction records are now eligible for sealing by petition under California law.)  Note that, like most state repositories, California’s repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users. The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce “barriers to employment and housing opportunities for millions of Californians.”  They point to the key findings of J.J. Prescott and Sonja Starr’s 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court.  While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan. If California’s new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions.  For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic.  (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.)  For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense.  Prosecutors and probation officers may object to automatic conviction relief in individual cases on “based on a showing that granting such relief would pose a substantial threat to the public safety,” and such an objection may be tested in a court hearing. A major shortcoming of AB 1076 — in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only.  That is, relief is automatic only for arrests and convictions occurring after the law’s effective date.  Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief.  Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021.  Presumably these changes were based on financial and logistical considerations.  The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year.  Moreover, the bill’s effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it “would need the implementation date to be delayed to July 1, 2023 for proper implementation.”  Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021. Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted. We will now describe in detail California’s clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105. Arrests A person arrested on or after January 1, 2021, is eligible for automatic relief if any of the following is true: The arrest was for a misdemeanor and either the charge was dismissed, the person was acquitted of any charges, or at least 1 year has elapsed since the arrest and there is no indication that criminal proceedings have been initiated; The arrest was for a felony punishable by imprisonment in county jail, and either the person was acquitted of any charges, or at least 3 years have elapsed since the arrest and there is no indication that criminal proceedings have been initiated; or The person successfully completed one of various specified diversion programs. Cal. Penal Code section 851.93.  (Note: this excludes an arrest for a felony punishable by imprisonment in state prison and dismissed cases where the arrest was for a felony punishable by imprisonment, unless the person successfully completed a specified diversion program.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with arrest records that are eligible for relief, and “shall grant relief” if such information is present in the records.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of arrests granted relief and the percentage of arrests for which the state summary criminal history information does not include a disposition. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “arrest relief granted,” and the date.  The arrest “is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to that arrest accordingly,” except that relief does not affect: a person’s obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer; the ability of a criminal justice agency to access and use records, or a district attorney to prosecute an offense within the applicable statute of limitations; a person’s authorization to own or possess a firearm; any prohibition from holding public office; or the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria. Starting on February 1, 2021, courts “shall not” disclose information concerning the arrest or case to any person or entity, in any format, except to the subject of the arrest, a criminal justice agency, or under one of the exceptions above. Convictions A person convicted on or after January 1, 2021, is eligible for automatic relief if otherwise eligible under existing law, and if each of the following conditions are also true: the person is not required to register under the Sex Offender Registration Act; the person does not have an active record for local, state, or federal supervision; based on information in the DOJ record, it does not appear that the person is currently serving a sentence for any offense and there is no indication of pending criminal charges; and there is no indication that the conviction resulted in a sentence of incarceration in state prison, and either: (1) the defendant was sentenced to probation, and, based on DOJ’s records, appears to have completed probation without revocation; or (2) the defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based on DOJ’s records, appears to have completed their sentence, and at least 1 year has elapsed since the judgment. Cal. Penal Code section 1203.425.  Nonetheless, even if a person is eligible, the prosecutor or probation department may file a petition to prohibit automatic relief “based on a showing that granting such relief would pose a substantial threat to the public safety.”  The petition must be filed by 90 days before eligibility, and the court must give notice to the defendant and conduct a hearing within 45 days.  (A person denied automatic relief can still petition for relief under existing law.) The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with conviction records that are eligible for relief, and “shall grant relief, including dismissal of a conviction,” if such information is present in the records, unless a petition to prohibit relief has been granted.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of convictions granted and prohibited from automatic relief. Effect of relief Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “relief granted” and the date.  A person granted relief “shall be released from all penalties and disabilities resulting from the offense of which the person has been convicted,” except that the relief does not affect: the provisions of Section 13555 of the Vehicle Code; the obligation to disclose a criminal conviction in response to a direct question contained in a questionnaire or application for employment as a peace officer, public office, or for contracting with the California State Lottery Commission; the ability of a criminal justice agency to access and use records; the jurisdiction of the court over a subsequently filed motion to amend the record, petition or motion for postconviction relief, or collaterally attack a conviction; a person’s authorization to own or possess any firearm; a prohibition from holding public office; the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria; eligibility to provide, or receive payment for providing, in-home supportive services; or pleading and proof of the prior conviction in any subsequent prosecution of the defendant. Starting on February 1, 2021, courts “shall not” disclose information concerning the conviction to any person or entity, except to the person granted relief, to a criminal justice agency, or under one of the exceptions above.  In addition, a sentencing court “shall advise” a defendant of the provisions of this section, as well as the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon. Finally, by amendments to Cal. Penal Code section 11105(p)(2)(A) that are effective January 1, 2021, the state records repository system is prohibited from disclosing conviction records that have been dismissed or set aside, whether automatically or by petition, in response to certain requests for background information to be used for employment, licensing or certification.  Exceptions in existing law where background checks are authorized by law apply (including law enforcement employment, health care licensure, and a variety of other authorized situations). When effective, these non-disclosure provisions apply without regard to when or by what process relief was granted. Both sections of the clean slate law make clear that they do not limit any petitions, motions, or orders for relief authorized or required under existing law. Read more

Two Southern states enact impressive occupational licensing reforms

The 2019 legislative session saw two Southern states enact impressive new laws limiting the ability of occupational licensing boards to exclude qualified applicants based on their criminal record.  North Carolina and Mississippi each passed strong new substantive and procedural licensing rules, and both of the new laws show the influence of the Model Law developed by the Institute for Justice.  Both states have now eliminated vague “good moral character” criteria, and extended procedural protections that should make it substantially harder for boards to deny licenses based on criminal history. As a result of these bills, both states now prohibit disqualification from licensure unless a crime is “directly related” to the license involved, both require written reasons in the event of denial, and both provide for a preliminary determination as to whether an individual will be favorably considered.  In North Carolina’s case, this “predetermination” is binding on the board when the applicant later applies.  North Carolina’s new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record. In 2019, the following additional states have enacted new restrictions on the occupational licensing process:  Arizona, Arkansas, Florida, Nevada, Ohio, Texas, Utah and West Virginia.  All told, in the past eight months 14 states have enacted 18 laws regulating occupational licensing in one form or another, with Texas accounting for five of the 18.  These new laws are described in the relevant state profiles of the RRP, and they will be discussed in greater detail in our year-end report.  They will also be incorporated into the updating of our general survey of U.S. relief and restoration mechanisms (“Forgiving and Forgetting in American Justice”),  which is now underway. The provisions of the new North Carolina and Mississippi laws are summarized below, and are set forth in detail in the respective state profiles from the Restoration of Rights Project.  North Carolina first imposed general restrictions on its occupational licensing boards in 2013, and the new law substantially strengthens the earlier law, notably in its procedural protections for applicants.  Mississippi’s Fresh Start Act of 2019 represents that state’s first effort to regulate licensing boards in the State, and so one would not necessarily expect its law to be quite as strong as North Carolina’s – though it is very close.  In summary, both states have taken important new steps to improve employment opportunities and life prospects for people with a criminal record in their states. North Carolina: North Carolina first enacted general licensing non-discrimination law in 2013, and its law then prohibited occupational licensing boards from “automatically” disqualifying an individual based on a criminal record unless the board was “otherwise authorized by law” to do so.  The law specified certain factors that agencies could consider in determining whether a license should be granted, but its protections were admittedly quite weak.  The State has now substantially strengthened the law to enhance both substantive and procedural protections for people with a record, and extended its provisions to “state agency licensing boards” as well as “occupational licensing boards.” Specifically, HB770 amends N.C. Gen. Stat. § 93B-8.1 to impose a “direct relationship standard” for all licenses; to require a board to consider certain factors that before were discretionary, giving effect for the first time to participation in a substance abuse treatment program and to a Certificate of Relief awarded by a court.  It exempts only licenses governed by federal law.  § 93B-8.1(b)-(b3). The new North Carolina law also provides for robust procedural protections for applicants, including written reasons in the event of a denial and an appeal procedure.  § 93B-1(b4)-(b5).  It also specifies that individuals may at any time apply for a “predetermination” as to whether their record is “likely” to be disqualifying, a determination that is “binding” on the board in the event of a subsequent application.  § 93B-8.1(b6) though (b7). Finally, it amends § 93B-2(a) to requires each board to report annually to the legislature on how many applications it has received from people with a record, and how many were granted and denied.  For further details, see the North Carolina profile from the RRP.  Mississippi: Until 2019, Mississippi also had no general law regulating consideration of conviction in connection with occupational licensing, although it applied a direct relationship test in connection with some licenses.  Under the Fresh Start Act of 2019, no one may be disqualified from engaging in any licensed occupation “solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation.”  Section 3 of SB2781 (not yet codified).  Only law licensure is excepted. Under Section 4, licensing authorities shall not include in their rulemaking “vague or generic terms including, but not limited to, ‘moral turpitude,’ ‘any felony,’ and ‘good character.’”  Absent applicable state law, licensing authorities “may only consider criminal records that are specific and directly related to the duties and responsibilities for the licensed occupation when evaluating applicants.”   In determining whether a conviction is “directly related,” the licensing authority shall make its determination by a clear and convincing standard of proof based on several specified factors, including the nature and seriousness of the crime and the passage of time since its commission, and any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a direct relation. Under Section 5, an individual with a criminal record may petition a licensing authority at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. The licensing authority must inform the individual of his standing within thirty (30) days of receiving the petition, and may charge a fee not to exceed $25.00.  If a licensing authority denies an individual a license solely or in part because of the individual’s prior conviction of a crime, the licensing authority shall notify the individual in writing of the following of the grounds and reasons for the denial, that the individual has the right to a hearing to challenge the licensing authority’s decision.   In any administrative hearing or civil litigation, “the licensing authority shall carry the burden of proof on the question of whether the applicant’s criminal conviction directly relates to the occupation for which the license is sought.”  For further details, see the Mississippi profile from the RRP. Read more

Florida gov asks state court to resolve felony voting dispute

Florida Governor Ron DeSantis has opened up a new front in the legal battle in Florida over voting rights for people with felony convictions.  DeSantis is asking the state supreme court for an opinion on whether Amendment 4, passed by Florida voters in 2018, restores the vote for people with outstanding court-ordered fines and fees.  DeSantis signed a law passed by the legislature saying no, but that law is being challenged in federal court. Amendment 4 Amendment 4 automatically restored the right to vote for people convicted of felonies, other than murder or sexual offenses, upon “completion of all terms of sentence including parole or probation.”   On June 28, 2019, DeSantis signed legislation (SB7066) that defines “completion of all terms of sentence” to include legal financial obligations (LFOs), including if a court has converted the LFOs to a civil lien.  Supporters of SB7066 point to a previous hearing before the Florida Supreme Court—regarding whether Amendment 4 should be on the 2018 ballot—where the Amendment’s sponsors told the Justices that completion of sentence includes court-ordered fines and costs. In federal court, individuals and supporters of Amendment 4 have brought several challenges to SB7066 as violating the U.S. constitution on a variety of grounds.  One complaint argues that by disqualifying persons with outstanding LFOs, even if a person has no ability to pay and even if the court has converted an LFO to a civil lien, the law violates the Equal Protection and Due Process guarantees of the Fourteenth Amendment.  It also argues that the law burdens the fundamental right to vote, is an unconstitutional poll tax, infringes on free speech and association, and was enacted with a racially discriminatory purpose. UCLA law professor Beth Colgan recently published a survey of wealth-based penal disenfranchisement in the U.S.  She argues that while this widespread practice has been upheld in the lower courts under rational basis review, properly considered as a form of punishment it violates the Equal Protection Clause of the Fourteenth Amendment. Request for Opinion On August 8, DeSantis filed a four-page letter asking the Florida Supreme Court to weigh in on the meaning of the amendment.  “I will not infringe on the proper restoration of an individual’s right to vote under the Florida Constitution,” DeSantis states, asking the justices for “your interpretation of whether ‘completion of all terms of sentence’ encompasses financial obligations, such as fines, fees and restitution (‘legal financial obligations’ or ‘LFOs’) imposed by the court in the sentencing order.” Read more

New restoration laws take center stage in second quarter of 2019

State legislatures across the country are moving quickly and creatively to repair some of the damage done by the War on Crime, which left a third of the adult U.S. population with a criminal record.  In the second quarter of 2019, 26 states have enacted an eye-popping total of 78 separate new laws aimed at addressing the disabling effects of a record.  Coupled with the laws enacted in the first quarter, the total for the first half of 2019 is 97 new laws enacted by 36 states.  By way of comparison, in all of 2018 there were 61 new restoration laws enacted in 32 states and two territories, which was then a record. Much of the new legislation this quarter is quite significant.  Some states made their first substantial effort in decades to deal with the problems presented by record-based discrimination, while others refined and extended reforms enacted in the recent past.  Some states enacted multiple laws dealing with the same restoration issue (Texas stands out with five laws on occupational licensing alone), and some dealt with multiple issues in one law (New York dealt with no fewer than twelve separate issues in a 2020 budget bill).  Many of the specific laws enacted in the second quarter were anticipated by laws enacted by other states in the first. As in the past, state lawmakers this quarter focused most of their attention on facilitating access to record-clearing, although a significant number of new laws regulate consideration of criminal record in the occupational licensing process.  Another important area of progress is in restoration of voting rights.  Other matters addressed by new laws include driver’s licenses and firearms; diversionary dispositions; and immigration consequences.  Surprisingly few of the new laws deal directly with employment, perhaps on the assumption that limited access to criminal records will also limit employment discrimination, at least where a background check is not mandated by law (frequently an exception to sealing).  Only one law enacted during this past quarter took a step backward to restrict an existing restoration measure (a significant development in Florida in the area of voting rights). The new laws also display a remarkable variety, indicating either that the spirit of experimentation is alive and well in the States, or that States are desperate for law reform guidance, or both.  Meanwhile, in stark contrast to this prolific state law-making, Congress has not attempted to deal with the problem of reintegration for more than a decade—either by reducing federal collateral consequences or by restoring rights to people with federal convictions. Below, we describe some of the more significant new laws by category, covering voting rights, record-sealing, occupational licensing, immigration, and what for want of a better term we call “odds and ends.”  For those interested in further details about the new laws, we have described and analyzed them in the state profiles and summary charts of the Restoration of Rights Project.  (In order to access the full analysis of the new laws in the RRP, you must clink the link on the “summary” sheet labeled “Read the Full Profile.”) I.  Voting rights During the quarter, states took steps to expand voter eligibility and awareness.  Three states made more people with a criminal record eligible to vote: Arizona repealed its law that makes automatic restoration of the vote depend on payment of court debt (but those who owe restitution must still apply to the court to regain their voting rights); Colorado restored the vote to former prisoners on parole supervision; and Nevada revised its complex system for restoring civil rights so that all people with felony convictions may now vote except during actual incarceration.  Under the new law, all civil rights are subject to a simplified restoration scheme that no longer varies depending upon the nature of the offense and the person’s prior record. (By virtue of this new law, and last year’s reforms in New York and Louisiana, of the states that disenfranchise only those sentenced to prison, California and Idaho remain the only states that withhold the vote for the entire period a former prisoner is under supervision in the community.) One of the most frustrating collateral consequences issues is that many convicted people believe they cannot legally vote even when they can.  For example, it is not widely known that in almost half the states, if a person is not sentenced to prison, they do not lose the vote at all.  Three states this quarter took steps to ensure that people with a conviction are aware of their right to vote when they exit custody: Washington joined Colorado in making correctional officials responsible for informing individuals leaving their custody about the process for registering to vote; and Oklahoma revised ambiguous statutory language to clarify that people become eligible to vote as soon as their custodial sentence is complete, even if they owe court debt. The one law enacted during the quarter that restricts rather than enlarges opportunities to avoid collateral consequences is also one of the most noteworthy and far-reaching:  in the wake of Florida’s 2018 restoration of the franchise, by ballot initiative, to more than a million state residents who had completed their court-imposed sentence, the Florida legislature passed a law interpreting “completion of sentence” to include payment of fines, fees and court costs.   While Florida is not the only state to interpret “completion of sentence” to include payment of court debt, the outraged reaction of proponents of the 2018 ballot initiative has drawn national interest to this issue.  Individual Florida resident and advocacy groups have brought a challenge to the new law on constitutional grounds.  If this law is invalidated on grounds that its burden falls disproportionately on the poor, wealth-based barriers to the vote in other states may be vulnerable.  Voting is not the only context in which court debt is under attack as an unconstitutional barrier to reintegration. II.  Record-closing and record-clearing  Once again, as in the first quarter, most states are addressing collateral consequences by limiting public access to the record.  More than half the new laws enacted during the second quarter (46 out of 75) expand eligibility for expungement and sealing, and streamline or automate record-closing procedures, in a variety of ways: Like New Mexico last quarter, Delaware, Iowa and North Dakota all enacted their first general authority to seal adult criminal records. North Dakota’s new law is as comprehensive as New Mexico’s, covering almost all felony convictions (even ones involving violence, with a longer waiting period) and all misdemeanor convictions.  (In North Dakota, non-conviction records are sealed by court rule.) Delaware’s new law applies to fewer convictions but is arguably more forward-looking in being automatic upon application. Iowa’s new law applies only to misdemeanors. Colorado revised and reorganized its entire chapter on criminal records, notably extending sealing for the first time to misdemeanor and less serious felony convictions beyond drug cases, and streamlining the process for immediate judicial sealing of cases terminated in favor of the accused, including for first-time diversionary dispositions.  Provisions in existing law that conditioned sealing of non-conviction records on the running of a statute of limitations were not reenacted, nor were provisions precluding sealing if the defendant still owed restitution, fines, or other court debt, which now apply only to sealing of conviction records.  Finally, the new law directed the state crime commission to report to the legislature on the feasibility of automated sealing. Louisiana made anyone entitled to its constitutionally guaranteed “first offender pardon” eligible for immediate expungement, avoiding the otherwise applicable 10-year waiting period, and extending relief to those convicted of drug crimes. Washington, whose constitution prohibits limiting public access to court records except in “compelling circumstances,” extended its vacatur relief to some categories of “violent” offenses, shortened the waiting period, and eliminated financial barriers to relief. Arkansas, Mississippi, Montana, and Oklahoma also amended existing record-sealing schemes (e.g., extending eligibility to additional crimes, reducing waiting periods, and reducing filing fees). Tennessee’s decision to eliminate entirely its exorbitant expungement filing fee, reduced just last year, was particularly welcome.  (While Kentucky reduced its “expungement fee” from $500 to $300 in the first quarter, it added a new requirement that it be paid in full before expungement can be completed with no possibility of waiver.) Illinois undertook to expunge the records of more than 770,000 individuals arrested or convicted of marijuana offenses before legalization, though an automated process managed by the state police for arrests and the pardon board for convictions.  Oregon and Washington also facilitated set-aside for marijuana convictions. Oregon authorized sealing for pardoned offenses, and it also created a process by which individuals pardoned in past years may avail themselves of this relief. Five states extended set-aside and sealing relief for convictions related to status as a victim of human trafficking, four of them (DE, NV, TN and VT) to a range of non-violent crimes beyond prostitution.  Texas extended eligibility to one additional prostitution-related crime, but (uniquely in our research) conditioned sealing relief on the victim’s cooperation with law enforcement.  (In the past half dozen years almost every state has enacted some record-clearing relief for victims of human trafficking, and it is the one area of restoration law where there is a degree of uniformity thanks to the model provided by the Uniform Law Commission.) The attention being paid by many legislatures to making the record-closing process more efficient and accessible is providing useful material for the model law project we currently have underway.  We have taken particular note of Colorado’s efforts to simplify and make more accessible the sealing process for non-conviction records, and of the efforts in a number of states to automate the record-clearing process.  Illinois authorized automatic expungement of marijuana arrests and convictions, while Delaware’s new law makes relief mandatory for non-conviction records and less serious misdemeanors (though individuals must apply to the state Bureau of Investigation).  Florida’s new law, signed one day too late to qualify for inclusion in this quarter’s tally, also facilitates sealing of non-conviction records and directs a study of automation.  Adding to Utah’s law in the first quarter and Pennsylvania’s last year, these new “clean slate” initiatives appear to be the wave of the future. III.  Occupational licensing Occupational licensing was the second most frequent area of law reform.  Seven states, five in the South or Southwest, emerged from their legislative seasons this quarter having adopted proposals intended to give people significant new opportunities to join a regulated occupation or profession despite a criminal record, without unfair exclusions on vague “moral character” grounds: Arkansas went the farthest with the first revision of its licensing laws in 10 years, eliminating “good moral character” as a licensing criterion and prohibiting consideration of felony convictions after 5 crime-free years, sealed convictions, and pardoned convictions; Mississippi, Nevada and West Virginia for the first time imposed general procedural and substantive limits on their licensing boards; Texas further restricted its boards’ discretionary authority to deny a license based on a conviction more than five years old, absolutely prohibited consideration of non-conviction records, and created a new “restricted license” in air-conditioning and electrical work aimed at people returning to the community from prison; Arizona made significant modifications to its licensing laws for the third year in a row, prohibiting consideration of felonies after 7 years, without regard to whether they have been set-aside; Alabama created a process allowing individuals to avoid mandatory bars on licensing via a court order of relief; New York eliminated statutory licensing barriers in many occupations. All told, 13 states enacted 17 laws regulating occupational licensing in one form or another, with Texas accounting for five of the 17.  (The licensing reforms enacted this year by Ohio and Utah were discussed in our first quarter report, and Florida’s significant and extensive new licensing law, signed into law on July 1, will be discussed in our next quarterly report.) The occupational licensing reforms enacted so far in 2019 are not as dramatic as those enacted in 2018, and do not share common features to the same extent.  However, many of the new provisions are familiar ones (e.g., providing for a preliminary determination, deleting references to moral character, barring consideration of certain types of records at all and other types after a period of time, and requiring agencies to publish a list of disqualifying convictions).  The continuing influence of model laws published by the Institute for Justice and the National Employment Law Project is evident in almost all of the comprehensive new schemes.   IV.  Immigration consequences Another highlight from the first half of 2019 is that three states moved to reform their sentencing laws to help non-citizens avoid deportation: Colorado and New York both limited the potential penalty for certain misdemeanors to 364 days imprisonment, thereby avoiding the automatic deportation trigger that comes with conviction carrying a potential prison sentence of one year or more.  Both states gave non-citizens a statutory opportunity to vacate a guilty plea entered without advice concerning immigration consequences, and New York also provided for resentencing of certain individuals whose actual sentence to one year or more triggered mandatory deportation.  These two states become the sixth and seventh to adopt 364-day legislation (joining Washington, Nevada, California, Oregon, and Utah). Oregon removed a guilty plea requirement from its controlled substances diversion statute, making this benefit available to non-citizens without exposing them to deportation. On the other hand, Oregon also added a provision to this statute requiring defendants to agree to pay restitution and appointed counsel fees as a condition of participation, with no provision for waiver, joining Iowa in what appears to be a small group of states that restrict the benefit of a non-conviction disposition to people who can pay for it. V.  Odds and ends A few other generally applicable laws passed in the past three months are worth mentioning: Colorado added private employment to its ban-the-box law (as New Mexico did in the first quarter); Mississippi and New York repealed provisions making loss of a driver’s license part of the penalty for a drug crime, and Montana and Virginia repealed laws mandating loss of a driver’s license for failure to pay court costs; New York barred private parties’ reliance on non-conviction records to deny employment and housing, and outlawed release of booking information and “mugshots” by police departments without a law enforcement purpose; and Connecticut established a “Council on the Collateral Consequences of a Criminal Record,” composed of high-ranking members of the legislature and the executive branch and representatives of advocacy groups and unions, and charged it with making recommendations by February 1, 2020, for legislation to reduce or eliminate discrimination based on criminal history. Summary Overall, the pace of legislative efforts to dismantle the apparatus of collateral consequences has quickened over the past three months, and many states have become newly sensitive to the importance of delivering relief to people of limited means.  But there is still a notable degree of inconsistency and inefficiency in how different states approach the same problem, including even a problem as apparently simple and uncontroversial as how to avoid discrimination when a case terminates without a conviction.  The value of national guidance is suggested by the two areas in which states have achieved a degree of uniformity, both the subject of model laws: (1) vacatur and sealing for victims of human trafficking; and (2) consideration of criminal record in occupational licensing. The new laws described in this quarterly report, along with numerous other less significant restoration laws enacted in the past three months, have been added to the state profiles and 50-state charts in the Restoration of Rights Project.  We will continue to track restoration bills throughout the year, and report periodically – particularly when a significant new law is enacted.  At the conclusion of the year we will again publish an annual report summarizing the year’s legislative developments. Read more