Category: New legislation

Colorado limits immigration consequences of a criminal record

Colorado joins other states this session that passed legislation to avoid federal immigration consequences of state criminal matters.  The new Colorado laws—SB 30 and HB 1148—work at different stages of criminal proceedings to protect people from possible deportation: SB 30 remedies past wrongs by vacating unconstitutional guilty pleas, and SB 1148 will prevent future deportations resulting from potential one-year sentences. On May 28, Colorado enacted SB 30, which went into effect immediately and helps ensure that when a person is offered a non-conviction diversion, it is not treated as a conviction for immigration purposes.  In many states, people facing criminal charges are offered the chance to avoid a conviction by agreeing to a type of diversion called deferred adjudication.  They plead guilty and complete a period of probation, after which the plea is withdrawn and charges are dismissed.  Sounds good right?  Not for a non-citizen.  In that case, federal law treats this arrangement as a conviction—sufficient to initiate deportation proceedings.  See 8 U.S.C. § 1101(a)(48)(A); § 1227(a)(2).  However, such a plea may be unconstitutional if a person was not properly advised of these immigration consequences.  See Padilla v. Kentucky, 559 U.S. 356 (2010). The new Colorado law provides procedures for courts to vacate an unconstitutional guilty plea where it has already been withdrawn and the charges dismissed.  See Colo. Rev. Stat. § 18-1-410.5.  (The law applies to pleas that have been withdrawn in connection with a deferred judgment agreement, or dismissal of drug charges under a since repealed law.  It applies to both past and future cases.)  Defendants must submit a motion to the court alleging that: (1) the defendant “has suffered, is currently suffering, or will suffer” adverse immigration consequences, and (2) the defendant was not informed or adequately advised of the immigration consequences resulting from the guilty plea, or that the plea was otherwise “constitutionally infirm.”  Colo. Rev. Stat. § 18-1-410.5(2), (3).  The court “shall” grant a motion to vacate if the prosecutor does not oppose it within 21 days.  Colo. Rev. Stat. § 18-1-410.5(4)(a).  If the prosecutor objects, the court holds an evidentiary hearing.  Id.  Notably, the law prevents prosecutors from relying on a deferred judgment agreement, plea paperwork, or court transcript to oppose the motion, unless the documents “clearly” show that defendant was informed that immigration consequences would persist after withdrawing the guilty plea.  Colo. Rev. Stat. § 18-1-410.5(4)(c). The second Colorado bill, HB 1148, enacted on March 28, reduces the maximum sentence for certain low-level convictions to 364 days.  (The bill will go into effect on August 2, unless a referendum petition is filed.)  When it comes to immigration, federal law ties judges’ hands.  They often have little to no discretion to prevent deportation if a conviction meets certain criteria.  One example is mandatory deportation for state misdemeanors carrying a potential one-year sentence.  See 8 U.S.C. § 1227(a)(2).  It does not matter that a judge may actually give a five-day prison sentence or probation.  Once convicted of a crime carrying a one-year maximum sentence, a person faces potential immigration consequences. Colorado’s new law amends the maximum sentence allowed for certain drug misdemeanors, drug petty offenses, violations of municipal ordinances, and other misdemeanors with sentences undetermined by statute.  See Colo. Rev. Stat. § 13-10-113; § 18-1.3-501; § 18-1.3-505.  Previous law provided a statutory maximum sentence of one year; the new law reduces that maximum by one day.  Anyone convicted under these statutes will be subject only to a potential 364-day sentence and will avoid immigration consequences.  Colorado becomes the seventh state to adopt 364-day legislation, joining Washington, Nevada, California, Oregon, New York, and Utah. These two bills are part of a surge of new state legislation aiming to reduce collateral consequences and other barriers to successful reintegration for individuals with a criminal record.  So far this year, state legislatures have enacted an astonishing 88 bills in this area (dwarfing 2018’s 61 new laws, which itself was unprecedented).  We reported on some of these laws in our first quarter update, and look forward to reporting more for our second quarter update in July. This post is part of a series for CCRC’s non-conviction records project, a study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals. Read more

“Wealth-based penal disenfranchisement”

This is the title of a study by UCLA law professor Beth Colgan, published in the Vanderbilt Law Review, in which she documents how every state that disenfranchises people based upon criminal conviction also conditions restoration of the vote for at least some people upon their ability to pay.  In some states this is because the law requires people to pay fines, fees, restitution and other court costs before they can vote.  Even in the states that restore the vote immediately upon release from prison, “wealth-based penal disenfranchisement” may occur through policies applied by parole and probation authorities. Colgan proposes that such laws and policies can be challenged on Equal Protection grounds, arguing that felony disenfranchisement should be considered not as a civil rights deprivation but as punishment.  She argues that the test developed by the Supreme Court in cases involving disparate treatment between rich and poor in criminal justice practices, should operate as a flat prohibition against “the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.” Colgan’s article is particularly relevant in light of Florida’s recent enactment of a law that seems to frustrate the will of the 64% of Florida voters who acted last fall by ballot initiative to provide relief from one of the country’s strictest disenfranchisement provisions.  On Friday, shortly after the Governor signed into law a bill conditioning restoration of the vote on payment of all court-imposed debt, a group of civil rights organizations filed suit in federal court, claiming that the new law violates the Constitution in several ways, most premised on the notion that disenfranchisement constitutes punishment.  Among other things, the suit argues that “the Fourteenth Amendment’s doctrine of fundamental fairness prevents states from punishing individuals if they fail to do the impossible—satisfy legal financial obligations when they do not have the means to do so,” and that the new law violates Equal Protection in discriminating between those who are able to pay and those who are not.  We intend to follow this litigation all the way to the Supreme Court, if necessary. Here is the Colgan article’s abstract: This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution—may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for re-enfranchisement for most or all offenses under certain conditions. One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline. The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices. Through an in-depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia. After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them. There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment’s equal protection and due process clauses. Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice. This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame—the right to vote—when the proper frame is through the lens of punishment. This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court’s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly. Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny. The resulting test operates as a flat prohibition against the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense. Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach. Read more

Bumper crop of new expungement laws expected in 2019

Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record.  (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.)  The first quarter of 2019 has already produced a baker’s dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last.  The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency.  Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature’s accession to Governor Ralph Northam’s request that it “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” which will immediately reinstate driving privileges to more than 627,000 Virginians. This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures.  The two most significant new laws were enacted in Western states.  Utah’s HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records.  When it takes effect on May 1, 2020, it will be the nation’s second “clean slate” law in operation (Pennsylvania’s first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019).  Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment). New Mexico’s Criminal Records Expungement Act (CREA) for the first time authorizes courts in that state, upon application, to limit public access to adult records, including both felonies and misdemeanors, as well as non-conviction records.  HB 370, signed by the governor on April 3 and effective January 1, 2020, provides graduated eligibility waiting periods depending upon the seriousness of the offense, and applies to all but a handful of crimes.  Other highlights from the new record-closing laws include expanded sealing eligibility for adults in Kentucky and West Virginia, and for juveniles in Nebraska and Wyoming. Occupational licensing reforms were enacted in Ohio and Utah that regulate how licensing boards may consider criminal records, continuing a recent push for reform in this area.  Both states will now allow individuals to request at any time a preliminary determination whether their record would disqualify them from holding a license.  Ohio will also require licensing boards to publish on the internet a list of all criminal offenses for which a conviction would disqualify a person.  In addition, New Mexico extended its “ban-the-box” law to private employment, requiring employers to delay consideration of an applicant’s criminal history in the hiring process. Finally, South Dakota streamlined its clemency process by allowing two members of the pardon and parole board to make clemency recommendations to the governor (rather than a majority of the nine-member board). The 13 new laws enacted to date in 2019 are described in further detail below, and have been added to the state profiles in the Restoration of Rights Project.  We will be tracking restoration bills throughout the year, and will report periodically in this space – particularly when a significant new law is enacted. RECORD-CLEARING RELIEF  Utah – Clean slate; effect of expungement On March 28, 2019, Utah Governor Gary Herbert signed HB 431, a highly significant “clean slate” law that will automate expungement or deletion of a variety of criminal records when it takes effect on May 1, 2020.  Acquittals and dismissals with prejudice are eligible.  Certain infractions, misdemeanor convictions, and pleas in abeyance are eligible under a complex set of criteria.  Automated relief will apply both to cases adjudicated on or after May 1, 2020, and to cases adjudicated before that date, with separate procedures for each category.  77-40-116(1)(a) and (1)(b).  A more detailed explanation of this new law can be found in the Restoration of Rights Project, Utah profile. On March 25, 2019, Governor Herbert signed HB 90 (effective May 14, 2019) that makes clear that an applicant with an expunged criminal record seeking employment from a private employer “may answer a question related to an expunged criminal record as though the action underlying the expunged criminal record never occurred.”  § 34-52-301.  The new law also clarifies that a public employer may not make an inquiry related to expunged criminal history—and an applicant may answer such a question “as though the action underlying the expunged criminal record never occurred,” except for preexisting exemptions for certain types of public employers, volunteer work, or when consideration of criminal history is required by law.  § 34-52-201.  More information can be found in the Restoration of Rights Project, Utah profile. New Mexico – First general authority to expunge adult records In 2019, New Mexico enacted a comprehensive law authorizing expungement (sealing) of most non-conviction records, and of conviction records for all but a limited number of crimes, including those involving serious violence and sexual assault.  See HB 370, signed into law not yet codified.  Effective January 1, 2020, the Criminal Record Expungement Act (CREA) authorizes courts to limit public access to most non-conviction records after a one-year waiting period, as long as no charges are pending against the individual.  Courts are also authorized to limit public access to the record of most convictions after waiting periods ranging from two to ten years, depending upon the seriousness of the offense, with no intervening convictions.  The court must find that “justice will be served by an order to expunge,” applying a multi-factor test.  Under current law, New Mexico law contains no judicial authority to seal adult records, and an administrative authority to seal non-conviction records applies only to some misdemeanors.  Upon taking effect, CREA will give New Mexico one of the broadest record-closing authorities in the Nation.  More information about this important new law can be found in the Restoration of Rights Project, New Mexico profile. West Virginia – Expanded eligibility for expungement to some felonies On March 25, 2019, West Virginia Governor Jim Justice signed into law SB 152, which will significantly expand the availability of expungement when it becomes effective on June 7, 2019.  The law extends eligibility for expungement beyond the limited class of youthful misdemeanants that benefit under existing law, and also makes certain felonies eligible for expungement relief for the first time.  (It repeals a 2017 law that authorized reduction of these felonies to misdemeanors, but withheld expungement.)  Violent and sexual crimes are ineligible.  Under the new law, persons convicted of eligible misdemeanors may petition for expungement one year after conviction, or completion of incarceration or supervision if later.  The waiting period is extended to two years for persons convicted of more than one eligible misdemeanor, and to five years for eligible felonies.  Persons who have completed substance abuse treatment or graduated from a state-approved job training program may seek relief after an abbreviated waiting period (90 days for a single misdemeanor; one year for multiple misdemeanors; three years for felonies).  Employers required by state or federal law to conduct a background check may access expunged convictions.  More information can be found in the Restoration of Rights Project, West Virginia profile. Kentucky – Expanded expungement eligibility and procedural reforms   On March 26, 2019, Kentucky Governor Matt Bevin signed SB 57 (effective June 26, 2019), which makes several changes to Kentucky’s expungement law, expanding non-conviction and felony eligibility.  First, the new law will make charges dismissed without prejudice eligible for expungement after a 5-year waiting period (under current law, such charges cannot be expunged).  § 431.076.  Second, certificates of eligibility will no longer need to be sought prior to a petition to expunge a non-conviction record (but are still required for a conviction record). Third, the new law expands eligibility to vacate, dismiss, and expunge class D felony convictions.  A 2016 law had made a specific list of class D felony offenses eligible (or multiple eligible felonies stemming from a single incident).  Prior to that, Class D felonies were only eligible if adjudication was deferred.  Under SB 57, any Class D felony or a “series” of such felonies will be eligible, except for violations of Ky. Rev. Stat. Ann. §§ 189A.010 (DUI), 508.032 (domestic assault), or 519.055 (impersonating a peace officer), abuse of public office, a sex offense, an offense committed against a child, or an offense that resulted in serious bodily injury or death.  § 431.073.  If a prosecutor objects to expunging a Class D felony from this expanded set of offenses, the applicant must show by clear and convincing evidence at a hearing that vacating the judgment and expunging the record is consistent with public welfare and safety, supported by the applicant’s behavior since conviction, and warranted by the interests of justice.  Id.  More details about this law can be found in the Restoration of Rights Project, Kentucky profile. Nebraska – Automatic sealing of juvenile records expanded On March 27, 2019, Nebraska Governor Pete Ricketts signed LB 354 (effective three months after the legislature adjourns in 2019), which makes a host of changes to facilitate the sealing of juvenile records.  Most notably, this new law expands automatic juvenile sealing (which already covers non-conviction dispositions) to include satisfactory completion of juvenile probation, supervision, or other treatment or rehabilitation program or a county court probation or sentence.  Neb. Rev. Stat. § 43-2,108.03.  More details about this law can be found in the Restoration of Rights Project, Nebraska profile. Wyoming – Juvenile expungement procedures strengthened On February 15, 2019, Wyoming Governor Mark Gordon signed HB 44, which makes several changes to strengthen Wyoming’s juvenile expungement laws, effective effective July 1, 2019. These changes include the following.  No filing fee may be charged for a petition to expunge juvenile records.  A state or municipality may petition to expunge juvenile records.  Prosecutors have 20 days to object to a petition for juvenile expungement, after which the court may summarily grant the request.  A minor admitted to a diversion program or granted a deferral, or whose arrest, charges, or disposition do not result in conviction or adjudication, may petition to expunge municipal and circuit court records in the same manner as juvenile records.  Expungement of juvenile records (and certain municipal and circuit court records involving minors) is defined to mean destruction of records.  More details can be found in the Restoration of Rights Project, Wyoming profile. Virginia – Automatic expungement for absolute pardons On February 27, 2019, Governor Ralph Northam signed HB 2278, which takes effect on July 1, 2019.  This new law will entitle a person who receives an “absolute” pardon to automatic judicial expungement—no petition need be filed with the court.  Va. Code Ann. § 19.2-392.2(I).  (Absolute pardons are generally granted only for innocence.)  More details can be found in the Restoration of Rights Project, Virginia profile. OCCUPATIONAL LICENSING Ohio – Preliminary determination of whether record disqualifies from occupational licensure; publication of disqualifying convictions On December 27, 2018, the Ohio Legislature enrolled SB 225, which became law 10 days later without action by the governor.  Effective April 5, 2019, anyone who has a conviction may request at any time that a licensing authority determine whether the conviction disqualifies the person from obtaining an occupational or professional license.  Ohio Rev. Code Ann. § 9.78(B).  A fee of no more than $25 may be charged.  Id.  Within thirty days of receiving a request, the licensing authority must inform the person of its decision (the decision is not binding if the licensing authority determines that the person’s convictions differ from what was included in the request).  Id.  In addition, licensing authorities must make available on the internet a list of all criminal offenses for which a conviction would disqualify a person from obtaining a license.  § 9.78(C).  More details can be found in the Restoration of Rights Project, Ohio profile. Utah – Preliminary determination of whether record disqualifies from occupational licensure On March 25, 2019, Utah Governor Gary Herbert signed a law that will allow a person with a criminal record to apply at any time for a determination of whether their record would disqualify them from obtaining a license in an occupation or profession regulated by Title 58 of the Utah code, when it takes effect on May 14, 2019.  See HB 90; Utah Code Ann. § 58-1-310.  A fee may be charged.  Within 30 days of receipt of a completed application,  the Division of Occupational and Professional Licensing must make a written determination, and the decision may include additional steps the individual could take to qualify for a license.  Id.  This new law also amends the definition of “unprofessional conduct” in § 58-1-501(2), based on which a license may be denied or restricted.  Existing law defines “unprofessional conduct” to include, among other things, a plea or conviction for a crime of moral turpitude or a crime that bears a “reasonable relationship” to safe or competent performance of the occupation.  § 58-1-501(2).  The new law replaces “reasonable relationship” with “substantial relationship.”   See id; HB 90.  More details can be found in the Restoration of Rights Project, Utah profile. EMPLOYMENT New Mexico – Ban-the-box in the private employment On April 3, 2019, New Mexico Governor Michelle Lujan Grisham signed SB 96, which will extend “ban-the-box” to include private employers when it goes into effect.  Under the new law, if a private employer uses an employment application, the employer may not make an inquiry regarding an applicant’s criminal history.  (Enacted as new section of N.M. Stat. Ann. § 28-2-1, et seq.)  Nonetheless, an employer “may take into consideration an applicant’s conviction after review of the applicant’s application and upon discussion of employment with the applicant.”  And an employer may notify the public or an applicant that the law or the employer’s policy could disqualify an applicant with a certain criminal history from particular positions.  Id.  More details can be found in the Restoration of Rights Project, New Mexico profile.  (Note that the ban-the-box law applicable to public employers in New Mexico is considerably more protective of individuals with a record, prohibiting inquiries until the applicant has been selected as a finalist, and disallowing consideration of non-conviction records and misdemeanors not involving “moral turpitude.”)  CLEMENCY South Dakota – Streamlined clemency process On February 5, 2019, South Dakota Governor Kristi Noem signed HB 1005, which authorizes a hearing panel of two Board members appointed by the chair to make clemency recommendations to the governor.  See HB 1005 (repealing the requirement in S.D. Codified Laws § 24-13-4.6 that commutation and pardon recommendations be made by a majority of the nine-member board, and making conforming amendments to §§ 24-15A-10 and 24-15A-11).  A new provision of § 24-15A provides for review of a panel’s decision to deny a pardon recommendation by the full Board, which may “adopt, modify, or reject the panel’s denial and recommend a pardon.”   More details can be found in the Restoration of Rights Project, South Dakota profile. MISCELLANEOUS  Virginia – Reinstatement of drivers’ licenses  An amendment to Virginia’s 2019 budget bill specifically requested by Governor Ralph Northam to “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” was accepted by the legislature on April 3, 2019.  See HB 1700.  When this law becomes effective on July 1, it will immediately reinstate driving privileges to more than 627,000 Virginians.    Read more

Updated report on 2018 fair chance and expungement reforms

On January 10, 2019, we released a report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  Since that time, we discovered five additional laws enacted in 2018 (in AL, PA, OR, MO, and the U.S. Virgin Islands), and have updated our report accordingly. In 2018, 32 states, the District of Columbia, and the U.S. Virgin Islands enacted at least 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime. The CCRC report analyzes last year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative. Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade. The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box: The courts:  20 states gave more people the ability to seek a fresh start through sealing or expunging their criminal records.  Beneficiaries of these new laws include people with non-conviction and juvenile records; with convictions for marijuana and other decriminalized offenses, certain low-level felonies, and misdemeanors; and human trafficking victims.  Four states created programs to seal or expunge certain records on a systematic basis, without the need for individual application. Two states extended eligibility for diversion programs that can forestall conviction. Six other states enacted laws expanding access to judicial certificates of relief that ameliorate the collateral consequences of conviction, of which Colorado’s “order of collateral relief” was the most consequential.  The workplace:  14 states enacted laws that will make it easier for people with a criminal record to obtain occupational and professional licenses, by narrowing the grounds for denial and by increasing transparency and agency accountability in the licensing process.  In the past two years, a total of 13 states have enacted comprehensive licensing reforms based on model laws proposed by the Institute for Justice and National Employment Law Project. Three more states “banned the box,” prohibiting certain employers from asking about criminal record early in the hiring process, bringing the total that have state-wide bans to 33.  The ballot box:  Three states restored voting rights for some people with felony convictions.  Of note, Florida voters approved a ballot initiative to restore the voting rights of up to 1.5 million people who have felony convictions, upon completion of their sentences. The pardon process:  The District of Columbia set up a board to recommend to the President for favorable action pardon and commutation applications by D.C. Code offenders.  California expedited administrative processing of pardon applications, and made the pardon process more transparent and accountable. Moving in the other direction, Nebraska authorized sealing of pardoned convictions, and Maine made both pardon applications and pardon grants confidential. Key takeaways from the report: For people with a criminal record:  Review new restoration laws in your state to see if you became eligible to seal or expunge your record, to apply for a judicial certificate of relief, or to vote (make sure to check when new laws go into effect).  Review licensing laws to see if you can gain or regain access to a licensed occupation. For policy-makers:  Consider establishing systematic record-clearing mechanisms that do not depend on individuals paying fees and filing petitions to seal or expunge their records.  Look at giving courts authority to restore rights and status through certificates or set-asides in cases that do not qualify for sealing or expungement.  Consider enacting comprehensive occupational licensing reforms based on model laws proposed by the Institute for Justice and National Employment Law Project.  Promote deferred adjudication and diversion policies to reduce the prevalence of criminal convictions. For administrators and researchers:  Consider ways in which data can be collected to make it possible to study the effectiveness of different types of restoration measures. For more information, please contact Margaret Love at 202-547-0453, margaretlove@pardonlaw.com. Read more

Federal farm bill legalizes hemp, but bars participation based on criminal record

In the past six years, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on a person’s ability to achieve employment, housing, education and public benefits, and participation in civil society.  In stark contrast, Congress has not dealt 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.  The new farm bill continues this trend. Enacted on December 20, 2018, the bill puts in place a new regulatory regime for the legalized cultivation and sale of hemp, a variety of the cannabis plant grown for industrial uses.  At the same time, the bill adds a new collateral consequence to federal law (which already has more than a thousand): anyone convicted of a drug-related felony may not participate in legalized hemp production for 10 years after their date of conviction, unless they are part of a hemp pilot program authorized by the 2014 farm bill.  An earlier version of the farm bill would have banned people with drug-related felony convictions from participating in hemp production for life, so the final bill is somewhat more progressive. This new restriction reflects and contributes to an ongoing practice in which many jurisdictions that have legalized marijuana have excluded people with marijuana convictions from participating in this booming new industry.  Moving in the other direction, some jurisdictions such as California and Massachusetts—recognizing racial disparities and other injustices of the war on drugs—have enacted policies to clear marijuana convictions, allocate marijuana tax revenue to communities disproportionately affected by past drug policies, and encourage full participation in legalized marijuana industries by members of disproportionately affected communities. The farm bill—Public Law 115-334: Agriculture Improvement Act of 2018—enacts a variety of hemp provisions, including adding legalized hemp production-related provisions to the Agricultural Marketing Act of 1946 (7 U.S.C. § 1621 et seq.).  The newly added Sec. 297B(e)(3)(B)(i) of the Agricultural Marketing Act of 1946, contains the new collateral consequence: Except as provided in clause (ii) [a grandfather clause for people participating in the industrial hemp pilot program authorized by the 2014 farm bill], any person convicted of a felony relating to a controlled substance under State or Federal law before, on, or after the date of enactment of this subtitle shall be ineligible, during the 10-year period following the date of the conviction— (I) to participate in the program established under this section [plans under which a state or tribe regulates hemp production] or section 297C [when a state or tribal plan is not approved, the production of hemp is subject to a plan established by the Secretary of Agriculture]; and (II) to produce hemp under any regulations or guidelines issued under section 297D(a) [the Secretary of Agriculture’s implementing regulations and guidelines]. Read more