Category: New legislation

Press release: New report on 2018 fair chance and expungement reforms (updated)

Washington, D.C. — The Collateral Consequences Resource Center (CCRC) has released a new report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  In the past twelve months, 32 states, the District of Columbia, and the U.S. Virgin Islands have enacted 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 the past year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.  The report, titled “Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018,” is available to download here.  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. Four 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. The Collateral Consequences Resource Center is a non-profit organization established in 2014 to promote public discussion of the collateral consequences of conviction, the legal restrictions and social stigma that burden people with a criminal record long after their court-imposed sentence has been served.  We provide news and commentary about this dynamic area of the law, practice and advocacy resources, and information about how to obtain relief from collateral consequences in different jurisdictions. The Center has drafted reports on new legislative developments, and participated in court cases challenging specific collateral consequences. www.ccresourcecenter.org Note: This press release and report were updated on Jan. 17, 2019, to include Alabama’s HB 305 and Pennsylvania’s HB 163; on Jan. 31, 2019, to include U.S. Virgin Islands Bill 32-0230; and on March 27, 2019 to include Missouri’s SB 793 and Oregon’s SB 1543 (as well as the provision in Massachusetts’s S.2371 for vacatur for human trafficking victims). Read more

California enacts modest occupational licensing reform

On September 30, 2018, California Governor Jerry Brown signed into law AB 2138, making California the twelfth state this year to enact occupational licensing reform. This flurry of legislation will make it easier for people with a criminal record to obtain occupational and professional licenses. (As discussed in recent posts, the Institute for Justice’s model occupational licensing act and the National Employment Law Project’s model state law have influenced this legislative trend.) However, California’s take on licensing reform is relatively tepid compared to more extensive reforms in states like Indiana, Kansas, New Hampshire, Tennessee, and Wisconsin. In California, nearly 30 percent of jobs require licensure, certification, or clearance. When AB 2138 takes effect in 2020, it will prohibit licensing boards from denying a license based on certain acts not resulting in conviction, or certain less serious convictions after seven years. The law will require boards to consider rehabilitation evidence for any conviction (not just misdemeanors, as under existing law), to establish more detailed criteria for evaluating convictions, and to issue annual reports. While a more robust version of the bill first passed the California Assembly, it was weakened in the California State Senate, and ultimately, the Senate’s version prevailed. The legislative process and bill’s provisions are discussed in more detail below. Legislative Process: AB 2138’s purpose is to reduce recidivism and provide economic opportunity for all California residents. A more robust version of AB 2138, passed in the California Assembly, had a number of provisions that would have made it easier for people with a criminal conviction to get licensed and back into the workforce, and would have gone into effect immediately. However, the Senate rolled back a number of key provisions, resulting in a watered-down bill, which preserves more barriers to licensing, and delays the bill’s implementation until July 2020. First, the Assembly version would have only permitted denial, suspension, or revocation of a license for a crime “directly and adversely related” to the qualifications or duties of the occupation. However, the final bill only requires the conviction to be “substantially related” to qualifications or duties, reverting to the existing standard in California law, under which more applicants are likely to be disqualified. See Cal. Bus. & Prof. Code. § 480(a)(1). Second, the original Assembly version would have only permitted boards to deny, suspend, or revoke a license based on a conviction from the previous five years, with the exception of violent felonies. The Senate, opting for a longer period in which most convictions can be grounds for denial, expanded the time limit from five to seven years. The Senate version also excludes from any limit a broader class of convictions: serious felonies as defined by California Penal Code section 1192.7, convictions requiring sex offender registration under California Penal Code sections 290(d)(2) or (d)(3), and financial crimes “directly and adversely” related to certain occupations. The Senate version also does not impose any time limits for considering convictions for the purposes of suspending or revoking licenses. Grounds for Denial: While the final version of AB 2138 is not as robust as the earlier Assembly version or those of other reform states, it will narrow the grounds on which a board may deny a license based on a criminal record to only include a conviction or formal professional discipline. The bill will remove from boards the broad discretion they currently possess to deny a license based on “any act involving dishonesty, fraud, or deceit” for self-benefit or harm to others. The new law will prohibit a denial based on an arrest that resulted in a disposition other than a conviction—including an infraction, citation, or juvenile adjudication—and it will only permit a denial based on a criminal conviction or professional discipline. (Unlike alleged conduct or an arrest, a conviction or formal professional discipline is generally subject to procedural protections and due process.) The language in the bill regarding grounds for denial based on a prior conviction provides that a board may deny a license only if: The applicant has been convicted of a crime within the preceding seven years from the date of application that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made, regardless of whether the applicant was incarcerated for that crime, or the applicant has been convicted of a crime that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made and for which the applicant is presently incarcerated or for which the applicant was released from incarceration within the preceding seven years from the date of application. However, no time limitation will apply to a denial based on: a “serious felony” as defined by California Penal Code section 1192.7, a crime requiring sex offender registration under California Penal Code sections 290(d)(2) or (d)(3), or, for certain licenses, a financial crime that is currently a felony and is “directly and adversely related” to the fiduciary qualifications, functions, or duties of the occupation. Next, a board will be able to deny a license based on professional discipline, but only if the applicant “has been subjected to formal discipline by a licensing board in or outside California within the preceding seven years from the date of application based on professional misconduct that would have been cause for discipline before the board for which the present application is made and that is substantially related to the qualifications, functions, or duties of the business or profession for which the present application is made . . . .” In addition, under AB 2138, a person may not be denied a license because of a conviction if that person was granted clemency or a pardon, made a showing of rehabilitation for a felony conviction (misdemeanors are already covered under existing law), or had the conviction dismissed or set aside under California Penal Code section 1203.42. Finally, a board may deny a license on the basis that an applicant knowingly made a false statement of fact required to be revealed in the application, but not based solely on an applicant’s failure to disclose a fact that would not have been cause for denial of the license had it been disclosed. Under the bill, each board must develop more specific criteria—and publish a summary online—for how it determines whether a crime is substantially related to the qualifications, functions, or duties of an occupation in deciding whether to deny, revoke, or suspend a license. Such criteria must include: (1) the nature and gravity of the offense; (2) the number of years elapsed since the offense occurred; (3) the nature and duties of the profession; and (4) any evidence of rehabilitation submitted by an applicant. If a board denies a license in part or whole based on a conviction history, it must notify the applicant in writing of the applicant’s right to appeal, any procedure by which the decision can be challenged, and how to request a complete conviction history. Preliminary Determination: Most of the other states that have enacted licensing reforms in 2018 include a provision for a preliminary determination, a key feature of the Institute for Justice’s model licensing laws, including the Collateral Consequences in Occupational Licensing Act. Such a provision allows individuals to seek a preliminary determination of whether their criminal record will be disqualifying before investing time and money in the licensing process, and to be advised what remedial action they may take. However, a preliminary determination process is conspicuously absent from California’s bill. Another proposed California bill, AB 2409, would have specifically permitted such a preliminary determination, providing that a person could petition a licensing board “at any time” for a determination of whether their criminal record would be disqualifying. And a criminal record would only be disqualifying if the person had a conviction for a felony or violent misdemeanor and if the board determined—by clear and convincing evidence—that the offense of conviction was substantially related to the state’s interest in protecting public safety, that having the license would put the person in a position of being more likely to reoffend, and that the person reoffending would cause greater harm than the denial of the license. AB 2409 also would have allowed individuals to petition licensing boards to review and rescind their regulations. In April 2018, AB 2409 failed in an Assembly committee along a party-line vote, with Democrats in opposition, a result that a Reason.com writer attributed to the influence of special interests who benefit from maintaining high barriers to employment. Reporting: AB 2138 includes an annual reporting requirement, which could provide data to support future reforms. But because the law goes into effect in 2020, the data will not be available until 2021 at the earliest. Each board will be required to make an annual report publicly available that details the number of applications received for each license, the number of applicants requiring inquiries into criminal history, as well as the final disposition and voluntarily submitted demographic information of any applicant with a criminal record who: (1) received a denial or disqualification; (2) provided evidence of mitigation or rehabilitation; or (3) appealed a denial or disqualification. Covered Boards: AB 2138 applies to occupational and professional licensing boards within California’s Department of Consumer Affairs, but the bill exempts from most of its provisions the State Athletic Commission, Bureau for Private Postsecondary Education, and Horse Racing Board. Also of note, as reported by Nick Sibilla in USA Today, the California Department of Forestry and Fire Protection, under California legislation signed in June, may now certify former prison firefighters as “emergency medical responders,” which qualifies them for some state firefighter jobs in lieu of an EMT license. Disclosure: I was a clinical student in 2017 at the East Bay Community Law Center, which was one of the writers of AB 2138, but I had no involvement in AB 2138.     Read more

David Schlussel joins CCRC as its first Fellow

I am delighted to announce that David Schlussel will join CCRC as its first Fellow at the end of this month.  Most recently, David served as a law clerk for the Honorable David O. Carter on the U.S. District Court for the Central District of California. While attending law school at Berkeley, David represented clients in juvenile delinquency, school discipline, and clean slate proceedings as a clinical student for the East Bay Community Law Center. He also interned at public defender offices, taught outreach courses in Juvenile Hall, and wrote a law review note on marijuana, race, and collateral consequences. David has been interested in inequities in the criminal justice system since college, when he volunteered as a GED tutor at the New Haven jail. During his fellowship year, David will be maintaining CCRC resources, including the Restoration of Rights Project; reporting on new laws and developments in the courts; and drafting analytical pieces on significant scholarship and research relating to collateral consequences.  One of his first assignments will be preparing a round-up of the “second chance” legislation enacted during 2018 – to date, more than 50 separate laws in thirty-two states.  During his tenure, David hopes to participate in drafting an amicus brief, an opportunity that could come very soon with a major new challenge to Pennsylvania’s sex offender registration scheme pending in the Pennsylvania Supreme Court. David’s piece on California’s new occupational licensing law that will post later today on the site is the first of what I expect will be many of his thought-provoking analyses of significant new “second chance” legislation. Read more

Marijuana decriminalization drives expungement reform

The national trend toward expanding opportunities for restoration of rights after conviction has continued to accelerate throughout 2018.  By our count, so far this year alone 31 states have broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  On November 6, Florida could take the most politically momentous step of the year if its voters approve a ballot initiative amending the state constitution to re-enfranchise more than a million and a half individuals who are now permanently barred from voting because of a past felony conviction.  We expect to publish a full report on these 2018 reforms, similar to the report we published last winter on 2017 laws, by the end of the year.  Expect it to feature the broad occupational licensing reforms enacted in more than a dozen states since last spring. Another important series of second chance reforms this year has accompanied marijuana decriminalization.  These reforms are documented and analyzed by Professor Douglas Berman in an important new paper titled “Leveraging Marijuana Reform to Enhance Expungement Practices.”  Published in a symposium issue of the Federal Sentencing Reporter devoted to various aspects of collateral consequences and criminal records management, Professor Berman’s paper showcases issues that will becomes increasingly important as the War on Drugs winds down.  Professor Berman is the executive director of Ohio State University’s Drug Enforcement and Policy Center, whose official launch is November 2.  We expect that the Center under his management will give restoration of rights an important place on its policy agenda. The abstract of Professor Berman’s article follows:  Leveraging Marijuana Reform to Enhance Expungement Practices States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization.  State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system.  So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions.  In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements. Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform.   Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions.  Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements.  This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.      Read more

NH limits denial of licenses based on criminal record

On July 2, 2018, New Hampshire’s Governor Sununu signed into law SB 589, making his state the 10th so far in 2018 to approve comprehensive limits on consideration of criminal record in occupational and professional licensing.  Like enactments earlier this year in Indiana, Kansas, Tennessee, and Wisconsin, New Hampshire’s new law is intended to ensure that people with the requisite professional qualifications will not be unfairly denied a license based on their record of arrest or conviction.  In this respect, it reflects the provisions of the Institute for Justice’s model occupational licensing act. New Hampshire’s new law, which goes into effect on August 31, authorizes individuals to seek a preliminary determination as to whether their criminal record will be disqualifying, and allows disqualification only based on a demonstrated public safety concern arising from the facts and circumstances of an individual’s situation.  It requires a board to give reasons for denial in writing, to explain what remedial measures an individual may take to address the board’s concerns, and limits the amount of the fee the board may charge to render its determination.  Finally, it requires each board to report annually on the number of licenses granted and denied to people with a criminal record.  The provisions of the new law are explained in further detail below. The law, which goes into effect on August 31, adds a new section § 332-G:13 to the New Hampshire Code titled “Petition for Review of a Criminal Record,” whose premise is that “the right of an individual to pursue an occupation is a fundamental right.”  It provides that an individual with a criminal record “may petition a board or commission at any time, including before obtaining any required education or training, for a determination of whether the individual’s criminal record will disqualify the individual from obtaining state recognition.” The petition “may include additional information about the individual’s current circumstances, including the time since the offense, completion of the criminal sentence, other evidence of rehabilitation, testimonials, employment history, and employment aspirations.” Standards for disqualification:  The new law, which is effective August 31, 2018, provides that an individual may be disqualified from licensure based on criminal record (“notwithstanding any other statute or rule”) only if the person has been convicted of a felony or violent misdemeanor, and only if the licensing board concludes that “the state has an important interest in protecting public safety that is superior to the individual’s right” to be licensed. In turn, the board may reach this conclusion only if it determines, by clear and convincing evidence at the time of the petition, that: (1)  The specific offense for which the individual was convicted is substantially related to the state’s interest; (2)  The individual, based on the nature of the specific offense for which the individual was convicted and the individual’s current circumstances . . . , is more likely to re-offend by virtue of having the license than if the individual did not have the license; and (3)  A re-offense will cause greater harm than it would if the individual did not have the license. Procedure for determination and appeal:  The board shall issue its determination within 90 days after the board or commission receives the petition.  The determination shall be in writing and include the criminal record, findings of fact, and conclusions of law.  If the board determines that the state’s interest is superior to the individual’s right, the board may may advise the individual of actions the individual may take to remedy the disqualification. The individual may submit a revised petition reflecting the completion of the remedies at any time after 90 days following the board’s judgment. In the event of a negative determination, the individual may appeal the board’s determination through the administrative procedure act.  The individual may submit a new petition to the board or commission at any time after 2 years following a final judgment on the initial petition. The board may rescind its determination at any time if the individual is convicted of an additional offense that the board determines meets the criteria for initial disqualification.  The board may charge a fee to recoup its costs not to exceed $100 for each petition. Annual reporting requirement:  The state office of professional licensure and certification shall establish an annual reporting requirement of the (a) number of applicants petitioning each board (or commission), (b) the numbers of each board’s approvals and denials, (c) the type of offenses for which each board approved or denied the petitions, and (d) other data the office determines.  The office will compile and publish annually a report on a searchable public website. Read more