Category: New legislation

SC legislature overrides veto to broaden expungement laws

On June 27, the South Carolina legislature took the extraordinary step of overriding Governor McMaster’s veto of a bill that expanded eligibility for expungement in several significant (if relatively modest) ways.  House Bill 3209 is now law, and will take effect in six months.  This is one of the very few times in recent years that a state legislature has overridden a governor’s veto of a bill intended to improve opportunities for people with a criminal record. The new law, which will go into effect after six months, extends expungement eligibility to first offense simple drug possession (after three years) or possession with intent to distribute (after twenty years), and to conviction of repealed offenses.  It also repeals first offender limits on expungement eligibility for convictions in magistrates court (summary offenses) and in juvenile proceedings, and applies all of these authorities retroactively.  HR 3209 also restructures fee provisions and authorizes private donations to defray costs for those who cannot afford to pay the fee.  Finally, HR 3209 authorizes expungement for anyone convicted prior to passage of the Youthful Offender Act of 2010 who could have been eligible for sentencing as a first offender under that provision.  The YOA provides that individuals between the ages of 17 and 25 who are convicted of certain non-violent misdemeanors and minor felonies may be sentenced to probation and treatment, so the extension of that law’s relief to pre-2010 convictions is quite significant.   Read more

Collateral Consequences in Occupational Licensing Act

We’ve noted in recent posts the numerous states that, just in the past three or four months, have enacted broad occupational licensing reforms affecting people with a criminal record.  Many of these new laws have been influenced by a model developed by the Institute for Justice (IJ), a libertarian public interest law firm that has been litigating and lobbying to reduce barriers to work for more than two decades.  In turn, states like Indiana, Kansas, Tennessee and Wisconsin have built upon IJ’s model to enact even more progressive schemes intended to ensure that people with the requisite professional qualifications will not be unfairly excluded based on a record of arrest or conviction. Now IJ has incorporated many of these progressive refinements into its original model licensing law, the Occupational Licensing Review Act (OLRA), and broken out the provisions relating to criminal records into a free-standing model act specifically directed at managing collateral consequences in the occupational licensing context, the new Collateral Consequences in Occupational Licensing Act (CCOLA). The CCOLA has the same key features as the original OLRA: It provides individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; It allows the individual to seek this determination at any time, including before investing in the required training necessary to otherwise qualify for the license, requires a written decision within 90 days, and limits what the agency may charge for this determination to $100; It limits the types of records that an agency may consider in a licensing decision to convictions of serious or violent crimes; It shifts the burden of proof to the agency to establish that a petitioner’s conviction is substantially related to the state’s interest in protecting public safety; It requires agencies to provide written reasons justifying denial of a license based on conviction in terms of public safety; and It requires each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. In addition to these features, IJ has recently further clarified the types of criminal conduct that may be considered in licensing decisions, and specifically prohibited the use of vague criteria like “good moral character” as a basis for exclusion.   As revised, IJ’s model laws  now provide that licensing agencies may not consider non-conviction records, juvenile adjudications, non-violent misdemeanors, and most felonies and violent misdemeanors that occurred more than three years prior to seeking licensure.  See CCOLA, 100.02, Subd. 7.  Agencies may consider violent felonies and sexual offenses at any time, although even these records must still be tested against the “public safety” standard: The board may deny the petition only if it establishes by clear and convincing evidence that: 1. The individual was convicted of a felony or violent misdemeanor, not excluded by subdivision 7, which is directly, substantially and adversely related to the state’s interest in protecting public safety; and 2. The granting of state recognition will put the individual in a position where the individual is more likely than not to reoffend and cause harm. See CCOLA, 100.02, Subd 10(c). IJ’s website points out that “[m]ore than 25 percent of workers need a government-issued license to work,” so lowering barriers to licensure for people with a criminal record has important implications for efficiency and public safety.  In introducing its stand-alone CCOLA model, IJ’s website states the following: An honest living is one of the best ways to prevent those with a criminal record from re-offending. But many occupational licensing laws block or burden ex-offenders from entering regulated fields.  Numerous licensing laws have morality clauses that (1) bar automatically and permanently ex-offenders from working without any individualized review or (2) require the ex-offender to prove a negative—that the ex-offender’s past crimes will not cause him to harm customers in the future. Such provisions ironically may decrease public safety.  States with prohibitions and high burdens on entry have higher criminal recidivism. Conversely, states that have no such bars and low burdens have seen declines in recidivism, according to Professor Stephen Slivinski’s landmark study Turning Shackles into Bootstraps. IJ’s website surveys some of the key provisions of many of the recently enacted state licensing reforms.  It also very happily links to the relevant 50-state chart from the Restoration of Rights Project, which we very much appreciate! With an enrolled bill sitting on its governor’s desk for action, New Hampshire is poised to become the 10th state to enact comprehensive licensing reform in 2018.  In addition to Indiana, Kansas, Tennessee and Wisconsin, Arizona, Maryland, Massachusetts, Nebraska, and Wyoming have all just this year enacted new laws incorporating many of the features of IJ’s model law.  Illinois anticipated these states by six months when it significantly amended its licensing scheme to reflect IJ’s approach in August 2017. We were pleased to be able to work with Lee McGrath of IJ’s office in Minneapolis in developing many of the amended features of the CCOLA, which have also been folded into IJ’s broader model occupational licensing act.  We look forward to continuing to work with Lee and his colleagues in months to come.   Read more

NC expands certificate law, taking three steps forward, one step back

The states are on a roll in passing new “second chance” legislation.  In addition to the extraordinary new Pennsylvania bill on automatic sealing we posted about earlier today, we’ve just learned that the North Carolina legislature has approved a bill modifying eligibility for judicial Certificates of Relief.  Certificates, which are available from the sentencing court one year after sentencing, remove mandatory collateral consequences (including in employment and licensing), certify that an individual poses no public safety risk, and provide negligent hiring protection.  The bill has been sent to the Governor for signature, we will inform you as soon as he has done so.   Hat’s off to our friends at the North Carolina Justice Center, who worked hard to get this bill passed!    The bill will provide further relief and opportunity for people with multiple convictions.  The “one step back” referred to in the title of this post is that while the bill significantly expands eligibility for misdemeanors and the lowest level felonies, it also removes from eligibility one class of felony.   It is inevitable that there will occasionally be some last-minute counter-current in pressing for extension of relief provisions.   In North Carolina, what might have been cause for discouragement has evidently (and commendably) provided advocates with additional incentive to pursue a reform agenda and to educate employers about the value of certificates.    Here is a description of the bill from Daniel Bowes at the NCJC:     On June 14, the Certificate of Relief bill passed the Senate, and the House immediately concurred. The bill will become law with the Governor’s signature and go into effect Dec. 1, 2018. The bill and legislative history are here: https://www2.ncleg.net/BillLookUp/2017/h774 . The new law will expand certificate of relief eligibility to people with multiple misdemeanor and low-level felony convictions. Current eligibility is one incident of up to 2 convictions of a Class G, H, or I felony or misdemeanor. H774 expands eligibility to people with up to 3 incidents of Class H and I felony convictions and an unlimited number of misdemeanor convictions. All H or I felony convictions disposed in the same session of court count as 1 conviction for purposes of COR eligibility. Unfortunately, Class G felonies were removed from eligibility. During the senate judiciary committee meeting, one of the members asked staff to read out the list of Class G felonies and the conversation went downhill from there. Our long-term goal is to expand eligibility to all people with criminal convictions, but that was not feasible in the current legislative session. For now,  we have a big opportunity to elevate the visibility and value of certificates of relief through our networks and alliances. Over the next few weeks, we hope to educate employer groups and landlords, along with our allies and other advocates and service provider about certificates of relief and to assist the Chief Justice’s Working Group on Expunctions to influence NC Administrative Office of the Courts to make the petition and order form much better at telling employers and other decision-makers how the certificate is valuable and what it means.   Read more

Automated sealing nears enactment in Pennsylvania

[NOTE:  On June 30, HR 1419 was signed into law as Act 56.  Its provisions have been incorporated into the Pennsylvania profile of the Restoration of Rights Project.] On Friday June 22, the Pennsylvania legislature took its final step toward passage of the so-called Clean Slate Act of 2018, delivering to Governor Wolf a bill (HR 1419) that he has already indicated he will sign.  When enacted, the Act will be the first state law providing for automated sealing of at least some conviction records, sparing individuals with qualifying records the trouble and expense of filing a formal petition for relief with a court.  Congratulations are due to the Community Legal Services of Philadelphia and the Center for American Progress for their sustained efforts over several years to enact this ground-breaking legislation, which will provide relief for “hundreds of thousands of Pennsylvanians with old and minor criminal convictions or who were arrested but not convicted.”  Their press release, linked here, notes that “[t]he bill enjoyed remarkably broad support, including from legislators and advocacy groups that rarely find common ground.”   As soon as HR 1419 has been signed into law, we expect to incorporate into the Restoration of Rights Project a full analysis of its relevant provisions, which are fairly complex, and which become effective on different dates.  In the meantime, we note below what appear to be the bill’s most salient features. In addition to authorizing automatic sealing through an “order for limited access,” HR 1419 retains existing authority for sealing by individual petition, and expands the range of cases eligible for relief through petition.  It does this in several ways: It makes certain misdemeanors eligible for sealing for the first time; It shortens the 10-year eligibility waiting period by having it run from conviction as opposed to completion of sentence, and makes only convictions that occur within that period disqualifying, as opposed to any arrests, as under present law (though all financial penalties must be satisfied – a provision not explicitly in existing law); It cuts back substantially on the kinds of prior convictions that will make individuals ineligible for relief under present law; It further limits dissemination of sealed conviction records, so that licensing agencies will not longer be routinely permitted access once a sealing order has been issued. It clarifies and amends the laws providing for dissemination of non-conviction and juvenile records by police departments.  However, by far the most noteworthy and unusual provision of the bill is its provision for automatic computer-assisted identification and sealing of eligible conviction records, obviating the need for any initiating court action by the subject of the records.  While a few states now authorize automatic sealing of some non-conviction records, no state extends automatic sealing relief to adult convictions, or even to non-conviction records on as extensive a basis as Pennsylvania will when HR 1419 is signed into law.  As noted below, some though not all of the expanded eligibility criteria for sealing by petition also apply to this so-called “clean slate” sealing. HR 1419 spells out a procedure by which the Administrative Office for state courts and the State Police will identify eligible cases, giving local district attorneys an opportunity to object.  Lists of cases deemed eligible for automatic sealing will be submitted on a regular monthly basis to commonwealth courts.  The courts will then issue a blanket “order for limited disclosure” applicable to each listed case, so that individuals will not have to file a court petition or pay a filing fee in order to have their record sealed. The bill also authorizes automatic sealing of records that did not result in conviction. Finally, the bill specifies the process going forward whereby the Administrative Office of the Courts and the State Police will identify through computerized search techniques the cases that are eligible for automatic sealing, and submit to the commonwealth courts on a regular basis lists of these cases for a judicial sealing order. Even after passage of the new law, there will still be cases in which an individual must file a petition in order to obtain sealing relief.  This is because not all cases eligible for sealing by petition will also be eligible for automatic sealing, notably because of differences in the types of prior offenses that are disqualifying.  For example, a prior felony or serious misdemeanor conviction at any time will disqualify an individual from consideration for automatic sealing, whereas only the most serious prior felonies will disqualify an individual for sealing by petition, and then most only for a limited period of time.  Conversely, all “summary” offenses are eligible for automatic sealing after 10 years.  (These minor offenses are not mentioned in the law providing for sealing by petition, but they are eligible for expungement after five arrest-free years.). The amendments enlarging eligibility for sealing by petition are effective December 26, 2018, while many other provisions of the Act are effective June 28, 2019.  The courts and state police are directed by law to identify all cases eligible for automated sealing between June 28, 2019 and June 27, 2020.  Indications are that implementation will be done in phases during that period. Note:  Thanks to Sharon Dietrich, a major force behind the Clean Slate Act, for reviewing the above description of the new law.   Read more

More states enact major “second chance” reforms

In recent weeks, three more states — Colorado, Louisiana and Vermont — have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status. We are just now noting Wyoming’s enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws. In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way.  States have enacted several different types of “second chance” laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing. On May 25, Vermont Governor Phil Scott signed into law an expansion of the state’s expungement authority for both adult and juvenile offenders, reducing waiting periods and other eligibility criteria for qualifying felony and misdemeanor convictions.  The new law also authorizes courts to expunge non-conviction records 12 months after the conclusion of the case, without need for a petition from the defendant, and without regard to the nature of the offense.  This is the third time in recent years that Vermont has extended eligibility for expungement. On May 29, Colorado Governor Hickenlooper signed a bill extending the state’s existing authority for sentencing courts to waive application of collateral consequences affecting employment, licensing, and other opportunities and benefits, to make this relief available in all cases regardless of sentence.  Previously this waiver authority was available only in cases involving a community-based penalty.  Courts are authorized to take action as early as sentencing and throughout the period an individual is under sentence.  In this respect, the law resembles the authority proposed by the American Law Institute in the collateral consequences provisions of its new Mode Penal Code: Sentencing.  The Colorado law is described in detail in the Colorado profile from the Restoration of Rights Project. At the end of May, Louisiana Governor John Bel Edwards approved several “second chance” bills:  One new law extends voting rights to anyone under sentence for a felony who has not been actually incarcerated in the past five years; two additional laws make minor adjustments to the state expungement law, to exempt deferred adjudication cases from the 15-year eligibility waiting period for a second expungement, and to add to the requirements for filing an expungement motion.  Another new law requires the governor to conduct regular periodic reviews of the standards applied by occupational licensing agencies.  As finally enacted, this last-mentioned law substantially watered down provisions in earlier versions of the legislation that would have limited agency consideration of criminal records in licensing actions. Earlier this spring, Wyoming enacted a new provision of its general state licensing code establishing a “direct relationship” standard for consideration of conviction by all licensing agencies not otherwise subject to a specific contrary statutory standard. See Wyo. Stat. § 33-1-304.  See Enrolled Act 63 (March 2018), available at http://www.wyoleg.gov/2018/Enroll/SF0042.pdf.  This provision prohibits consideration of prior convictions that are more than 20 years old, except where the person is still under sentence or the sentence was completed fewer than 10 years ago, and unless the elements of the offense are “directly related to the specific duties and responsibilities of that profession or occupation.”  Among the new law’s policies is that agencies should ensure that applicants have an adequate opportunity to appeal a denial. Wyoming also amended more than a dozen specific professional and occupational licensing statutes to rescind vague qualifications like “good moral character,” and to substitute functional criteria specifically tying the nature of a particular crime to the licensed activity pursuant to a direct relationship standard.  Licensing schemes affected include those regulating teachers, guides and outfitters, engineers, veterinarians, and nursing home administrators.  Licensing standards for chiropractors, nurses, optometrists, dental hygienists, social workers, and marriage and family counselors and substance abuse counselors were also amended.  Securities dealers and investment advisers, insurance agents, and athlete agents are covered by the reforms. Legislatures in several other states have passed bills that are currently awaiting approval of the governor, including Illinois, New Hampshire, and Tennessee.  The only “second chance” legislation we know of that was disapproved by the governor is the South Carolina legislature’s unsuccessful attempt to authorize expungement of drug convictions. We expect again to provide a summary of all new laws enacted in 2018 toward the end of the year, and we will also be keeping the state profiles and other resources in the Restoration of Rights Project up to date in real time.       Read more