We write with an update on our continued work to promote public discussion of restoration of rights and opportunities for people with a record. Highlights from this year’s work are summarized below, including roundups of new legislation, case studies on barriers to expungement, policy recommendations, and a new “fair chance lending” project to reduce criminal history barriers to government-supported loans to small businesses. We thank you for your interest and invite your comments as our work progresses. Read more
In July 2021, in an unheralded action in the final days of its legislative session, Arizona enacted a law that authorized its courts for the first time to seal conviction records. See SB1294, enacting Ariz. Rev. Stat. § 13-911. The same law authorized sealing of uncharged arrests and dismissed and acquitted charges, also for the first time. Prior to this enactment, Arizona was one of a handful of states whose legislature had made no provision for limiting public access to conviction records, and was literally the only state in the country whose courts and records repository had no authority to seal non-conviction records. Now the state will have one of the broadest sealing laws in the country when it becomes effective on January 1, 2023.
(In the November 2020 election, Arizona voters approved a proposition to legalize marijuana, which included a provision for expungement of certain marijuana-related records. But until now no general sealing authority had been enacted by the Arizona legislature.)
As described below, the law makes all but the most serious offenses eligible for sealing after completion of sentence (including payment of court debt) and a graduated waiting period. It also appears that 1) multiple eligible convictions may be sealed, in a single proceeding or sequentially; 2) the prior conviction of a felony (even if ineligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period; 3) a conviction during the waiting period restarts the waiting period; and 4) there is no limit on the number of occasions on which sealing may be sought.
This year is proving to be a landmark one for legislation restoring rights and opportunities to people with a criminal record, extending the remarkable era of “reintegration reform” that began around 2013. Just in the past six months, 30 states and the District of Columbia have enacted an extraordinary 101 new laws to mitigate collateral consequences. Six more bills await a governor’s signature. It appears that legislative momentum in support of facilitating reintegration has returned to the pre-pandemic pace of 2019.
Overall, the past 30 months have produced an astonishing total of 361 laws aimed at neutralizing the adverse effect of a criminal record, plus more than a dozen additional executive actions and ballot initiatives.
In the first half of 2021, two states enacted major laws significantly expanding protections against discrimination based on criminal record: Illinois in the area of employment and New Jersey in housing decisions. Several other states also enacted new laws regulating consideration of criminal records in employment and housing, which are summarized below.
Fair chance employment
- On March 23, 2021, Illinois Governor Pritzker signed into law HR1480, a major expansion of the Illinois Human Rights Act to add a new section prohibiting discrimination in employment based on criminal record. Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency or labor organization to use a conviction record as a basis to refuse to hire or to take any other adverse action unless: 1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or 2) the granting or continuation of the employment would involve a public safety risk. “Substantial relationship” means that the position offers the opportunity for the same or a similar offense to occur and “whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” In making a determination the employer must consider various factors, including the time since conviction and evidence of rehabilitation. If the employer makes a “preliminary decision” to take adverse action, the employer shall notify the employee in writing, and explain the person’s right to respond. The employer must consider information submitted by the employee before making a final decision, and if the final decision is based “solely or in part” on the person’s conviction record, the employer must notify the person of their reasoning, inform them of whatever avenues of appeal may exist, and of their right to file a charge with the Department of Human Rights.
- Louisiana‘s HB707 prohibits consideration of non-conviction records in employment decisions and requires employers to make an individual assessment of whether an applicant’s criminal record has “a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position,” considering certain specified factor relating to the criminal case and the applicant’s subsequent history. This law applies to any public or private employer.
- Maryland enacted a ban-the-box rule applicable to private employers, after the legislature overrode Governor Hogan’s veto. Companies with 15 or more employees may not ask an applicant about their criminal history or conduct a background check at any time before the first in-person interview.
- New Mexico enacted SB2, amending its 1974 law prohibiting certain discrimination in public employment and occupational licensure. (This law was written up in our earlier post on occupational licensure.) The new law bars consideration of convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.”
Fair chance housing
- On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The law prohibits consideration of any criminal record at the initial rental application stage, allows only certain records to be considered after a conditional offer is made, and imposes substantive and procedural standards for withdrawal of a conditional offer. Violations may be sanctioned with up to $10,000 in fines and other compliance measures, civil immunity is provided for landlords from claims based on decisions to rent to individuals with a record, and reporting requirements are included. The specific provisions of the new law were described in detail in a June 22 post by David Schlussel.
- Illinois‘ SB1980 requires local housing authorities in Illinois to collect data on the number of applications for federally assisted housing by people with a criminal record, how many applications denied, and how many overturned after a records assessment hearing. The data must be reported to the Illinois Criminal Justice Information authority and to the legislature, and posted on the CJIA website. Per a 2020 law, the Illinois Human Rights Act also prohibits inquiries about, or discrimination in public and private employment and “real estate transactions” based on “arrest record,” defined as “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.”
- Louisiana‘s HB374 requires landlords in Louisiana to give notice to prospective tenants if they will consider criminal record information.
More details on these laws are available in the Restoration of Rights Project.
This year is turning out to be another remarkable year for new record relief enactments. In just the first six months of 2021, 25 states enacted no fewer than 51 laws authorizing sealing or expungement of criminal records, with another 5 states enrolling 11 bills that await a governor’s signature. Three of these states authorized sealing of convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing, and a number of additional states substantially expanded the reach of their existing expungement laws.
This post hits the highlights of what may well be the most extraordinary six-month period in the extraordinary modern period of criminal record reform that begin in 2013. The only closely comparable period is the first six months of 2018, when 11 states enacted major reforms limiting consideration of criminal records in occupational licensing. Further details of the laws mentioned below can be found in the relevant state profiles from the Restoration of Rights Project.
(An earlier post noted new occupational licensing laws in 2021, and subsequent ones will describe significant extensions of the right to vote so far this year, and summarize the more than 100 record reforms enacted to date.) Read more
– Following George Floyd’s murder, NIKE and Metropolitan Public Defender, Oregon’s largest trial-level public defense service provider, became unlikely partners to improve Oregon’s expungement statute.
Oregon has allowed expungement of certain criminal records since 1972, but the law and process are so complicated and costly that only 5.5% of eligible residents ultimately obtain relief. The statute is replete with exceptions, convictions block other convictions and non-convictions, the least serious convictions have a lengthy “look back” period of conviction-free conduct that regularly results in a 10-year waiting period, and non-person class B felonies have the longest waiting period in the nation (20 years). Even non-convictions are subject to the same 10-year look-back period as convictions, plus an additional three-year period of no other arrests, dismissals or acquittals.
The impact of Oregon’s dysfunctional system is felt most severely by its BIPOC community who are more likely to be arrested, charged and convicted. Black Oregonians are almost four times as likely to have a criminal record as their white counterparts. See Paperprisons.org.
Metropolitan Public Defender and NIKE’s pro bono group, frustrated by the complex law and process, were inspired by the Black Lives Matter protests following George Floyd’s murder. They challenged themselves to create tangible change and co-wrote the proposal that became Senate Bill 397, with input from CCRC. Collaboration with prosecutors led to bipartisan support in the Oregon legislature (Senate 24-5, House 57-1) for the bill, which Governor Kate Brown is expected to sign. It will be effective January 1, 2022.
People with a record frequently experience challenges in obtaining or maintaining housing. For those who have been incarcerated, on supervision, charged, and/or arrested, the background check for rental applications can be a persistent obstacle. Lack of stable housing is a major roadblock to successful reintegration into the community or the pursuit of social and economic opportunities. It is therefore encouraging that states have begun to enact laws limiting record-based disqualifications in housing decisions.
On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The NAACP New Jersey State Conference, Latino Action Network, Fair Share Housing Center, and New Jersey Religious Action Center of Reform Judaism led organizational advocacy for the measure. Senator Troy Singleton, one of the bill’s primary sponsors, cited the “staggering amount of data on the national level that shows securing housing is one of the key barriers to reducing recidivism,” according to the New York Times. “This measure will allow those who have paid their debt to society to move forward with their lives in a productive manner.” Another sponsor, Assemblyman Benjie Wimberly, noted that “We’re fighting generational poverty, homelessness, and hopelessness through social justice reform measures such as this one.”
With New Jersey’s legislation—following on the heels of laws enacted in 2019 in Colorado, Illinois, and New York, legislation in D.C. in 2017, and a slew of local ordinances since 2016— “fair chance housing” has arrived on the national reintegration agenda. While many states have adopted reforms that limit the use of criminal records in employment and occupational licensing, until these recent developments housing does not appear to have been a priority for lawmakers, at least at the state level.
This year, New Mexico enacted three significant laws restoring rights and opportunities to people with a criminal record, continuing a recent trend of major reforms in this area. The three measures involve adopting most of the provisions of the Uniform Collateral Consequences of Conviction Act, authorizing automatic expungement for a broad range of marijuana offenses as part of legalization, and expanding existing law regulating public employment and licensure to prohibit consideration of many types of convictions. A fourth new law significantly limits burdens imposed by court debt. These developments follow 2019 reforms introducing expungement into the state’s legal system for the very first time—through a comprehensive system of petition-based relief for most types of criminal records—and adopting a private sector ban-the-box law.
For these 2019 reforms, New Mexico earned an “honorable mention” for a productive legislative season in our reintegration report card for that year. This year’s noteworthy follow-up measures, summarized below, make New Mexico a contender for CCRC’s “reintegration champion” award in 2021.
In the first five months of 2021, seven states and the District of Columbia enacted nine separate laws improving opportunities for people with a criminal record to obtain occupational licenses. This continues a four-year trend begun in 2017 that has seen 33 states and the District of Columbia enact 54 separate laws regulating consideration of criminal record in the licensing process.
Our report on new legislation in 2020 noted that “[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy.” Laws enacted during this four-year period have “transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people.” The only period of law reform that rivals the present one came during the early 1970s, when many of the laws now being revised and extended were first enacted. The effectiveness of advocacy efforts by the Institute for Justice and National Employment Law Project in influencing this trend cannot be overstated.
So far during 2021, the U.S. jurisdiction to have enacted the most ambitious and comprehensive licensing scheme is the District of Columbia, and its new law (described in detail below) is one of the most progressive in the nation. New Jersey, New Mexico and Washington had not previously legislated in this area for many years, and all three extended and improved laws first enacted in the 1970s. Arizona, Georgia, Ohio, and Tennessee extended recently enacted laws, with Arizona legislating for the fourth time in this area in as many years!
The nine new laws are described below, and have been added to the state profiles and 50-state charts of the Restoration of Rights Project.
Editor’s Note: We are delighted to post a description of the broad new record relief bill now awaiting Governor Northam’s signature, by an attorney-advocate who was actively involved in the campaign to secure its passage. Rob Poggenklass describes the ambitious new law and how it came to be enacted, as well as likely next steps for record clearance in a jurisdiction that is swiftly becoming one of the nation’s leaders in record reforms. In addition to automatic sealing, the bill’s provisions for appointment of counsel, elimination of a fingerprint requirement for petitions, and regulation of private screening companies are particularly significant for reducing access barriers and ensuring effectiveness.
The Virginia General Assembly has passed transformative legislation to allow sealing of convictions, including low-level felonies, for the first time in the Commonwealth, and to establish a system of automatic sealing of police and court records for many offenses. About 1.6 million Virginians have a criminal record, which creates significant barriers to employment, housing, education, and other necessities of life.
The legislation reflects a compromise between an automatic expungement bill sponsored by Del. Charniele Herring and a mostly petition-based one brought by Sen. Scott Surovell. It also reflects the sustained work of directly impacted individuals and other advocates who organized and insisted on far-reaching, automatic, and equitable expungement legislation.
The legislation must be signed by Governor Ralph Northam before it becomes law, but the governor is expected to sign it. After the House and Senate could not agree on record sealing legislation during a special session in the fall of 2020, the governor hired a mediator to help negotiate the compromise bill that passed both chambers in 2021.
The legislation includes five key provisions. The bill:
- Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession.
- Allows for contemporaneous sealing of felony acquittals and dismissals with the consent of the prosecuting attorney.
- Provides for sealing a broad range of misdemeanor and low-level felony convictions and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation.
- Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process.
- Forces private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so.
Most provisions of the bill are not currently set to take effect until July 1, 2025, to give the Virginia State Police and the courts sufficient time to update their computer systems. Increased funding or other future action by the General Assembly could change the effective date.