Category: New legislation

Minnesota enacts four major record reforms in 2023

Thanks to a series of criminal-justice reforms enacted earlier this year, Minnesota has burnished its reputation as a national leader in reintegration and criminal record reform.  In a year in which there have been far fewer criminal record reforms than in the recent past, Minnesota’s performance stands out for the variety and breadth of relief granted, in many cases automatically. Here are the four major new laws: Expungement was made automatic for both non-convictions and a range of conviction records, effective January 1, 2025 The pardon process was entirely overhauled to make this relief more available, and expungement for pardoned convictions was made automatic Felony disenfranchisement was limited to periods of actual incarceration A law legalizing adult possession of cannabis made expungement automatic for a broad range of cannabis convictions. These four major new authorities are described below. We expect that the Minnesota legislature’s exemplary performance in enacting these important new provisions will be in for further recognition in our annual round-up of new record reforms. Automatic expungement First, as part of an omnibus criminal justice package passed in May (SF 2909), Minnesota made expungement automatic for a wide range of records already eligible for expungement by petition, becoming the 12th state to do so. Effective January 1, 2025, convictions for petty misdemeanors (aside from traffic and parking offenses), most misdemeanors, and many non-violent felonies will be automatically expunged, after conviction-free waiting periods ranging from two to five years. Non-conviction records, including cases involving deferred and stayed adjudication, will also be expunged automatically. (“Expungement” is used interchangeably with “sealing” in Minnesota, but a preexisting law provides for destruction of uncharged arrest records by the Bureau of Criminal Apprehension.)  These reforms will apply retroactively, and the law sets up a process by which the Bureau of Criminal Apprehension will identify eligible records within 30 days of the effective date, expunge its own records, and notify the courts so that they may take corresponding action. This wide-ranging reform builds on a 2014 law that established a petition process for people to expunge their records. Many—though not all—of the offenses that were previously eligible for expungement by petition will now be expunged automatically. For a full list of which offenses were excluded from the 2023 reform, see Minn. Stat. § 609A.015, subd. 3(b)(2-4). The 2023 law also amended the laws governing expungement by petition, reducing waiting periods and making additional drug convictions eligible for the first time. Pardon and clemency reform SF 2909 also dramatically overhauled the pardon system in Minnesota. Under the Minnesota Constitution, the state’s Board of Pardons is comprised of the governor, the attorney general, and the chief justice of the state supreme court. However, a state law required the Board’s decisions to be unanimous, a requirement that was upheld by the Minnesota Supreme Court in its 2022 decision, Shefa v. Ellison. In addition, the pardon process was opaque and cumbersome, tending to discourage applicants and produce few grants. The slate of reforms to the pardon process is evidently intended to reverse this trend. To begin with, SF 2909 does away with the requirement of unanimity, allowing the Board to approve pardons based on a majority vote, so long as the governor is in the majority. SF 2909 also created a new, nine-member Clemency Review Commission to hold hearings and advise the Board, replacing a system that effectively gave the commissioner of corrections veto power over clemency applications. As just one example of how applicants were discouraged, under the pre-existing process the board’s staff made a preliminary determination about an applicant’s eligibility for relief before they were even given an application form to fill out. Thanks to the 2023 law, applicants may generally seek clemency for any conviction five years after discharge, rescinding the 10-year eligibility waiting period that applied to certain more serious convictions. The new Commission was established effective August 1, 2023, and the new procedure will take effect on July 1, 2024. To better ensure due process and minimize arbitrary decision-making, the Commission must abide by an extensive list of criteria when evaluating applications and provide for open and public hearings. Moreover, once a conviction has been pardoned, Minnesota will now for the first time automatically expunge all records relating to that conviction. Expungement of pardoned convictions will be retroactive. The New York Times published a lengthy story about the operation of the Minnesota Pardon Board under the new law’s modification of the prior unanimity requirement, which is well worth a read. “‘I Want to Be Forgiven. I Just Want to Be Forgiven.’ When the Minnesota Board of Pardons meets, supplicants have 10 minutes to make the case for mercy.”  It remains to be seen whether the restructured pardon process, which will be fully effective in the summer of 2024, will make pardon more freely available than in the past. Restoring the right to vote In addition, under another newly signed bill (HF 28), individuals who lost their right to vote because of a felony conviction will have that right restored if they are not actually incarcerated, joining 21 other states with similar limits to felony disenfranchisement. Prior to the 2023 law, it was an open question if a person could still be denied the right to vote based on unpaid fines and fees. But with HF 28, Minnesota has made it clear that it rejects this modern-day poll tax. Cannabis expungement The last of the four major new authorities legalized adult possession of cannabis, and will offer a clean slate to thousands of Minnesotans who have been convicted in the past of marijuana offenses, in some cases automatically. Under HF 100, misdemeanor convictions for the sale or possession of marijuana in the fourth and fifth degree will be automatically expunged, as well as non-conviction records. According to the state’s Bureau of Criminal Apprehension, more than 60,000 marijuana misdemeanor cases will be eligible for automatic expungement, though it may take the Bureau up to a year to fully wipe the slate clean in those cases. HF 100 also created a new Cannabis Expungement Board, which will review nonviolent felony marijuana conviction records and determine if they should be expunged or resentenced. Misdemeanor and petty misdemeanor records that were not eligible for automatic expungement may also qualify for review by the Board. Under this process, expungement is “presumed to be in the public interest unless there is clear and convincing evidence that an expungement or resentencing to a lesser offense would create a risk to public safety.” At the bill’s signing. Governor Walz noted that “Legalizing adult-use cannabis and expunging or resentencing cannabis convictions will strengthen communities. This is the right move for Minnesota.” Lt. Gov. Peggy Flanagan added on this same occasion: “By expunging nonviolent cannabis convictions, we are removing the barriers that prevent thousands of Minnesotans from fully returning to work, to their communities, and to their lives.” This is how we make safer communities.” Additional detail about these new laws is provided in the Minnesota profile from the Restoration of Rights Project. Read more

DC enacts progressive new record-clearing law

Until last month, the District of Columbia had one of the most complex and restrictive record relief laws in the country. D.C.’s sealing law even applied the same burdensome petition-based procedures, extended waiting periods, and onerous burdens of proof to non-conviction records that applied to convictions. In testimony before the D.C. Council in 2021, CCRC’s Margaret Love noted: “Compared to states across the country, DC’s record relief laws are very prohibitive and unusually complex.” CCRC’s Reintegration Report Card published in March 2022 commented that “the restoration laws in the District of Columbia are noteworthy for a remarkable study in contrasts: D.C. has extraordinarily progressive laws in civil areas like voting, employment, housing, and occupational licensing, and among the most regressive laws in the Nation in every category of criminal record relief, likely reflecting the heavy hand of the federal authorities that are responsible for most prosecutions under the D.C. Code.” Last month, everything changed. The Second Chance Amendment Act of 2022 (D.C. Law 24-284, codified at D.C. Code § 16-801 et seq.), which became final after the required period of congressional review on March 16, 2023, gave the District one of the broadest record-clearing laws in the country, including both petition-based relief for all but the most serious violent felony convictions, and automatic relief for misdemeanors and non-conviction records.  D.C. now becomes the 11th U.S. jurisdiction to enact a “clean slate” law that applies to both conviction and non-conviction records. The new D.C. record-clearing law is the product of more than two years of hard work by the D.C. Council and a broad coalition of advocacy groups in the District. When coupled with the District’s progressive civil restoration laws referenced above, this new law propels DC from middle-of-the-pack to the top tier of jurisdictions in the Nation where fair treatment of justice-affected individuals is concerned. It will certainly advance DC’s candidacy for Reintegration Champion of 2023. Though D.C. Law 24-284 is enacted, it is unfunded, which means it cannot be used. Currently, the FY24 Budget Support Act of 2023 set the effective date for the Second Chance Act as 1/1/26 for most of the law and 10/1/29 for the automatic sealing provisions. The new law’s specific provisions are described in greater detail below, and in the DC profile from CCRC’s Restoration of Rights Project. The new D.C. law provides for petition-based sealing for all non-conviction records at disposition, for all misdemeanors after a five-year waiting period, and for all but a specified group of the most serious felony convictions after an eight-year waiting period.  The waiting period begins following completion of all aspects of the sentence, except that it does not require payment of fines and other court debt. The law also facilitates procedures: e.g., not all eligible records need be sealed at the same time, as under the old law, and there are no “disqualifying offenses” that could extend the waiting period even for non-conviction records. It also eases standards, particularly for sealing non-conviction records: it deleted a provision allowing the court to consider “the weight of the evidence against the person” and any priors sealings of arrest records.  It specifically directs the court in all cases to consider “The community’s interest in furthering the movant’s rehabilitation and enhancing the movant’s reintegration into society through education, employment, and housing.” As noted, D.C.’s existing sealing law extended to same burdensome procedures and standards to non-conviction records that applied to sealing of convictions. The new law makes sealing automatic beginning in 2027 for non-conviction records, and for most misdemeanor convictions after a 10-year waiting period. It also provides for automatic expungement of marijuana convictions effective January 1, 2025, and for expungement by petition on grounds of actual innocence. Provisions in existing law authorizing expungement for victims of human trafficking and sealing for juvenile defendants were not changed. D.C. now joins the 19 states that have enacted automatic record-clearing relief for arrest records and other non-convictions.  More than half of these state laws have been enacted in the three years since publication of CCRC’s Model Law on Non-Conviction Records, which advocated for automatic expungement of all non-conviction records, including records with no final disposition, except for pending matters. Like CCRC’s model law, which was cited as authority by several parties during the hearings before the D.C. Council, the new D.C. law recommends restrictions on accessing, inquiring about, and commercially disseminating non-conviction records. Sealed records are placed in a non-public file but remain available to law enforcement, courts, prosecutors, licensing agencies, public employers, and schools and child care facilities, to be used “for any lawful purpose.” Sealed records may also be used in civil litigation relating to the arrest or conviction, and may be made available to others “upon order of the Court for good cause shown.”  An individual whose record has been sealed may deny the arrest or conviction “for any purpose”, without penalty of perjury or other provision of the law for giving a false statement. This appears to be a change from the 2006 law, which required testimony about prior arrests and convictions “in response to an inquiry from one of the entities expressly authorized to access the records.” In other words, while certain entities may gain access to sealed records, the subject of the record may lawfully deny its existence without penalty. The 2022 law imposes certain requirements on “criminal history providers” that provide criminal history background screening reports, requirements that mirror those provided by the federal Fair Credit Reporting Act.  It requires providers to provide the subject of a background report with a copy of the report and identify the source of the report, and to use at least two identifiers (e.g., birthdate and name); prohibits reporting records that have been sealed, expunged or set aside; and pohibits reporting information that has not been updated within 30 days of the report.  Complaints of a violation of these provisions may be filed with the DC Office of Human Rights (but not in court), and fines are specified for violations. There are still ways that D.C.’s sealing law could be improved.  For example, there appears to be no good reason why sealed non-conviction records should remain available to employers and licensing agencies, and in most states they are not. Automatic relief should be extended to all convictions now subject to sealing by petition, and the waiting periods for both petition-based and automatic relief seem excessive by standards in recently enacted record-clearing laws.  See CCRC’s 2022 report on waiting periods, Waiting for Relief: A National Survey of Waiting Periods for Record Clearing (February 2022).  But those caveats aside, the new law represents the most substantial progress in record clearing of any U.S. jurisdiction since 2018, when North Dakota and New Mexico enacted a broad sealing scheme for the first time.  Congratulations to the D.C. Council!         Read more

Oklahoma and California win Reintegration Champion awards for 2022 laws

On January 10 we posted our annual report on new laws enacted in 2022 to restore rights and opportunities to people with a record of arrest or conviction. Like our earlier reports, it documents the steady progress of what we characterized two years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. This year’s criminal record reforms bring the total number of separate laws enacted in the past five years to more than 500. Posted below is our fourth annual legislative Report Card recognizing the most productive states in 2022. Reintegration Awards for 2022 While more than a handful of states enacted noteworthy laws in 2022, two states stand out for the quantity and quality of their legislation:  California and Oklahoma share our 2022 Reintegration Champion award for their passage of at least two major pieces of record reform legislation. California – Enacted a whopping 11 new laws, including the broadest general record clearing law in the nation, a direction to courts to effectuate clearing of marijuana records, removal of restitution as a bar to clearing criminal records, easing access to judicial certificates of rehabilitation, and simplification of the process for certifying people with criminal records to work in community care. California’s governor also vetoed a bill that would have facilitated background screening by eliminating court-imposed restrictions on online access to personal identifying information. Oklahoma – Enacted a major automatic record clearing law and the most sweeping update to an occupational licensing scheme of any state in the country this year. Oklahoma also passed a significant law allowing young people who successfully complete the state’s youthful offender program to have their charges dismissed and expunged. Another eight states earned an Honorable Mention for their enactment of at least one significant new record reform law: Colorado – Expanded automatic sealing to include all offenses eligible for petition-based sealing, reduced the waiting period for low-level drug possession from three years to two, and enhanced procedural rights of those applying for occupational licenses. Connecticut – Made it easier for people with felony convictions to work in dozens of occupations under the state department of public health and authorized a binding preliminary determination. Delaware – Enacted the “Fair Chance Licensing Act,” establishing a binding preliminary application process, providing that many records may not be grounds for denial (convictions over 10 years old with no intervening convictions; pardoned, sealed, or expunged convictions; non-conviction records; and juvenile adjudications). Even “substantially related” crimes must be given an opportunity for a waiver via a board vote. Delaware also authorized automatic expungement of records of charges lacking a final disposition and prohibited higher education institutions from inquiring into an applicant’s criminal history. Indiana – Eliminated the one-year waiting period for sealing non-conviction records, including uncharged arrests, and made this relief automatic. Louisiana – Strengthened and extended its occupational licensing law, by establishing a binding preliminary determination, providing for appeal, bringing many new boards under its general licensing limits, and adopting new factors to be considered in determining “direct relationship.” The state also provided unusually broad record relief for victims of human trafficking. Maryland – Legalized the personal use of up to 1.5 ounces of cannabis for adults 21 and older, authorized resentencing and expungement of marijuana conviction records and established a business assistance fund that prioritizes individuals with cannabis convictions. Maryland also enacted a law removing state authority over the delinquency of children aged 13 and under. Missouri – Missouri voters amended the state constitution to legalize personal use of marijuana, and at the same time authorized release from prison for those serving prison sentences for marijuana trafficking, provided for automatic expungement for numerous marijuana convictions upon completion of sentence, and extended preference in commercial licensure to sell legalized marijuana to those with convictions. In addition, Governor Mike Parson has become the most prolific pardoner in the state in more than 40 years, working efficiently to reduce a case backlog built up over many years. Rhode Island – Legalized adult possession of small amounts of marijuana, provided for automatic expungement of convictions for decriminalized marijuana offenses, and waived costs as a bar to expungement for anyone who has been incarcerated for a marijuana offense. Low marks go to two states that enacted no record reform laws at all in 2022. While there are many other states in this category this year, the legislatures of Alaska and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2021, 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records.  Wisconsin’s one saving grace is the extensive record of pardoning by Governor Tony Evers in the past 30 months, during which he has pardoned more than 600 individuals, 325 in 2022 alone. Looking ahead to 2023, we expect to see a continuing expansion of eligibility for record clearing, and reduction of access barriers like lengthy waiting periods, outstanding court debt and application-related costs.  We also predict efforts to improve records management to accommodate automation of record clearance.  We look for extension of state fair employment laws, and further facilitation of occupational licensing, both areas where bipartisan reforms have benefitted from helpful model laws. We are slightly less optimistic about additional progress toward dismantling the structure of felony disenfranchisement, which has become mired in faction looking toward the presidential race in 2024. Hopefully, 2023 will see some record reform action in Congress and federal agencies, including measures to extend access to government-guaranteed loans and contracting opportunities to small businesses owned or managed by people with a criminal history. We have come a long way just in the past five years, but there is still a long way to go.     Read more

The Frontiers of Dignity: Clean Slate and Other Criminal Record Reforms in 2022

At the beginning of each year since 2017, CCRC has issued a report on legislative enactments in the year just ended, new laws aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life.  These annual reports document the steady progress of what our report two years ago characterized as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. In the three years between 2019 and 2021, more than 400 new criminal record reforms were enacted.  Many states enacted new laws every year, and all but two states enacted at least one significant new law during this period. The modern record reform movement reflected in our annual reports is bipartisan, grounded in and inspired by the circumstance that almost a third of adults in the United States now have a criminal record, entangling them in a web of legal restrictions and discrimination that permanently excludes then from full participation in the community. It reflects a public recognition that the “internal exile” of such a significant portion of society is not only unsafe and unfair, but it is also profoundly inefficient. We are pleased to present our report on new laws enacted in 2022, titled The Frontiers of Dignity: Clean Slate and Other Criminal Record Reforms in 2022. While this report shows that the legislative momentum gathering since 2018 slowed somewhat in the past year, there has still been progress, with more new laws enacted this year than in 2018 when the current reform movement took off in earnest. The title of this report is borrowed from the Basic Law adopted by the Federal Republic of Germany after World War II, which declared that “Human dignity shall be inviolable. To respect and protect it shall be the duty of state authority.” Most European countries incorporate this foundational premise, as well as a concern for individual privacy, into their treatment of criminal records, by making them largely unavailable to the public and by limiting how they are used to deny rights and opportunities. In part because American legal systems are not similarly grounded in respect for dignity and privacy, our progress toward a fair and efficient criminal records policy has been slow and uneven. Yet it has been steady, animated in recent years both by a concern for racial justice and by economic self-interest. This report, like our past annual reports, attempts to capture this steady progress toward recognizing the worth and dignity of the millions of Americans whose past includes a record of arrest or conviction.      Report Overview This overview highlights key developments in reintegration reforms from the past year. Following it, our fourth annual legislative Report Card recognizes the most productive legislatures in 2022, and notes that there are now only two states have enacted no record reforms since our reporting began in 2016.  The body of the report provides topical discussions of last year’s reform measures, followed by an appendix documenting and summarizing the new laws by jurisdiction. More detailed analysis of each state’s laws is available in the state profiles from CCRC’s Restoration of Rights Project, and a national overview is presented in our 50-state comparison charts on various types of record relief. In 2022, 33 states, the District of Columbia, and the federal government enacted 71 separate pieces of legislation, passed two ballot initiatives, and took unprecedented executive actions to restore rights and opportunities to people with an arrest or conviction history. As in past years, more than half of the new authorities involved individual record clearing: 22 states and the federal government enacted 37 measures and took six executive actions that revise, supplement or limit public access to individual criminal records to reduce or eliminate barriers to opportunity. Because of the significant progress on this front in recent years, most of the laws enacted in 2022 represent measured changes to existing record relief schemes rather than radical new reforms. At the same time, three states significantly expanded automatic “clean slate” record relief, a handful of states continued to remove marijuana convictions from public view, and other states trimmed barriers to relief by reducing waiting periods or eliminating obstacles to relief represented by outstanding court debt (fines and fees). Executive actions also continued the momentum, particularly with actions to relieve the consequences of past marijuana convictions. In addition, many of the new laws limited consideration of criminal record in economic settings: 20 states and the federal government enacted 24 new measures regulating employment and occupational licensing, while two more states removed barriers to restoring a driver’s license. A few states made significant improvements in their occupational licensing laws by enacting binding preliminary applications for licensure, and by limiting the types of records that licensing agencies may consider. Arizona is the only state whose legislature took steps this past year to restore civil rights to those with felony convictions, although governors in Missouri, Virginia and Wisconsin used their pardon power to restore civil rights in unprecedented ways. As in the past, the state legislatures that have enacted the most significant reforms span the political spectrum, from California and Maryland to Oklahoma and Utah.  The report highlights the renewed interest in executive pardons by both Republican and Democratic governors, notably in Missouri (where large case backlogs invited energetic executive attention), in Wisconsin (where the pardon power had been shelved for almost a decade), and in Oregon (where 45,000 individuals benefitted from pardons in response to marijuana legalization). Overall, while there were fewer record reforms in 2022 than in the three preceding years, it would be a mistake to see this as a flagging of the reform wave we’ve identified in previous reports.  In fact, the productivity of state legislatures in 2022 mirrors their performance in 2018, itself a year that broke every record.  If 2022 marked a return to pre-2019 productivity levels, several states making significant strides toward restoring rights and clearing records, and many others built on and extended reforms enacted in earlier years. This year’s criminal record reforms bring the total number of separate laws enacted in the past five years to more than 500. Looking ahead to 2023, we expect to see a continuing expansion of eligibility for record clearing, and reduction of access barriers like lengthy waiting periods, outstanding court debt and application-related costs.  We also predict efforts to improve records management to accommodate automation of record clearance.  We look for extension of state fair employment laws, and further facilitation of occupational licensing, both areas where bipartisan reforms have benefitted from helpful model laws. We are slightly less optimistic about additional progress toward dismantling the structure of felony disenfranchisement, which has become mired in faction looking toward the presidential race in 2024. Hopefully, 2023 will see some record reform action in Congress and federal agencies, including measures to extend access to government-guaranteed loans and contracting opportunities to small businesses owned or managed by people with a criminal history. We have come a long way just in the past five years, but there is still a long way to go.   Read more

Marijuana legalization and record clearing in 2022

CCRC is pleased to announce a new report on recent cannabis-specific record sealing and expungement reforms in the past 18 months. The report, extending CCRC’s fruitful collaboration with the Drug Enforcement and Policy Center at The Ohio State University, is available here.  An accompanying infographic (reproduced at the end of this postr) summarizes the report’s findings, and includes a color-coded US map showing which states have enacted cannabis-specific record-clearing provisions.  To supplement the map, the report includes an appendix classifying and describing marijuana-specific record clearing statutes in all 50 states, based on CCRC’s 50-state comparison chart on “Marijuana Legalization, Decriminalization, Expungement and Clemency.”  To put our new report in context, CCRC and DEPC reported 18 months ago on an “unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform in the first months of 2021,” with four states (New Jersey, New Mexico, New York, and Virginia) legalizing marijuana possession and at the same time providing criminal record relief for past convictions along with a variety of social equity provisions.  Our report shows this trend continuing into 2022. Since our 2021 report, four additional states (Connecticut, Maryland, Missouri, and Rhode Island) have adopted similar record-clearing provisions in connection with adult-use cannabis legalization, authorizing sealing and expungement provisions that in most cases extend well beyond convictions for legalized conduct. All four states made at least some relief automatic, removing the burden of a criminal record from many individuals while raising the bar on standards for marijuana record relief nationwide. Like the four states discussed in our earlier report, these four also address racial disparities in marijuana criminalization by directing tax revenue and business opportunities for legal marijuana to individuals and communities disproportionately affected by criminal law enforcement. During this same timeframe, three additional states (California, Colorado, and Massachusetts) enhanced their existing marijuana-specific record sealing statutes. The report summarizes the cannabis-specific record clearing provisions enacted since publication of our earlier report in the spring of 2021 in California, Colorado, Connecticut, Maryland, Massachusetts, Missouri and Rhode Island. Missouri’s record-clearing provisions, adopted through a ballot initiative and effective immediately, are particularly impressive: individuals currently incarcerated for possession of up to three pounds of marijuana may petition for release and expungement (with certain offenses excepted), most individuals currently under supervision are automatically released from their sentence and their record expunged, and individuals convicted of all marijuana-related misdemeanors and most felonies have their records automatically expunged upon completion of sentence. See Section III(C) of the Missouri profile from the Restoration of Rights Project for additional information about this extraordinary ballot initiative. As in the 2021 report, we include laws authorizing marijuana-specific automatic record clearing provisions that are not scheduled to be implemented until some future date, with an appropriate notation. We focus exclusively on authorities that specifically expunge or seal marijuana convictions, and do not take into consideration more general record clearing laws that may also apply to marijuana convictions (frequently more broadly).  Additional information about state record relief laws, including those that apply specifically to marijuana records, can be found in the state profiles in the Restoration of Rights Project. In addition to the 50-state overview of marijuana-specific record clearing provisions, the appendix also includes a summary of the marijuana-specific pardon initiatives undertaken by several states in recent years. Read the report Explore the infographic (click to enlarge)                   Read more