Category: New legislation

California poised to expand record clearing to cover most felonies

NOTE: On September 29, Governor Newsom signed into law both of the bills discussed in the post below. They will take effect on January 1, 2023.    California Governor Gavin Newsom is expected to sign this week two bills that will give that state the broadest record-clearing laws in the nation. Senate Bill 731 would extend both automatic and petition-based and record relief to felony-level offenses, while Senate Bill 1106 would preclude denial of relief based on outstanding court debt in most cases. When signed into law, Senate Bill 731 will place California at the forefront of record clearing nationwide. It would expand automatic record relief to all felony non-convictions since January 1, 1973, six years after the date of arrest. California law currently excludes felony arrests from eligibility for automatic relief if the charge is serious enough to potentially result in incarceration at a state prison. Other felony non-convictions remain eligible for automatic relief after three years unless the charge was punishable by eight years’ incarceration or more in a county jail, for which the new six-year wait period applies. SB 731 also expands eligibility for automatic relief to persons convicted of a felony and sentenced to probation on or after January 1, 2005, if they violated probation but later completed all terms of supervision. Current law excludes from relief anyone who violated their probation. The new law requires a four-year conviction-free period after completion of the sentence. This expansion of automatic relief does not apply to certain serious and violent felonies, and ones for which the person is required to register as a sex offender. As noted below, all but the last-mentioned category will now be eligible for relief by petition. Even before enactment of SB 731, California is one of only six states in the nation to extend automatic record relief to felony convictions (Connecticut, Colorado, Delaware, Michigan, and New Jersey are the others). The four-year waiting period in the new law is the most progressive in the country for automatic relief, though some states have shorter waiting periods for petition-based relief. For a comparison, see CCRC’s recent report, “Waiting for Relief: A National Survey of Waiting Periods for Record Clearing,” and our Restoration of Rights Project’s 50-State Comparison for automatic record clearing. The automatic relief provisions of SB 731 would take effect on July 1, 2023, subject to an appropriation in the legislature’s annual budget act. California has reportedly had some difficulty in effectuating the automatic provisions enacted in 2019 and 2021, so this promised new date for a large number of additional records must be taken with a grain of salt. According to a December 2021 op-ed (paywall) by Ericka Adams, an associate professor of criminal justice at San Jose State University, differing records at the state and county level have led to implementation issues for recent marijuana expungement legislation in California. In addition to its provisions for automatic relief, SB 731 authorizes a major expansion to petition-based record relief. A person with any felony conviction can petition for relief two years after completion of their sentence, except if the person was required to register as a sex offender. Previously, California law excluded felony convictions that resulted in a state prison sentence from any type of record relief. Notably, this expansion of petition-based relief applies only to convictions obtained on or after January 1, 2021. The second bill awaiting the governor’s signature, Senate Bill 1106, expands record relief eligibility by removing a court’s discretion to deny a petition for record relief because of a person’s unpaid victim restitution or unpaid fine. The law adds language saying, “An unpaid order of restitution or restitution fine shall not be grounds for denial of the petition for relief” to sections of the code that allow record relief by petition. The law also adds a section stating that “an unfulfilled order of restitution or a restitution fine shall not be grounds for finding that a defendant did not fully comply with and perform the sentence of the court.” Because automatic relief for convictions requires successful completion of probation or supervision, this section of SB 1106 suggests payment of restitution or restitution fines may not be required to qualify for automatic relief. Fines and fees are a significant barrier to record relief in many states. For more on this topic, see this report, “The High Cost of a Fresh Start,” by CCRC and the National Consumer Law Center. In addition to the record relief expansion provisions, SB 731 prohibits the Commission on Teacher Credentialing from considering drug possession convictions when they’re more than five years old and record relief has been granted. The new law also requires the California Department of Justice to provide criminal history information to public and private schools and other contracted entities where background checks are required. Read more

A closer look at racial disparities in California’s automatic record clearing

Numerous studies have demonstrated how Black Americans are treated more harshly at every stage of the criminal legal system—from over-policing to overcharging to more punitive sentencing. New research from California shows how eligibility limitations on criminal record relief perpetuate racial disparities in the criminal justice system, and have a disproportionately adverse effect on Black Americans. The study, by Alyssa Mooney, Alissa Skog, and Amy Lerman, and published in Law & Society Review, examined recent legislative changes to criminal record relief laws in California, one of the first states to automate relief. The study assessed the equity of California’s existing automatic record relief laws by examining the share of people with criminal records who are presently eligible for automatic record clearing, and variations across racial and ethnic groups. The authors found that 20% of all those convicted of any offense between 2000 and 2016 were eligible for automatic relief. An additional 33% were eligible to petition the court for relief, and 47% were ineligible for any relief at all by virtue of the nature of their conviction or terms of their sentence. But the study also found eligibility was lowest among Black people, with only 15% qualifying for automatic relief, and 29% for petition-based relief. Meanwhile, 21% of White people with convictions qualify for automatic relief, and another 35% are eligible by petition. As in other states, the California legislature has limited the types of convictions that are eligible for record relief, generally excluding those who spent time in state prison for more serious felonies. Because of the state prison limitation, the study shows 30% of Black people in California will never get relief from their records, compared to 15% of White people and 19% of people with convictions overall. In addition, if all ineligible felony convictions are factored in, the ineligibility rate increases to 40% for Black people, 28% for White people and to 32% overall. (Incomplete sentences, pending charges, and variable waiting periods make it hard to calculate eligibility percentages exactly, while missing data creates another set of problems.) The study then considered how several hypothetical changes to current California law would affect racial equity in eligibility for record clearing. First, the authors examined the effect of incorporating convictions currently eligible only by petition into automatic relief. Then the study considered the effects of automatically granting record relief after seven years for convictions now ineligible for any relief. Finally, the study considered the result if both of these changes were enacted. The study found that making relief automatic in cases where it is now “discretionary” (i.e., petition-based) would increase eligibility from 15% to 44% of Black Californians and from 21% to 56% of White Californians—but this would double the racial disparity for automatic relief from 6% to 12%. Enacting a seven-year “sunset” rule (making relief automatic seven years after completion of sentence) for those currently excluded from any record-clearing relief would would reduce disparity slightly by increasing overall eligibility to 58% of Black Californians and 63% of White Californians. If both of these potential reforms were enacted, eligibility for automatic relief would increase to 64% of Black Californians and 70% of White Californians. While some racial disparity remains, it would be no greater than the differential under existing law — and, more significant, the absolute number of people who qualified for automatic record relief would greatly increase. The study’s authors suggest that other states that have automated some record relief likely have similar racially disparate outcomes because felony convictions are largely excluded from eligibility. The study also points out that California also has a particular challenge in effectuating its new provisions for automatic record clearing, since many county agencies do not report the outcomes of criminal cases to the California Department of Justice. Because the DOJ administers automatic record relief by sending lists of eligible cases to courts, people with convictions in counties that do not report disposition data will be left without the relief for which they are legally eligible. Since the initial publication of the study, the California legislature has passed a bill, SB 731, that would incorporate several of the authors’ proposed reforms, which Governor Newsom is expected to sign into law. Another enrolled bill, SB 1106, will make additional cases eligible by removing at least some outstanding court debt as a bar to relief. CCRC will publish a comprehensive review of that legislation when it becomes law. The study’s authors plan to revise their eligibility estimates this fall, based on the new legislation. Read more

Oklahoma enacts automatic record clearing law

On May 2, 2022, Oklahoma Governor Stitt signed into law a comprehensive process making expungement automatic for all otherwise eligible misdemeanors and a range of non-conviction records.  See HB 3316, enacting 22 Okla. Stat. Ann. § 18(C).  Oklahoma thus becomes the tenth state to join the bipartisan trend toward broadening the availability of record clearing to people with convictions, without requiring them to file a petition and go to court for relief.  In addition to these states, another 10 states now make expungement automatic for non-conviction records.  The Oklahoman reported that the “clean slate” bill passed the House and Senate with strong bipartisan support, with a combined five votes against, and it was promptly signed into law by Oklahoma’s Republican governor.  The bill’s primary sponsor Rep. Nicole Miller, R-Edmond, said that “There was certainly a general consensus that, you know, this this isn’t anything that’s partisan related; what it’s about is it’s about humans. So this is really a measure to help people.”  Under Oklahoma law expunged records are sealed, but remain available to law enforcement and may be used in subsequent prosecutions.  Any record that has been sealed may be ordered “obliterated or destroyed” after an additional 10 years.  § 19(K).  Oklahoma also authorizes its courts to expunge up to two non-violent felonies, andn also pardoned felonies, but these were not included in the new law (styled “clean slate”).  The law is effective November 1, 2022, and the process for automatic expungement is to commence three years after that date.    The Oklahoma process for expunging records without a petition is spelled out in a new § 19(B): the Oklahoma Bureau of Criminal Investigation must provide a list of eligible cases to the prosecutor on a monthly basis for a 45-day review.  The prosecutor mayh object only for specified reasons:  the case does not meet the definition of a clean slate eligible case; the individual has not paid court-ordered restitution to the victim; or “the agency has a reasonable belief, grounded in supporting facts, that an individual with a clean slate eligible case is continuing to engage in criminal activity, whether charged or not charged, within or outside the state.”  A list of cases as to which there has been no objection is then sent to the court for expungement.  The court must expunge all cases on the list sent to it, and notify all agencies holding records directing them to expunge as well.  The law does not provide for notifying individuals in case of prosecutor objection, or after their record has been expunged, al though the state supreme court and the BCI are authorized to make rules governing the process.  The BCI is required to provide to the legislature a list of individuals whose records have been expunged on an annual basis.  Oklahoma is the latest state to enact so-called “clean slate” relief, extending record clearing to all eligible individuals without requjiring them to file a petition and go to court. There are now five states that authorize automatic record clearing for a range of misdemeanor convictions: Oklahoma, Pennsylvania, Utah, South Dakota and Virginia.  Five additional states also authorize petition-less record clearing relief for a range of felonies (California, Connecticut, Delaware, Michigan, and New Jersey), though none of these schemes has yet come on line.  Five more states authorize record clearing for certain marijuana convictions.  Counting Oklahoma, there are now a total of 20 states that clear most non-conviction records without requiring their subject to file a petition, and another nine states that make non-conviction relief mandatory upon request.  See the 50-state chart in record-clearing from the Restoration of Rights Project.       Read more

Reintegration Champion Awards for 2021

Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing.  Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords.  (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state’s reintegration scheme in our Restoration of Rights Project.) Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking:  Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation. Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors. Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking. Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Alabama – Enacted first state record-clearing authority applicable to misdemeanor convictions and pardoned felonies, and extended non-conviction sealing. California – Gave retroactive effect to automatic conviction sealing law enacted in 2019. (This new law may be the most consequential of any enacted last year in terms of its impact on criminal records in the state, and it was done without fanfare or publicity.) District of Columbia – Enacted a comprehensive scheme to limit consideration of criminal record in occupational licensing. Illinois – Added employment discrimination based on conviction to the state Human Rights Act, authorized voter education for prisoners. New Jersey – Enacted a landmark fair housing bill; made some improvements to its 1970’s-era occupational licensing law; and, provided for automatic record clearing in connection with marijuana legalization. (New Jersey was our Reintegration Champion for 2019, but evidently is not resting on its laurels.) New Mexico – Improved 1970’s-era public employment and licensing law; authorized expungement of marijuana convictions; and, enacted a substantial part of the Uniform Collateral Consequences of Conviction Act, limiting and providing relief from collateral consequences. Ohio – Expanded eligibility for record-clearing; significantly improved occupational licensing law. Virginia – Authorized petition-based and automated record-clearing of non-convictions and convictions, including convictions for marijuana possession; restored vote upon release by executive order and took steps to amend constitution to this end. Washington – restored vote upon release from prison; amended occupational licensing standards for health professions; repealed driver’s license suspension based on outstanding financial obligations Low marks go to three states that enacted no record reform laws at all in 2021. While there are six other states in this category this year, the legislatures of Alaska, Massachusetts, and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. The profile of each state’s restoration of rights scheme from CCRC’s Restoration of Rights Project is linked above (except for the states that made no progress). The profiles contain citations and links to the relevant new laws so that interested individuals can check their specific terms. Read more

“From Reentry to Reintegration: Criminal Record Reforms in 2021”

At the beginning of each year since 2017, CCRC has issued a report on legislation enacted in the past year that is 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 reports have documented the steady progress of what last year’s report characterized as “a full-fledged law reform movement” aimed at restoring rights and status to individuals who have successfully navigated the criminal law system. The legislative momentum, which slowed a bit during the first year of the pandemic, picked up again in 2021. The title of this post introduces our annual report on new laws enacted during the past year, and emphasizes the continuum from reentry (for those who go to jail or prison) to the full restoration of rights and status represented by reintegration. Recent research indicates that most people with a conviction never have a second one, and that the likelihood of another conviction declines rapidly as more time passes. The goal of full reintegration is thus both an economic and moral imperative. In the past year the bipartisan commitment to a reintegration agenda has seemed more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers who are essential to rebuilding the businesses that are the lifeblood of the economy. If there is any one thing that will end unwarranted discrimination against people with a criminal history, it is a recognition that it does not pay. Our 2021 report highlights key developments in reintegration reforms from the past year. It documents that 40 states, the District of Columbia, and the federal government enacted 151 legislative bills and took a number of additional executive actions to restore rights and opportunities to people with an arrest or conviction history. As in past years, a majority of these new laws involved individual record clearing: All told, an astonishing 36 states enacted 92 separate laws that revise, supplement or limit public access to individual criminal records to reduce or eliminate barriers to opportunity. Most of these laws established or expanded laws authorizing expungement, sealing, or set-aside of convictions or arrest records. Several states enacted judicial record clearing laws for the very first time, and a number of states authorized “clean slate” automatic clearing. Executive pardoning was revived in several states where it had been dormant for years. In addition, many of the new laws enacted general provisions limiting considering of criminal record in economic settings: 17 states enacted 26 new laws regulating employment and occupational licensing, and more than a dozen other states enacted laws facilitating access to housing, education, driver’s licenses, and public benefits. Finally, civil rights restoration continued to make progress: Four states took steps to restore voting rights upon release from prison, bringing the total in that category to 21 (with another two states and D.C. not disenfranchising at all). Three other states and the federal government took steps to expand awareness of voting eligibility by those in jail or prison or after release, and four states acted to restore eligibility for jury service and public office. Overall, the productivity of state legislatures in 2021 in pursuing a commitment to reintegration mirrors their performance in 2019, itself a year that broke every record. This year’s rich harvest brings the total number of criminal record reforms enacted in the past three years to over 400 separate laws. Looking ahead to 2022, we predict a continuing expansion of eligibility for record clearing and removal of access barriers like outstanding court debt and application-related costs; efforts to improve records management to accommodate automation of record clearance; extension of state fair employment laws and facilitation of occupational licensing; and continued progress toward dismantling the structure of felony disenfranchisement. Hopefully 2022 will see some reform action in Congress, including to address restrictions on access to government-guaranteed loans to small businesses owned or managed by people with a criminal history. We have come a long way in the past five years, but there is still a long way to go. From Reentry to Reintegration, Criminal Record Reforms in 2021 is available here. It includes our third annual legislative Report Card recognizing the most (and least) productive legislatures in 2021. 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 law is available in the CCRC Restoration of Rights Project. Read more