Category: New legislation

Dozens of new expungement laws already enacted in 2021

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.) New Laws Three states enacted particularly significant new record relief schemes. Alabama and Virginia both authorized petition-based expungement of adult conviction records for the first time, with Virginia making relief for some misdemeanors and non-convictions automatic.  Continuing the trend toward automatic expungement, Connecticut enacted a major “clean slate” bill authorizing automatic “erasure” of most misdemeanors and many felonies.   All three of these important new laws are described in greater detail later in this post. In other legislative developments, Maryland authorized automatic expungement of non-conviction records after a three-year waiting period, and established a work group to study partial expungement of charges not resulting in conviction.  Vermont took another step toward automation following last year’s automatic marijuana expungement law, by authorizing automatic expungement of motor vehicle-related violations. At the same time, Vermont authorized a broad legislative study of its expungement laws, including the prospects for automation, to be completed by the beginning of the next legislative session.  (This study follows on the heels of an inconclusive report from an executive working group charged with a similar study task in 2018.)  South Dakota reduced the waiting period of its automatic sealing law (applicable to non-conviction records and some misdemeanors) from ten years to five. Tennessee expanded eligibility for petition-based expungement from misdemeanors and Class E felonies to include Class D and C felonies. It also made the filing fee discretionary with the court clerk, and required courts to both notify defendants of the availability of expungement and give reasons in writing if they deny this relief.  Washington rewrote its laws applicable to victims of sex trafficking and related sexual abuses, authorizing vacatur for both B and C felonies and misdemeanors, and providing that a petition may be filed either by the victim or by the prosecutor. Four additional states made more modest improvements in their existing petition-based expungement schemes:  Arkansas repealed an exclusion for anyone sentenced to prison; Nevada limited the power of the prosecutor to object to expungement, and facilitated expungement of pardoned convictions; North Dakota changed the condition of its waiting period from “no arrest” to “no conviction,” and authorized sealing of DUI convictions; and Utah provided that restitution ordered by the parole board would no longer bar eligibility for expungement. Eight additional states extended their juvenile record expungement laws, and four states broadened authorities for diversion leading to expungement. New Mexico added to its significant 2019 expungement scheme by enacting most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), giving its courts authority to relieve mandatory collateral consequences as early as sentencing (New York, Vermont, and New Jersey are the only other states with such authority). This same law not only offered this relief to those with convictions from other jurisdictions, it also gave effect to relief granted by other jurisdictions, the only state other than Vermont that has done this (also through its enactment of the UCCCA). Enrolled bills As of the end of June, four states had enrolled major record relief laws awaiting the governor’s signature, two of which provided for automatic record sealing. The Delaware legislature passed Clean Slate legislation, automating sealing for most of the offenses that had been authorized for petition-based mandatory and discretionary sealing in 2019. The bill is to be effective in 2021, but sealing is to begin in August 2024.  The Oregon legislature made substantial changes to eligibility criteria under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. Colorado expanded eligibility for petition-based sealing and made sealing of non-conviction records automatic.  The Michigan legislature send to the governor two bills providing for expungement of first DUI convictions, a category omitted from their 2020 package of record relief legislation. Finally, and perhaps most surprisingly, on the final day of its session the Arizona legislature for the first time ever passed a record-sealing bill and it is quite broad, applicable to most misdemeanors and felonies. Earlier in the session, the governor signed a bill authorizing courts to issue a “Certificate of Second Chance” when setting aside a conviction, which lifts mandatory bars to licensure and offers employers and landlords protection from liability. Marijuana expungement The first half of 2021 was also an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana. In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms—including the automatic expungement of an exceptionally broad array of past marijuana convictions—along with a variety of social equity provisions. These laws are described in our report on Marijuana Legalization and Expungement in Early 2021. Since that report was published, Connecticut authorized petition-based marijuana expungement for a range of misdemeanors and felonies as well as limited automatic relief for some misdemeanors. Colorado also expanded petition-based marijuana expungement eligibility. The particularly significant relief schemes enacted in Alabama, Virginia and Connecticut are described in greater detail below. We will provide further details on the Arizona, Colorado, and Delaware laws when they are signed into law, as appears likely. Alabama: Until 2021, Alabama courts had no statutory authority to expunge or seal adult conviction records, with the exception of a narrowly drawn exception for victims of human trafficking. With enactment of Act No. 2021-286 (SB117), the so-called REDEEMER Act, Alabama courts were authorized to expunge non-violent misdemeanors and violations, and pardoned felonies.  Eligible misdemeanors and violations may apply three years after conviction if “all probation or parole requirements have been completed, including payment of all fines, costs, restitution, and other court-ordered amounts, and are evidenced by the applicable court or agency.” Pardoned felonies are eligible 180 days after the pardon was granted. Convictions for violent and sexual offenses and “serious traffic offenses” are not eligible.  Nor are the dozens of crimes of “moral turpitude” that are grounds for felony disenfranchisement, unless the crime was  reclassified as a misdemeanor. There is also an administrative filing fee of $500, which may be waived under with a finding of indigency. Expunged records must remain available to law enforcement and prosecutors, utilities, the agency engaged in protecting children and vulnerable adults, and “any entities or services providing information to banking, insurance, and other financial institutions as required for various requirements as provided in state and federal law.” The REDEEMER Act also expanded the laws governing expungement of non-conviction records to cover violent felony charges that were dismissed with prejudice, nol prossed or indictment quashed (after limitation period has run or prosecutor confirms charges will not be refiled), and reduced the waiting period for expungement after diversion of misdemeanor charges to one year.  A five-year waiting period was retained for felony charges dismissed without prejudice Virginia Until 2021, Virginia law made no provision for expunging or sealing conviction records, except those that have been vacated pursuant to a writ of actual innocence, or those which were the subject of an absolute pardon (for innocence). With enactment of HB 2113 and SB 1406, Virginia gained one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically. The general record relief legislation (HB 2113) includes five key provisions: 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 sealing of felony acquittals and dismissals at disposition 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. Requires 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. The provisions of HB 2113 are scheduled to go into effect in 2025 (or earlier). A separate bill providing for marijuana legalization and expungement (SB 1406) authorized the automatic expungement of records related to certain misdemeanor marijuana offenses along with petition-based expungement of all other misdemeanor and many felony marijuana offenses. With the exception of the sealing of certain police records, these provisions are also scheduled to go into effect by 2025. Connecticut Public Act 21-42, Connecticut’s “Clean Slate” law, establishes a process to automatically erase records of most misdemeanor convictions and certain felony convictions entered after January 1, 2000, after a specified period following the person’s most recent conviction for any crime (with an exception for certain drug possession crimes). Class C, D, or E felonies are covered, as are unclassified felonies with up to 10-year prison terms. The bill excludes family violence crimes and offenses requiring sex offender registration. Under the bill, misdemeanors are eligible for erasure seven years after the person’s most recent conviction for any crime; class D or E felonies or unclassified felonies with prison terms of five years or less are eligible after 10 years; and class C felonies or unclassified felonies with prison terms greater than five years but no more than 10 years are eligible after 15 years.  For offenses before January 1, 2000, the records are erased when the person files a petition on a form prescribed by the Office of the Chief Court Administrator. Various provisions that now apply to erasure of non-conviction records also apply to erasure under this bill: no fee is charged, and partial expungement is available. That is, if the case contained multiple charges and only some are entitled to erasure, electronic records released to the public must be erased to the extent they reference charges entitled to erasure. The law requires all purchasers of court records, including background screening providers, to update their records on a regular basis. It extends these provisions to records of other agencies (State Police, DMV, Department of Correction). The bill prohibits various forms of discrimination based on someone’s erased criminal history record information, such as in employment, public accommodations, the sale or rental of housing, the granting of credit, and several other areas. In several cases, it classifies discrimination based on these erased records as a “discriminatory practice” under the state human rights laws. The automatic erasure provisions of the law take effect on January 1, 2023. This year is turning out to be another extraordinary year for new record relief enactments. In just the first six months of 2021, 22 states enacted no fewer than 47 separate laws authorizing sealing or expungement of criminal records, with another 5 states having enrolled 11 bills from awaiting the governor’s signature.  Three states authorized sealing for adult convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing of convictions, and several additional states substantially expanded the reach of their existing expungement laws. This post hits the highlights of what may well be the most extraordinary single 6-month period in this extraordinary modern period of criminal record reform. (The only one that comes close is the first six months of 2018, when 10 states enacted major reforms to their occupational licensing schemes.) (An earlier post noted new occupational licensing laws in 2021, and a subsequent one will describe significant extensions of the right to vote so far this year.) New Laws Three states enacted significant new record relief schemes. Alabama and Virginia both authorized petition-based expungement of adult conviction records for the first time, with Virginia making some misdemeanors and non-convictions automatic.  Continuing the trend toward automatic expungement, Connecticut enacted a major “clean slate” bill authorizing automatic “erasure” of most misdemeanors and many felonies.   All three of these important new laws are described in greater detail later in this post. In other legislative developments, Maryland authorized automatic expungement of non-conviction records after a three-year waiting period, and established a work group to study partial expungement of charges not resulting in conviction.  Vermont took another step toward automation following last year’s marijuana expungement law, by authorizing automatic expungement of motor vehicle-related violations. At the same time, Vermont also authorized a broad legislative study of its expungement laws, including the prospects for automation, to be completed by the beginning of the next session.  (This study follows on the heels of an inconclusive report from an executive working group charged with a similar study task in 2018.)  Tennessee expanded eligibility for petition-based expungement from misdemeanors and Class E felonies to Class D and C felonies, made the filing fee was made discretionary with the court, and required courts to notify defendants of the availability of expungement and give reasons in writing for denying this relief.  Four additional states made more modest improvements in their existing petition-based expungement scheme:  Arkansas repealed an exclusion for anyone sentenced to prison; Nevada limited the power of the prosecutor to object to expungement, and facilitated expungement of pardoned convictions; North Dakota changed the condition of its waiting period from “no arrest” to “no conviction,” and authorized sealing of DUI convictions; and Utah provided that restitution ordered by the parole board would no longer bar eligibility for expungement.  Seven additional states extended their juvenile record expungement laws, and four states broadened authorities for diversion leading to expungement. Enrolled bills As of the end of June, four states had enrolled major record relief laws awaiting the governor’s signature, two of which provided for automatic record sealing.  The Delaware legislature passed its Clean Slate Act, automating sealing for most of the offenses that had been authorized for petition-based mandatory and discretionary sealing in 2019. The bill was to be effective in 2021, but sealing was to begin in August 2024.  The Colorado legislature sent to the governor a bill expanding eligibility for petition-based sealing and making sealing of non-conviction records automatic. The Oregon legislature made substantial changes to eligibility criteria under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. Finally, and perhaps most surprisingly, the Arizona legislature for the first time passed a broad record-sealing bill applicable to most misdemeanors and felonies; it also authorized its courts to issue a “Certificate of Second Chance” when setting aside a conviction, which lifts mandatory bars to licensure and offers employers and landlords protection from liability.  The Michigan legislature send to the governor two bills providing for expungement of first DUI convictions, a category omitted from their 2019 clean slate law.    Marijuana expungement The first half of 2021 was also an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana. In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms—including the automatic expungement of an exceptionally broad array of past marijuana convictions—along with a variety of social equity provisions.  These laws are described in our report on Marijuana Legalization and Expungement in Early 2021. Connecticut also automated marijuana expungement but at a more modest level.  Colorado and Montana both enacted petition-based marijuana expungement laws    The important record relief schemes enacted in Alabama, Virginia and Connecticut are described in greater detail below.  We will provide further details on the Arizona, Colorado, and Delaware laws when they are signed into law, as appears likely.    Alabama: Until 2021, Alabama courts had no statutory authority to expunge or seal adult conviction records, with the exception of a narrowly drawn exception for victims of human trafficking. With enactment of Act No. 2021-286 (SB117), the so-called REDEEMER Act, Alabama courts were authorized to expunge non-violent misdemeanors and violations, and pardoned felonies.  Eligible misdemeanors and violations may apply three years after conviction if “all probation or parole requirements have been completed, including payment of all fines, costs, restitution, and other court-ordered amounts, and are evidenced by the applicable court or agency.” Pardoned felonies are eligible 180 days after the pardon was granted. Convictions for violent and sexual offenses and “serious traffic offenses” are not eligible.  Nor are the dozens of crimes of “moral turpitude” that are grounds for felony disenfranchisement, unless the crime was  reclassified as a misdemeanor. There is also an administrative filing fee of $500, which may be waived under with a finding of indigency. Expunged records must remain available to law enforcement and prosecutors, utilities, the agency engaged in protecting children and vulnerable adults, and “any entities or services providing information to banking, insurance, and other financial institutions as required for various requirements as provided in state and federal law.” The REDEEMER Act also expanded the laws governing expungement of non-conviction records to cover violent felony charges that were dismissed with prejudice, nol prossed or indictment quashed (after limitation period has run or prosecutor confirms charges will not be refiled), and reduced the waiting period for expungement after diversion of misdemeanor charges to one year.  A five-year waiting period was retained for felony charges dismissed without prejudice. Virginia Until 2021, Virginia law made no provision for expunging or sealing adult conviction records, except those that have been vacated pursuant to a writ of actual innocence, or those which were the subject of an absolute pardon (for innocence). With enactment of HB 2113 and SB 1406, Virginia gained one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically. The general record relief legislation (HB 2113) includes five key provisions: 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 sealing of felony acquittals and dismissals at disposition 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. Requires 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. The provisions of HB 2113 are scheduled to go into effect in 2025 (or earlier). A separate bill providing for marijuana legalization and expungement (SB 1406) authorized the automatic expungement of records related to certain misdemeanor marijuana offenses along with petition-based expungement of all other misdemeanor and many felony marijuana offenses. With one exception, these provisions are also scheduled to go into effect by 2025. Connecticut Public Act 21-42, Connecticut’s “Clean Slate” law, establishes a process to automatically erase records of most misdemeanor convictions and certain felony convictions entered after January 1, 2000, after a specified period following the person’s most recent conviction for any crime (with an exception for certain drug possession crimes). Class C, D, or E felonies are covered, as are unclassified felonies with up to 10-year prison terms. The bill excludes family violence crimes and offenses requiring sex offender registration. Under the bill, misdemeanors are eligible for erasure seven years after the person’s most recent conviction for any crime; class D or E felonies or unclassified felonies with prison terms of five years or less are eligible after 10 years; and class C felonies or unclassified felonies with prison terms greater than five years but no more than 10 years are eligible after 15 years.  For offenses before January 1, 2000, the records are erased when the person files a petition on a form prescribed by the Office of the Chief Court Administrator. Various provisions that now apply to erasure of non-conviction records also apply to erasure under this bill: no fee is charged, and partial expungement is available. That is, if the case contained multiple charges and only some are entitled to erasure, electronic records released to the public must be erased to the extent they reference charges entitled to erasure. The law requires all purchasers of court records, including background screening providers, to update their records on a regular basis. It extends these provisions to records of other agencies (State Police, DMV, Department of Correction). The bill prohibits various forms of discrimination based on someone’s erased criminal history record information, such as in employment, public accommodations, the sale or rental of housing, the granting of credit, and several other areas. In several cases, it classifies discrimination based on these erased records as a “discriminatory practice” under the state human rights laws. The automatic erasure provisions of the law take effect on January 1, 2023. Read more

Oregon’s expungement statute gets a much-needed overhaul

– 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. Waiting periods will now be aligned with other states and public safety data: “No-Complaints” (arrests where no charges are filed) – 60 days Dismissals and acquittals – no waiting period Violations, class B and C misdemeanors, contempt orders – 1 year Class A misdemeanors – 3 years* Class C felonies – 5 years* Non-person, class B felonies – 7 years* *from date of conviction or release from imprisonment, whichever is later The Bill makes these additional changes: Expungement of non-convictions will no longer be blocked by convictions “Look back” periods of clear conduct will be aligned with the applicable waiting periods for convictions Process will be simplified and accelerated; the Oregon Judicial Department will develop consistent, state-wide forms. $281.00 filing fee will be eliminated Prosecutor objection timeline will be set at 120 days Burden in any proceeding will be on the State to prove that the applicant’s “circumstances and behavior” create a “risk to public safety” by a “clear and convincing” standard of proof Criminal history data providers may not report obsolete (> 60 days old) data. Any violation will be an unlawful trade practice. A Clean Slate Initiative-organized coalition of local non-profit organizations, including the ACLU of Oregon, supported the effort and plans to build on SB 397’s success with additional measures during the next legislative session. Read more

New Jersey puts “fair chance housing” on the national agenda

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. In the last five years, a policy movement has emerged in favor of “fair chance housing” policies, which regulate and limit the consideration of criminal records by housing providers. Toolkits have been published by the National Housing Law Project and Root & Rebound, and advocacy campaigns have been led by groups such as Just Cities, Fair Chance Housing Coalition, and many others. In some cases, these policies broadly prohibit the use of criminal history, with limited exceptions for certain serious convictions or recent convictions or pending cases. In others, policies also delay criminal history checks until after a conditional lease is provided, importing the “ban-the-box” approach pioneered in connection with fair employment laws, often with standards for when a conditional lease may be withdrawn based on criminal history, and enforcement mechanisms. Federal regulatory guidance issued in 2016 by the Department of Housing and Urban Development (HUD) has also played a part. This post summarizes the new housing reforms at the local level, in D.C. and three states, describes in detail the groundbreaking New Jersey legislation, and summarizes relevant federal law. Local Ordinances Since 2016, fair chance housing ordinances have been adopted in several major U.S. cities, with expansive provisions adopted in Oakland, Berkeley, Seattle, and Portland, and more modest provisions in cities such as Richmond (CA), Urbana, Madison (WI), San Francisco, and Newark (NJ), according to the Fair Chance Housing Coalition. For example, Seattle prohibits requiring disclosure of, inquiring into, or taking adverse action based on the criminal history of a prospective tenant or occupant, except if needed to comply with federal or state law, and requires adverse action based on information from the adult sex offender registry have a “legitimate business reason”—with exceptions for certain types of dwellings. Similarly, Oakland prohibits rental housing providers from inquiring about or taking adverse action based on criminal history, except to comply with federal or state law, or to review the lifetime registry to protect a person at risk, again with exceptions for certain types of dwellings. District of Columbia In 2017, D.C. enacted the Fair Criminal Record Screening for Housing Act, which requires housing providers reviewing tenant applications to make a conditional offer before making a criminal history inquiry.  Once inquiry is made, the law prohibits housing providers from considering arrests that did not result in conviction, or from considering convictions or pending accusations other than for 48 listed offenses. Moreover, the conditional offer may be withdrawn only by providing specific reasons in writing for why doing so “achieves a substantial, legitimate, nondiscriminatory interest.” Other procedural protections apply, and violations may lead to fines via complaints to the Office of Human Rights (OHR). In turn, the OHR must report to the D.C. Council on an annual basis about complaints and investigations and must also provide a public education curriculum. Certain housing is excepted. More details are available in the D.C. profile of our Restoration of Rights Project. State laws In 2019, three states joined the action, adopting laws limiting criminal history inquiries in connection with housing: Colorado enacted the Rental Application Fairness Act, which provides that a landlord considering a rental application may not consider any arrest records or records of convictions that occurred more than five years before the application. However, a landlord may consider any conviction or deferred judgment for specified methamphetamine and amphetamine offenses, offenses requiring sex offender registration, homicides and related offenses, and stalking offenses. Civil actions may be brought to remedy violations for treble the amount of the application fee, plus court costs and attorney fees. See the Colorado profile for more details. Illinois extended its Human Rights Act to cover “real estate transactions,” prohibiting inquiries about or discrimination based on arrests not leading to a conviction, juvenile records, or records ordered expunged, sealed, or impounded. See the Illinois profile for more details. New York prohibited, in connection with providing housing, asking about or acting adversely based on records from an arrest or case terminated in favor of the individual, certain marijuana offenses, cases terminated as a youthful offender adjudication, and cases that resulted in a sealed conviction, including those sealed under the 2009 Drug Law Reform Act. See the New York profile for more details. New Jersey New Jersey’s Fair Chance in Housing Act is the most extensive state-level regulation of housing to date, applying to all rental housing providers except owner-occupied premises of four units or less. 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 following paragraphs summarize the provisions of the bill. Initial rental application: Under the bill, prior to accepting an application fee, a housing provider must disclose in writing whether they review and consider criminal history and state that an applicant may provide evidence demonstrating inaccuracies with the criminal record, evidence of rehabilitation, and other mitigating factors. Housing providers may not inquire into or ask about a rental applicant’s criminal history prior to making a conditional offer, except they may consider whether an applicant has ever been convicted of manufacturing or producing methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement (both grounds for exclusion from public housing under federal law). Records that may be considered: Even after making a conditional rental offer, housing providers may not consider arrests or charges that have not resulted in conviction, expunged convictions, convictions erased through executive pardon, convictions that have been vacated and otherwise legally nullified, juvenile adjudications, and sealed records. Housing providers also may not require an applicant to submit to a drug or alcohol test, or request consent to obtain information from a drug treatment facility. After a conditional offer, the following records may be considered: convictions for certain listed violent and sex offenses; a pending indictable offense (felony); a conviction for a fourth degree indictable offense if the prison sentence concluded within the previous year; a conviction for a second or third degree indictable offense if the prison sentence concluded within the previous four years; a conviction for a first degree indictable offense if the prison sentence concluded within the previous six years. Withdrawal of conditional offer: A housing provider may withdraw a conditional offer based on criminal history only if they determine “by preponderance of the evidence, that the withdrawal is necessary to fulfill a substantial, legitimate, and nondiscriminatory interest.” The reasons must be provided “with specificity” in writing, with an opportunity to appeal by providing evidence of inaccuracies within the record, rehabilitation, or other mitigation. The housing provider must perform an individualized assessment in light of six factors relating to the offense, the applicant, and rental safety. The applicant may request, within 30 days of notice of a withdrawal, a copy of all information relied on in considering the applicant, which must be provided within 10 days of a request, free of charge. As previously noted, the applicant must be given an opportunity to present evidence of inaccuracies in the record relied upon, and of mitigating factors. Model forms: The Division of Civil Rights is directed to prepare for housing providers model forms for initial disclosures and notice of withdrawal of a conditional offer, in English, Spanish, and any other language deemed appropriate. Advertising: Housing providers may not publish an advertisement that it will not consider an applicant who has been arrested or convicted, except for an applicant convicted of manufacture or production of methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement. Civil immunity: To encourage landlords to provide housing to formerly incarcerated individuals, landlords subject to the law are immune from civil liability arising for a decision to rent to individuals with a record, except for a person with convictions for specified violent and sex offenses. Enforcement: An applicant or prospective applicant may file a complaint with the Division of Civil Rights of the Department of Law and Public Safety, which shall make an effort to notify the housing provider and provide 14 days to mediate and address the issue. The division itself may also file complaints, without the requirement of mediation, including for retaliations against a complainant. After an investigation, if the complaint is substantiated, the division “shall” issue monetary penalties of $1,000 to $10,000, depending on whether there are previous violations (up to $1,000 may be assigned to the complainant), and the division may issue other non-monetary remedies, including in some circumstances requiring the provision of the rental unit to the complainant. Final decisions on an investigation may be appealed by the housing provider or complainant. Reporting: The law also requires the Division of Civil Rights to collect data on complaints and investigations and to report annually on its website information about substantiated complaints that have resulted in monetary penalties. Federal law In addition, federal regulatory guidance issued by the Department of Housing and Urban Development (HUD) in 2016 limits the use of criminal records by housing providers and realtors pursuant to the federal Fair Housing Act. The HUD guidance provides that: where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider. The guidance indicates that because “[n]ationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration,” use of criminal history is likely to trigger the “non-discriminatory interest” requirement. The guidance further suggests that arrest records should not used as a basis for exclusion, that the nature, severity, and recency of a conviction must be considered, and that “ensuring resident safety and protecting property” are the only interests that can justify criminal history exclusions. Finally, federal law imposes mandatory and discretionary bars on residency in public and federally-assisted housing. Mandatory exclusions apply to people who are subject to a lifetime sex offender registration requirement or have been convicted of producing methamphetamine on the premises of federally-assisted housing. A variety of discretionary grounds are provided for denial of public and federally-assisted housing based on criminal records or engagement in criminal activity, including for drug activity or activity that would adversely affect other tenants.  Such adverse actions may also result in eviction of other members of a person’s household. For more information on federal exclusions, see National Housing Law Project, An Affordable Home on Re-entry: Federally Assisted Housing and Previously Incarcerated Individuals (2018). (The introduction to this document is an instructive reminder of how HUD guidance has evolved where criminal records are concerned, from the focus on avoiding violent crimes in the 1970s, to the draconian “one strike and you’re out” rules applied in the 1990s, to today’s comparatively more nuanced policies.) *** Note: With four states having enacted laws limiting consideration of criminal records in housing, we are expanding our 50-state Restoration of Rights Project to cover housing in addition to employment and licensing (along with restoration of civil rights and record relief). Read more

New Mexico a new leader in criminal record reforms

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. Expungement and collateral consequences relief Two years ago, New Mexico enacted a comprehensive expungement law that extended to most non-conviction records after a one-year waiting period, and to conviction records for all but the most serious violent and sexual crimes after conviction-free waiting periods ranging from two to ten years upon a court finding that “justice will be served.” (See the New Mexico profile of our Restoration of Rights Project for more details.) This year, New Mexico enacted SB 2, described in our report last month on marijuana legalization and expungement, which will automatically expunge a wide range of marijuana arrests and convictions. In another major development, New Mexico became the second state (following Vermont) to adopt most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), by enacting SB 183. New Mexico’s UCCCA supplements its expungement laws in several ways, by authorizing relief from collateral consequences as early as sentencing, and by recognizing out-of-state record relief. It requires collection of all collateral consequences in state law and their publication on the internet. It requires defense counsel to notify their client about mandatory collateral consequences in preliminary proceedings and prior to entering into a plea, and the court and other government agencies are required to confirm such notice at sentencing and on release. Section 10 of New Mexico’s UCCCA authorizes the court on petition, at or after sentencing, to relieve one or more mandatory collateral consequences, “if granting the petition will materially assist the individual in obtaining or maintaining employment, education, housing, public benefits or occupational licensing” and generally facilitate the defendant’s reintegration. A Section 10 order is “evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program or otherwise transacting business or engaging in activity with the individual to whom the order was issued if the person knew of the order at the time of the alleged negligence or other fault.” Perhaps the most unusual and forward-looking features of New Mexico’s UCCCA, also adopted by Vermont, involve the relief extended to individuals with federal and out-of-state convictions: state agencies are required to recognize relief from other jurisdictions, and state courts are authorized to grant Section 10 relief to individuals with federal and out-of-state convictions. These steps toward coordinating relief across jurisdictions will hopefully not be lost on other state legislatures.  As CCRC’s board chair Jack Chin recognized in his introduction to our survey of the national landscape of record relief last fall, In a mobile, federal society, relief must be coordinated across jurisdictions, including within a single state. Most jurisdictions impose collateral consequences based on out-of-jurisdiction convictions, but it is not so clear that they give effect to out-of-jurisdiction relief or open their own relief systems to outsiders. People should not, ideally, be required to seek relief from multiple jurisdictions to avoid collateral consequences flowing from a single conviction. The New Mexico UCCCA excepts certain consequences related to sex offenses, driver’s license suspension, firearms dispossession, and law enforcement certification. The law is effective January 1, 2022, but will not affect imposition of a collateral consequence until six months after publication of the consequences provided for in Section 4. Public employment and occupational licensing The third new law, discussed in a posting last week, revised New Mexico’s 1970’s-era law regulating public employment and licensure to prohibit consideration of many different types of convictions, including those that have been expunged or pardoned, juvenile adjudications, and convictions that are “not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.” The new law also prohibits consideration of misdemeanor convictions by public employers and licensing agencies, including even convictions involving sexual or violent conduct except in the narrowest circumstances, giving New Mexico the broadest misdemeanor protections in the nation.  (New Mexico’s public employers and licensing boards were already prohibited under existing law from considering non-conviction records, and felony convictions that were not “directly related” to the employment or occupation at issue.) Relief from court debt Another noteworthy new law, though not directly providing for record relief or restoration of rights, significantly limits the burdens imposed by court debt, particularly for juveniles. HB 183 requires the court to pay the cost of court-appointed counsel, as well as the cost of a court-appointed guardian ad litem and witness travel in juvenile cases. It also bars imposition of any court costs, fees or fines on juveniles. Fines and fees and other court costs are not only a significant burden on individuals and communities, but they may also serve as barriers to restoring voting rights, obtaining expungement, and pursuing economic opportunities. Other relevant legislative action New Mexico’s legislature left a House-passed bill on the table that would have restricted disenfranchisement to the period of actual incarceration.  It would also have directed efforts to encourage people leaving prison to register to vote.  We hope the legislature will return to the issue of voting when it reconvenes. Read more

New occupational licensing laws 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. Comprehensive licensing scheme enacted by the District of Columbia Act A23-0561, signed by Mayor Muriel Bowser on January 15, 2021, imposed a detailed regulatory scheme on many occupational licenses issued by the District of Columbia, including health-related professions. The new law is one of the broadest and most comprehensive in the country in the judgment of both CCRC and the Institute for Justice. The 2021 law provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the occupation for which the license is sought. (Under prior law a license could be denied if a conviction “bears directly upon the fitness” of the person to be licensed.) References to “good moral character” in prior law were struck. The new law also prohibits a board from inquiring into or considering an applicant’s criminal conviction until after the applicant is found to be otherwise qualified. After such inquiry, it may not consider a conviction that has been sealed, expunged, vacated, or pardoned, a juvenile adjudication, or non-conviction information, or one that whose elements are not found by “clear and convincing evidence” to be “directly related” to the occupation. In making this determination, a board must consider specific factors relating to the circumstances of the offense, the individual’s other record, evidence of rehabilitation, and “the District’s interest in promoting employment opportunities for individuals with criminal records.” Before denying a license based on a conviction a board must notify the applicant about the reasons for denial and offer a hearing, describe the information that may be provided to demonstrate rehabilitation and fitness, give the applicant an opportunity to respond, and issue a final decision within 45 business days after it receives a response. The board must also provide information on legal resources along with a hearing notice. The 2021 law also establishes a pre-application petition process for individuals to determine their eligibility based on a criminal conviction, which must be completed within 90 days. (The law does not state whether an affirmative conclusion at this preliminary stage is binding on the board.) This law applies to licenses issued by D.C.’s Department of Consumer and Regulatory Affairs and Department Health, but not occupations regulated outside of these agencies, including attorneys, teachers, notaries, taxi drivers, funeral directors, boxers, commercial drivers, and insurance agents. The Mayor must submit a report to the Council by January 1, 2022, identifying the statutory and regulatory collateral consequences of criminal records and recommendations for their mitigation or elimination. And, by January 1 of each year, the Mayor must submit to the Council a report with data relating to each board regulating health-related and non-health-related occupations. Significant revisions of existing general licensing laws 1. Arizona As modified in 2021 by HB 2787 (the fourth licensing law in three years), standards for disqualification now provide that an agency may refuse licensure to a person based on their criminal record only if a conviction “specifically and directly relates to the duties and responsibilities of the occupation” (except for offenses involving moral turpitude defined to include serious and violent offenses) and “the person, based on the nature of the specific offense that the person was convicted of and the person’s current circumstances, including the passage of time since commission of the crime, “is more likely to reoffend by virtue of having” the license than not. The 2021 amendments also require that certain records may not be considered: non-conviction records, including record of participation in a diversion program; a conviction that was sealed, expunged or pardoned; a juvenile adjudication; and a non-violent misdemeanor. 2. Georgia Existing law allowed licensing boards to deny licensure where a person was on community supervision, without requiring the person’s crime to be “directly related” to the occupation for which licensure was sought. SB-114 added supervision status to list of dispositions for which direct relationship is required. The new law does not apply to those on supervision for a felony crime against a person, including battery or assault, or for a crime requiring sex offense registration. 3. New Jersey Until 2021, New Jersey’s 1970’s-era law governing licensure by dozens of state licensing boards (most health-related licenses, accountants, architects, engineers, cosmetology, and many others) provided that boards could deny or suspend licensure upon conviction “of a crime of involving moral turpitude or relating adversely” to the regulated occupation. P.L.2021, c.81 (S942), modified the standard for denial or suspension of licensure by these state licensing agencies to “a direct or substantial relationship to the activity regulated by the board or is of a nature such that certification, registration or licensure of the person would be inconsistent with the public’s health, safety, or welfare . . . .” 4. New Mexico The 1974 Criminal Record Employment Act in force prior to the 2021 amendments prohibited licensing boards from considering non-conviction records. As amended in 2021 by SB2, NM’s licensing agencies are precluded from considering 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.” In addition, while “misdemeanors not involving moral turpitude” were omitted from the list of crimes that may never be considered, misdemeanors were also omitted from the provision allowing convictions to be considered if “directly related” to the license in question.  The revisions leave open the possibility that a misdemeanor could be grounds for denying licensure as a teacher or child care provider only if they involved drug trafficking or child abuse. The 2021 amendments also omitted an alternative basis for disqualification based on insufficient rehabilitation.  5. Ohio Ohio’s existing law required licensing agencies to list crimes that mandate disqualification. As further amended in 2021 by HB 263, boards must list convictions that “may” be disqualifying, and other convictions and non-conviction records may not be grounds for denying a license. Vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those “directly related,” the board must still consider certain standards linked to an applicant’s overall record that are linked to public safety and may not deny after a period of either five or 10 years depending on the offense. In the event of denial, a board must provide procedural protections including written reasons and a hearing. These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019. 6. Tennessee The 2018 Fresh Start Act was amended in 2021 by SB768 to provide specific criteria governing a licensing board in determining the fitness of a person for licensure based on their criminal record, including the relationship of the crime to the ability performs the duties of the occupation, and evidence of the person’s rehabilitation.  (The FSA already included a “direct relationship” standard.)  The 2021 Act also deleted “a rebuttable presumption that the prior conviction relates to the fitness of the applicant or licensee” if the conviction was for a Class A, Class B, or certain Class C felonies, or if the felony conviction required registration as a sex offender or animal abuser. 7. Washington A 2021 law provides that each licensing agency shall allow potential applicants for a license to receive a “preliminary determination” as to whether their criminal record will be disqualifying. See 2021, ch. 194 (HB1399). No fee may be charged. This determination must be made within two months, and if it is negative must be accompanied by a statement of reasons. Another provision of HB1399 states that a licensing agency “may disqualify an individual from obtaining a professional license, government certification, or state recognition if it determines the individual’s conviction is related to the occupation or profession unless the individual has requested and received a [Certificate of Restoration of Opportunity (CROP)].” See Section 3 of 2021, ch. 194 (HB 1399). It is not clear whether this law was intended to lower the “direct relationship” standard in § 9.96A.020(2). Another 2021 law gave new protections to employees of long-term care facilities, setting forth time limits beyond which certain theft and assault convictions will not be disqualifying. See 2021 Ch. 219 (HB1411). The CROP law was also amended to give protection to these employees. Read more