Category: New legislation

Virginia poised to enact “transformative” record clearance law

Editor’s Note:  We are delighted to post a description of the broad new record relief bill now awaiting Governor Northam’s signature, by an attorney-advocate who was actively involved in the campaign to secure its passage. Rob Poggenklass describes the ambitious new law and how it came to be enacted, as well as likely next steps for record clearance in a jurisdiction that is swiftly becoming one of the nation’s leaders in record reforms. In addition to automatic sealing, the bill’s provisions for appointment of counsel, elimination of a fingerprint requirement for petitions, and regulation of private screening companies are particularly significant for reducing access barriers and ensuring effectiveness. The Virginia General Assembly has passed transformative legislation to allow sealing of convictions, including low-level felonies, for the first time in the Commonwealth, and to establish a system of automatic sealing of police and court records for many offenses. About 1.6 million Virginians have a criminal record, which creates significant barriers to employment, housing, education, and other necessities of life. The legislation reflects a compromise between an automatic expungement bill sponsored by Del. Charniele Herring and a mostly petition-based one brought by Sen. Scott Surovell. It also reflects the sustained work of directly impacted individuals and other advocates who organized and insisted on far-reaching, automatic, and equitable expungement legislation. The legislation must be signed by Governor Ralph Northam before it becomes law, but the governor is expected to sign it. After the House and Senate could not agree on record sealing legislation during a special session in the fall of 2020, the governor hired a mediator to help negotiate the compromise bill that passed both chambers in 2021. The legislation includes five key provisions. The bill: Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession. Allows for contemporaneous sealing of felony acquittals and dismissals with the consent of the prosecuting attorney. Provides for sealing a broad range of misdemeanor and low-level felony convictions and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process. Forces private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so. Most provisions of the bill are not currently set to take effect until July 1, 2025, to give the Virginia State Police and the courts sufficient time to update their computer systems. Increased funding or other future action by the General Assembly could change the effective date. A push for racial equity gave rise to criminal legal reforms Virginia’s criminal legal system has disproportionately targeted Black people since colonial times. Virginia executed 185 Black people and 46 white people between 1900 and 1969. And while Virginia executed 73 Black people for non-murder offenses, the commonwealth never executed a single white person for a non-murder offense. As of 2018, Black people were 3.4 times more likely to be arrested for marijuana possession in Virginia. Although Black people comprise only 19% of Virginia’s population, 57% of all prisoners housed by the Virginia Department of Corrections are Black. Racial disparities are arguably worse for Virginia’s youth. A majority of children who are suspended from school and detained in local youth jails in Virginia are Black, as are 72% of young people committed to the Department of Juvenile Justice. Years of relentless advocacy from people impacted by the sordid state of Virginia’s criminal and juvenile legal systems finally moved Virginia to act, as well as a constellation of other factors: the global pandemic, the killing of George Floyd, sustained protests of the police in the capital city of Richmond, a new Democratic majority in the General Assembly, and a governor eager to move on racial justice issues because of an embarrassing blackface scandal. In a series of seemingly nonstop legislative sessions since January 2020, Virginia has passed bills to abolish the death penalty, decriminalize and then legalize marijuana, end jury sentencing, end driver’s license suspensions for court debt, end pretextual stops, end presumptions against bail, and dozens of other criminal legal reforms. Because of differing approaches taken by the Virginia House and Senate on expungement reform, however, the lifelong consequences of a criminal record that follow from racially disparate contact with the criminal legal system threatened to remain unaddressed. What’s allowed under current law Virginia is one of seven states that does not allow any record clearance for convictions. Since 1977, the commonwealth has provided for expungement of non-convictions, but only if the subject of the record files a civil suit in circuit court, gets fingerprinted at a law enforcement agency, and convinces a judge that continued dissemination of the record would constitute a manifest injustice. In a 2020 study, the Virginia State Crime Commission found Virginia courts issue an average of 4,000 non-conviction expungement orders each year, in a state where 1.6 million people have at least one criminal record. How this record sealing legislation came about Directly impacted individuals have pushed for many years to update and expand Virginia’s outdated expungement law. Rep. Don McEachin, who previously served as a state senator, introduced a bill in 2010 that would have allowed individuals to expunge numerous convictions after a five-year waiting period. The bill failed in committee, 13–1 (McEachin was the lone dissenting vote). After Democrats recaptured the Virginia House in the fall of 2019, an opportunity arose. Legislators filed two dozen expungement bills in the 2020 regular session, most of which aimed to moderately expand the existing petition-based expungement process. A Senate bill that would have allowed expungement of alcohol and marijuana possession convictions for offenses before age 21 was sponsored by the Senate minority leader and passed that chamber unanimously. But the speaker of the house referred all 24 record clearance bills, including the Senate bill, to the Virginia State Crime Commission, a legislator-led body with full-time staff, to study and report back on the issue. When the governor called a special session in the summer of 2020 to address the pandemic and ongoing protests of police following the death of George Floyd, the list of racial justice issues to address in the criminal legal system was long but the ability to expunge past convictions was among them. During the special session, the Crime Commission produced a report on automatic expungement and a draft bill modeled after Pennsylvania’s Clean Slate Act. Herring carried House Bill 5146, which would have established a system of automatic expungement for non-convictions and more than 100 convictions, including some low-level felonies. The list of eligible convictions was revised by the time the bill reached the House floor, but the bill gathered bipartisan support and passed, 59–37. The Senate bill more closely resembled the bill that had passed the Senate during the 2020 regular session than the House bill. It sought to moderately expand the petition-based system to a few misdemeanor convictions. It passed, 38–2. A committee formed to reconcile differences between the two bills was unable to reach an agreement, and both bills died in the fall of 2020. Advocates supported the automatic expungement approach because of its potential to help more people. Sheba Williams, a Richmond woman whose experience in Virginia’s criminal legal system influenced her to start her own nonprofit, Nolef Turns, testified in support of Herring’s bill during the special session but urged the inclusion of even more offenses. Consumer protection advocates also warned that if the legislature passed a sweeping record clearance overhaul without regulating the private market for criminal records, Virginians would be no better off. After the special session, individuals directly impacted by criminal records organized to form the Virginia Expungement Council. The group held pro-automatic expungement rallies in Richmond and Charlottesville. Members of the group met with individual legislators and educated them on how their records continued to serve as barriers years after they had served their sentences. In January, the General Assembly returned for its regular session, this time in a Virginia election year. Herring introduced the same automatic expungement bill that passed the House during the special session but added a section to regulate private companies that buy and sell criminal records. Surovell introduced a very different bill to expand the petition-based system to include misdemeanor and low-level felony convictions. The House bill passed again with bipartisan support, 60–39, while the Senate bill passed on party lines, 21–18. Rather than wait for a committee of conference, in a highly unusual step Governor Northam stepped in to help the two patrons resolve the differences between the two bills. Herring and Surovell announced a compromise record sealing bill in mid-February. All Democrats and a handful of Republicans voted for the measure in each chamber, sending it to the governor’s desk. What the bill does, explained The bill defines sealing as restricting dissemination of any records related to an arrest, charge, or conviction held by either the Virginia State Police or the court system. Once sealed, records cannot be accessed by most private and public employers, landlords, home sellers, or insurance companies. Those entities will not be able to ask individuals about the existence of sealed records, nor will individuals be required to disclose them. The record sealing portions of the bill can be divided into three types: 1) automatic sealing, 2) contemporaneous sealing, and 3) petition-based sealing.    1)  Automatic sealing: Under the legislation, charges that qualify for automatic sealing include: Charges involving mistaken identity or unauthorized use of identifying information; Deferred dismissals for possession of marijuana and underage possession of alcohol; Convictions for the following misdemeanors: underage possession of alcohol, petit larceny, concealment, trespass after having been forbidden, instigating others to trespass, trespass on posted property, possession with the intent to distribute marijuana, possession of marijuana, and disorderly conduct; and Misdemeanor non-convictions (excluding traffic infractions). There are some exceptions for non-convictions, such as when the charge is dropped as part of a plea agreement. Non-convictions that do not qualify for automatic sealing can still go through the petition-based process. To qualify for automatic sealing, seven years must have passed since the conviction or deferred dismissal, the person must not have any new convictions during that time, and on the date of disposition, the person must not have been convicted of another offense that is ineligible for automatic sealing.     2) Contemporaneous sealing: Felony acquittals and dismissals with prejudice can be sealed by the court immediately at the time of disposition, without filing a petition, if the Commonwealth’s attorney consents. If the prosecutor refuses or contemporaneous sealing is denied by the court, the individual can still petition to clear the record.    3) Petition-based sealing: The greatly expanded petition-based sealing portion of the bill covers a broad range of offenses. Nearly all other misdemeanor convictions, except DUI and domestic assault, are eligible if the person was not convicted of a new crime in the seven years after conviction or release from incarceration. Class 5 felonies (1–10 years in prison), Class 6 felonies (1­–5 years in prison), and felony larceny convictions (except certain DUI offenses) are eligible for petition-based sealing if the person has not been convicted of any offense in the ten years after the conviction or release from incarceration, whichever is later. Other conditions apply to petition-based sealing. For example, there is a lifetime limit of two on the number of sentencing events that an individual can have sealed. A person must also never have been convicted of an offense that carries a maximum of life in prison if they want another low-level felony or misdemeanor conviction sealed. Deferred dismissals for offenses other than marijuana and alcohol possession are also eligible for petition-based sealing. This is a change from the existing expungement law, which was designed to assist “an innocent person’s ability to obtain employment, an education and to obtain credit.” This is significant in light of a 2020 expansion of the deferred disposition law to include crimes against property for anyone not previously convicted of a felony. Court-appointed legal assistance:  Individuals who cannot afford an attorney for help with the petition-based sealing process can request one. The bill establishes a Sealing Fee Fund, which will collect filing fees from individuals who can afford them and use that money to pay court-appointed attorneys. Court debt no barrier:  Notably, court debt will not be a barrier to record clearance under the legislation. Clerks will continue to have access to records for the purpose of collecting court debt owed by individuals on sealed offenses. The legislation also removes the requirement that individuals seeking record clearance go to a law enforcement agency to get fingerprinted as part of the petition process. The prosecutor will supply that information instead. Regulation of private background screeners: The other major component of the bill addresses the regulation of private companies that buy and sell individuals’ criminal records. As advocates warned during the 2020 special session, these records can continue to appear on private background checks long after the public records have been sealed or expunged. The bill takes several steps to alleviate this problem. First, private companies (defined as “business screening services” under the bill) have an obligation to delete sealed records and must take steps to ensure they do not maintain sealed or inaccurate records. Second, these companies must register with the Virginia State Police to receive electronic copies of sealed records. Third, the companies must include the date they collected an individual record when they disseminate it. Fourth, the companies must allow individuals to request a copy of their own criminal history record information from the company. Finally, individuals or the attorney general may initiate a civil action to enforce this section of the legislation, and the companies may be forced to pay damages if they violate it. What’s next for record clearance in Virginia Advocates and legislators are already looking at ways to improve on the transformational bill that just passed. Del. Herring announced in late January that petition-based sealing of more serious offenses is “up next” in 2022. Other potential reforms include moving up the 2025 enactment date, eliminating the lifetime limit on offenses that can be sealed, reducing the waiting periods, and expanding the list of offenses that are automatically sealed to include more charges that disproportionately target Black people. Rob Poggenklass is an attorney at Legal Aid Justice Center in Charlottesville, Va., where he works on policy reforms and represents individuals impacted by the Virginia criminal and juvenile legal systems. He also teaches the Child Advocacy Clinic and Civil Rights Clinic at the University of Virginia Law School.  Previously, Rob led the Race Equity Project at Iowa Legal Aid, where he worked on reducing barriers to employment, housing, education and transportation for people with previous criminal legal involvement in his home state of Iowa.  We first met Rob several years ago when he invited CCRC to file an amicus brief on a petition for certiorari from the Iowa Supreme Court, in a case involving court debt as a bar to sealing that he was arguing while at Iowa Legal Aid. We are happy to see him transplanted to a jurisdiction evidently eager to become a national leader in record clearance.     Read more

After a haul of record relief reforms in 2020, more states launch clean slate campaigns

Yesterday, the Clean Slate Initiative, a bipartisan national effort to automate the clearing of criminal records, announced four new state campaigns in Texas, New York, Oregon, and Delaware, joining ongoing campaigns in Louisiana, Connecticut, and North Carolina to advocate for automatic record relief legislation. This announcement follows a productive year for record relief reforms in 2020, when Michigan became the sixth state to enact automatic relief for a range of conviction records, the most expansive such authority enacted to date. In total, 20 states enacted 35 bills and two ballot measures creating or expanding record relief (i.e. expungement, sealing, set-aside) last year. Michigan, along with three other states, also enacted major legislation expanding eligibility for petition-based conviction relief. Kentucky and North Carolina authorized the automatic sealing of many non-conviction records (with simplified petitions for others), consistent with a 2019 model law on non-conviction records developed by a group of practitioners under CCRC’s leadership. Other reforms addressed marijuana offenses, victims of human trafficking, juvenile records, and more. Below we summarize 2020’s record relief reforms, broken down into six categories: general conviction relief (9 states, 14 laws), automatic conviction relief (4 states, 5 laws), non-conviction records (4 states, 4 laws), marijuana offenses (6 states, 5 laws, 2 ballot measures), offenses by victims of human trafficking (3 states, 3 bills), and juvenile records (5 states, 6 laws). Seven bills that were vetoed are described at the end. (Our full report on 2020 legislation is available here. Further detail about a particular jurisdiction’s record relief laws can be found in the CCRC Restoration of Rights Project, which includes both individual state profiles and 50-state comparison charts for conviction and non-conviction records.) General conviction relief (9 states, 14 laws) In 2020, four states enacted major reforms expanding eligibility for petition-based conviction relief. Michigan significantly expanded sealing eligibility for misdemeanors and felonies. Georgia for the first time authorized the sealing of convictions, covering pardoned records and up to two misdemeanors. North Carolina broadened felony and misdemeanor eligibility criteria. Nebraska extended set-aside eligibility beyond only probation cases to include cases involving sentences of up to one year’s imprisonment. Michigan expanded petition-based eligibility for set-aside and sealing to an unlimited number of misdemeanors and up to three felonies, provided that no more than two convictions for assaultive crimes may be set-aside in a person’s lifetime, and no more than one conviction for the same offense may be set-aside if the offense is punishable by more than 10 years in prison (HB 4984). Mich. Comp. Laws § 780.621, et seq. HB 4983 sets new waiting periods for seeking set-aside: more than one felony requires 7 years; one felony, or 2+ serious or assaultive misdemeanors requires 5 years; other misdemeanors require 3 years. These periods run from the latest of the following: imposition of sentence, completion of incarceration, and completion of supervision. HB 4985 provides that in counting convictions for determining eligibility for set-aside and sealing, crimes in the same 24-hour period arising from the same transaction are counted as a single offense unless they involve violence, guns, or a maximum sentence of 10+ years in prison.HB 4981 specifies that set-aside and sealing is not available for felonies punishable by a life sentence; specified sex offenses; traffic offenses if they involved alcohol, injury or commercial licensees; and a felony domestic violence conviction if the person has a misdemeanor domestic violence conviction. Georgia made eligible for record restriction and sealing: pardoned convictions (except for serious violent felonies or sexual offenses), up to two misdemeanor convictions (excluding specified violent and sexual offenses), and various conditional discharges (SB 288). Ga. Code Ann. § 35-3-37. North Carolina enacted the Second Chance Act, which expands “expunction” opportunities and streamlines the process in a variety of ways, including providing mandatory expungement for 16- and 17-year olds convicted as adults before “Raise the Age” legislation, who meet certain criteria; broadened eligibility criteria for expungement of conviction records (i.e. allowing multiple non-violent misdemeanors to be expunged; treating multiple convictions in the same court session as one conviction, etc.) (SB 562). A more detailed summary ishere. Nebraska expanded eligibility for set-aside to people sentenced to a year or less in prison. Preexisting law permits a person sentenced to probation to petition the sentencing court to “set aside” the conviction upon completion of sentence. LB 881, for the first time, allows a person who has completed a term of imprisonment of one year or less, to also petition to “set aside” their conviction, so long as: no charge is currently pending against them; they are not required to register under the Sex Offender Registration Act; the offense was not vehicular homicide; and they were not denied a set-aside within the previous two years. Neb. Rev. Stat. § 29-2264. Also in 2020, five other states eliminated some eligibility barriers and streamlined procedures: Louisiana repealed a requirement that to expunge certain violent offenses, the person “has been employed for a period of ten consecutive years” (HB 179). La. C. Cr. Proc. Art. 978. The state also authorized expungement when a person is on parole; repealing requirements that no felony conviction was expunged in the last 15 years and no misdemeanor was expunged in the last 5 years; and repealing a requirement, where expungement is sought for DUI, that the person have had no arrest or conviction expunged in the past 10 years (HB 241). Arts. 975, 977, 978. Finally, Louisiana modified its expungement forms to allow applicants to indicate if they had received a “first offender pardon” (HB 194). Indiana clarified that the waiting period for expungement for a felony reduced to a misdemeanor is five years from the date of conviction (SB 47). Ind. Code §§ 35-38-9-2. West Virginia authorized a state resident seeking expungement of convictions in multiple counties to file a single petition for expungement in their county of residence; and deleted a provision that a person may file only one expungement petition under either the general expungement authority or the special treatment/job program authority (SB 562). W. Va. Code §§ 61-11-26, -26a. Wyoming provided that convictions for purchase, possession, or use of nicotine products by persons under 21 shall not be reported by the court to law enforcement agencies; and, upon payment of the fine, the conviction “shall be expunged by operation of law…six (6) months after the entry of conviction” (SF 50). Wyo. Stat. Ann. §§ 14-3-304, -305. Utah prohibited the Bureau of Criminal Identification from considering minor prior or pending cases, or any clean-slate-eligible cases, in determining whether to issue a certificate of eligibility for expungement (HB 397). Utah Code Ann. § 77-40-105(4). Automatic relief (“clean slate”) (4 states, 5 laws) In 2020, Michigan became the sixth state to enact automatic relief for a range of conviction records—a type of reform known as “clean slate,” championed by the Clean Slate Initiative, among others. Michigan’s law is the most expansive automatic authority enacted to date. Pennsylvania improved its landmark 2018 Clean Slate Act, by eliminating barriers to relief based on unpaid fines and fees; and, automatically sealing pardoned convictions and expunging acquittals. Louisiana established a Clean Slate Task Force. And Vermont authorized automatic relief for marijuana possession. In addition, two states delayed or blocked automatic relief, as described below. Michigan authorized automatic set-aside and sealing for a range of convictions. An unlimited number of minor misdemeanors will be eligible seven years after imposition of sentence; and, up to four more serious misdemeanors and up to two felonies that are eligible for relief under expanded petition-based standards (see above) would be eligible 7 or 10 years after imposition of sentence or release from imprisonment, respectively, provided that the conditions in the petition-based standards are met (no pending charges in the state database, no additional convictions in the waiting period) (HB 4980). Mich. Comp. Laws § 780.622,et seq. For more serious misdemeanors and felonies, a person with more than one conviction for an assaultive crime (broadly defined) is ineligible for relief. Also, a broad range of crimes involving violence or dishonesty, or subject to a lengthy sentence, are ineligible. While restitution and other court debt need not be paid for a conviction to be expunged, a court may reinstate a conviction if a person “has not made a good-faith effort to pay” restitution. The law requires the system to be made operational two years after the effective date of the law, “subject to any necessary appropriation,” as well as a potential one-time 180-day extension at the governor’s request it cannot be implemented by the deadline “because of technological limitations.” See also the juvenile section for additional clean slate authority. Pennsylvania eliminated unpaid fines and fees (excluding restitution and a filing fee) as barriers to existing petition-based and automated sealing; authorized automatic sealing of pardoned convictions; and authorized automatic expungement of acquittals (HB 440). 18 Pa. Cons. Stat. § 9122.1,et seq. Louisiana established a Clean Slate Task Force to study the possibility of automating expungement (HR 67) and authorized access to criminal justice data for nonprofit partners providing technical assistance to this task force (HB 2). Vermont authorized automatic expungement of convictions involving possession of 2 ounces or less of marijuana entered prior to January 1, 2021, with expungement to be completed no later than January 1, 2022. Also, California postponed implementation of its 2019 automatic record relief law from early 2021 to mid-2022. (SB 118). Cal. Penal Code §§ 851.93, 1203.425. Washington governor Jay Inslee vetoed an automatic conviction relief bill (HB 2793), predicating the veto on the economic burdens imposed on the state by the pandemic.  Automation authorized in 2019 has also been delayed in Utah and New Jersey because of disruptions based on the pandemic. Non-conviction records (4 states, 4 laws) Last year two states (Kentucky and North Carolina) authorized the automatic sealing of many non-conviction records (with simplified petitions for others), consistent with a 2019 model law on non-conviction records developed by a group of practitioners under CCRC’s leadership. This brings the total number of states with automatic or expedited non-conviction relief to 21. In addition, Louisiana clarified that dismissed diversion cases may be expunged; and Illinois extended a fee waiver for non-conviction relief. Kentucky significantly streamlined the expungement of non-conviction records (HB 327). For cases disposed after March 27, 2020, expungement of misdemeanor or felony charges resulting in acquittal or dismissal with prejudice (“not in exchange for a guilty plea to another offense”) is automatic upon disposition. Ky. Rev. Stat. Ann. § 431.076. Cases disposed prior to that date, and felony cases in which charges have not resulted in an indictment, may be expunged on petition after 60 days. Cases in which charges were dismissed without prejudice are eligible for expungement three years after disposition for felony charges, and one year after disposition in the case of misdemeanor charge (reduced in both cases from five years). Expungement is mandatory for eligible cases (for unindicted felony cases, the prosecutor may obtain an extension of up to 180 days to file an indictment). Preexisting law required hearings and made expungement discretionary. North Carolina authorized automatic expungement of many non-conviction records and a streamlined petition process for others (SB 562). Louisiana made clear that a person can file a motion to expunge records if the district attorney declined to prosecute for the reason that the person successfully completed a pretrial diversion program (HB 129). La. C. Cr. Proc. Art. 976. Illinois extended the waiver of filing fees in large-counties for the sealing or expungement of non-conviction records (SB 1857). Marijuana offenses (6 states, 5 laws, 2 ballot measures) Marijuana expungement continued to accelerate across the country, as expungement has attained a more prominent role in the broader legalization movement. Six states enacted specialized marijuana relief laws in 2020, following 7 states (and D.C.) that did so in 2019, and 4 states in 2018—bringing the total number of states with specialized marijuana expungement laws to 23. In Congress, the House passed the Marijuana Opportunity Reinvestment and Expungement Act in November. However, the Senate did not bring it up for consideration so it will have to be reintroduced in the new Congress. Last year, Arizona and Montana approved ballot measures to authorize expungement for many marijuana offenses. Vermont made expungement automatic for marijuana possession of 2 ounces or less. Michigan and Utah streamlined marijuana relief procedures. Virginia restricted access to records of marijuana possession offenses. Arizona passed a marijuana legalization ballot measure that requires courts, upon petition, to expunge arrests, charges, and convictions for certain marijuana possession, consumption, transportation and cultivation offenses (effective July 2, 2021) ( 207). Ariz. Rev. Stat. § 36-2862. Michigan streamlined petitions for marijuana misdemeanors with a presumption in favor of set-aside and sealing for offenses that have been decriminalized (HB 4982); and provided for a rehearing or appeal where set-aside of a marijuana misdemeanor is denied (HB 5120). Montana passed a marijuana legalization ballot measure that provides that a person serving a sentence—or who has completed a sentence—for an act now legalized or now punishable by a lesser sentence may petition for an expungement, resentencing, and/or redesignation (I-190). I-190 sec. 36 (2020). Utah made eligibility periods and the requirement of a certificate of eligibility inapplicable to convictions for possession of marijuana for medicinal purposes (SB 121) Utah Code Ann. § 77-40-103(5). Vermont authorized automatic expungement of convictions involving possession of 2 ounces or less of marijuana entered prior to January 1, 2021, with expungement to be completed no later than January 1, 2022 (234). Virginia decriminalized marijuana possession, restricted public access to records relating to past arrests, charges, or convictions for this offense, prohibited employers and educational institutions from inquiring about them, and prohibited state and local officials from requiring an applicant for a license, permit, registration, or governmental service to disclose information about them (SB 2 / HB 972). Va. Code Ann. §§ 18.2-250.1; 19.2-389.3. Victims of human trafficking (3 states, 3 laws) Since 2010, when New York authorized victims of human trafficking to vacate certain prostitution and related offenses from their criminal records, in response to the advocacy of sex workers’ rights organizations, almost every state has enacted specialized laws for sealing, expunging, or vacating convictions related to being trafficked. While the early laws were narrowly focused on prostitution and related offenses, more recently additional offenses have been added. In 2020, three more states expanded relief in this area, after seven states and the District of Columbia did so in 2019, and 5 states in 2018. Georgia authorized petitions for vacatur, restriction, and sealing of convictions that occurred while a defendant was a victim of human trafficking (SB 435). Ga. Code Ann. §§ 17-10-21; 35-3-37(j)(6). Maryland expanded the vacatur authority for victims of human trafficking by authorizing relief for more offenses (previously only prostitution), simplified procedures, and mades convictions that have been vacated eligible for expungement as a non-conviction record (HB 242 / SB 206). Md. Code Ann., Crim. Proc. §§ 8-302, 10-105(a)(13). South Dakota eliminated the requirement that a victim of human trafficking be over 18 years old to expunge a juvenile record; and authorized the victim to petition the court directly or through a parent, guardian, or guardian ad litem (HB 1047). S.D. Codified Laws § 26-7A-115.1. Juvenile records (5 states, 6 laws) California strengthened requirements for the automatic sealing of juvenile records not resulting in an adjudication of guilt (AB 2425). Cal. Welf. & Inst. Code §§ 786.5, 827.95. Michigan enacted a juvenile clean slate law to make set-aside and sealing automatic for eligible adjudications, effective in mid-2023 (SB 681). Comp. Laws § 712A.18e, et seq. The state also enacted SB 682, which makes records of juvenile proceedings confidential to all but “persons having a legitimate interest,” defined to include the juvenile, their parents or guardians, law enforcement, and certain agencies with responsibility for juvenile custody. Mich. Comp. Laws § 712A.28. South Dakota eliminated the requirement that a victim of human trafficking be over 18 years old to expunge a juvenile record; and authorized the victim to petition the court directly or through a parent, guardian, or guardian ad litem (HB 1047). S.D. Codified Laws § 26-7A-115.1. Utah enacted the Juvenile Expungement Act, which reorganizes earlier law, with a few major changes (HB 397). As under existing law, upon reaching age 18, a person with a juvenile record is eligible for expungement following a one-year waiting period and completion of all sentence requirements (which may be waived by the court). After a hearing, the court may seal all the record if the individual has not, in the five years preceding, been convicted of a violent felony or have any proceedings pending. Utah Code Ann. § 78A-6-1505. Previously, expungement was unavailable to any person convicted of a felony or misdemeanor involving moral turpitude since the juvenile court’s jurisdiction terminated. The bill also simplifies the process to expunge a record with only nonjudicial adjustments, without a hearing. § 78A-6-1504. Washington facilitated juvenile sealing by omitting the requirement of a hearing if the person is off supervision and has paid restitution (HB 2794). Wash. Rev. Code § 13.50.260. Miscellaneous Utah expanded the authority of prosecutors to request that the court enter a judgment to a lower degree of the offense and impose a lower sentence, which is eligible for expungement (HB 441). Utah Code Ann. 77-2-1.2. Vetoed bills In 2020, at least five governors vetoed record relief reforms: Florida governor Ron DeSantis vetoed a bill that would have provided for the non-disclosure of arrest records of minors who have completed diversion (SB 1292). Maryland governor Larry Hogan vetoed three record relief bills: (1) HB 83 would have prohibited the Maryland Judiciary Case Search from in any way referring to the existence of a District Court criminal case in which possession of marijuana is the only charge in the case and the charge was disposed of before October 1, 2014; (2) HB 1336 would have authorized petitions for a partial expungement, among other things; and (3) SB 314 would have made various juvenile records confidential. Michigan governor Gretchen Whitmer, who signed 9 record relief bills in 2020, vetoed a 10th bill that would have authorized expungement of first-time DUI convictions (SB 1254). Mississippi governor Tate Reeves vetoed a bill that would have allowed expungement of up to three felonies (currently only one is eligible) (SB 658). Washington governor Jay Inslee vetoed a bill that would have provided automatic vacatur relief for a range of conviction records (HB 2793), predicating the veto on the economic burdens imposed on the state by the pandemic. Read more

CCRC proposes a reintegration agenda for the 117th Congress

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record.1 This agenda recommends specific measures by which Congress can accomplish this. During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.2 Many states have entirely remade their record relief systems—authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication—and limited the consideration of arrest and conviction records in employment and licensing.3 Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020. However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states. Recent controversies over presidential pardoning offer an incentive to wean the federal justice system from its dependence upon presidential action for the sort of routine relief these mechanisms promise. During the pandemic, the need to access opportunities and resources is perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below: Record relief: authorize federal courts to expunge certain records, grant certificates of relief, and increase use of deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; provide relief from firearms dispossession. Federal public benefits: end record-related restrictions in small business relief, SNAP and TANF benefits, and student financial aid. Employment & licensing: establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations. Voting rights: allow voting in federal elections unless a person is serving a felony sentence in a correctional institution. CCRC’s full federal agenda can be accessed here, and is reprinted below. Record Relief Since 2013, most states have either expanded record relief laws enacted in the 1970’s or enacted relief for the first time.4 States have tailored eligibility and procedures to the specific type of record, and more than a dozen have authorized automatic relief for certain records. Record remedies are now authorized in almost every state and apply to many types of criminal records. The popularity of court-managed diversion is growing, and many states also offer judicial or administrative certificates to restore lost rights.5 Yet Congress has thus far failed to act, leaving those with federal convictions without remedy short of a presidential pardon, and those with federal non-conviction records without any remedy at all. In addition, many areas of federal law fail to recognize or give effect to state relief. Legislative recommendations: Enact the Clean Slate Act of 2019 (R.2348), amended to authorize courts to seal conviction records upon completion of supervision, and expunge non-conviction records automatically upon disposition.6 Enact the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (R.3884), to decriminalize marijuana, and establish a process to expunge convictions and conduct sentencing review hearings related to federal marijuana offenses. Replace its vague proposed definition of “expungement” with the more precise definition in 18 U.S.C. § 3607(c). Expand authority under 18 U.S.C. § 3607 to allow federal courts to defer judgment for any person eligible for a probationary sentence and to expunge the record upon successful completion of probation without regard to age, thereby avoiding a conviction record.7 The Judicial Conference of the United States has previously agreed to support amendments to this statute “that provide judges with alternatives to incarceration and expand sentencing discretion….”8 Enact the RE-ENTER Act (2931), with an additional amendment to authorize federal courts to grant certificates that avoid all mandatory collateral consequences and provide evidence of rehabilitation for public and private decision-makers. The American Law Institute has approved a model law that authorizes courts to issue such certificates to mitigate collateral consequences and facilitate reentry and reintegration.9 Give effect to state diversion and deferred adjudication dispositions as non-convictions—and to state expungement, sealing, and set-aside relief—in federal laws and regulations (e.g., Federal Credit Reporting Act, Small Business Administration, sentencing guidelines, immigration). Authorize grants to the states to improve the operation of record relief systems, including supporting technology projects for automatic relief and streamlining petition-based systems. Enact provision in the Comprehensive CREDIT Act of 2020 (R.361) to prohibit credit reporting agencies from reporting arrests for which a person was not convicted. Amend the federal Fair Credit Reporting Act (FCRA) to restore the prohibition on reporting indictments and convictions if more than seven years have elapsed after date of disposition, release, or parole, a prohibition repealed in 1998. 15 U.S.C. § 1681c. Increase FCRA enforcement tools in the Federal Trade Commission and Consumer Financial Protection Bureau. Enact the Fairness and Accuracy in Criminal Background Checks Act (R.2851), which includes a requirement that the FBI not report state or federal criminal history information for employment-related purposes about arrests that are more than one-year-old and do not indicate a disposition. Authorize incentives to states that are part of the National Crime Prevention and Privacy Compact to adopt the same policy. Adopt a judicial or administrative mechanism to restore firearms rights to persons with federal convictions to reduce reliance on presidential pardon. Federal public benefits Federal law and regulations include a range of criminal history-based exclusions on public benefits, denying vital federal assistance during the health and economic crises of the pandemic. Most urgently, Congress should remove criminal history restrictions on Small Business Administration (SBA) assistance, Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), and student financial aid. Legislative recommendations: Strengthen the Paycheck Protection Program (PPP) Second Chance Act (3865), which would prohibit many criminal history restrictions that the Small Business Administration (SBA) has adopted for PPP relief, by removing categorical exceptions for applicants with an equity ownership of 20 percent or more who are incarcerated or were convicted of certain felonies. Amend the Small Business Act to prohibit the SBA from categorically excluding from 7(a) loan assistance those on probation and parole, see 13 C.F.R. § 120.110(n); and strictly limit use of criminal records in 7(a) and (b) character determinations, see SBA SOP 50 10 6 and SOP 50 30 9. Enact the Removing Barriers to Basic Needs Act of 2020 (R.7916), amended to permanently lift the federal ban on individuals with felony drug convictions from receiving SNAP and TANF assistance, not simply during the COVID-19 pandemic, consistent with the recommendation of the U.S. Commission on Civil Rights to eliminate such bans (and consistent with the increasing number of states that have opted-out of the ban). Enact the Financial Aid Fairness for Students Act (R.4584) to repeal provision making students convicted of drug-related offenses ineligible for federal student aid (companion provision prohibiting inquiry about drug-related convictions on FAFSA enacted in December 2020). Federal Employment and Licensing In 1998, Hawaii became the first state to prohibit inquiry into a job applicant’s criminal record until after a conditional offer is made, thereby inspiring the “ban-the-box” campaign that began several years later in California. In Hawaii, a conditional offer may be withdrawn only if a conviction within the most recent 10 years bears a “rational relationship” to the position. Its four-part enforcement mechanism is still a model for other states: Prohibit application-stage inquiries about criminal history (ban-the-box); After inquiry, prohibit consideration of non-convictions and certain other convictions that are categorically deemed “unrelated” to qualifications; Apply standards and procedures for potentially relevant convictions; and Enforce standards and procedures through a general fair employment law.10 Thirty-six states now have “ban-the-box” laws for public employment; 14 of them cover private employment as well.11 Several states have enacted comprehensive schemes like Hawaii’s.12 In 2019, Congress enacted a “ban-the-box” law for federal employment and contracting. The Fair Chance Act (P.L. 116-92, Subtitle B), effective December 2021, prohibits most agencies and contractors from requesting criminal history information about a job applicant until a conditional offer is made. Congress has not, however, provided standards for when a conditional offer may be withdrawn based on criminal history, and has given OPM no enforcement authority. In addition, federal law restricts or prohibits employment of people due to criminal record in various areas, including banking, insurance, real estate, transportation, mortgage lending, federal health care programs, etc.13 While federal regulations restricting bank employment were recently reformed to some degree, the FDIC Act still disqualifies people based on participation in pre- trial diversion and other non-conviction dispositions.14 Legislative recommendations: Amend the 2019 Fair Chance Act to add enforceable standards on what criminal records may be considered in federal employment and contracting (g., Hawaii’s four-part mechanism described above; standards in the Fair Chance Licensing Act of 2019 (Title VIII of Next Step Act of 2019 (S.697/H.R.1893)). Give OPM enforcement authority. Eliminate conviction-based bars and limit discretionary disqualification in federally-regulated occupations and employments, consistent with the standards in the Fair Chance Licensing Act of 2019 (see above). Amend the FDIC Act to eliminate disqualification from banking employment based on participation in a pre-trial yeah that’s not a big deal diversion or similar non-conviction program. Voting Rights There is a growing consensus that restoration of the vote is an important aspect of criminal justice reform. Since 2015, 17 states and the District of Columbia have enacted a total of 26 laws either limiting disenfranchisement or encouraging the newly enfranchised to vote.15 As a result of these reforms, 18 states now disenfranchise people convicted of a felony only during actual incarceration, and another two states and the District of Columbia do not disenfranchise at all.16 Already in 2021, an impressive 18 states are considering bills to ease or eliminate prohibitions on voting based on a past conviction.17 Yet in thirty states people living in the community are unable to vote because they have not completed their terms of supervision and, in 10 of these states, only because they have not fully paid court debt.18 While eligibility for the franchise has historically depended upon state law, Congress has authority to control who is eligible to vote in federal elections, and bills have been introduced in successive Congresses to extend the franchise in this context. Legislative recommendation: Enact the Democracy Restoration Act of 2019 (1068) to allow any individual who is a citizen of the United States to vote in any election for Federal office notwithstanding their conviction of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election; and, to provide for written notification of restoration of voting rights.   ________________ Note:  This report was developed by Margaret Love and David Schlussel, Executive Director and Deputy Director, respectively, of the Collateral Consequences Resource Center (CCRC). CCRC is a nonprofit organization established in 2014 to promote public engagement on the myriad issues raised by the collateral consequences of arrest or conviction. Our Restoration of Rights Project describes and analyzes the laws and practices relating to restoration of rights and criminal record relief in each U.S. jurisdiction. Our 50-state charts, annual reports on new legislation, and issue-based projects make it possible to identify national patterns, emerging trends, and key policy issues. This report was made possible by a generous operating grant from Arnold Ventures. 1 See Marc Levin, Build a bridge, not a wall, between administrations on justice reform, The Hill (Feb. 1, 2021), https://thehill.com/opinion/criminal-justice/536732-build-a-bridge-not-a-wall-between-administrations-on-justice-reform. 2 See CCRC annual reports on new restoration of rights and record relief laws from 2013 through 2020, available at https://ccresourcecenter.org/resources-2/resources-reports-and-studies/. 3 The spirit of reform that produced many of the state record relief laws in the 1970s was dormant for 30 years until it reawakened around 2013, following a dramatic increase in the severity of collateral consequences, the number of people affected by them, and the routine practice of criminal background checking. See https://ccresourcecenter.org/the-many-roads-to-reintegration/. 4 “Record relief” refers to various types of remedies that operate directly on the criminal record:  expungement, sealing, and set-aside revise a person’s record; pardon or certificates of relief remove or mitigate specific barriers; diversion and deferred adjudication avoid a criminal record in the first place. See https://ccresourcecenter.org/resources-2/resources-reports-and-studies/. 5 Expungement, sealing, or set-aside are now available for at least some felony convictions in 38 states, for misdemeanor convictions in 42 states, and all but two states now authorize sealing of non-conviction records. See https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial- expungement-sealing-and-set-aside/. 6 We do not agree with the categorical restriction of relief in this bill to “non-violent” offenses, since the definition of “crimes of violence” under federal law is both exceedingly broad and vague. See 18 U.S.C. §§ 16, 924(e). We would leave it to the federal courts to determine whether sealing relief poses a threat to public safety in particular cases. 7 18 U.S.C. § 3607, the so-called Federal First Offender Act, limits deferred dispositions to persons charged with misdemeanor drug possession with no prior drug-related convictions, and authorizes expungement after successful completion of probation only for persons under 21 years of age at the time of the offense. 8 See Report of The Proceedings of the Judicial Conference of the United States 11 (Sept. 12, 2017) (“A bill was introduced in Congress, H.R. 2617 (115th Congress), the RENEW Act, that would expand the age of eligibility for expungement under section 3607 of title 18 from “under the age of 21” to “under the age of 25.” The Committee on Criminal Law noted that the RENEW Act’s aim of expanding the scope of section 3607 is consistent with practices already occurring in many courts looking to increase alternatives to incarceration and enhance judicial discretion and is consistent with Judicial Conference policy on sealing and expunging records in that it would not limit judicial discretion in the management of cases and adoption of rules and procedures. On recommendation of the Committee, the Conference agreed to support amendments to 18 U.S.C. § 3607 that provide judges with alternatives to incarceration and expand sentencing discretion, and that are consistent with the Conference’s prior views on sealing and expunging records”),  https://www.uscourts.gov/sites/default/files/17-sep_final_0.pdf (citing Report of The Proceedings of the Judicial Conference of the United States 12-13 (Sept. 17, 2015) (expressing concerns that certain provisions of the proposed Record Expungement Designed to Enhance Employment  Act of 2015, S.675, 114th Congress, could impact judicial independence as well as increase civil workload without providing additional resources)), https://www.uscourts.gov/sites/default/files/2015-09-17_0.pdf/. 9 American Law Institute, Model Penal Code: Sentencing, §§7.04-7.06 (2017). 10 See https://ccresourcecenter.org/the-many-roads-to-reintegration/. 11 See Beth Avery & Han Lu, Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies, National Employment Law Project (Sept. 30, 2020), https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/. 12 See supra note 10. 13 See Margaret Colgate Love, Jenny Roberts, & Wayne A. Logan, Collateral Consequences of Criminal Conviction: Law, Policy and Practice §§ 2:10, 2:11 (NACDL/West, 3d ed. 2018-2019). 14 12 U.S.C. § 1829(a)(1)(A) bars banking employment for any person who has been convicted of a criminal offense involving dishonesty “or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense.” 15 See supra note 2. 16 See https://ccresourcecenter.org/2020/11/23/who-must-pay-to-regain-the-vote-a-50-state-survey-2/. 17 See https://ccresourcecenter.org/2021/02/03/momentum-grows-to-restore-voting-rights-to-people-with-a-felony. 18 See supra note 16. Read more

Marijuana expungement accelerates in 2020

*NEW: Marijuana legalization and expungement in early 2021 Marijuana expungement reforms continued to accelerate last year, and record relief has now attained a more prominent role in the broader legalization movement. As we documented in our recent report on 2020 criminal record reforms, six states enacted specialized marijuana relief laws in 2020, following 7 states (and D.C.) that did so in 2019, and 4 states in 2018. This brings the total number of states with specialized marijuana expungement laws to 23. In Congress, the House passed the Marijuana Opportunity Reinvestment and Expungement Act in November, which establishes a process to expunge convictions and conduct sentencing review hearings related to federal marijuana offenses. However, the Senate did not bring it up for consideration so it will have to be reintroduced in the new Congress. In 2020, Arizona and Montana approved ballot measures to authorize expungement for many marijuana offenses; Vermont made expungement automatic for marijuana possession of 2 ounces or less; Michigan and Utah streamlined marijuana record relief procedures; and Virginia restricted access to records of marijuana possession offenses. These laws are described in greater detail below. Arizona passed a marijuana legalization ballot measure that requires courts, upon petition, to expunge arrests, charges, and convictions for certain marijuana possession, consumption, transportation and cultivation offenses (effective July 2, 2021) (Prop. 207). Ariz. Rev. Stat. § 36-2862. Michigan streamlined petitions for marijuana misdemeanors with a presumption in favor of set-aside and sealing for offenses that have been decriminalized (HB 4982); and provided for a rehearing or appeal where set-aside of a marijuana misdemeanor is denied (HB 5120). Montana passed a marijuana legalization ballot measure that provides that a person serving a sentence—or who has completed a sentence—for an act now legalized or now punishable by a lesser sentence may petition for an expungement, resentencing, and/or redesignation (I-190). I-190 sec. 36 (2020). Utah made eligibility periods and the requirement of a certificate of eligibility inapplicable to convictions for possession of marijuana for medicinal purposes (SB 121) Utah Code Ann. § 77-40-103(5). Vermont authorized automatic expungement of convictions involving possession of 2 ounces or less of marijuana entered prior to January 1, 2021, with expungement to be completed no later than January 1, 2022 (S.234). Virginia decriminalized marijuana possession, restricted public access to records relating to past arrests, charges, or convictions for this offense, prohibited employers and educational institutions from inquiring about them, and prohibited state and local officials from requiring an applicant for a license, permit, registration, or governmental service to disclose information about them (SB 2 / HB 972). Va. Code Ann. §§ 18.2-250.1; 19.2-389.3. The full 2020 report is available here. Read more

Surge in reforms to ease driving penalties

This past year saw an unprecedented surge in states enacting so-called “free to drive” laws, as we documented in our recent report on criminal record reforms in 2020. Nine states enacted 16 bills that end the suspension of driver’s licenses either due to unpaid fines and fees, or due to legal violations unrelated to dangerous driving. Such suspensions make it difficult or impossible for people to get to work, take children to school, shop for groceries, or obtain healthcare. The Free to Drive campaign, a coalition of over 140 organizations, reports that currently, 37 states and D.C. still suspend, revoke or refuse to renew driver’s licenses for unpaid traffic, toll, misdemeanor and felony fines and fees. This coalition played an instrumental role in many of the 2020 reforms, which are described below. Hawaii prohibited restrictions on obtaining or renewing a driver’s license or registration, or transferring or receiving title, because of unpaid monetary obligations associated with traffic tickets incurred on or after November 1, 2020 (HB 2750). The bill also allows anyone prevented from obtaining or renewing a driver’s license or registration due to failure to pay monetary obligations associated with traffic tickets to obtain a clearance from the court. Illinois enacted the “License to Work Act,” eliminating suspension of driver’s licenses as a penalty for non-payment of various fines or fees, for being judged a “truant minor,” and for various non-driving violations; a license that was suspended for these reasons will be reinstated (SB 1786). Maryland repealed the authority to suspend driver’s licenses for unpaid traffic fines and fees, with retroactive application (HB 280). Maine made permanent the non-suspension of driver licenses for missing a fine payment for a non-driving related offense (LD 1953). Michigan enacted seven bills that eliminate suspension of driver’s licenses for various legal violations unrelated to dangerous driving (HB 5846-47, 5850-52, 6235, HCR 29). New York limited the grounds for suspension of a driver’s license; provided for additional notification when a person is required to make an appearance; and required income-based payment plans to be available for traffic fines, fees and surcharges (S5348B/A07463). Oregon repealed suspension and restrictions of driving licenses for failure to pay fines (HB 4210). Virginia repealed the requirement to suspend the driver’s license for non-payment of fines or costs; and requires reinstatement of any driver’s license suspended prior to July 1, 2019, solely for nonpayment of fines or costs (SB 1). The state also repealed provisions allowing a driver’s license to be suspended for: conviction or deferred disposition for a drug offense; non-payment of certain fees owed to correctional facility; or shoplifting motor fuel (HB 909). The full 2020 report is available here. Read more