Category: non-conviction records

When banks ask loan applicants about their arrest record

The National Community Reinvestment Coalition reports that its evaluation of small business loan applications from a sample of seven banks in Washington, DC revealed that “some lenders discriminate against applicants who have been charged at any time in their lives with a criminal offense.”  A comment on the NCRC website proposes that these banks consider applicants to be “a lending risk for having been ‘ever charged’ with any crime, other than a minor vehicle violation, no matter when it occurred.”  It goes on to argue that “[t]his practice is not only factually suspect, it is discriminatory.”  The comment, written by Anneliese Lederer, the NCRC’s Director of Fair Lending, was subsequently republished in The American Banker.  The NCRC findings demonstrate that even interactions with the criminal justice system that do not result in a conviction record can have “lasting implications:” It is known that having a criminal record is a barrier to both housing and employment. There are few protections for people with a criminal record. But what about for people who have been charged and found not guilty, or their charges were dropped? What barriers do they face? Unfortunately, they face similar barriers as people who have a criminal record, especially in the small business lending arena. Citing CCRC’s analyses of lending policies of the Small Business Administration, the NCRC comment highlights how these policies have given banks cover for their discriminatory practices: Small business loans administered by the Small Business Administration (SBA) have broad criminal history restrictions. Analysis conducted by the Collateral Consequences Resource Center (CCRC) found that no statute requires criminal history to be used as a factor in determining creditworthiness. Instead, the Small Business Act uses the words “may verify the applicant’s criminal background.” Furthermore, many restrictions that the US Small Business Administration (SBA) implements on interactions with the justice system are not codified. These restrictions are “either unannounced or only disclosed through FAQs published on the agency’s website…..[or] through policy statements and application forms.” The NCRC evaluation found that some commercial loan applications “require an applicant to answer yes or no to a question about their criminal history,” language that “is too broad and violates the Equal Credit Opportunity Act” for two reasons: It causes a disparate impact based on race It discourages applicants from applying Disparate Impact Disparate impact occurs when a neutral policy has a disproportionately negative effect on a protected class. The disclosure language “ever been charged…for any criminal offense” results in a disparate impact on the protected status of race for Black applicants. Black people are disproportionately charged for crimes at a higher rate than White people. The New York Times highlighted that “African-Americans make up only about 6 percent of San Francisco’s population, [yet] they accounted for 38 percent of cases filed by prosecutors between 2008 and 2014.” This disclosure language includes people who are falsely charged. More Black people are falsely charged than White people. The NAACP found that “[a]s of October 2016, there have been 1900 exonerations of the wrongfully accused, 47% of the exonerated were African American.” Furthermore, the language on these applications does not distinguish between: a felony vs. a misdemeanor; the type of crime committed like a financial crime vs. assault; if the applicant was a minor when the crime was committed; or length of time since the crime was committed. Financial institutions will assert a business justification for criminal history as it can significantly impact a person’s ability to repay the loan. Under the effects test, financial institutions can fulfill this business justification in a less discriminatory manner by adding language that does not leave the time period open-ended, distinguishes between a felony and a misdemeanor, distinguishes if the applicant was a minor at the time the crime was committed, and provides a list of crimes that require disclosures. Discouragement  The presence of this question can result in potential applicants being discouraged from applying. Discouragement occurs because applicants believe that answering this question will deny them credit. Therefore, they do not apply. Discouragement is a form of discrimination under ECOA and its implementation of Regulation B, section 1002.4(b). Moving Forward Financial institutions need to review their applications to ensure that they are not violating fair lending laws. But this is only part of the solution. Fair lending compliance programs need to ensure that when criminal history is used for credit decisions, its use is narrowly tailored in both time limit and specific crimes that are connected to financial risk, money laundering or terrorism. Financial institutions should not harm potential applicants who are creditworthy simply because they had some engagement in the past with the criminal justice system. CCRC is continuing to research the history and effect of the SBA’s lending policies as part of our Fair Chance Lending project.  Among other thgings, we hope to publish a report showing how the SBA’s policies compare with analogous policies of other federal and state agencies that guarantee small business loans.  We expect to host a series of programs in the spring to explore these issues further, building on the program hosted last November by the Georgetown Center for Business and Public Policy as  part of its Georgetown on the Hill series.  We were pleased to see that our research on SBA lending restrictions was featured in the recently issued report on of the Consumer Financial Protection Bureau, discussed at this post.   Read more

Delaware governor signs automatic record-clearing law

Delaware lawmakers passed two bills this year that overhaul access to second chances, making it easier for more than 290,000 people to move beyond the collateral consequences of a criminal record.  The two pieces of legislation – Senate Bill 111 and Senate Bill 112 – expand access to Delaware’s mandatory expungement process effective January 1, 2022, and make mandatory expungement automatic (or “Clean Slate”) by August 2024. State Senators passed the bills unanimously in April and the House of Representatives followed suit — approving the bills by an overwhelming majority during the late stages of the legislative session in June. Both bills were signed into law by Governor John Carney on Monday, November 8, 2021 — making Clean Slate a reality in Delaware. (The specific records that will be subject to mandatory expungement starting in 2022 are described later in this post.) Delaware is most recent addition to the growing number of states in the nation to make record clearing automatic for at least some convictions, so that eligible individuals will no longer be required to complete a burdensome and expensive petition-based process to get their record expunged. (Several other states have automated expungement exclusively for marijuana convictions.) Sen. Darius Brown of Wilmington sponsored the bills, and a variety of stakeholders and advocates, including the Office of Defense Services, the Delaware Department of Justice, the ACLU of Delaware, the Delaware Center for Justice, the Game Changers, the Delaware Coalition for Smart Justice, the National Clean Slate Initiative, the Center for American Progress, Code for America, the R Street Institute, and JP Morgan Chase supported the bills’ passage. While the bills were being considered in the General Assembly, many impacted individuals came out to support SB 111 and 112 and provided critical testimony that resonated with lawmakers and pushed the bills forward. Advocates and directly impacted people organized coalitions of leaders in each of Delaware’s three counties in support of the legislation and held events across the state highlighting the collateral consequences faced by the estimated 400,000 Delawareans living with a record. Combined with previous legislative measures, SB 111 and 112 will have an enormous impact on people, families, and communities across the state. In 2018, the General Assembly passed a major juvenile expungement bill, giving Delaware Family Court the option to immediately expunge a felony arrest record if a child’s case is terminated in their favor. Then in 2019, the General Assembly passed a landmark bill expanding access to second chances for adult Delawareans by creating the mandatory and discretionary expungement processes for most misdemeanors and felonies after a 3-7 year waiting period (depending on the underlying crime) without another conviction. Prior to the enactment of the 2019 law, second chance opportunities for adults were very limited. Individuals could only obtain an expungement for an arrest that never resulted in a conviction or a small number of convictions after they received a pardon. The Paper Prisons Initiative estimates that up to 400,000 people in Delaware live with a record. With 9 out of 10 employers, 4 out of five landlords, and 3 out of 5 colleges running background checks, records create obstacles to accessing jobs, housing, and education. Records also prevent people from starting a business because they cannot access credit and impact individuals’ ability to fully participate in social and civic community life. Delaware has greatly expanded avenues to expungement in recent years, but the process is still complicated, time intensive, and cost prohibitive. The State Bureau of Identification, the agency responsible for processing mandatory expungements, states that 281,190 people with a record in Delaware are eligible for a mandatory expungement under the current law, which extends to non-conviction records and less serious misdemeanors. However, only .4 percent of eligible individuals (or just over 1100 individuals) obtained a mandatory expungement in 2020. Clean Slate legislation will eliminate this large gap between eligibility and true access to a second chance by automating the process and ensuring that people have access to the economic opportunities they deserve. Under SB 111 and 112, more than 20 percent of Delaware’s population – and 290,000 people overall – will have access to automatic expungements and Clean Slate. As the state moves forward with implementing SB 111 and 112, organizations such as the Delaware Office of Defense Services, Delaware Center for Justice, ACLU of Delaware, Game Changers and others are focused on community engagement and education. In addition, expungement events are in the works and will be held throughout the state. What the bills do: Senate Bill 111 automates Delaware’s pre-existing mandatory expungement process, making Delaware the most recent addition to the growing number of states in the nation to enact automatic record clearing applicable generally to at least some convictions. (Several other states have automated expungement exclusively for marijuana convictions.) As in other states, the implementing agencies in Delaware have several years to promulgate and establish procedures, with a deadline of August 1, 2024. Upon implementation, Delaware’s State Bureau of Identification must identify qualifying criminal histories for clearance monthly. Eligibility for Clean Slate is based on the state’s mandatory expungement provisions, which allow certain arrests, adjudications, and convictions to be expunged after set periods of time. Senate Bill 112 is a companion bill to Senate Bill 111 and expands the pool of records eligible for mandatory expungement. This bill, which is effective January 1, 2022, authorizes the clearance of certain low-level felony convictions through a mandatory expungement process, a first for Delaware. Previously, Delaware law required individuals seeking expungement of any felony conviction to pursue a more costly, complicated, and court-based discretionary expungement. Specifically, SB 112, amended by Senate Amendment 1, makes these felony convictions eligible after 10 years, unless otherwise noted: Drug possession (after five years have passed) Miscellaneous drug crimes Unlawful dealing in a counterfeit or purported controlled substance Maintaining a drug property Possession of burglar’s tools or instruments facilitating theft Forgery in the second degree Unlawful use of payment card Senate Bill 112 also allows for the expungement of convictions or adjudications for underage possession or consumption of alcohol; possession of marijuana; or possession of drug paraphernalia to be always expunged, regardless of a person’s prior criminal history. SB 112 takes effect on January 1, 2022. The bottom line: After August 1, 2024, every person eligible for mandatory expungement is also eligible for Clean Slate. This means that following the completion of an individual’s case or sentence Delaware will automatically expunge cases terminated in one’s favor, all violation convictions, certain misdemeanor convictions, and certain felony cases with a single conviction after a set period. Most juvenile arrests and adjudications are also eligible for mandatory expungement after certain timeframes. In general, the juvenile expungement statutes are more expansive than the adult statutes. Want to learn more about mandatory expungement? Eligibility for mandatory expungement in Delaware can be difficult to understand. Some general guidelines are below: First, a person needs to go to the State Bureau of Identification to obtain their certified criminal history. This costs $52. There are three locations across Delaware. Next, SBI shares an official determination of eligibility and will contact the individual via mail. If the person is eligible for a mandatory expungement, they must communicate to SBI that they would like to expunge their record within thirty (30) days. This request requires an additional $75. That process is completed by the SBI and the records are expunged. If their record is not eligible for mandatory expungement, they may petition the Court under the discretionary process. The bills passed this year did not change the discretionary expungement process. Generally, a person is only eligible for mandatory expungement in Delaware if the following things are true (new changes made by SB 112 are bolded): Cases terminated in favor of the accused or cases in which a person has not been found guilty or delinquent can always be expunged, regardless of a person’s criminal history. The person has been convicted or adjudicated of a qualifying offense, which are violations, certain misdemeanors, and a select group of felonies. Domestic violence-related offenses and driving offenses, such as DUI, do not qualify for mandatory expungement. Most adult felony convictions, and certain adult misdemeanor convictions are not eligible for mandatory expungement. However, Delaware has a court-based petition system for these offenses known as discretionary expungement. The individual does not have any pending cases. The qualifying conviction or adjudication is the only case on the individual’s criminal history (there are exceptions for non-convictions, violations, underage drinking, and marijuana-related offenses and juvenile adjudications). The person has completed the term of their sentence and paid any fines, fees, and restitution related to the conviction (fines/fees can be converted to a civil judgment). Jon Offredo is the Legislative and Communications Director for the Delaware Office of Defense Services. The ODS is the state agency that represents individuals who cannot afford an attorney. Previously, Jon worked as a reporter with the Delaware News Journal. John Reynolds is with the ACLU of Delaware as the Campaign Manager for Clean Slate Delaware. John is a committed advocate for racial justice and graduate of UCLA School of Law with a specialization in Critical Race Studies.   Read more

Arizona enacts its very first sealing law – and it’s impressive!

In July 2021, in an unheralded action in the final days of its legislative session, Arizona enacted a law that authorized its courts for the first time to seal conviction records. See SB1294, enacting Ariz. Rev. Stat. § 13-911. The same law authorized sealing of uncharged arrests and dismissed and acquitted charges, also for the first time. Prior to this enactment, Arizona was one of a handful of states whose legislature had made no provision for limiting public access to conviction records, and was literally the only state in the country whose courts and records repository had no authority to seal non-conviction records. Now the state will have one of the broadest sealing laws in the country when it becomes effective on January 1, 2023. (In the November 2020 election, Arizona voters approved a proposition to legalize marijuana, which included a provision for expungement of certain marijuana-related records.  But until now no general sealing authority had been enacted by the Arizona legislature.) As described below, the law makes all but the most serious offenses eligible for sealing after completion of sentence (including payment of court debt) and a graduated waiting period.  It also appears that 1) multiple eligible convictions may be sealed, in a single proceeding or sequentially; 2) the prior conviction of a felony (even if ineligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period; 3) a conviction during the waiting period restarts the waiting period; and 4) there is no limit on the number of occasions on which sealing may be sought. The applicable procedures are fairly straightforward, with no hearing necessary unless the prosecutor requests it, and the court required to grant relief if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” Many of the obligations to acquire and serve documents that burden petitioners in other jurisdictions and act as barriers to access are assigned by law to the court.  Hopefully, in preparing to implement the law over the next 18 months until it becomes effective, Arizona practitioners can develop educational resources and training programs to facilitate applications by pro se petitioners, and Arizona courts can develop standardized forms and an efficient e-filing system to further enhance the new system’s efficiency. Inaugurating a brand new system at a time when other jurisdictions are recognizing the access-to-justice flaws in existing ones may give Arizona certain advantages. The law is described in greater detail below. Sealing of felony and misdemeanor convictions The new law makes all convictions except Class 1 felonies, and certain violent and sexual offenses, eligible for sealing. § 13-911(O). By its terms, the law does not limit the number of convictions that may be sealed; nor does it limit the number of times a person may request sealing. As such, it is one of the broadest sealing authorities in the country. Its eligibility provisions are logical but somewhat complex in operation because relief may extend in the same proceeding to multiple differing convictions. Eligibility:  At the time of sentencing, the court must inform the defendant, on the record and in writing, that he or she may be eligible to petition the court for an order sealing all case records. § 13-911(E). If the person “has not subsequently been convicted of any other offense except a misdemeanor [traffic violation other than a DUI],” the person may petition the court to seal the record after completion of all terms of the sentence, including payment of all fines, fees and restitution ordered by the court.  A waiting period after completion of sentence and discharge applies, whose length depends on the seriousness of the offense: 10 years after discharge for Class 2 and 3 felonies, five years for Class 4, 5 and 6 felonies, three years for a Class 1 misdemeanor, and two years for lower grade misdemeanors. Id. If the person has “a prior historical felony conviction,” an additional five years is tacked on to the specified waiting period. § 13-911(F). A person who “is convicted of two or more offenses may not petition the court to seal the person’s case records until the period of time prescribed in subsection E of this section has passed for each conviction.” § 13-911(G). While the language of these sections could be clearer, read together (both for what they say and what they don’t say) we think they are most reasonably understood as follows: Multiple eligible convictions may be sealed, in a single proceeding or sequentially; The prior conviction of a felony (whether or not eligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period for an additional five years; A conviction during the waiting period (other than a non-DUI traffic misdemeanor) restarts the waiting period; and There is no limit on the number of occasions on which sealing may be sought. A variety of mix-and-match scenarios may be imagined in which sealing of several convictions is sought, whether in the same proceeding or sequentially, extending the waiting period because of a prior felony conviction or restarting it where a new conviction occurs midway through it. Procedure:  After the petition has been filed, it is the responsibility of the court clerk to provide the prosecutor with a copy, and the prosecutor must notify a victim who has previously requested such notice. The court may not act on the petition for 30 days after its receipt unless the prosecutor and victim indicate that they have no objection. § 13-911(D). The court must request the Department of Public Safety (DPS) to prepare a report that includes the petitioner’s entire federal and state arrests and prosecutions, and “any other information that the court requests or that the Department believes will assist the court in making its determination. § 13-911(H). Unless the prosecutor or victim request a hearing, the court “shall grant” the petition if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” § 13-911(D). In cases where sealing of a conviction is sought, the Director may charge the petitioner a fee for the investigation, and for the actual sealing if the petition is granted, unless the petition is indigent. §§ 13-911(D) and (H). If the petition is charged with an offense after the petition is filed, the court may not dispose of the sealing petition until that new matter is resolved. § 13-911(N). If the court denies a request for sealing, the petition may not apply again for three years. § 13-911(L). Appeal of a denial of sealing is permitted based only on an error in determining eligibility. § 13-4033(5). The effect of a sealing order is set forth in § 13-911(B) and (I). The DPS is responsible for informing all appropriate state and federal law enforcement agencies that the record has been sealed. § 13-911(I). While a sealed record may be used variously in a subsequent prosecution, a person whose record has been sealed may state that they have never been arrested in response to questions on most applications for employment, housing, financial aid or loan applications.  A lengthy list of employments related to specific types of offenses are excepted (e.g., a sealed burglary or residential theft conviction must be disclosed in an application for employment that involves entering a dwelling.)  § 13-911(I)(5)(a) through (k). The sealed record is generally available to the subject of the record, to the victim (if they have exercised victim’s rights), to enforcement agencies and the courts, and to corrections agencies and child protective agencies, for their official duties. § 13-911(J). Sealing of non-conviction records Until enactment of the 2021 law, Arizona was the only state in the country that made no provision for limiting public access to non-conviction records (with a limited exception for wrongful official action described below).  When the law becomes effective in 2023, Ariz. Rev. Stat. § 13-911(A)(2) and (3) will authorize petitions to seal uncharged arrests and dismissed and acquitted charges. The process applicable to sealing non-conviction records is essentially the same as the process that applies to conviction records, including the possibility that the prosecutor or victim may request a hearing. The same standards apply as apply to convictions: the court “shall grant” the petition if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” § 13-911(D). One difference is that no fees may be charged by DPS for preparation of the record or for sealing of non-conviction records. Until January 1, 2023, non-conviction records may be sealed only if a person was “wrongfully arrested, indicted or otherwise charged for any crime,” meaning that there was “no legal basis for the arrest, or no legal or factual basis for the charge, or where the parties so stipulate.” State v. Mohajerin, 226 Ariz. 103, 109 (App. 2010), quoting from State v. Franco, 153 Ariz. 424, 426 (App. 1987). Read more

Reintegration reform returns to pre-pandemic levels in first half of 2021

This year is proving to be a landmark one for legislation restoring rights and opportunities to people with a criminal record, extending the remarkable era of “reintegration reform” that began around 2013. Just in the past six months, 30 states and the District of Columbia have enacted an extraordinary 101 new laws to mitigate collateral consequences. Six more bills await a governor’s signature.  It appears that legislative momentum in support of facilitating reintegration has returned to the pre-pandemic pace of 2019. Overall, the past 30 months have produced an astonishing total of 361 laws aimed at neutralizing the adverse effect of a criminal record, plus more than a dozen additional executive actions and ballot initiatives. Much of this year’s new legislation is quite significant. For example, of the 25 states enacting new record relief laws, three states authorized conviction record clearance for the very first time: Alabama, Arizona, and Virginia joined the 38 other states that now allow sealing or expungement of at least some misdemeanor and felony convictions. Arizona also became the thirteenth state to authorize its courts to issue judicial certificates of relief. Four states (New Jersey, New Mexico, New York, and Virginia) adopted expansive authorities for the automatic expungement of marijuana offenses as part of legalization. Five states (Colorado, Connecticut, Maryland, Virginia, and Vermont) enacted automatic relief provisions applicable more generally to certain non-conviction and/or conviction records, bringing the total number of states that authorize automatic clearing of at least some conviction records to 12 and of non-conviction records to 18. Additional automatic relief measures await the governor’s signature in Delaware and Illinois. Dozens of other record reforms enacted since January 2021 reduce eligibility barriers and waiting periods for sealing and expungement, streamline procedures, and expand the effect of this relief. Steady progress continued in regulating consideration of criminal records in the workplace. The District of Columbia enacted one of the most ambitious and comprehensive occupational licensing reforms in the country, and ten other states extended existing limits on how licensing boards consider criminal records, including in health care and in the legalized cannabis industry. Illinois became the fifth state to prohibit discrimination based on criminal record as part of its general fair employment law, and a recent trend of limiting use of records in housing, education, and driver’s licenses continued. Most notably, New Jersey adopted the most rigorous state legislation to date limiting criminal history checks in housing decisions—a policy that only three states had previously adopted. The dismantling of felony disenfranchisement laws also proceeded apace, with Connecticut, New York, and Washington joining the 16 other states that allow voting except during a period of actual incarceration for a felony convictions. (Two additional states and the District of Columbia do not disenfranchise at all based on conviction.) Other ameliorative actions included repealing prohibitions on access to public benefits, authorizing reentry services for people leaving custody, and requiring sentencing courts to provide notice to defendants about collateral consequences and the availability of record relief. Meanwhile, in stark contrast to this prolific state lawmaking, Congress has done little to address the challenges of reintegration for more than a decade, beyond reauthorizing funding for reentry programs (2018), limiting background checks in federal employment and contracting (2019), and repealing certain barriers to public benefits (2020). The only record relief available to those with federal convictions remains the largely illusory presidential pardon. Our federal agenda recommends specific measures that Congress could adopt to reduce barriers to opportunity.  In months to come we intend to focus attention on reducing barriers to financial support for small businesses owned or operated by justice-involved individuals. The Biden Administration has taken a few tentative steps to address collateral consequences, notably including an executive order requiring the Attorney General to ensure voting access and education for people in federal custody or supervision, and a further rollback of criminal history restrictions in the Paycheck Protection Program. Recently, the administration included support for reentry programs, housing access, and hiring programs as part of its strategy to combat gun violence. While the momentum for reintegration reform has returned to pre-pandemic levels, the health and economic consequences of the COVID-19 crisis—along with the racial inequalities in the “negative credentialing” of criminal records—call for even greater urgency in this work in the remaining months of 2021 and beyond. Below, we describe some of the more significant new laws by category, covering restoration of voting and other civil rights; record relief; limits on use of criminal records in civil contexts; and other softening of harsh collateral consequences. Further details about the new laws are available in the state profiles and summary charts of the Restoration of Rights Project. 1. Restoration of civil and firearms rights Voting In the first half of 2021, three states enacted laws authorizing automatic restoration of the vote to anyone not actually incarcerated for a felony, and a fourth state did so through executive order, while beginning the process of amending its constitution to accomplish this result. New York and Connecticut repealed provisions disenfranchising anyone on parole, while Washington restored the vote to anyone no longer confined for a felony. In March 2021, Virginia Governor Ralph Northam issued an executive order restoring the vote to 69,000 people who had been released from prison but had not yet completed their supervision, culminating a process of automatic expansion of the franchise by gubernatorial executive order that began in 2013. The Virginia legislature approved a proposal to amend the state constitution that, if approved a second time by the next legislature and by a referendum, will disenfranchise only people who are sentenced to a prison term for a felony and will restore their right to vote upon release from prison. Three other states clarified the timing of restoration of voting rights or facilitated their exercise. Louisiana clarified its law to ensure that a return to jail for violating parole will not extend the 5-year period after which a person released on parole may vote. Maryland passed a law to ensure that individuals detained in Baltimore’s jail may vote, and Illinois passed a law to facilitate registration by those exiting prison. At the federal level, President Biden issued an Executive Order titled “Promoting Access to Voting” whose Section 9 (“Ensuring Access to Voter Registration for Eligible Individuals in Federal Custody”) requires the Attorney General to take four important actions to ensure access, for people in federal custody or under federal supervision, to voter registration and educational materials on restoration of voting rights. Jury service Connecticut limited ineligibility for jury service to a period of actual incarceration, and Louisiana replaced its lifetime bar with a five-year period after release from prison or probation. Public office Illinois recognized its governor’s authority to restore eligibility for municipal office to a person with a federal conviction, by granting a certificate of restoration of rights. Firearms Kansas expanded the effect of expungement to restore firearms rights. 2. Record relief (i.e. expungement, sealing, set-aside) Three states for the first time enacted general statutes for the expungement or sealing of certain misdemeanor and felony convictions: Alabama, Arizona, and Virginia. Alabama enacted the so-called REDEEMER Act, authorizing petition-based expungement of non-violent misdemeanors and violations, and pardoned felonies. Arizona authorized its courts to seal most types of conviction records upon petition. Arizona also granted its courts authority to issue a Certificate of Second Chance to individuals whose conviction has been set aside. Virginia approved two laws creating 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. Notably, court debt will not be a barrier to record clearance, and the legislation includes a system of court-appointed counsel for petitions. Private companies that buy and sell criminal records will be required to routinely delete sealed records, with a private right of action if companies refuse to do so. However, Virginia’s laws will not go into effect until 2025. In addition to Virginia’s marijuana sealing law, three states enacted automatic expungement or sealing for a wide range of felony and misdemeanor marijuana offenses: New York, New Jersey, and New Mexico (we described these laws in detail, accompanied by an infographic here). Further, Colorado, Connecticut, and Montana expanded petition-based relief for marijuana-related records (with limited automatic relief in Connecticut authorized as well for certain possession convictions). Connecticut also enacted a general “clean slate law” which, effective 2023, requires the automatic “erasure” of 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. In addition, Colorado approved the sealing of multiple convictions and pardoned convictions, directed the automatic sealing of uncharged arrests, and authorized its public defenders to apply for public and private funds to represent indigent individuals in sealing proceedings. Among the dozens of other record reforms enacted so far this year, the following merit mention. Maryland authorized automatic expungement of non-convictions beginning in October 2021 (non-conviction records before then are eligible for expungement by petition and subject to non-disclosure in the Maryland Judiciary Case Search),  a study of partial expungement, and expungement for an additional conviction  (fourth-degree burglary). 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 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). Tennessee expanded expungement eligibility to include grade C and D felonies, made the filing fee discretionary with the court clerk, and required the court to give reasons for denying expungement. Tennessee also required judges to notify, if practicable, a defendant at sentencing if the conviction is for an expungable offense and the time period after which a petition may be filed; and required the administrative office of the courts to provide with supporting documentation. South Dakota reduced the waiting period for automatic sealing of minor misdemeanors and petty offenses from ten to five years. Vermont enacted automatic sealing of certain motor vehicle violations traffic violations and called for further study of clean slate automation. 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. Three states also enrolled significant bills that await a governor’s signature. Delaware passed three pieces of 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 automatic sealing is to begin in August 2024. Oregon passed substantial improvements to eligibility criteria and procedural barriers under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. The Illinois legislature sent to the governor a bill providing for the automatic expungement of felony prostitution offenses. It bears remarking that many of the automatic relief schemes enacted or enrolled to date in 2021, like those enacted in previous years, will take some time to implement.  While Connecticut’s new law (applicable to cases decided after 1999) will be effective January 1, 2023, Virginia’s automated authority is not expected to come on-line until 2025, and Delaware’s clean slate bill has a three-year development period. Automated authorities enacted in previous years are also still being developed, with California’s 2019 clean slate authority now projected for August 2023, and Michigan’s 2019 law projected “no earlier than” 2023.  While New Jersey has not specified a date when its automatic system will be operational, in the interim it is allowing newly eligible individuals to petition the court for relief. An April 2021 letter from 21 Attorneys General requested that Congress “appropriate necessary funds for technology and process improvements” to support the development of automatic record clearing systems. 3. Limits on use of criminal records in civil contexts Employment Illinois became the fifth state to cover criminal record discrimination in its fair employment law. The law, described here, makes it a civil rights violation, unless otherwise authorized by law, for any employer, employment agency or labor organization to use a conviction record as a basis to refuse to hire or to take any other adverse action unless: 1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or 2) the granting or continuation of the employment would involve a public safety risk. Various procedural requirements and enforcement mechanisms apply. Under a 2020 law, employers may not consider records of an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded. In addition, Louisiana prohibited prohibits consideration of non-conviction records in employment decisions and required employers to make an individual assessment of whether an applicant’s criminal record has “a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position,” considering certain specified factor relating to the criminal case and the applicant’s subsequent history. Maryland enacted a ban-the-box rule applicable to private employers with 15 or more employees, after the legislature overrode Governor Hogan’s veto. New Mexico amended its 1974 law prohibiting certain discrimination in public employment and occupational licensure to bar consideration of convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.” Occupational licensing The District of Columbia’s ambitious and comprehensive licensing reform, described here, imposed a detailed regulatory scheme on consideration of criminal record for many occupational licenses, including health-related professions. No one may be denied a license based on conviction of a crime unless it is “directly related” to the occupation. Various procedural protections apply and a pre-application petition process is authorized individuals to determine eligibility based on a criminal conviction, which must be completed within 90 days. In addition, seven states made significant reforms to their occupational licensing schemes: Two laws enacted by Arizona, the fourth and fifth licensing laws in three years, heightened the standard for disqualification based on a criminal record and barred licensing agencies from considering the following: non-convictions; sealed, expunged, and pardoned records; juvenile records; non-violent misdemeanors; and a range of drug offenses. Georgia will require a finding that an offense is “directly related” to a profession before a license may be denied based on supervision status, with exceptions for certain serious offenses. New Jersey revised its 1970’s-era law governing licensure by dozens of state boards, from conviction “of a crime of involving moral turpitude or relating adversely” to the regulated occupation, 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 . . . .” New Mexico also modified its decades-old licensing law to preclude consideration of convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.” Ohio’s existing law required licensing agencies to list crimes that mandate disqualification because they are “directly related” to the licensed occupation. As further amended, boards must list convictions that “may” be disqualifying, precluding denial based on any other records. Vague terms like “moral character” and “moral turpitude” may not be used. Even 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. Tennessee amended its 2018 Fresh Start Act 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 Act already included a “direct relationship” standard.)  The 2021 amendments also deleted a rebuttable presumption that certain felony convictions relate to the fitness of the applicant or licensee. Washington provided that each licensing agency must allow potential applicants for a license to receive a “preliminary determination” as to whether their criminal record will be disqualifying. No fee may be charged, a determination must be made within two months, and a denial must be accompanied by a statement of reasons. Another 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. A third law expanded access to licenses in the legalized cannabis industry for individuals convicted of non-violent cannabis felonies and misdemeanors. Housing New Jersey’s Fair Chance in Housing Act is most rigorous state legislation to date limiting consideration of criminal records in housing decisions. The law, described here, 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. In addition, Illinois required local housing authorities to collect data on number of applications for federally assisted housing by people with a criminal record, how many applications denied, and how many overturned after a records assessment hearing. Louisiana required  landlords to give notice to prospective tenants if they will consider criminal record information. Education Two states prohibited the use of criminal records in admissions decisions for higher education, with certain exceptions: Oregon (most private and public institutions) and Virginia (most public institutions; admission may be withdrawn if the institution determines the record poses a threat to the community). Washington created “prison to postsecondary education pathways.” 4. Other Driver’s licenses Seven states adopted laws aimed at limiting grounds for suspension of a driver’s licenses on the basis of unpaid court debt and/or offenses unrelated to dangerous driving: Alabama, Arizona, Colorado, Nevada, Oklahoma, Utah, and Washington. Mississippi adopted a law to provide reentering citizens with a six-month provisional driver’s license to support reintegration. Public benefits Washington enacted a law to facilitate successful jail reentry by not suspending Medicaid for individuals incarcerated for less than 30 days. Nevada and Kentucky opted out of the federal ban on access to the Supplemental Nutrition Assistance Program and Temporary Assistance for Needy Families program for those convicted of a drug-related felony. Illinois enrolled a bill that would opt the state out of this ban with respect the Temporary Assistance for Needy Families program. Reentry services Kentucky enacted a bill providing that when a person is released from prison, they shall be issued documentation of their criminal and institutional history, they may be issued a driver’s license or personal identification card, and they shall be issued a certificate of employability if they have satisfied certain criteria. Oklahoma provided that persons being released from prison shall be issued an identification card or driver’s license. Washington revamped and expanded its reentry services program. As part of a federal strategy to address gun violence, the Biden Administration announced steps to support reentry, including grants to help formerly incarcerated individuals find employment, leveraging tax credits to incentivize hiring, expanded federal hiring, the issuance of regulations to implement the 2019 federal “ban the box” legislation, hiring a Second Chance Act fellow, and taking actions through HUD to expand access to housing. Other collateral consequences reforms As discussed above, New Mexico enacted most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), including giving courts authority to relieve mandatory collateral consequences as early as sentencing. Louisiana requested that the Louisiana State Law Institute study collateral consequences affecting employment and licensure and noted, among other things, the need for short-term relief prior to expungement eligibility—such as a judicial certificate of relief or other mechanism to mitigate structural barriers. Louisiana required the court to notify defendants prior to entry of a felony guilty plea that they may be subject to collateral consequences including potential deportation, loss of voting rights, and loss of firearms rights; it also authorized the court or defense counsel to notify defendants of additional collateral consequences regarding higher education, housing, employment, licensing, and other categories. Montana provided for automatic removal from the “violent offender registry” after 10 years, unless convicted during that period of failure to register or of a felony. 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