Category: Policy

CCRC to hold roundtable on criminal records at U. Michigan Law School

We are pleased to announce that we are convening a roundtable meeting in August 2019, hosted by the University of Michigan Law School, to develop a model law on access to and use of criminal records, specifically in cases that do not result in a conviction. In March, we began a major study of the public availability and use of these non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to criminal records through mechanisms like sealing and expungement increases the earning ability of those who receive this relief, which in turn benefits their families and communities. The problems of access and use are not limited to private actors:  a recent court decision in New York suggests that police departments in some jurisdictions make operational use of sealed non-conviction records even when the law prohibits it. While almost every U.S. jurisdiction provides for limiting access to this subset of criminal records, relief varies widely in availability and effect, and is often difficult to take advantage of without a lawyer.  What’s more, arrest records may remain accessible on the internet long after official court files have been made confidential or even destroyed.  When arrests are not charged, the record may be available through state repositories but beyond the reach of judicial sealing statutes.  In the case of diversions, the record may be publicly available before the case is resolved and the record sealed, or the record may not be eligible for sealing at all. While CCRC’s Restoration of Rights Project now includes state-by-state information on how non-conviction records may be sealed or expunged, our new project examines the operation of applicable laws more closely, including through the lens of such issues as restrictive eligibility requirements (including waiting periods and overall criminal record), burdensome procedures (including filing fees and other financial barriers, and hearing requirements), police and prosecutor access, deniability, and enforcement.  It will note where state law or court rulings permit redaction of records so that dismissed charges may be sealed even if one or more charges in a case do result in conviction.  It will consider the practical and legal differences between different types of access limits, and the problem of expunged records remaining available in private databases and on the internet. We will produce a working paper addressing key issues and policy options that will be discussed at the August roundtable meeting.  Professors J.J. Prescott and Sonja Starr of the Michigan Law faculty will serve as conference hosts and collaborators.  Legal scholars, practitioners, judges, law enforcement officials, and legislators have been invited to participate, including at least three who have criminal records themselves.  We expect to have technology experts to advise about the operational implications of the policies and legislation we are considering, in light of how states manage their criminal records systems. The roundtable will produce a set of policy recommendations and model legislation aimed at neutralizing the effect of non-conviction records.  Following the roundtable, we will prepare and issue a report on the recommendations and model law, seeking input from scholars and other interested parties, and then promote the results widely in the academic and advocacy community. The principal value of this project will be to inform and strengthen efforts underway in legislatures and advocacy organizations across the country to mitigate the disabling effects of a criminal record, including uncharged arrests and dismissed charges, on the lives of people with a record, their families and their communities.  We believe that reforming the law is an important a part of the reintegration agenda—along with advocating for and providing services to people with a criminal record—and we hope this project will be the first stage of a larger national law reform effort to address access to and use of all types of criminal records.  In light of the intense interest in legislatures across the country in mitigating the effect of criminal records, as evidenced in our 2018 report on relevant laws passed just last year, there is an obvious need for such guidance.  The first months of 2019 have evidenced an even greater level of legislative interest, on which we expect to report again in early July. The Michigan Law roundtable meeting and its follow-up report are being supported by the Charles Koch Foundation and Arnold Ventures. Read more

Survey of law enforcement access to sealed non-conviction records

As part of our non-conviction records project, we have researched what state laws provide on law enforcement agency access to and use of sealed or expunged non-conviction records for routine law enforcement purposes.  This issue is particularly salient in light of an ongoing lawsuit against the New York Police Department in which a New York state court found that the NYPD’s routine use and disclosure of sealed arrest information—without securing a court order—violates New York’s sealing statute. Looking across the country, we found an almost even split on this issue: exactly half the states either do not allow law enforcement access to sealed records for routine law enforcement activity, or condition law enforcement access on a court order (as in New York) or formal written request.  Specifically, we identified 25 states and two territories that appear to limit law enforcement agency access to and/or use of non-conviction records, either absolutely (12 states and two territories), or without a court order (11 states) or formal written request to the state custodian of records for a specified purpose (two states).  The other 25 states, plus two territories, the District of Columbia and the Federal system, exempt law enforcement agencies generally from sealing or expungement laws, or in a few cases have no law authorizing sealing of non-conviction records (American Samoa, the Federal system, and Wisconsin). Note a couple of things about the way we conducted this research.  First, our results apply only to records that do not result in a conviction (though in many states the answer is the same for records that do), and we classified them according to their apparent application to law enforcement operations (some states allow law enforcement agency access for employment and certification purposes).  There are a handful of states that bar law enforcement agency access but allow access by prosecutors, both generally (NC) and in specific situations (AR, KS), and we classified these as barring law enforcement access, because the possibility of police access to records through prosecutors is not the kind of unregulated direct access at issue in the New York litigation. The second thing to note is that our results say nothing about how easy or hard it is to get a non-conviction record sealed or expunged, or who is eligible for this relief.  For example, of the states whose laws bar access, New York offers sealing of non-conviction records right at disposition as a routine matter, with the burden on the prosecutor to show why sealing isn’t appropriate (and it is a high bar).  Other states in the “no access” or “court order” categories (e.g. Virginia, Kentucky, West Virginia) require a defendant to file a separate civil petition after an eligibility waiting period, disqualify based on prior record, require a hearing at which the petitioner has the burden of showing why relief should be granted, and even impose civil filing fees. Our classification tells a bit more about the scope or effect of sealing/expungement relief in each state more generally, since states that “delete” or “erase” non-conviction records are more likely to specifically bar law enforcement agency access than states that merely limit public access to the record.  But even states that provide some public access (e.g., by licensing boards) may also bar access for law enforcement functions (e.g., KS).  (Further information about the effect of sealing or expungement relief in each state may be found in the Restoration of Rights Project profiles.) Our state-by-state research follows. I. NO ACCESS FOR LAW ENFORCEMENT PURPOSES OR ACCESS ONLY WITH COURT ORDER OR FORMAL REQUEST (25 states, 2 territories) A. No authority for law enforcement to access sealed or expunged non-conviction records for regular law enforcement purposes (12 states, 2 territories): Arkansas:  Sealed non-conviction records accessible upon written request from a “criminal justice agency” only for employment with the agency, or a background check for polygraph or security license.  May also be disclosed to a court (“upon a showing of a subsequent adjudication of guilt” or “another good reason shown to be in the interests of justice”); to “a prosecuting attorney” (if accompanied by a statement that “the request is being made for a criminal justice purpose”); and to agencies engaged in licensing of health care professionals.  Ark. Code Ann. § 16-90-1416. Connecticut:  “Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken.”  Law does not provide for law enforcement access to erased records.  Conn. Gen. Stat. § 54-142a(a); See also 54-142c(a). Indiana:  Does not allow information about non-conviction records that have been expunged and sealed to be “placed or retained in any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional, or statewide law enforcement agency.”  Ind. Code § 35-38-9-1(h).  While “this chapter does not require any change or alteration in: (1) any internal record made by a law enforcement agency at the time of the arrest and not intended for release to the public,” § 35-38-9-1(f), we have been advised by the Marion County prosecutor’s office that the state police may destroy expunged and sealed records that did not lead to a conviction.  While the law is unclear, we nonetheless place Indiana in the “no access” category on the strength of the reasonably clear directive of § 35-38-9-1(h). Kansas:  “Whenever a person’s arrest records have been expunged as provided in this section, the custodian of the records of arrest, incarceration due to arrest or court proceedings related to the arrest, shall not disclose the arrest or any information related to the arrest, except as directed by the order of expungement or when requested by the person whose arrest record was expunged.”  Kan. Stat. Ann. § 22-2410(h).  § 22-2410(c) lists a variety of employment and licensing scenarios in which disclosure may be “directed by the order of expungement” as well as a catch-all “in any other circumstances which the court deems appropriate.”  Disclosure also authorized to the state bureau of investigation for the central repository and the national instant criminal background check system for firearms.  See also §§ 21-6614(1)(6), (15) (expunged conviction records may be disclosed if requested by “a prosecutor, and such request is accompanied by a statement that the request is being made in conjunction with a prosecution of an offense that requires a prior conviction as one of the elements of such offense” or “a law enforcement agency and the request is accompanied by a statement that the request is being made to aid in determining eligibility for employment as a law enforcement officer.”). Kentucky:  “After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state-performed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter.”  Ky. Rev. Stat. Ann. § 431.076(6). Michigan:  Michigan courts are authorized to seal the record of any case under Michigan Court Rule 8.119(I) for “good cause” shown, after considering the interests of the parties and the public.  Under Mich. Comp. Laws 780.623, records sealed under MCR 8.119(I) may be made available to courts and to law enforcement agencies only for specific purposes, including licensing and employment, but not for routine investigative or enforcement functions.  Arrest records are expunged or destroyed if: (1) arrest and release without charges; (2) finding of not guilty; (3) nolle prosequi; or (4) charges dismissed before trial.  Mich. Comp. Laws §§ 28.243(7), (8), (10).  It does not appear that such records are subsequently accessible by law enforcement.  See id. Mississippi:  “Upon entering an order of expunction under this section, a nonpublic record thereof shall be retained by the Mississippi Criminal Information Center solely for the purpose of determining whether, in subsequent proceedings, the person is a first offender.”  Miss. Code Ann. § 99-19-71(3).  “The order of expunction shall not preclude a district attorney’s office from retaining a nonpublic record thereof for law enforcement purposes only.”  Id. North Carolina:  Under North Carolina law, expunged records are “deleted,” but the Administrative Office of the Courts maintains a confidential file on those records and makes them available for certain limited specified purposes.  N.C. Gen. Stat. § 15A-151(a).  While some expunged conviction records may be available to law enforcement for purposes of employment and certification, expunged non-conviction records may not be disclosed to law enforcement agencies under any circumstances.  Records of dismissed charges (but not acquittals) may be disclosed to prosecutors under § 15A-151.5. Puerto Rico:  Puerto Rico Police Department maintains records of convictions and open cases in a “Criminal Record Certificate” containing record of convictions and open cases.  P.R. Laws Ann. tit. 34, § 1725a.  Convictions may be “eliminated” upon motion from the certificate after a waiting period.  Cases that do not result in conviction appear not to be maintained. South Carolina:  If charges are dismissed or the person is found not guilty, all records “must be destroyed and no evidence of the record pertaining to the charge . . . may be retained by any municipal, county or state law enforcement agency.”  S.C. Code Ann. § 17-1-40(B)(1).  As amended in 2016, this section provides that records may be kept by law enforcement and prosecution agencies for three years and 120 days, or indefinitely in case of an on-going investigation, before destruction for administrative purposes.  “The information is not a public document and is exempt from disclosure, except by court order.”  The law does not specify what if any use may be made of these records in the period for which they remain available to law enforcement, but we include it in this category because of the evident intent of the more general provision. Texas:  Pursuant to the expunction procedure set forth in 55.02, § 3(a), the court shall order “any state agency that sent information concerning the arrest to a central federal depository to request the depository to return all records and files subject to the order of expunction;” once expunged, the law prohibits the “release, maintenance, dissemination, or use of the expunged records and files for any purpose.”  Tex. Code Crim. Proc. art. 55.03(1). Vermont:  “Upon entry of an expungement order, the order shall be legally effective immediately and the person whose record is expunged shall be treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense. The court shall issue an order to expunge all records and files related to the arrest, citation, investigation, charge, adjudication of guilt, criminal proceedings, and probation related to the sentence . . . .  The court shall provide notice of the expungement to the respondent, Vermont Crime Information Center (VCIC), the arresting agency, and any other entity that may have a record related to the order to expunge.”  13 V.S.A. § 7606(a). Virginia:  “If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge.”  Va. Code Ann. § 19.2-392.2. Virgin Islands:  Expungement means that a person will be treated “as not having been or arrested except for the keeping of confidentiality records” [sic].  Court may order the records disclosed to a court in connection with sentencing, or “to an agency of the territorial or federal government that is considering the person for a position.”  5 V.I. Code §§ 3738, 3739. B. Court order required for law enforcement access to sealed or expunged records (11 states, including New York): Idaho requires a court order for disclosure of sealed court records, I.C.A.R. 32(i); no provision appears to authorize access to expunged criminal history records. Maryland only allows access to expunged records with a court order, after notice, a hearing, and the showing of good cause; or an ex parte order, on a verified petition filed by a State’s Attorney alleging that the record is needed by law enforcement for a pending criminal investigation and “the investigation will be jeopardized or life or property will be endangered without immediate access to the expunged record.”  Md. Code Ann., Crim. Proc. § 10-108. Minnesota:  When a criminal justice agency seeks access to a record that was sealed under section 02, subdivision 3, paragraph (a), clause (1), after an acquittal or a court order dismissing for lack of probable cause, for purposes of a criminal investigation, prosecution, or sentencing, the requesting agency must obtain an ex parte court order after stating a good-faith basis to believe that opening the record may lead to relevant information.  Minn. Stat. § 609A.03(2).  An expunged record of a conviction may be opened for purposes of evaluating a prospective employee in a criminal justice agency without a court order.  § 609A.03(2). Montana:  Criminal courts are prohibited from disseminating records made confident by law, under Mont. Code Ann. § 44-5-303(1) (“dissemination of confidential criminal justice information is restricted to criminal justice agencies, to those authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure”). Nevada:  The court may order sealed all records of the arrest and of the proceedings leading to the acquittal, declination or dismissal which are in the custody of any agency of criminal justice or any public or private company, agency, official or other custodian of records in the State of Nevada.   Nev. Rev. Stat. § 179.255.  If a person has been arrested, the charges have been dismissed and the records of the arrest have been sealed, the court may order the inspection of the records by a prosecuting attorney upon a showing that as a result of newly discovered evidence, the person has been arrested for the same or a similar offense and that there is sufficient evidence reasonably to conclude that the person will stand trial for the offense.  § 179.295. New Jersey:  Expunged records shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a presentence report or for purpose of sentencing.  N.J. Stat. Ann. § 2C:52-21.  Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts.  § 2C:52-19. New York:  Courts, prosecutors, and law enforcement agencies must “seal” records when a case is terminated in a person’s favor or results in a non-criminal violation.  A “sealed” record “shall . . . not [be] made available to any person or public or private agency,” without a court order. The sealing requirement applies to “all official records and papers . . . relating to the arrest or prosecution . . . on file with the division of criminal justice services, any court, police agency, or prosecutor’s office.”  In addition, the statute requires that photographs and fingerprints be destroyed or returned to the formerly accused.  N.Y. Crim. Proc. Law §§ 160.50 and 160.55. Oregon:  Upon motion of any prosecutor or defendant in a case involving records sealed under this section, supported by affidavit showing good cause, the court with jurisdiction may order the reopening and disclosure of any records sealed under this section for the limited purpose of assisting the investigation of the movant.  However, such an order has no other effect on the orders setting aside the conviction or the arrest, citation or charge record.  ORS 137.225(11) Utah:  “The bureau shall keep, index, and maintain all expunged records of arrests and convictions . . . . Employees of the bureau may not divulge any information contained in its index to any person or agency without a court order unless specifically authorized by statute . . . . If, after obtaining an expungement, the petitioner is charged with a felony, the state may petition the court to open the expunged records upon a showing of good cause . . . . For judicial sentencing, a court may order any records expunged under this chapter or Section 77-27-5.1 to be opened and admitted into evidence.”  Utah Code Ann. § 77-40-109(1), (4), (5). Washington only allows access to sealed court records after entry of a court order allowing access or if the records have been ordered unsealed pursuant to Washington State Court General Rule 15, GR 15(e); criminal justice records subject to deletion are presumably destroyed and thus inaccessible.  Wash. Rev. Code § 10.97.060. West Virginia allows inspection of the sealed records in the court’s possession “upon a petition filed by a prosecuting attorney that inspection and possible use of the records in question are necessary to the investigation or prosecution of a crime in this state or another jurisdiction. If the court finds that the interests of justice will be served by granting the petition, it may be granted.”  W. Va. Code § 61-11-25. C. Law enforcement must file formal written request and specify reasons (2 states): Louisiana: Expunged records may be made available to “a member of a law enforcement or criminal justice agency or prosecutor who shall request that information in writing, certifying that the request is for the purpose of investigating, prosecuting, or enforcing criminal law, for the purpose of any other statutorily defined law enforcement or administrative duties, or for the purposes of the requirements of sex offender registration and notification.”  La. Code Crim. Proc. Ann. art. 973). Rhode Island: Any custodian of expunged records shall not disclose the existence of the records upon inquiry from any source unless the inquiry is that of any law enforcement agency “when the nature and character of the offense with which an individual is to be charged would be affected by virtue of the person having been previously convicted of the same offense.”  “The custodian of any records which have been expunged pursuant to the provisions of this chapter shall only release or allow access to those records for the purposes specified in subsections (b) or (c) [above] of this section or by order of a court.”  R.I. Gen. Laws §§ 12-1.3-4 (c) and (d). II. LAW ENFORCEMENT AGENCIES HAVE ACCESS TO SEALED NON-CONVICTION RECORDS OR NO SEALING IS AUTHORIZED (25 states, 2 territories, D.C. and the Federal system) American Samoa:  Does not provide record-closing relief to non-conviction records. Alabama:  Expunged non-conviction records accessible to criminal justice agencies “upon acknowledgement of an investigation or other criminal matter involving the person related to the expungement.”  Ala. Code § 15-27-7(a). Alaska:  Non-conviction criminal justice records that are not generally releasable to the public “may be provided to a criminal justice agency for a criminal justice activity.”  Alaska Stat. 12.62.160(b)(4).  Sealed records may be provided “when necessary to prevent imminent harm to a person…[, or] for a use authorized by statute or court order.”  § 12.62.180. Arizona:  Cleared records are not “expunged or hidden from law enforcement officials.”  State v. Mohajerin, 226 Ariz. 103 (Ariz. Ct. App. 2010). California:  A criminal justice agency may continue “in the regular course of its duties, to access, furnish to other criminal justice agencies, and use, including, but not limited to, by discussing in open court and in unsealed court filings, sealed arrests, sealed arrest records, sealed police investigative reports, sealed court records, and information relating to sealed arrests, to the same extent that would have been permitted for a criminal justice agency if the arrest had not been sealed.”  Cal. Penal Code § 851.92(b)(6). Colorado:  Sealed arrest records may be shared between criminal justice agencies.  Col. Rev. Stat. § 24-72-702(4)(e). Delaware:  Expunged records may be disclosed to law enforcement officers acting in the lawful performance of their duties in investigating criminal activity where the person whose record was expunged is a suspect of a felony or for an application to be an employee of a law-enforcement agency by the person whose record was expunged.  Del. Code Ann. tit. 11, § 4376(a). District of Columbia:  Records sealed on grounds of actual innocence may be opened only upon court order based on a showing of compelling need or by the person who is the subject of the records, D.C. Code § 16-806(a); all other sealed records may be made available to a prosecutor or law enforcement agency for any lawful purpose.  § 16-806(b) (provides examples of lawful purposes). Federal:  Makes no provision for sealing or expunging non-conviction records. Florida:  Sealed and expunged records available to criminal justice agencies for criminal justice purposes or criminal justice employment purposes.  Fla. Stat. §§ 943.059(4), 943.0585(4). Georgia:  Restricted criminal history record information is available to “criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the [Georgia Crime Information Center]),” and sealed court records may be accessed by criminal justice agencies.  Ga. Code Ann. § 35-3-37. Guam:  Sealed records accessible to law enforcement agencies.  8 Guam Code Ann. § 11.10. Hawaii:  Expunged records may be divulged upon inquiry by a state or federal agency considering the subject for a position “immediately and directly affecting the national or state security” or a law enforcement agency acting within the scope of their duties.  Haw. Rev. Stat. § 831-3.2(d). Illinois:  “The Department of State Police shall retain records sealed under subsection (c) or (e-5) of Section 5.2 or impounded [expunged] under subparagraph (B) or (B-5) of paragraph (9) of subsection (d) of Section 5.2 and shall release them only as authorized by this Act. . . . Notwithstanding the foregoing, all sealed or impounded records are subject to inspection and use by the court and inspection and use by law enforcement agencies and State’s Attorneys or other prosecutors in carrying out the duties of their offices.”  20 ILCS 2630/13. Iowa:  Criminal history records are generally public, Iowa Code § 22(7), except that court records of cases where judgment deferred are confidential except to county attorneys, courts, the department of public safety, and the department of corrections upon request.  § 907.4. Maine:  Non-conviction records are not generally available to the public after one year, so long as no prosecution is pending and a person is not a fugitive from justice.  Confidential records may be disclosed to criminal justice agencies—or their contractors—for criminal justice purposes, criminal justice employment, and certain research and statistical purposes.  Me. Rev. Stat. Ann. tit. 16, § 703(2); 705. Massachusetts:   Criminal justice agencies “shall have immediate access to, and be permitted to use as necessary for the performance of their criminal justice duties, any sealed criminal offender record information as defined in section 167 of chapter 6 and any sealed information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 17.”  Mass. Gen. Law ch. 276, 100D. Missouri:  Mo. Rev. Stat. § 610.105 authorizes automatic “closure” of records in all cases disposed of favorably to the defendant (nolle prossed, acquitted, dismissed), or where imposition of sentence is suspended pursuant to § 557.011.2(3), upon conclusion of the case, “except that the court’s judgment or order or the final action taken by the prosecutor in such matters may be accessed.”  In addition, the complete record remains available to law enforcement and other governmental entities (e.g., department of revenue for driver license administration and the department of health and senior services facilities for licensing decisions).  Mo. Rev. Stat. § 610.120. Nebraska:  Court, “upon acquittal or entry of an order dismissing a case,” sends notice to state records repository, law enforcement agencies and city and county attorneys, that any information pertaining to the case should be “sealed” and not disseminated to persons other than criminal justice agencies.  Neb. Rev. Stat. § 29-3523(7). New Hampshire: Annulled records are only available to the person receiving the annulment and to law enforcement.  N.H. Rev. Stat. Ann. § 651:5(XI)(c). New Mexico:  Section 5D of CREA (2019), effective January 1, 2020, provides that upon granting an order of expungement, “the court shall cause a copy of the order to be delivered to all relevant law enforcement agencies and courts.  The order shall prohibit all relevant law enforcement agencies and courts from releasing copies of the records to any person, except upon order of the court.”  Presumably they can use it for their own purposes, but the statute is not explicit on this issue. North Dakota:  Bureau of criminal investigation may disclose sealed information to 1) “a criminal justice agency that requests the information for its functions as a criminal justice agency or for use in hiring or retaining its employees”; 2) “a court, on request, to aid in a decision concerning sentence, probation, release pending trial or appeal, or a name change petition”; 3) “[p]ursuant to a judicial, legislative, or administrative agency subpoena issued in this state; or 4) as otherwise provided by law.  N.D. Cent. Code § 12-60-16.5. Ohio:  Sealed records may also be accessed by law enforcement agencies, by other state agencies in connection with applications for certain state employment, and for purposes of a variety of other employments set forth in the statute governing the Bureau of Criminal Identification (state repository of criminal records), including licensed facilities working with vulnerable populations, schools, home health agencies and financial institutions.  See Ohio Rev. Code § 2953.32(D); 109.57 et seq.  Oklahoma:  Expungement is available to those charged with a felony or misdemeanor where the charge was dismissed, there are no other pending charges, the person has never been convicted of a felony, and the statute of limitations has expired on the charges or the prosecuting authority has confirmed that it does not intend to re-file charges.  Okla. Stat. § 18(A)(7).  Expungement means “the sealing of criminal records, as well as any public civil record, involving actions brought by and against the State of Oklahoma arising from the same arrest, transaction or occurrence.”  22 Okla. Stat Ann. § 18(B). Expunged conviction records (including those for pardoned offenses) and records expunged following successful completion of probation remain available to law enforcement and may be used in subsequent prosecutions.  § 18(D).  However, any record that has been sealed may be ordered “obliterated or destroyed” after an additional 10 years.  § 19(K). Pennsylvania:  Expungement is available from the court for non-conviction records where no disposition is indicated after 18 months, or otherwise where the court orders it.  “Such information shall be made available to any court or law enforcement agency upon request, but may be used solely for the purpose of determining subsequent eligibility for diversion programs, probation, and expungement, and for identifying persons in criminal investigations.”  18 Pa. Cons. Stat. § 9122(c).  Records sealed under an “order for limited access” under the Clean Slate Act are not destroyed and may “be disseminated to a criminal justice agency or as provided in section 9121(b.1) and (b.2)” (agencies such as the Department of Human Services for child protective services uses, and to state professional and occupational licensing agencies).  18  Pa. Cons. Stat. § 9122.1. South Dakota:  “Any order of expungement shall be reported to the Division of Criminal Investigation pursuant to chapters 23-5 and 23-6.  The court shall forward a nonpublic record of disposition to the Division of Criminal Investigation which shall be retained solely for use by law enforcement agencies, prosecuting attorneys, and courts in sentencing the defendant or arrested person for subsequent offenses.”  S.D. Codified Laws § 23A-3-31. Tennessee:  Law enforcement records, including records of district attorneys, are excluded from the definition of “public records” destroyed by an expungement order, as are court records and appellate opinions. Tenn. Code Ann. § 40-32-101(b)(1). Wisconsin:  Does not provide for sealing of non-conviction records. Wyoming:  Court may expunge non-conviction records 180 days after dismissal of the proceedings, if no charges are pending.  Wyo. Stat. Ann. § 7-13-1401.  Court sends copy of its order to division of criminal justice, which must maintain them in a manner “reasonably tailored to ensure that the record will not be available for dissemination purposes other than to a criminal justice agency of any state or a federal criminal justice agency, to be used solely for criminal justice purposes.”  Wyo. Stat. § 7-13-1401(j).  Expungement shall not include investigatory files of any local, state or federal criminal justice agency, where those files are being used solely for criminal justice purposes.  Id.   Read more

CCRC opposes rule requiring federal job seekers to disclose some non-conviction records

In March, we described a proposed federal rule that would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  Specifically, OPM proposes for the first time to require individuals applying for federal employment or contracts to disclose whether they have participated in pretrial diversion programs in the last 7 years.  Our letter commenting on OPM’s proposal (reprinted below) points out that diversion is increasingly favored by states as a means of encouraging rehabilitation, and that this goal is advanced by the promise of avoiding the disabling collateral consequences and stigma that follow conviction.  In treating diversions like convictions, the OPM proposal would subvert the many benefits of diversion that have encouraged their increased use by prosecutors in recent years, including allowing for positive community perceptions of the justice system. **Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post.  The letter cites research from the Restoration of Rights Project to show that diversion or deferred adjudication, or both, are authorized by statute in all but one state.  All but eight states provide for record-closing and restoration of rights after successful completion of these dispositions, and an increasing number of jurisdictions now prohibit their consideration by employers and licensing boards.  At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, OPM should be moving to reduce—rather than increase—the collateral consequences of diversion. Finally, the letter argues that OPM’s proposal is ambiguous about whether prosecutor-directed diversion or sealed diversions must be disclosed.  Uncertainty about what diversion records must be disclosed could dissuade people from applying for work (or subject them to unfair punishment for non-disclosure).  Such an ambiguous disclosure requirement will be hard to enforce, and susceptible to court challenge. Our public comment, urging the federal government to withdraw its proposed requirement, is reprinted in full below.  We have also added our name to a comment filed by a large number of organizations concerned with improving opportunities for people with a criminal record. Public comments may be submitted by April 23, 2019 directly at this link or through Generation Progress’ comment tool. April 18, 2019 National Bureau of Background Investigations U.S. Office of Personnel Management 1900 E Street, N.W. Washington, D.C. 20415 Attn:  Donna McLeod Re:  Comments to OPM’s Declaration for Federal Employment Form (OF306) Dear Ms. McLeod, Our organization, the Collateral Consequences Resource Center, promotes public engagement on issues raised by the collateral consequences of arrest or conviction.  We document and analyze law reform efforts aimed at facilitating reintegration for people with a criminal record. We are writing in response to the Office of Personnel Management’s (OPM) request for comments on its proposed revision of the Declaration for Federal Employment, Optional Form (OF) 306, the form for applicants for federal employment and contract work.  See 84 Fed. Reg. 5733 (February 22, 2019).  Specifically, we would like to offer comments on the proposed requirement that applicants disclose whether they have participated in “a pretrial intervention or diversionary program or the like” in the last 7 years.  For ease of discussion, we will refer to these dispositions as “pretrial diversion.” For the following reasons, we encourage OPM to withdraw the proposed requirement for disclosure of diversions. Diversion is Increasingly Favored by States as a Means of Encouraging Rehabilitation Pretrial diversion refers to a procedure or procedures in which a prosecutor or court agree with a person accused of a crime to resolve criminal charges without a conviction, if the person complies with certain conditions.[1]  Thus broadly defined, pretrial diversion is authorized by statute in 49 states and the District of Columbia.[2]  It can also be authorized by prosecutorial consent (as in most situations in the federal system[3]) or by a court rule.  It may or may not require a person to plead guilty as a condition of participation. The trend in the states in the past decade has been to expand the availability of these non-conviction dispositions,[4] “to rehabilitate individuals who have committed crimes, to make reparation to crime victims, and to advance public safety.”[5]  Their rehabilitative purpose is advanced by the promise of avoiding the disabling collateral consequences and stigma that follow conviction. There are two primary types of diversions.  In a pure diversion, a prosecutor offers and a person agrees to be placed in a community-based diversion program and comply with certain conditions.  In a deferred adjudication—available in all but 13 states in at least some cases—a person who has been charged typically agrees to plead guilty, and the court agrees to place the person on probation and not enter a conviction.[6]  After successful completion of a diversion program, the charges are dismissed and the case is terminated. In most states, the person will become eligible to have the arrest and court records closed to the public via expungement, sealing, or some similar procedure.[7] The American Law Institute, the leading national law reform organization, advocates for diversionary dispositions in its 2017 Model Penal Code: Sentencing (deferred prosecution and deferred adjudication), with roots dating back to the 1960s and 1970s.[8]  The American Bar Association, National District Attorneys Association, and major national defender organizations have joined together to urge jurisdictions to support and fund prosecutors and others seeking to develop “deferred adjudication/deferred sentencing/diversion options that avoid a permanent conviction record” for a people deemed appropriate for a community supervision sentence.[9] OPM’s Proposal Treats Diversions like Convictions While state lawmakers, judges, and prosecutors favor diversionary dispositions in appropriate cases to help people avoid the restrictions and stigma of a conviction, OPM’s proposal disfavors them by treating them like convictions. Specifically, the proposal would amend the federal employment and contracting form, OF 306, to require an applicant to disclose not only whether the applicant has current pending charges, or whether, during the last 7 years, the applicant has been convicted of a crime, served time in jail or prison, or been on probation or parole, but also—for the first time—whether the applicant has been “subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”  See 84 Fed. Reg. 5733 (February 22, 2019).  Disclosure, and the likely resulting discrimination, would subvert the many benefits of diversion that have encouraged their increased use by prosecutors in recent years, including “allowing for positive community perceptions of the justice system.”[10] At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, OPM should be moving to reduce—rather than increase—the collateral consequences of diversion (as Indiana and Wisconsin did in 2018 when they prohibited licensing boards from considering arrests not resulting in conviction, or California and Nevada did in 2017 when they prohibited employers from considering an applicant’s successful completion of diversion).[11] OPM’s Proposal is Ambiguous About What Must be Disclosed The language of the OPM proposal does not make clear exactly what must be disclosed. First, the proposal does not make clear whether prosecutor-directed diversions are covered.  While the language of OPM’s notice says “OPM is proposing to add a requirement to admit charges for which one has been placed into a pretrial intervention or diversionary program or the like,” the question itself says disclosure is required if the applicant has been “subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”  Are a prosecutor’s diversion conditions “court specified”? Second, the proposal does not make clear if diversions must be reported if the record has been sealed under state law.  While the OF 306 states that a person may omit “any conviction for which the record was expunged under Federal or state law,” the proposal does not amend that section or otherwise make clear whether a person whose diversion was expunged must nonetheless disclose it.  Whether or not it is intentional, the failure to authorize applicants to omit expunged diversions perversely results in harsher treatment of diversions than convictions.  Moreover, the term “expunge” does not have a commonly accepted definition, and many states use other terms such as seal, erase, annul, or set-aside to describe record-closing relief.[12]  States also give differing effect to these terms, ranging from a limited sealing to full destruction of the record.[13]  Assuming expunged diversions may be omitted on the same basis as expunged convictions, may these dispositions also be omitted?[14] This lack of clarity has real consequences.  A false statement on the OF 306 can be grounds for rejection, termination, or criminal prosecution for false statements under 18 U.S.C. § 1001.  Therefore, uncertainty about whether or not prosecutor-directed or sealed diversions must be disclosed could dissuade people from applying for work (or subject them to unfair punishment for non-disclosure).  Moreover, such an ambiguous disclosure requirement will be hard to enforce, and susceptible to court challenge. Because the proposed requirement for disclosure of diversions is ill-advised as a matter of policy and legally problematic, we respectfully encourage OPM to withdraw it.  At the very least, OPM should amend the language to clarify whether prosecutor-directed diversions and records that have been sealed must be disclosed. Thank you for your consideration. Sincerely, Margaret Colgate Love Executive Director Collateral Consequences Resource Center [1] See Pretrial Diversion from the Criminal Justice Process, 83 Yale L.J. 827 (1974). [2] See Pretrial Diversion, National Conference of State Legislatures (September 28, 2017), available at http://www.ncsl.org/research/civil-and-criminal-justice/pretrial-diversion.aspx (providing statutes for 48 states and the District of Columbia); S.D. Codified Laws §§ 23A-3-35, 23A-3-36, 23A-27-12.2, 23A-27-13.  The one state that apparently lacks diversion by statute, North Dakota, provides for diversion by court rule.  See N.D. R. Crim. P. 32.2. [3] See United States Attorneys Manual, § 9-22.000 et seq.; 18 U.S.C. § 3607(a). [4] See Margaret Colgate Love, Alternatives to Conviction: Deferred Adjudication as a Way of Avoiding Collateral Consequences, 22 Fed. Sent’g Rep. 6, 7 (2009) (finding that deferred adjudication schemes “are statutorily authorized in over half the states”). [5] See Model Penal Code: Sentencing §§ 6.03, cmt. (2017). [6] See Margaret Love, Joshua Gaines & Jenny Osborne, Forgiving & Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights, Collateral Consequences Resource Center, at 13-14 (August 2018), available at https://ccresourcecenter.org/tag/forgiving-and-forgetting/. [7] Our research indicates that 42 states allow record-closing for diversion, including deferred adjudication where available, either explicitly or by allowing record-closing for dismissals without excluding diversion or deferred adjudication (some states have additional eligibility requirements such as waiting periods and ineligible offenses).  See Restoration of Rights Project, Collateral Consequences Resource Center, Chart 4 (“Judicial Expungement, Sealing, and Set-aside”), available at https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/; State Profiles, available at http://restoration.ccresourcecenter.org/.  Eight states do not provide for record-closing and restoration of rights after successful completion of diversion and/or deferred adjudication.  Id.  Even federal law provides for expungement of diversions, though on an admittedly fairly limited basis.  See 18 U.S.C. § 3607(a) and (c) (deferred adjudication for first misdemeanor drug possession, and expungement if the defendant was under age 21 at the time of the offense). [8] See Model Penal Code: Sentencing §§ 6.03, 6.04 (2017); Love, Alternatives to Conviction, supra note 4, 22 Fed. Sent’g Rep. at 7 (‘‘In the 1970s, many states adopted deferred adjudication laws that were evidently inspired by the Corrections Articles of the Model Penal Code.”). [9] ABA 2007 Report with Recommendation #103A (Commission on Effective Criminal Sanctions, co-sponsored by the National District Attorneys Association, National Association of Criminal Defense Attorneys, National Legal Aid and Defenders Association). [10] See Erica McWhorter & David LaBahn, Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79 Alb. L. Rev. 1221, 1239 (2016).  While it is true that a number of states allow closed records to be reviewed for law enforcement employment and other sensitive positions, federal law already accounts for this concern through more rigorous background investigations and disclosure forms for sensitive, national security, and public trust positions. [11] Ind. Code § 25-1-1.1-6(d); Wis. Stat. § 111.335(4) (certain offenses exempted); Cal. Gov’t Code § 12952; Nev. Rev. Stat. Ann. § 284.281(4) (covering public employment, with exceptions). [12] See Love, Alternatives to Conviction, supra note 4, 22 Fed. Sent’g Rep. at n.4; Love et. al, Forgiving & Forgetting in American Justice, supra note 6, at 25 n. 4. [13] See Restoration of Rights Project, Chart 4, supra note 7. [14] This ambiguity extends to convictions as well, a further problem with the OPM policy that we note but will not at this point address further.  It is a problem in federal law that is not confined to the OPM policy. Read more

Searchable on-line inventories of collateral consequences: How they operate and how they are maintained

There are currently only three on-line collections of collateral consequences, one national and two state-specific (Ohio and North Carolina).  All three can be searched and sorted, and all three are regularly updated, making them indispensable practice tools for lawyers and essential guides for advocates and people with a criminal record.  Each of these inventories is described below by the individuals who helped create them and now administer them.  They explain how the inventories were created and how they are maintained, and how they operate to inform and assist people interested in understanding the legal and regulatory restrictions that affect people with a criminal record, as well as the lawyers and other advocates who assist them. Note that the three inventories each deal differently with the problem of linking specific consequences with the crimes that trigger them.  Ohio’s CIVICC inventory has the greatest granularity, allowing searches by specific provision of the state criminal code.  North Carolina’s C-CAT inventory is somewhat less specific, linking specific collateral consequences with the “crime characteristics” that make the consequence applicable, including the type and degree of crime.  The national inventory (NICCC) is less specific still, stating triggering offenses for each consequence in terms of broad categories of crimes (e.g., “any felony” or “crimes of moral turpitude”).  This approach not only reflects the way most state laws imposing collateral consequences are drafted (Ohio consequences are a conspicuous exception), but it also has the advantage of allowing cross-jurisdictional comparisons and analysis. The descriptions that follow confirm that a great deal of time and money, not to mention the commitment of dedicated and skilled professionals, goes into keeping the inventories current, given the passage of new laws every year.  Thankfully, much legislating nowadays is in the direction of helping people avoid or mitigate these consequences, through judicial certificates and record-sealing mechanisms, rather than imposing further burdens and restrictions.  (See the CCRC report on 2018 laws, and its recent interim survey of laws enacted already in 2019.)   NATIONAL INVENTORY OF COLLATERAL CONSEQUENCES (NICCC) by Josh Gaines (CSG) The National Inventory of Collateral Consequences of Conviction (NICCC) is a searchable online database that catalogs collateral consequences imposed by the statutes and regulations of all 50 states, the federal system, Puerto Rico, and the District of Columbia and U.S. Virgin Islands.  The NICCC was originally commissioned by Congress in 2007, and compiled over a four-year period by the American Bar Association’s Criminal Justice Section.  In 2017 the Council of State Governments Justice Center took charge of the project’s maintenance under the National Reentry Resource Center, a project of the Bureau of Justice Assistance.  In 2018, after updating content and reformatting the original structure to facilitate access and use, the Justice Center re-launched the NICCC. Based on lessons learned from the project’s earliest years, the 2018 overhaul rebuilt the NICCC website by significantly revising the database’s structure and functionality. The new format improves the NICCC in two major ways:  1) It expands access to a broader audience of criminal justice stakeholders, particularly reentry service providers and justice-involved individuals, and 2) it helps promote the future viability and sustainability of the NICCC. The first improvement was a response to the growing demand for collateral consequences information from stakeholders with less formal legal knowledge than the policy-makers and legal practitioners that the NICCC was originally designed to serve.  The solution was to identify each consequence in the database through a set of searchable plain-language keywords that point to the various rights, benefits, opportunities, and fields of employment the consequence impacts.  More intuitive search features were also added to make it easier for users to find relevant consequences regardless of their level of technical expertise.  Additionally, the way that consequences are described in the database was significantly revised to support the new search features and make the information easier to understand. The second improvement was a response to the realities of maintaining a database as enormous and complex as the NICCC, which catalogs over 40,000 provisions of law that are always changing from year to year.  The challenge was to organize the data in a way that would create an efficient review and updating process, without significantly compromising the utility of the database or its content.  The addition of keywords and other ease-of-use features went a long way toward making this possible. But the biggest obstacle to efficient maintenance was determining how to maintain the statutory and regulatory text accompanying each entry that would need to be updated as the laws change. That challenge was resolved by eliminating statutory text and instead providing direct links to state or trusted sources of law.  In addition to solving a major maintenance hurdle, this approach has the added benefit of presenting users with the most current version of the law rather than a potentially out-of-date statutory excerpt. Over a year’s worth of work went into implementing these changes and initial reactions have been overwhelmingly positive. The NICCC is receiving increased attention from both policymakers and the reentry community, and improvements to accessibility have positioned the Justice Center to provide effective outreach and training about the NICCC and collateral consequences to a far broader audience.  The improvements will also allow the NICCC, going forward, to remain as current as states’ legislative schedules permit. Work on the NICCC, and the engagement surrounding it, has demonstrated the continued need for reliable, current, and accessible information about collateral consequences.  The number of collateral consequences, and of people subject to them, continues to grow even as states take steps to mitigate the negative effects of a criminal record.  Inventories like the NICCC shine a spotlight on these barriers, increasing their profile in policy discussions, and providing various users with critical information that was largely unavailable before.  The continued maintenance and refinement of the NICCC aims to build on these achievements with aid and input from stakeholders across the criminal justice community.   NORTH CAROLINA’s C-CAT by John Rubin (UNC-SOG) In 2012, the Indigent Defense Education Program at the School of Government, The University of North Carolina-Chapel Hill, launched the Collateral Consequences Assessment Tool, which we call C-CAT for short. C-CAT is a searchable database, accessible online at no charge, of formal collateral consequences imposed or authorized by North Carolina law. Each entry includes a description of a specific consequence, such as revocation or suspension of a job license, along with the characteristics of the crimes that trigger the consequence, whether the consequence is mandatory or discretionary, and the duration of the consequence, among other information. Initially, we thought the tool would be of greatest use prospectively, helping criminal defense attorneys, judges, prosecutors, and others in the criminal justice system understand the potential repercussions of criminal convictions of different offenses. We learned that many others use the tool, including professionals assisting with reentry of people who already have a criminal conviction. The tool also has helped policy makers understand the magnitude of the barriers that collateral consequences pose. An important takeaway for a resource like C-CAT is that it requires ongoing work and funding. We developed C-CAT with financial support from the Z. Smith Reynolds Foundation for legal research and technical assistance. Individual donations have so far enabled us to maintain the database and employ a research attorney to keep the law up to date. Based on feedback from reentry professionals and other users who are not lawyers, we also believe it would be worthwhile to develop a more user-friendly “C-CAT 2.0.” The strength of C-CAT is that it accurately and thoroughly untangles the extensive, complicated, and sometimes bewildering tangle of laws that impose collateral consequences.  To develop, maintain, and improve a tool such as C-CAT, ongoing funding is essential. Fortunately, the Indigent Defense Education Program at the School of Government is currently able to handle the load. Given the importance of understanding the impact of collateral consequences for justice-involved individuals, we continue to believe the end-product is worth the effort.   OHIO’s CIVICC by Pamela Thurston (OJPC) The Ohio CIVICC database is an ongoing project of the Ohio Justice and Policy Center (OJPC, which provides database content) in partnership with the Ohio Public Defender’s office (OPD, supplying the technical infrastructure).  The work began in March 2010, and the experimental CIVICC website first went online about a year later.  Currently CIVICC contains 1092 “civil impacts” of conviction, of which 684 have been newly enacted and/or amended since March 2011. CIVICC is an online public resource, anonymous and free of charge.  Its “relational database” structure enables users to see which collateral consequences are linked to which specific offenses under Ohio law.  This approach has been both necessary and possible in Ohio, in part because consequences that affect wide swaths of business activity and employment are triggered by specific offenses listed in the relevant statutes (in some cases more than 100 offenses per consequence).  CIVICC’s two-way search capability adds complexity to the database design and the labor of building it, but the feature is also much in demand.  Currently, more than half of all searches on CIVICC begin with an Offense search.  For each offense that can be either a felony or a misdemeanor depending on the facts, CIVICC displays two lists of related consequences:  one set likely to apply after a misdemeanor conviction for the offense, and the much longer list of impacts that may follow a felony conviction for the same offense. For each civil impact in the database, CIVICC supplies a context and summary name, a note about its duration, whether it is mandatory or discretionary, and a link to the official text of the operative statute or rule.  A detail page for each impact also provides a searchable narrative description, a list of triggering offenses or offense types, and the type of case outcome that will cause it to apply.  Users need to know that many collateral consequences in Ohio can be triggered by events well short of a conviction: some by a conviction that has been officially “sealed” or “expunged,” some by successful completion of a diversion program, and some by mere arrest or indictment. CIVICC was originally intended to be (1) a criminal defense tool, (2) a reentry resource, and (3) an instrument for analyzing and shaping public policy.  Experience has shown that it is in fact used for all these purposes.  System reports show that online queries come from community organizations, employers, courts, government agencies, public library users, public defenders, treatment providers, law firms and academic institutions, both within and outside Ohio.  OJPC’s own use of CIVICC has included helping individuals with criminal record to obtain record sealing, expungement and/or certificates of relief from Ohio courts; helping community colleges align their course offerings and career guidance with the needs of individual students; helping employers and workforce agencies avoid the twin hazards of over- and under-inclusion; and supporting constructive policy change through public reporting,[1] amicus briefs and legislative testimony. Capacity limits, both financial and human, present the greatest challenges to CIVICC’s ideal completion and vitality.  OPD consistently devotes tremendous electronic resources to hosting CIVICC and keeping it sound; but ever-tighter budget restrictions limit its capacity to make technical improvements in logic and interface.  For OJPC, project grants funded CIVICC’s initial design and construction but could not sustain it as a public utility.  Current funding for database content comes from a publicly-bid contract with the Ohio Department of Rehabilitation and Corrections – a sensible approach because that agency leads the statewide Ex-offender Reentry Coalition, whose public members are among CIVICC’s most constant users.  The state contract funds about 1100 hours of work on CIVICC per year.  In a state with a less active legislature and a less complex agency infrastructure, 1100 hours of qualified attorney time might well keep CIVICC accurate and up to date.  Ohio, however, proliferates new and amended laws and rules at a dizzying pace.  CIVICC presently contains 1149 criminal offenses and 1092 civil impacts, embodied today in 43,677 database records.  With this many records and the rapid pace of legislative and regulatory change, 1100 attorney-hours are not enough to complete the database expansion still needed and also ensure the timely updating of its existing content. This tension could evaporate if the Ohio legislature and regulatory agencies were to heed the voices calling for a reduction in collateral consequences in lieu of their continual expansion.  I don’t anticipate that happening soon, but several legislative changes in recent years have diminished CIVICC’s website traffic by reducing the number of people who need to use it – a positive sign.  Further changes in law might address concerns about the proliferation of “informal” collateral consequences.  New laws providing for automatic expungement of many convictions after a specified number of years – a change consistent with research findings – would greatly restrict the opportunities for excluding workers based on a criminal record, whether formally or informally.  Until such changes occur, however, I believe CIVICC will be a needed resource in Ohio.   [1]  A recent example is the report Wasted Assets: the cost of excluding Ohioans with a record from work,” by Michael Shields of Policy Matters Ohio and Pamela Thurston of Ohio Justice and Policy Center, http://bit.ly/WastedAssets. 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New drug policy center blends scholarship and public engagement

The Drug Enforcement and Policy Center (DEPC), which is housed at the Ohio State University Moritz College of Law, focuses on promoting and supporting interdisciplinary, evidence-based research, scholarship, education, community outreach and public engagement on the myriad issues and societal impacts surrounding the reform of criminal and civil laws prohibiting or regulating the use and distribution of traditionally illicit drugs.  DEPC examines the impact of modern drug laws, policies and enforcement on personal freedoms and human well-being, giving particularized and sustained attention to analyzing the rapid evolution of marijuana laws and the impacts of state-level reform efforts.  DEPC strives to advance scholarship from across academia, while also working with government actors, legal practitioners, public policy advocates and other stakeholders, in order to help shape and thoughtfully enrich public conversations about the intersecting fields of drug policy and criminal justice reform. Questions relating to drug enforcement and policy intersect with collateral consequences in any number of ways.  One obvious example involves the on-going robust discussion of whether and how marijuana reforms at the state level should incorporate distinct provisions for the expungement of past marijuana convictions – a conversation now taking place in New Jersey as that state prepares to vote on legalization.  The Executive Director of DEPC, Professor Douglas Berman, wrote on this topic last year in his article for the Federal Sentencing Reporter titled “Leveraging Marijuana Reform to Enhance Expungement Practices.” Another important question relates to whether people with a criminal record (including for long-ago drug crimes) should be barred from working or otherwise participating in the lucrative marijuana industry. But other important (and uncertain) intersections abound.  For example, given the large number of drug arrests annually, are non-conviction records distinct and distinctly important in the drug enforcement arena?  We expect to consider this issue in our study of non-conviction records presently underway.  Also, given the tendency of some employment restrictions and other collateral consequences to focus on certain types of prior convictions, do past drug offenses present a uniquely problematic barrier for reentry?    DEPC is eager to help develop and promote research on these kinds of critical topics (and many more). Read more