Category: Policy

CCRC’s First Newsletter

Dear Subscribers, We write with an update on our continued work to promote public discussion of restoration of rights and opportunities for people with a record. Highlights from this year’s work are summarized below, including roundups of new legislation, case studies on barriers to expungement, policy recommendations, and a new “fair chance lending” project to reduce criminal history barriers to government-supported loans to small businesses. We thank you for your interest and invite your comments as our work progresses. Fair Chance Lending Starting a small business is increasingly recognized as a pathway to opportunity for individuals with an arrest or conviction history—particularly given the disadvantages they face in the labor market. Yet many structural barriers remain to these individuals, including from a series of little-known federal regulations and policies that impose broad criminal history restrictions on access to government-sponsored business loans, notably by the U.S. Small Business Administration (SBA). To illuminate and help reduce these barriers, our organization recently launched a new “Fair Chance Lending” project. We hope to show that—rather than broadly exclude individuals with a criminal history—officials should draw record-based restrictions as narrowly as feasible, facilitate access to resources, and celebrate entrepreneurial efforts, consistent with growing national support for reintegration and fair chances in civil society. The SBA’s record-related lending policies came into focus in the spring of 2020 when the agency imposed remarkably broad criminal history restrictions on hundreds of billions in financial relief for small businesses and nonprofits authorized through the CARES Act in response to COVID-19. We researched the issues in detail and joined a large bipartisan group of organizations calling on the SBA to revise its restrictions. This project is a continuation of that work, with an expanded look at small business loan programs more generally. Reintegration Reform Returns to Pre-Pandemic Levels in First Half of 2021 CCRC staff in July completed a roundup of record relief legislation in the first half of 2021. Thirty states enacted 101 pieces of legislation to mitigate collateral consequences. The legislation includes work in restoring access to voting rights, record relief, limiting the influence of criminal records in issues of employment and licensure, housing, and many other areas. Much of this new legislation was quite significant. For example, 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. Connecticut enacted an automatic record clearing law and limited ineligibility for voting and jury service to the period of actual incarceration for a felony. New Jersey enacted the most comprehensive fair chance housing legislation to date. Arnold Ventures highlighted our roundup of new state legislation in this article. While much of the action came from state governments, the Biden Administration took some steps to mitigate collateral consequences. However, Congress has continued a decade long trend of little activity in this area. Given the health and economic harms of the pandemic, there is a particular need for state and federal lawmakers to adopt the policies recommended by CCRC to support opportunities for people with a record (see Reintegration Agenda below). Marijuana Expungement and Legalization in Early 2021 CCRC in the Spring partnered with the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law to document and produce maps and graphics about recent state marijuana legalization and criminal record expungement policies. The report covers four states (New Jersey, New Mexico, New York, and Virginia) who legalized recreational marijuana in 2021 and included automatic expungement provisions into their legislation. Further, all four states also included legislation to promote social equity, primarily through directing tax revenue and legal marijuana business opportunities into communities most affected by criminal law enforcement. Access Barriers to Felony Expungement by Petition CCRC has started to take a closer look at state-by-state barriers to expungement, partnering with Beth Johnson and the Rights and Restoration Law Group (RRLG) to create a survey of barriers to expungement. The survey covers barriers in four primary areas: resources and knowledge, eligibility, process, and effectiveness.  We expect that detailed case studies across multiple states will expand understanding of these barriers and help drive policy change.  When these case studies reveal the daunting barriers to petition-based felony expungement that, as a practical matter, limit relief to a small percentage of those eligible — barriers that may be difficult and costly to overcome — it may encourage adoption of automated relief systems. 1. The Case of Illinois In February RRLG produced a case study of Illinois, using this survey. While Illinois legal aid resources are well-funded and standardized application forms are used statewide, most courts do not inform defendants about the availability of sealing as required by law. In addition, complete and accurate criminal history records are hard for individuals to obtain because the Illinois courts are decentralized. While eligibility for felony sealing is very broad, and waiting periods are brief and uniform for all eligible offenses.  However, the waiting period begins anew with any new conviction, including even misdemeanor driving offenses.  As to process barriers, the study found that many specific aspects vary from jurisdiction to jurisdiction, and frequently impose unnecessary burdens on petitioners.  Finally, on effectiveness, the study found that while most public and private employers and licensing agencies are prohibited from considering sealed records by the state human rights law, regulated employers that are required to do background checks are broadly exempted and there is no single source of information to identify those exempted employers. In addition, courts that sell their records in bulk to background screeners do not monitor purchasers to ensure that sealed records are removed. There is no private right of action for unlawful disclosure of sealed records. 2. The Case of Utah  CCRC partnered with Noella Sudbury in July to continue our series of case studies. Noella also used the survey tool to analyze Utah’s expungement law and policy in terms of four categories: resource and knowledge, eligibility, process, and effectiveness. As Utah moves to implement automatic expungement for non-conviction and misdemeanor conviction records, the time seems ripe for tackling barriers to the petition-based process for felony expungement in Utah.  Access to legal aid for expungement services is extremely limited, particularly in rural areas, and eligibility criteria are extremely complex and confusing.  Before filing a petition for expungement in court, individuals must first apply for and obtain a certificate of eligibility from Utah’s Department of Public Safety for each offense sought to be expunged, a process that is costly, burdensome, and time-consuming.  Certain state agencies continue to have access to expunged records, and Utah’s courts, like many others, sell their records in bulk to third parties, including background check companies, and there is no private right of action for unlawful disclosure of expunged records. CCRC currently has a team of practitioners studying the expungement process in Tennessee, and we hope to have a report on that state before the end of the year. A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, and Employment As national and political support grows for more beneficial policies in reintegration, and states continue to implement a diverse array of policies, Congress must follow their lead. Federal records continue to hinder people with previous convictions who do not have access to relief mechanisms present in most states. CCRC recommends in this report that the Biden administration and Congress pursue an ambitious agenda in four primary categories; record relief, access to federal public benefits, employment and licensing, and voting rights. The Reintegration Agenda During the Pandemic; Criminal Record Reforms in 2020 and 2021 CCRC’s annual legislative reports have documented enactments authorizing record relief and mitigating collateral consequences. In 2020, 32 states, the District of Columbia, and the federal government enacted 106 legislative bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a criminal record. While these measures represent a slight reduction in legislation as compared to the last two years, given the challenges of the pandemic, they still demonstrate a growing public commitment towards restoration of rights after arrest or conviction. This report offers a comprehensive overview of each state’s legislative efforts, which in conjunction with report cards also published by CCRC, demonstrates which states are making significant progress and which states are lagging in supporting reintegration for people with a record. An interim report for the first half of 2021 showed a return to pre-pandemic legislating, with 30 states and the District of Columbia enacting an extraordinary 101 new laws to mitigate collateral consequences. Six more bills awaited a governor’s signature.  It appears that legislative momentum in support of facilitating reintegration has returned to the pre-pandemic pace of 2019. Overall, at mid-year 2021 we could report that the 30 months between January 1, 2019, and July 1, 2021, 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. Restoration of Rights Project As always, CCRC continuously updates its Restoration of Rights Project project with the most recent law and policy changes for each state around the country. The materials cover loss and restoration of civil and firearms rights; pardon, expungement and other record relief; and consideration of criminal records in employment, licensing, and housing. Our state-by-state guides and 50-state comparisons help individuals, practitioners, policymakers, scholars, and journalists understand the current landscape and advocate for change. The rest of 2021 offers a fantastic opportunity to continue efforts towards reform, and we hope that you will continue to engage with CCRC moving forward. This work has been made possible by the generosity of Arnold Ventures and we thank them for their support. Best wishes, Collateral Consequences Resource Center Margaret Love, Executive Director David Schlussel, Deputy Director Jack Keating, Intern Read more

Federal policies block loans to small business owners with a record

Starting a small business is increasingly recognized as a pathway to opportunity for individuals with an arrest or conviction history—particularly given the disadvantages they face in the labor market. An estimated 4% of small businesses in the United States have an owner with a conviction (1.5% have a felony conviction). Small businesses provide “a vital opportunity for those with a criminal record to contribute to society, to earn an honest profit, and to give back to others.” They also frequently employ people with a record and help reduce recidivism. A growing number of organizations and government programs are devoted to supporting individuals with a record in building their own businesses. Yet many structural barriers remain, including a series of little-known federal regulations and policies that impose broad criminal history restrictions on access to government-sponsored business loans, notably by the U.S. Small Business Administration (SBA).  A recent article illustrates the steep challenges faced by business owners with a record by telling the stories of several entrepreneurs who were either denied an SBA loan or were discouraged from even trying for one because of a dated felony conviction.  One of those entrepreneurs comments: “You might do five years, ten years, one year, but you pay for it until you’re in the grave.” To illuminate and help reduce these barriers, our organization is working to develop a new “Fair Chance Lending” project. We hope to show that—rather than broadly exclude individuals with a criminal history—officials should draw record-based restrictions as narrowly as feasible, facilitate access to resources, and celebrate entrepreneurial efforts, consistent with growing national support for reintegration and fair chances in civil society. The SBA’s record-related lending policies came into focus in the spring of 2020 when the agency imposed remarkably broad criminal history restrictions on hundreds of billions in financial relief for small businesses and nonprofits authorized through the CARES Act in response to COVID-19. The SBA’s pandemic relief programs were massive: in fiscal year 2020, the agency distributed $525 billion through the Paycheck Protection Program (PPP) and $211 billion through the Economic Injury Disaster Loan (EIDL) program. But hundreds of thousands of small businesses and nonprofits were barred by the SBA from accessing these funds through shockingly extensive criminal history restrictions not required or suggested by statute, with disproportionate impacts on Black and Latino/Latinx communities. A recent RAND study found that just one aspect of these restrictions—the disqualification from PPP relief of all businesses with an owner or “associate” with a felony conviction within the previous five years—excluded an estimated 212,655 small businesses with 343,198 employees. When we began to write about SBA’s restrictions on COVID-19 relief shortly after the passage of the CARES Act, our servers crashed because of the level of public interest, requiring us to update our systems. Thousands of business owners emailed us, with a wide variety of disqualifying records and types of businesses, desperate for help, fearful of publicly discussing their predicament lest their backgrounds be exposed. We researched the issues in detail and joined a large bipartisan group of organizations calling on the SBA to revise its restrictions. The SBA, also facing public pressure from impacted individuals, a bipartisan group of lawmakers, and litigation, rolled back most of the restrictions it had imposed, with the Trump Administration loosening restrictions on multiple occasions over the course of 2020 and the Biden Administration making additional changes in early 2021. Despite the massive impact of these restrictions on the first round of emergency relief, the SBA did not initially explain or attempt to justify them. When sued in June 2020, the SBA defended its rule on grounds that criminal history can speak to an applicant’s “higher likelihood of reincarceration” and “potential for misuse of funds.” See Defy Ventures v. U.S. Small Business Administration, 469 F. Supp. 3d 459, 476 (D. Md. 2020). Despite the easing of record-related restrictions on COVID-19 relief, the SBA continues to maintain extensive criminal record barriers in its general business loan and disaster assistance programs which are summarized below. The SBA treats criminal history as a credit risk, despite the absence of any evidence to support that position or statutory authority for it.1 While the agency has awarded a handful of grants in recent years to community-based organizations working with formerly incarcerated entrepreneurs, its general lending programs all but preclude loans to the entrepreneurs themselves. In addition to its various lending programs, the SBA provides training, contracting opportunities, and other forms of assistance to small disadvantaged businesses through the 8(a) Business Development Program, which allows participants to take advantage of set-aside and sole-source contracts to help aspiring entrepreneurs compete for positions as government contractors. The 8(a) Program allows for, and often requires, consideration of applicants’ criminal backgrounds as part of a mandate that applicants have “good character.” In contrast, the SBA’s rural-focused sister agency, the U.S. Department of Agriculture, appears to administer its various lending programs to farmers and ranchers with narrowly-tailored criminal history restrictions tied to specific statutory provisions.2 The SBA’s criminal history restrictions very likely contribute to racial inequalities in the economy. The SBA’s criminal history restrictions on COVID-19 relief led to documented racial disparities. The SBA’s comparable criminal history restrictions in its general loan programs almost certainly have similar effects, particular given the well-documented racial disparities in the instance of criminal records in general. The SBA makes little effort to justify its broad policy-based restrictions, which heightens their contrast with the targeted statutory restrictions that apply to rural-focused lending programs administered by the USDA. The criminal record restrictions in the SBA’s lending programs are described in greater detail below. Criminal record restrictions in the Small Business Administration’s lending programs The SBA 7(a) and 504 programs The SBA’s most common business loan, through the 7(a) program, guarantees a large percentage of a loan provided by a private lender. The SBA’s development company program, the 504 program, provides long-term, fixed rate financing for major fixed assets through Certified Development Companies. Both programs authorize individual loans of up to $5 million. In fiscal year 2020 alone, the SBA provided $22.5 billion in loans through the 7(a) program and $5.8 billion through the 504 program. An SBA regulation makes ineligible for either program “[b]usinesses with an Associate who is incarcerated, on probation, on parole, or has been indicted for a felony or a crime of moral turpitude.” SBA’s policy statement applicable to both programs imposes additional blanket restrictions, also making ineligible businesses with an associate currently under specified forms of diversionary or conditional dispositions, an order of protection, registered with a sex offense registry, or facing any criminal charges in any jurisdiction. This policy statement further provides that various individuals associated with the business must also be “of good character,” as determined by the SBA (this includes any proprietor, general partner, officer, director, managing member of a limited liability company, owner of 20% or more of the equity of the Applicant, Trustor, or any person hired to manage day-to-day operations). Each of these persons must disclose and provide documentation about: (1) any arrests in the past six months; and (2) any criminal offense (excluding minor vehicle violations), any convictions, guilty pleas, no contest pleas, or any placements on pretrial diversion or any form of parole or probation, at any time. All expunged and sealed records must be disclosed. If any person has not satisfied all sentencing conditions (which may include payment of court debt), the applicant is not eligible for a loan. A lender may proceed with a loan (assuming all other requirements are met) if all the documented criminal records are older than six months and involve either: a non-conviction or a misdemeanor conviction not involving a crime against a minor. However, if any person has: a prior felony conviction that was not reduced to a misdemeanor, a prior misdemeanor conviction for a crime against a minor, or, within the previous six months, either a misdemeanor conviction or charges filed, they are required to complete an FBI fingerprint background check and undergo an individualized character determination by the SBA—before a lender may process the loan. It is unknown how often lenders actually proceed with the FBI/SBA process at that point rather than simply deny the application. It is also unknown how often the SBA finds that such a person meets the “good character” requirement in its policy statement. 2. The SBA microloan program The SBA’s microloan program, which provides loans of up to $50,000 through authorized nonprofit community-based intermediaries, imposes narrow criminal history restrictions. The SBA distributed $85 million through this program in fiscal year 2020. Regulations provide that businesses are ineligible only if they have an associate who is incarcerated or under indictment for a felony or crime of moral turpitude, or on probation or parole for certain offenses. The SBA’s policy statement for the microloan program does not impose any additional blanket restrictions or good character requirements, although it vests discretion with the lender to determine whether to lend to an applicant with a criminal record other than the disqualifying records described above. 3. The SBA disaster loan program The SBA’s disaster loan program, which provides long-term, low-interest loans to recover from disasters, also includes criminal history restrictions. First, an applicant is not eligible by statute if an owner was convicted in the previous year of a felony during and in connection with a riot or civil disorder or other declared disaster. Second, the applicable SBA policy statement states that it will not approve a loan if the applicant or principal owner is presently on parole or probation following conviction of a “serious criminal offense” (unless, for partnerships, corporations, and limited liability entities, the offense was unrelated to the business and the individual will divest all interest in the business). Third, the SBA requires that all of the following persons undergo a “character evaluation”: proprietors, limited partners who own 20% or more interest,  general partners, or stockholders or entities owning 20% or more voting stock, if they have any current charges pending, have been arrested in the previous six months, or if they have for any criminal offense excluding minor vehicle violations, any convictions, guilty pleas, no contest pleas, or any placements on pretrial diversion or any form of parole or probation. A detailed explanation about the records must be provided, including unpaid fines and fees. An application can be processed without an FBI fingerprint check only if the disclosed criminal activity “is both minor in nature and was committed more than 10 years ago.” Otherwise, an FBI background check must be completed. Finally, the SBA will make a determination of whether the person is “of good character.” (Note that separate criminal history requirements apply to COVID-19 disaster loans.) *** In the coming months, we plan to continue this work by conducting further research on SBA, USDA, and state policies, convening conversations between stakeholders, and issuing policy recommendations on this important issue. 1 The Small Business Act authorizes the SBA to “verify [a loan] applicant’s criminal background, or lack thereof,” and authorizes the conduct of an FBI investigation of loan applicants. See 15 U.S.C. §636(a)(1)(B).  But neither this provision nor any other law requires that a background check be conducted as a condition of making a loan, much less does it require the agency to treat criminal history as a measure of creditworthiness.  Cf. 13 C.F.R. §120.150(a) (SBA regulation stating that it will consider “character” and “reputation” in determining if an applicant is “creditworthy”). The only statutory criminal history restriction on SBA loan applicants that we can identify is a half-century old exclusion from 7(b) disaster loans of persons convicted in the year prior to application of a felony “during and in connection with a riot or civil disorder.” See Department of Housing and Urban Development (HUD) Act of 1968, P.L. 90-448 § 1106(e). In addition, the SBA, and every other federal agency, is subject to a government-wide provision that can result in disqualification from federal loans and grants for a period of time based on certain drug convictions. See 21 U.S.C. § 862 (denial of federal grants, contracts, loans, and licenses based on court-imposed and mandatory debarments based on convictions for trafficking or possessing controlled substances). 2 Record-related barriers covering USDA lending programs appear to be few and targeted, rooted in statutes, and triggered by specific offenses. See, e.g., 21 U.S.C. § 889 (conviction for planting, cultivation, growing, producing, harvesting, or storing a controlled substance triggers prohibition for that crop year and four succeeding crop years on access various USDA loan, grant, payment and contract programs); 7 C.F.R. § 718.6 (same); 7 U.S.C. § 2209j (permanent or 10-year debarment from USDA programs for fraud in connection with USDA programs); 2 C.F.R. § 417.865 (same). One of the USDA’s business loan programs, for example, the Business & Industry (B&I) Loan Guarantees program, described by the USDA as “similar” to the SBA 7(a) program but targeted to rural businesses, does not appear to contain any additional criminal history restrictions except an optional bank “character” review that is not specifically linked to criminal record. See 7 C.F.R. § 5001.202 (“When applicable, a [lender’s] evaluation [of an applicant] may include the character of persons with management control or a 20 percent or more ownership interest in the borrower.”). In addition, the USDA, like every federal agency, is subject to government-wide provisions that can result in disqualification from federal loans and grants for a period of time based on specific types of criminal convictions. See note 1. Read more

“After Trump: The Future of the President’s Pardon Power”

This is the title of the new issue of the Federal Sentencing Reporter, which is now available online. As explained by the FSR editors in the issue’s introduction, FSR is continuing its tradition of exploring each president’s pardoning practices at the end of their term: This Issue of the Federal Sentencing Reporter shines a light on the state of clemency today, with an emphasis on the federal system and events of the Trump administration.  This Issue thus continues an FSR tradition of exploring federal clemency practices under each president, starting in 2001 after President Bill Clinton created controversies with final-day pardons.  Over the last twenty years, an array of commentators have analyzed the actions (and inactions) of four presidents, each of whom embraced quite different goals, perspectives, and strategies.  In addition to bringing thoughtful new perspectives to recent events, the articles assembled today by guest editor Margaret Love, the indefatigable advocate, scholar, and former Pardon Attorney, offer a roadmap to, in her words, “restore legitimacy to the pardon power and its usefulness to the presidency.”  The editors of FSR are — once again — deeply grateful for Ms. Love’s efforts and expertise. I was honored that the editors again asked me to be guest editor of the pardon issue, which (along with a recent RAND study of racial bias in the pardon process) will hopefully provide useful guidance to the Biden Administration in a period when the uses of the power and its administration are being reconsidered.  The abstract of my introductory essay follows: The guest editor’s introduction aims to provide an overview of Donald Trump’s extraordinary record of pardoning, and a road map to the essays in the Issue. Together the essays discuss ways to restore legitimacy to the pardon power and increase its usefulness to the presidency, by limiting some of the pardon power’s most extreme uses; supplementing the pardon power with statutory mechanisms to reduce prison sentences and mitigate collateral consequences, so that the president is no longer personally responsible for so much routine criminal justice business; and, managing the pardon power in a way that serves the presidency and not the parochial interests of federal prosecutors. All of these ideas and arguments together suggest that the way to restoring pardon’s democratic legitimacy and usefulness to the president lies in shrinking the portfolio of routine chores for which pardon is now exclusively responsible, and in restoring the independence and stature of the pardon advisory process within the Justice Department. It would be both fitting and deeply ironic if Donald Trump’s irregular and undemocratic pardoning led to a more coherent and meaningful use of the constitutional power in the service of an enlightened presidential policy agenda, to a renewed commitment to the historically close relationship between pardon and the justice system, and even to a transformation of the Justice Department’s unforgiving prosecutorial culture. Here are the articles in this new FSR issue: “After Trump: Restoring Legitimacy to the Pardon Power” by Margaret Colgate Love “Transforming the Theater of Pardoning” by Bernadette Meyler “Donald Trump and the Clemency Process” by Matthew Gluck and Jack Goldsmith “Are Blanket Pardons Constitutional?” by Frank O. Bowman, III “Article II and the Pardon Power: Did the Framers Drop the Ball? by Daniel T. Kobil “War Crime Pardons and Presidential (Self-) Restraint” by Daniel Maurer Debevoise’s Holloway Project and “Second Looks”: How Challenging One Discrete Racial Inequity in Federal Criminal Justice Can Help Produce Systemic Change by John Gleeson Judicial Restoration of Rights as an Auxiliary to the Pardon Power by JaneAnne Murray Has the Time Come for Relief for Federal Convictions? by Gabriel J. Chin and David Schlussel The Office of the Pardon Attorney: What Comes Next? by Jeffrey Crouch Second Look = Second Chance: Turning the Tide through NACDL’s Model Second Look Legislation (NACDL report), by JaneAnne Murray et al. Read more

People with records excluded from growing occupations

People with arrest and conviction records continue to demand that employers and policymakers remove unfair barriers to work. Their demands have spurred much-needed legislative change, including “fair chance licensing” laws that reform restrictions on working in occupations requiring a government license or certification. Such changes are crucial to achieving racial equity. Decades of biased policing and charging have left Black and Latinx communities with disproportionately high rates of records, thus compounding the economic disinvestment and other disadvantages resulting from structural racism. In support of fair chance licensing advocacy efforts, the National Employment Law Project (NELP) recently developed a set of short fact sheets evaluating the legal barriers that face people with records who desire to work in growing occupations in eight states–Colorado, Delaware, Indiana, Louisiana, Michigan, Ohio, Oregon, and Tennessee. Given the confusing tangle of statutory and regulatory restrictions in most states, focusing on growing professions in high-demand industries may prove to be an important strategy for state advocates who seek to maximize job opportunities for people with records. While specific economic trends vary, most states have seen job increases in healthcare, education, childcare, and private security. Indeed, many of those jobs were deemed “essential” during the COVID‑19 pandemic. These growing sectors are also government-regulated to help ensure consumer health and safety. Restrictions related to arrest and conviction records, however, are rarely sufficiently tailored to health and safety goals and instead often serve only punitive ends. In addition to preventing formerly incarcerated individuals from moving forward, such policies unnecessarily shrink the workforce and punish the families and communities of color that have been most impacted by mass incarceration. NELP continues to advocate for broad, overarching state fair chance licensing laws to reduce licensing barriers across the board and provide consistency across occupations. However, such overarching laws typically (and unnecessarily) contain exceptions for various professions or must be interpreted alongside other regulatory or statutory restrictions applicable to specific professions or job settings. The result can be that immense licensing barriers to growing professions linger even when overarching laws seem positive. Of the eight states studied, Indiana appears to fall into this category: its general licensing law gets high marks, but it excludes the very professions where demand for skilled workers is highest. Untangling this maze of restrictions can be difficult; these factsheets may assist some state advocates as they seek additional reforms and, ultimately, greater racial equity in employment. Read more

DC’s non-conviction sealing law is uniquely complex and restrictive

Last year, 20 states enacted reforms expanding access to expungement, record-sealing, and other forms of record relief. Many legislatures, including the District of Columbia Council, are considering reform proposals this session. Given the progressive steps taken by the District in the past year to expand opportunities for people with a criminal record to vote and obtain occupational licensing, we are optimistic that the Council will enact significant improvements to its lagging record-sealing law. Compared to states across the country, DC’s record relief law is very prohibitive and unusually complex. First, its non-conviction sealing scheme is “one of the most restrictive” in the country (as we described it in our Model Law on Non-Conviction Records). Second, to seal a misdemeanor conviction, an 8-year waiting period must be satisfied (far longer than most states), and then a series of rules exclude individuals based on a long list of ineligible offenses and a variety of disqualifying prior and subsequent records. Finally, DC allows only a single specific felony conviction to be sealed,1 while 34 states allow a range of felonies to be sealed or expunged. This post explains how DC’s law on sealing of non-conviction records in particular does not fare well in the national landscape. Summary Current DC law is out of step with national trends toward automatic and expedited sealing of non-conviction records at or shortly after disposition (approaches enacted last year in Kentucky and North Carolina, for example). It is also more complex and restrictive than analogous laws in almost every state in three primary areas: The waiting period before a person may apply for sealing a non-conviction record is longer than in most states, and the effect that a prior or subsequent conviction has on extending the waiting period is unusually severe. The provision ruling out sealing for a successfully completed deferred sentencing agreement based on the person’s other record is counterproductive and harsher than the norm. The procedures and standards that apply in proceedings to seal a non-conviction record are more burdensome and restrictive than in any state, differing little from the procedures and standards that apply to sealing a conviction record. D.C. law on sealing of non-conviction records Like most states, DC law makes arrests and charges that do not result in conviction potentially eligible for sealing relief. Like half the states, DC law also requires individuals seeking to seal an arrest record to return to court to file a petition for relief, even if no charges were ever filed. On top of this, DC law requires a two-year eligibility waiting period when the arrest was for a less serious misdemeanor, a four-year waiting period if the arrest was for many misdemeanors and any felony, and a three-year waiting period even if no charges were filed. See D.C. Code § 16-803(b)(1)(A). In addition, many years may be added to the waiting period if an individual has an additional conviction record or pending charges. If the individual has ever been convicted of a felony, the waiting period is extended for a decade after completion of the felony sentence. See §§ 16-803(a)(1)(B), 16-803(b)(1)(B). These lengthy waiting periods may be waived by the prosecutor, but it is not clear how frequently this occurs. While a few states have equally lengthy waiting periods before a felony arrest is eligible for sealing, and a handful of states still disqualify people from sealing non-conviction records if they have a prior felony conviction, DC law stands alone in extending the waiting period based on a long list of prior misdemeanor convictions, wherever and whenever obtained. DC law also provides that non-conviction records resulting from successful completion of a deferred sentencing agreement with the government are never eligible for sealing if the person has a “disqualifying conviction,” defined to include many prior and all subsequent misdemeanors.  §§ 16-803(a)(2), 16-803(b)(2). This creates a substantial disincentive to participating in deferred sentencing agreements, bucking the national trend favoring diversion programs. Comparison with state laws on effect of prior or subsequent record:  Of the 48 states that authorize sealing or expungement of non-conviction records,2 42 states authorize sealing of non-conviction records entirely without regard to an individual’s other criminal record.3 More than half of these states have a streamlined process: either making sealing of non-convictions automatic (16), expedited at disposition (4) or expedited administratively (3). Most of the remaining 19 states authorize sealing of non-convictions within a year of disposition, and do not distinguish between misdemeanor and felony arrests. A few states require a conviction-free waiting period of three years or more before a petition to seal may be granted, and that there be no charges pending.4 But the only state whose analogous law rivals DC’s in complexity and severity is Alabama. Where non-conviction records resulting from diversionary dispositions are concerned, a few states require a longer waiting period before sealing the record, many require that an individual have no pending charges at the time sealing is sought, and a few don’t allow sealing at all. DC law is on the more restrictive end, denying sealing for successful deferred sentencing dispositions if the person has an additional conviction record, including for many misdemeanors. As noted, the clear trend across the country has been to encourage participation in diversionary dispositions by offering sealing upon successful completion, which enhances their beneficial effect on reducing recidivism and enhancing labor market outcomes. 1 DC allows the sealing of a felony conviction for failure to appear. 2 Only one state (AZ) makes no provision at all for sealing non-conviction records, and one other (ME) seals records in the state repository automatically but leaves non-conviction records in court systems open to the public. 3 Three states disqualify a person from non-conviction relief based on the person’s prior record, and two of the three (OK, WV) do so only for prior felony convictions. Only one state (FL) makes any prior conviction disqualifying, and then only if it was obtained in a Florida court. Three other states consider prior record in limited circumstances: One state (RI) disqualifies based on a prior felony conviction for dismissals only, and an additional two states (VA, WA) give courts discretion to deny non-conviction relief based on a person’s prior record. 4 Alabama, Maryland, Missouri, and Oregon. Read more