UPDATED: 50-State Chart on Relief from Sex Offender Registration

We have completed an overhaul of our 50-State chart on relief from sex offender registration obligations, to bring it up to date and ensure that it is thorough and accurate.  This chart documents the duration of sex offender registration requirements, as well as legal mechanisms for early termination from such requirements.

In conducting this review, we have identified a handful of states that have, since the chart was last revised in November 2017, expanded the availability of relief from sex offender registration requirements, including for people who have successfully completed diversionary dispositions, people with serious disabilities, and people who are registered based on out-of-state offenses.  These recent changes in the law, incorporated in the chart, are summarized below. Read more

Association of Prosecuting Attorneys joins Restoration of Rights Project as partner

The Collateral Consequences Resource Center is pleased to announce that the Association of Prosecuting Attorneys (APA) has joined as a partner in our Restoration of Rights Project (RRP).  The APA is a membership organization of elected and appointed prosecutors whose mission is to provide training and technical assistance to prosecutors in the United States,  and to facilitate collaboration with criminal justice partners on emerging issues related to the administration of justice.  APA President and CEO David LaBahn participated in the roundtable on non-conviction records held in August at the University of Michigan Law School, a project that relies heavily on the state law research in the RRP.  The RRP’s other partner organizations are the National Association of Criminal Defense Lawyers, National Legal Aid & Defender Association, and National HIRE Network.

The RRP describes current U.S. law and practice concerning restoration of rights and record relief following arrest or conviction in the 50 states, D.C., Puerto Rico, Virgin Islands, and federal system, in three formats: summaries of every jurisdiction, detailed profiles of each jurisdiction, and 50-state comparison charts.  Topics include sealing and expungement, employment and licensing, pardons, voting, jury service, public office, and firearms rights.   People visit the RRP more than 1,000 times every day looking for information about ways to alleviate the burdens of a criminal record.

We are very excited to have this respected national prosecutor organization as a partner in the RRP enterprise, to help bring the RRP’s resources to the prosecutor community, along with a greater awareness of the need for and availability of mechanisms to mitigate the collateral consequences of arrest and conviction.  We look forward to the new perspectives the APA can bring to bear as we work to expand the RRP and make it more useful to all those interested in restoration of rights and record relief.

Commercializing criminal records and the privatization of punishment

The deeply ingrained, indeed, constitutionally protected, U.S. tradition of the public trial and public records has led to a system where there are few restrictions on public access to criminal record information.  Europe, by contrast, is more willing to limit the press in service of important goals such as reintegration of people with convictions. Alessandro Corda and Sarah E. Lageson have published an important new study on how this works on the ground.  Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and The Rise of A New Penal Entrepreneurialism, in the British Journal of Criminology, explains how these traditions play out practically in the United States and Europe.

The paper notes that systematically in the United States, and increasingly in Europe, private actors are “extracting, compiling, aggregating and repackaging records from different sources;” as the authors put it, they are “producing” not merely reproducing criminal records.  In so doing they expand the reach of punishment.  To the extent that any random Joe or Jane can obtain criminal records, then potential associates can make decisions based on records, accurate or inaccurate, showing convictions or even mere arrests or charges which were dismissed, diverted, or led to an acquittal.

The case study of the United States notes that employers, landlords, universities and civic organizations often engage in criminal background screening, but these uses are regulated by the Fair Credit Reporting Act.   However, internet databases scrape and buy official and semi-official sources, criminal, financial, licensing, and many others, and make compilations available for a fee.  These “people search” services, thus far, have successfully claimed they are mere information aggregators not subject to FCRA: “these websites provide disclaimers warning users they are not to use the information for any sort of decision-making (such as hiring or housing decisions) but rather can only use the information for review of public records in an information-gathering spirit.” One wonders: How often might employers, landlords and other decisionmakers skip official FCRA reports and go to an unregulated, perhaps cheaper, web search?  Since the chances of getting caught and punished seem small, one might assume it happens a lot. In addition, the quality of this data is sometimes poor; are such things as expungements and set-asides pursuant to state law are reliably added to the databases?

The result is what the authors term “disordered punishment,” imposition of punishment is not restricted to the state: “Employers, insurers and landlords—but also neighbours, acquaintances and potential partners—ultimately determine whether impactful consequences are imposed and, if so, with what magnitude.”  As a result, the consequences of a crime or an accusation become unpredictable.  In some cases, the consequences will be vastly disproportionate to the underlying conduct, for example, when a serious charge has been made but dropped because authorities believe the accused is innocent or even prove the guilt of someone else.  In such cases, decisionmakers may still conclude that looking for another tenant, employee, or date is the safest course.

The paper does not propose solutions, but the CCRC project on non-conviction records may lead to some reforms that could mitigate the problem.  Perhaps the government should not make some records available at all, perhaps some entities now not subject to FCRA should be included, and at a minimum the law should be set up so that if a conviction has been subject to some sort of set-aside, that fact also must be disclosed.

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.

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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.

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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. 

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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.)

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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).

Starr and Prescott publish groundbreaking empirical study of expungement

Professors Sonja B. Starr and J.J. Prescott of Michigan Law School have released the first-ever broad-based empirical study of the effects of a state law limiting public access to criminal records.   CCRC’s reports have noted the lack of empirical research to inform policies aimed at promoting reentry and reintegration for people with a criminal record—something this study of Michigan’s set-aside law begins to correct.  As its authors observe, “Despite the considerable legislative ferment and the excitement that surrounds ‘clean slate’ initiatives in the civil rights and criminal justice reform worlds, what has been missing from the debate is hard evidence about the effects and true potential of conviction expungement laws.”  A reason for this, as the authors also note, is that by definition criminal records that are the subject of sealing or expungement relief are often unavailable to study.  [Note:  In the summer of 2019, the study was accepted for publication in the Harvard Law Review.]

Using a data-sharing agreement with multiple Michigan state agencies, Starr and Prescott completed an extensive statewide analysis of expungement of criminal convictions in Michigan over the course of decades.  Their analysis reveals three key findings:

  • Uptake:  Just 6.5% of those eligible for expungement successfully complete Michigan’s application process within five years of eligibility.
  • Recidivism:  Expungement recipients “have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws.”
  • Employment:  Expungement receipts see a “sharp upturn” in wage and employment: wages go up on average by 25% within two years, driven mostly by “unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.”

These conclusions just about cover the waterfront of findings we would most like to see about laws that limit public access to criminal records.  Looking at them in reverse order, Starr and Prescott find that expungement is valuable in economic terms for those who receive this relief, and improvements in their economic status will in turn benefit their families and communities.

They also find that those who benefit from expungement present no particular threat to public safety, whether because recipients of expungement are self-selected criminal justice success, because the courts that grant them relief take their likelihood of reoffending into account, or because expungement itself does not tend to increase recidivism risk (and in fact may reduce it).

Finally, and perhaps most disturbingly, few of the people who are intended beneficiaries of Michigan’s expungement law actually obtain this relief, either because they don’t apply for it or because their applications for expungement are not approved.  The authors find six reasons that account for this “uptake gap” (which is greater for people with misdemeanors than felonies):

  • lack of information about the availability of relief;
  • administrative hassle and time constraints;
  • cost (including court filing fees, lost wages, and transportation costs);
  • distrust and fear of the criminal justice system;
  • lack of access to counsel; and
  • insufficient motivation to remove conviction.

In addition, while not a part of the “uptake gap” strictly speaking, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.”  (A person must have no more than one felony conviction and no more than two misdemeanor convictions in order to be eligible for “set-aside” under what is commonly known as the “general expungement statute.”  In contrast to most states, however, most felony convictions are eligible for set-aside.  A Michigan set-aside limits public access to the record, but it remains available to law enforcement and some other government agencies.  See the description of Michigan’s law providing for set-aside in the Michigan profile from the Restoration of Rights Project.)  The authors remark about the eligibility requirements for set-aside in Michigan:

All of these restrictions mean that the low uptake rate we estimated is even starker when viewed in context: it is a very small fraction of a very small fraction. For the past decade about two thousand set asides per year have been granted in Michigan. Meanwhile, each year the Michigan state courts add about 300,000 new criminal convictions. On balance, the population of people living with criminal records is continuing to grow quickly; the set-aside law is like a bucket removing water from an ever-rising ocean.

We note that Michigan’s eligibility requirements are actually more inclusive than those in most states.  See this 50-state chart.

We expect that the findings of this remarkable new study will prove uniquely valuable to advocates and policy-makers considering changes to laws authorizing relief from collateral consequences in the days and years ahead.

Administration wants federal job seekers to disclose participation in diversion

A proposed federal rule, now open for public comment, would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  On February 22, 2019, the Office of Personnel Management (OPM) proposed a new rule to modify its “Declaration for Federal Employment” form (OF–306)—used by federal agencies in applications for federal employment or contracting—to require applicants to disclose not only whether they have been convicted, imprisoned, on probation, or on parole in the last 7 years, as under the current rule, but also whether they have participated in any pretrial diversion or intervention programs during that look-back period.  Such pretrial diversion and intervention programs “allow individuals to agree to comply with specific conditions in lieu of criminal prosecution and upon compliance, to have the charge(s) dismissed.”  No conviction is entered—and in some cases, neither is a plea.

**Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post.

Reform advocates and a growing number of state and federal prosecutors rightfully promote diversionary dispositions as key tools to reduce the collateral consequences of criminal justice system involvement.  But OPM’s proposed rule treats participation in a diversion program—even where there is no admission of guilt—as a marker of criminality.  By requiring candidates to disclose participation in diversion programs, OPM’s new proposed rule subverts the benefits of diversion: “prevent[ing] collateral consequences associated with [an] incident and allow[ing] for positive community perceptions of the justice system.”  See, e.g., Erica McWhorter & David LaBahn, Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79 Alb. L. Rev. 1221, 1239 (2016).

The new disclosure requirement is described further below.  Public comments on the proposed rule may be submitted by April 23, 2019.

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