Category: Policy

Study measures gap between availability and delivery of “second chance” relief

Professor Colleen V. Chien of Santa Clara University has published a major empirical study in the Michigan Law Review that examines the gap between eligibility for and actual delivery of relief from contact with the criminal justice system, a construct she calls the “second chance gap.” (The term is defined with examples here.) Last week, Chien led a team of law students, researchers and data analysts from Santa Clara University in launching the Paper Prisons Initiative, a project that draws on her study’s methodology to estimate this gap for each state’s record relief laws.

During the current wave of criminal record reforms that began around 2013, every state legislature has taken steps to chip away at the negative effects of a record through authorizing or expanding expungement, sealing, and other forms of record relief. At the same time, it has become evident that bureaucratic and structural obstacles prevent many of these laws from achieving their full promise—particularly when they require a potential beneficiary to navigate a complex and burdensome judicial or administrative process.

Last June, Professors Sonja B. Starr and J.J. Prescott published the first broad-based empirical study of a state law limiting public access to criminal records, revealing that just 6.5% of those eligible for relief in Michigan successfully completed the application process within five years. This conclusion has given additional impetus to the movement to make record-sealing automatic: six states now authorize “clean slate” relief for a range of conviction records, 16 states do so for non-conviction records, and clean slate campaigns are underway in several additional states.

In “America’s Paper Prisons: The Second Chance Gap,”  Professor Chien provides a more general perspective on the gap between eligibility and delivery of second chance relief documented for Michigan by Starr and Prescott. In her article, Chien looks at three forms of relief from contact with the criminal justice system—record-clearing, restoration of voting rights, and shortening prison sentences. Based on her analysis, the paper concludes that in many cases only a small fraction of those eligible for relief (usually less than 10%) have received it. Most notably, she uses novel data collection and analysis to estimate that at least 20 to 30 million American adults have non-conviction records that appear to be clearable under existing law but that have not been cleared. In follow-up state-specific papers available on the Paper Prisons Initiative website, she and her team have estimated the second chance expungement gap in convictions relief for a number of states.

I.

The first part of “America’s Paper Prisons” explores the reasons for the “second chance gap”:

In the same way that the accused remain innocent until proven guilty in the U.S. criminal justice system, many second chance programs require defendants to “prove” that they deserve second chances before awarding them. As such, getting one’s second chance through petition-based processes may include enduring a bureaucratic process, amassing information through a variety of sources, and being evaluated by an adjudicative or administrative body. The high cost of doing so in many cases may be insurmountable.

Chien divides the barriers that contribute to the second chance gap into three categories: administrative barriers, like informational and transactional costs; structural barriers, like a requirement to pay court debt and participate in a formal court hearing; and substantive barriers, like perceptions that the costs of the process outweigh its benefits.[1]

II.

The second part of Chien’s paper estimates the second chance gap for an assortment of relief mechanisms, drawing on both original data collection and secondary sources. Chien uses two metrics: the “uptake gap,” which measures the share of individuals over time who are eligible and have not applied or not received relief; and the “current gap,” which looks at the share of individuals at the certain moment in time who are eligible but have not received relief. Her analysis shows, on a nearly uniform basis, that only a small percentage of eligible individuals obtain relief in petition-based programs.

The relief mechanisms she studies confer different benefits, are animated by differing policy objectives, and vary in eligibility criteria and administrative process. Still, a general pattern is clear across the following second chance gaps that Chien presents:

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President Biden orders DOJ to facilitate voting for people in federal custody or under supervision

On election day in 2016, Crystal Mason, a Texas mother of three, cast a provisional ballot. She was unaware that Texas considered her ineligible to vote because she was on federal supervised release at the time. Six months later she was arrested. A year and a half later, she was convicted of voter fraud and sentenced to five years in prison. Mason, who is Black, believes that her prosecution was “politically and racially charged.” An appeals court upheld the conviction, ruling that whether Mason knew she was ineligible to vote was irrelevant to the case against her. She is pursuing further appeals.

At trial, one of Mason’s supervision officers, Ken Mays, testified that he had not informed her that she could not vote in Texas while on federal supervised release because it was not part of standard procedure: “That’s just not something we do.”

Now, a few years later, a new executive order issued by President Joe Biden will change standard procedure to require the notice Ms. Mason never received. The order also directs the Justice Department to facilitate voting for people in federal custody or on supervision who are eligible to vote in their state of residence.

In recent years, there has been growing attention to the racist origins of felony disenfranchisement, to its racially disparate effect, and to how restoration of voting rights strengthens our democracy. This past Sunday, March 7, 2021, was the 56th anniversary of “Bloody Sunday,” an infamous day when Alabama troopers violently beat civil rights marchers—including the late John Lewis, civil rights leader and longtime member of Congress—on the Edmund Pettus Bridge in Selma. While delivering an address to mark the occasion, President Biden announced that he had issued an Executive Order directing every federal agency to promote access to voting.

The Order includes an ambitious directive to the Attorney General to provide voter education materials to hundreds of thousands of individuals in federal custody, under federal supervision, or formerly incarcerated, and to facilitate voting for those who are eligible under state law. See Sec. 9 (“Ensuring Access to Voter Registration for Eligible Individuals in Federal Custody”). This represents “the first time the federal government has ever taken action to ensure justice-involved voters can participate equally in our democracy.”

As Crystal Mason’s case demonstrates, many people with a record lack clear information about their eligibility to vote, due to misinformation and the complexity of state laws and policies governing voting rights for people with a record. (CCRC documents and explains these laws and policies in our 50-state resources.) Further, eligible voters in jail and prison face practical challenges that often make registration and voting difficult or impossible.

Newly-confirmed Attorney General Merrick Garland will surely direct sufficient resources and expertise to implementing this directive. The result could be a radical expansion of voting education and access for millions of individuals with federal criminal records, with ripple effects benefiting tens of millions with state criminal records. Moreover, given the widespread racial disparities in the criminal justice system, this effort could significantly improve access to voting for Black communities and other communities of color, issues that Garland prioritized at his Senate confirmation hearing.

This article briefly outlines the state of the law governing loss and restoration of voting rights due to conviction. It then reviews the specifics of Biden’s directive, discussing its potential impact on four groups: (1) individuals in the custody of the Federal Bureau of Prisons; (2) individuals detained in jails under contracts with U.S. Marshal Service; (3) individuals under the supervision of the Office of Probation and Pretrial Services in the Administrative Office of U.S. Courts; and (4) formerly incarcerated individuals.

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Virginia poised to enact “transformative” record clearance law

Editor’s Note:  We are delighted to post a description of the broad new record relief bill now awaiting Governor Northam’s signature, by an attorney-advocate who was actively involved in the campaign to secure its passage. Rob Poggenklass describes the ambitious new law and how it came to be enacted, as well as likely next steps for record clearance in a jurisdiction that is swiftly becoming one of the nation’s leaders in record reforms. In addition to automatic sealing, the bill’s provisions for appointment of counsel, elimination of a fingerprint requirement for petitions, and regulation of private screening companies are particularly significant for reducing access barriers and ensuring effectiveness.

The Virginia General Assembly has passed transformative legislation to allow sealing of convictions, including low-level felonies, for the first time in the Commonwealth, and to establish a system of automatic sealing of police and court records for many offenses. About 1.6 million Virginians have a criminal record, which creates significant barriers to employment, housing, education, and other necessities of life.

The legislation reflects a compromise between an automatic expungement bill sponsored by Del. Charniele Herring and a mostly petition-based one brought by Sen. Scott Surovell. It also reflects the sustained work of directly impacted individuals and other advocates who organized and insisted on far-reaching, automatic, and equitable expungement legislation.

The legislation must be signed by Governor Ralph Northam before it becomes law, but the governor is expected to sign it. After the House and Senate could not agree on record sealing legislation during a special session in the fall of 2020, the governor hired a mediator to help negotiate the compromise bill that passed both chambers in 2021.

The legislation includes five key provisions. The bill:

  1. Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession.
  2. Allows for contemporaneous sealing of felony acquittals and dismissals with the consent of the prosecuting attorney.
  3. Provides for sealing a broad range of misdemeanor and low-level felony convictions and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation.
  4. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process.
  5. Forces private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so.

Most provisions of the bill are not currently set to take effect until July 1, 2025, to give the Virginia State Police and the courts sufficient time to update their computer systems. Increased funding or other future action by the General Assembly could change the effective date.

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Business community endorses broad second-chance agenda

The Business Roundtable, which represents the CEOs of major U.S. companies, yesterday issued corporate and public policy recommendations to advance racial equity and justice in the wake of 2020’s triple crises disproportionately impacting communities of color: pandemic, recession, and protests in response to police violence.  The policy recommendations have six themes: employment, finance, education, health, housing, and the justice system.  The justice system policy report was developed with the assistance of CCRC’s Margaret Love and David Schlussel, who provided general advice in connection with the Roundtable’s consideration of second-chance policies.

The second-chance recommendations are extremely encouraging, signaling the business community’s embrace of a broad agenda for alleviating barriers to economic and social opportunities for people with a criminal record.

The Roundtable endorsed specific pending federal legislation dealing with automatic expungement, judicial certificates of relief, fines and fees reforms, and prison education and training programs.  The Roundtable also expressed support for expanding federal and state deferred adjudication (judicial diversion) policies, limiting the dissemination of dated conviction records in background checks, “banning the box” in hiring in all states, and relaxing state and federal hiring and occupational licensing bans.

As part of its action agenda, the Roundtable has committed to partnering on the creation of a business coalition to advance second-chance hiring by employers. Coalition members will exchange best practices, learn from subject matter experts, and develop and deploy tools to improve second-chance hiring, as part of a workforce diversity strategy.

Our recent national report, “The Many Roads to Reintegration,” which surveys the current state of the law on many of the issues addressed by the Roundtable recommendations–including employment, licensing, expungement, judicial certificates, deferred adjudication, and other forms of record relief–is available here.

The Roundtable’s full set of justice system recommendations are listed below.

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The Reintegration Report Card

We are pleased to publish “The Reintegration Report Card,” a new resource that ranks and grades all 50 states on how their laws address voting rights, record relief (including expungement and pardon), fair employment, and occupational licensing for people with a criminal record.

This Report Card supplements our recent 50-state report, “The Many Roads to Reintegration.” That report surveys U.S. laws aimed at restoring rights and opportunities after arrest or conviction. It grades the states on nine different types of restoration laws, including voting rights, six different record relief remedies, and laws regulating consideration of criminal record in employment and occupational licensing. Based on these grades, the report includes an overall ranking of the states and D.C.

This Report Card provides the grades and rankings in a more easily accessible form. It also includes a brief narrative summary of how each state’s law stacks up in the different graded categories. Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its overall ranking. An appendix collects all the grades and rankings (the rankings are also at the end of this post).

We emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries. We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them. In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

The Reintegration Report Card is available at this link. For more details and legal citations for each state, see the Restoration of Rights Project. For essays surveying each topic, consult “The Many Roads to Reintegration.”

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