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: Early release of prisoners During President Obama’s Clemency Initiative, only an estimated 3% of candidates who were eligible under the program’s criteria actually received clemency.[2] Under the federal statute allowing release of federal prisoners for “extraordinary and compelling reasons” (a.k.a. “compassionate release”), just 2 federal prisoners were granted release during a 13-month period in 2015-16.[3] Two California ballot measures, one allowing resentencing and reduction in classification for people convicted of certain theft and drug possession felony convictions (Prop. 47), and another allowing the same for certain marijuana convictions (Prop. 64), had 9% and 3% estimated uptake rates, respectively. Restoration of voting rights In 12 states that require people who have lost their voting rights due to a felony conviction to apply for restoration of their rights—either through a pardon application, judicial restoration procedure, or other administrative process—an estimated 12% of those who had completed their incarceration and supervision time had regained their voting rights over the course of various sampled time periods.[4] Expungement or sealing of criminal records Chien and researchers at Santa Clara and Columbia Universities provide an estimate of the national “current gap” in non-conviction relief. They created a novel dataset of 60,000 criminal histories of gig-economy jobseekers randomly chosen at the state level, with background checks between 2017-18, and analyzed them with reference to the non-conviction record-clearance laws of all 50 states. They conclude that an estimated 28 million American adults have non-conviction records that are either fully or partially clearable (state-by-state results are also provided in the appendices). Estimated uptake rates for the expungement of eligible conviction records are generally low across several states, based on original analysis by Chien and the Paper Prisons Initiative. The following are uptake estimates for expungement of eligible conviction records: Washington (<3%); New York (<1%); North Carolina (~13%); Michigan (6.5%), Connecticut (~<3%); and for the expungement of either conviction or non-conviction records: Oregon (~6%), Colorado (5%), Delaware (6%), Iowa (~22%); Missouri (1%), Minnesota (~6%).[5] III. The third part of the paper examines practices to narrow the second chance gap, with a menu of insights for those designing and implementing record reforms. Chien illustrates how small differences in how a law is drafted or implemented can lead to divergent outcomes, even when the burden of delivering relief is placed on the government. For example, Alaska and Vermont both have rules purporting to restrict the dissemination of non-conviction records after specified time periods. Alaska prohibits online publication of a case sixty days after all charges result in acquittal or non-dismissal. Vermont courts seal records 12 months after a dismissal or finding of no probable cause. But while Vermont non-conviction records almost never appear on background checks, Alaskan records do, likely owing to the Vermont state repository’s decision not to report information on non-convictions even before the 12-month waiting period has run. This section includes a useful discussion of how to draft eligibility criteria to allow for implementation at scale, including avoiding “hard-to-ascertain criteria” that present administrability problems. For instance, determining whether fines and fees have been paid is a constant challenge, very specific offenses grade and classification requirements are not always recorded, and specific disposition criteria are vulnerable to changes in definition and “unclean” (inaccurate or incomplete) data (Table 5). IV. Chien’s final section discusses several open policy and research questions concerning access to relief (the inequities of debt-related barriers to automated relief[6]; the challenges of unclean data and ambiguous dispositions) and the effect of relief (the persistence of sealed records on the internet and in electronic databases[7]; the lack of notice to beneficiaries of automatic relief). Chien also tackles a concern at the intersection of automatic record relief and racial discrimination in hiring. Studies have found that “Ban the Box” policies, which prohibit criminal history inquiries until later in the hiring process, can lead employers—in the absence of this information—to discriminate against young men of color on the assumption that they have criminal records. Professors Jennifer Doleac and Sarah Lageson, who conducted some of these studies, argued last year that a similar harmful effect might result from broad-based automatic sealing laws. Here, Chien distinguishes automatic sealing from Ban the Box by arguing that because automatic sealing does not apply to all records, but only to a subset of records that meet specific eligibility criteria, employers “won’t know what they are missing,” and as a result will be less likely to replace individualized determinations with generalized discrimination. However, Chien acknowledges the need for more data and research, and that implementation matters. Another open question not addressed here is the extent to which access barriers can be diminished short of a full “clean slate” solution. While there is growing support for automatic relief, especially when it comes to restoring voting rights and clearing many criminal records, it seems that individualized review is likely to remain the norm in the near term for questions like early release from prison or sealing a serious felony conviction. In many cases, full discretionary review may be replaced with a presumption in favor of relief, which can be overcome following official objection. Moreover, even when a discretionary decision is required, barriers can be minimized by such measures as assigning administrative tasks to the government and providing counsel to those who need it (two key provisions in Virginia’s “transformative” new record-sealing legislation). Overall, Prof. Chien’s study makes wide-ranging contributions to the field of criminal record relief, bringing to the fore the urgency and challenges of narrowing the second chance gap. CCRC was pleased to assist with Chien’s analysis of state laws for expunging non-conviction records.  We are also a partner on the new Paper Prisons Initiative, which “conducts empirical research to draw attention to the tens of millions of Americans burdened by contact with the criminal justice system despite being eligible for relief from this contact,” and which has already produced reports estimating the “second chance gap” for record relief in 10 states. [1] By comparison, Starr and Prescott attribute the low uptake of Michigan expungements to six likely factors: (1) lack of information; (2) administrative hassle and time constraints; (3) fees and costs; (4) distrust and fear of the criminal justice system; (5) lack of counsel; and (6) insufficient motivation. [2] Chien cites a study of the Initiative by the U.S. Sentencing Commission that attributed at least some part of this gap to President Obama’s decision to apply the criteria announced at the outset of the Initiative more flexibly, and to other administrative issues. In the end, only 5% of those who received commutations satisfied all of the announced criteria. See Glenn Schmitt et al, U.S. Sent’g Comm’n, An Analysis of the Implementation of the 2014 Clemency Initiative (2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20170901_clemency.pdf. [3] Chien notes that the requirement that the Bureau of Prisons support a prisoner’s petition for compassionate release was repealed by the First Step Act in 2018, resulting in a substantial increase in petitions granted by federal courts. In 2020 health risks due to COVID-19 led to many more grants. [4] Chien notes that this estimated percentage may be low because it does not account for the small subset of offenses ineligible for reenfranchisement or for felony-reenfranchisement waiting times. It also does not appear to account for people who have completed incarceration and supervision but remain ineligible to restore their voting rights due to outstanding court debt, in at least some of the states in question (i.e., Alabama, Arizona, Tennessee). [5] The uptake estimates are derived from the Paper Prisons Initiative’s multi-year comparison of estimated eligible records with estimated expungement rates (except the Michigan estimate, which is based on the Prescott and Starr empirical study). These figures, provided by Chien, were updated from the time of her paper’s publication to take into account a November 2020 SEARCH report, and are available on the Paper Prisons website, https://paperprisons.org, within the individual state expungement or sealing gap reports. See Becki Goggins et al.; Survey of State Criminal History Information Systems, 2020: A Criminal Justice Information Policy Report, SEARCH (2020), available at https://www.ncjrs.gov/pdffiles1/bjs/grants/255651.pdf. [6] Notably, Pennsylvania enacted legislation last year eliminating unpaid fines and fees (excluding restitution and a filing fee) as barriers to existing automated and petition-based sealing. [7] Virginia’s newly enrolled record-sealing legislation includes a provision requiring that private companies that buy and sell criminal records to routinely delete sealed records (this is also the current practice of Pennsylvania state courts). The bill creates a private right of action for individuals against companies that refuse to do so. Read more

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. Loss and restoration of voting rights due to conviction Currently, voting rights depend upon state law, for people with both state and federal convictions. The following chart roughly outlines current state law regarding loss and restoration of voting rights due to conviction: Loss of voting rights 2 states, D.C., and Puerto Rico do not disenfranchise based on conviction; 19 states disenfranchise based on a felony conviction with a sentence of incarceration; 3 states disenfranchise upon any conviction with a sentence of incarceration; 21 states disenfranchise upon a felony conviction; 2 states disenfranchise upon a conviction for a listed offense; and 3 states disenfranchise upon a felony conviction or a conviction for certain misdemeanors. Restoration of voting rights 2 states, D.C., and Puerto Rico do not disenfranchise based on conviction; 18 states restore voting rights upon release from custody for the disqualifying conviction; 3 states restore voting rights upon completion of incarceration and parole (or earlier) for the disqualifying conviction; 13 states restore voting rights upon completion of incarceration and supervision for the disqualifying conviction; 10 states restore voting rights upon completion of incarceration, supervision, and payment of (some or all) court debt for the disqualifying conviction; and 4 states restore voting rights only by a discretionary exercise of executive clemency. (In addition to the statutory restoration mechanisms above, voting rights may be restored in any state by executive clemency.) Our more detailed 50-state chart is available here and individual state information with citations are here. A recent report by The Sentencing Project estimates that 5.17 million people are currently disenfranchised due to a felony conviction, with disproportionate impacts on Black and Brown communities. This figure does not include additional people in 9 states who remain disenfranchised solely due to unpaid court debt, a barrier with obvious socioeconomic impacts. There has been a flurry of reforms in this area during the last five years. Just since 2016, 19 states have taken steps to restore the right to vote for people with a felony and expand awareness about eligibility. This year alone, at least 19 state legislatures are considering bills to further expand the franchise for those with a conviction. The House of Representatives passed a bill last week that, if enacted, would limit conviction-based disenfranchisement in federal elections to persons currently incarcerated for a felony conviction. (Congress has the constitutional authority to regulate federal elections, including eligibility to vote based on a conviction record.) President Biden’s new executive order is poised to significantly expand awareness of voting eligibility. Notably, it will also facilitate voting for those who are eligible, a particular challenge for those in custody, and those reentering society. 1.  Individuals in the custody of the Federal Bureau of Prisons First, the executive order directs the Attorney General to “establish procedures, consistent with applicable law, to provide educational materials related to voter registration and voting and, to the extent practicable, to facilitate voter registration, for all eligible individuals in the custody of the Federal Bureau of Prisons.” Of the 151,703 individuals currently incarcerated by the Federal Bureau of Prisons, most are not eligible to vote, since they are probably incarcerated for a felony conviction, which disqualifies them from voting in at least 46 states (plus 2 others, depending on the offense). But those who are eligible can receive indispensable assistance to exercise their voting rights from custody. The executive order further provides that “educational materials should also notify individuals leaving Federal custody of the restrictions, if any, on their ability to vote under the laws of the State where the individual resides and, if any such restrictions exist, the point at which the individual’s rights will be restored under applicable State law.” Our 50-state chart and additional state-specific information is perhaps the most up-to-date national survey of this information. Determining the point at which voting rights will be restored under applicable state law will be fairly straightforward in 40 states. As discussed above, 2 states do not revoke voting rights due to conviction and 18 states restore the vote immediately upon release from incarceration. Another 3 states restore voting rights upon completion of any parole or earlier, and 13 states do so upon completion of any remaining supervision. An additional 4 states never restore lost voting rights unless a person obtains executive clemency (or, in the case of Mississippi, legislative clemency). The governors of 3 of these states currently restore voting rights for many people upon completion of supervision, pursuant to executive orders. However, for the remaining 10 states, determining the point at which voting rights are restored can be quite complex. This is because these 10 states require satisfaction of legal financial obligations associated with a disqualifying conviction to regain the vote: 4 states require payment of all court debt and 6 states require payment of specific types of debts. For people with in-state convictions, there are significant administrative barriers for determining how much is owed, whether the debt falls into a disqualifying category (i.e. restitution, fine, cost, etc.), and whether it is associated with a disqualifying conviction—challenges illustrated in great detail during last year’s federal litigation regarding Florida’s voting restoration system. For people with out-of-state convictions, some states require a person to regain their voting rights in the jurisdiction of conviction, whereas others require that they meet the requirements where they reside and propose to vote. In the latter case, procedures can be unclear or impracticable for demonstrating that court debt for an out-of-state conviction has been satisfied (a problem illustrated in detail by a recent legal complaint filed by the Campaign Legal Center on behalf the Tennessee Conference of the NAACP and five residents). 2.  Individuals in jails under federal authority The second part of Biden’s directive relating to people in federal custody requires the Attorney General to “establish procedures, consistent with applicable law, to ensure the United States Marshals Service includes language in intergovernmental agreements and jail contracts to require the jails to provide educational materials related to voter registration and voting, and to facilitate voting by mail, to the extent practicable and appropriate.” Of the roughly 631,000 people detained in local jails at a given time, about 24,000 people are held for the U.S. Marshals, according to the Prison Policy Initiative (PPI). Therefore, while Biden’s executive order would bring awareness to and facilitate voting for only a small fraction of those held in jails, it could indirectly improve the voting landscape for people in many detention facilities, since federal detainees are held in facilities spread throughout the United States. PPI reports that most people in jail are legally eligible to vote but in practice usually cannot, because of factors such as widespread misinformation about eligibility, a range of barriers to voter registration, and challenges to casting ballots. Some states, like Illinois, have recently enacted legislation to facilitate voting in jails, and the DOJ’s efforts could spur further advancements. 3.  Individuals under federal supervision and formerly incarcerated The next part of Biden’s directive requires the Attorney General to “establish procedures, consistent with applicable law, for coordinating with the Probation and Pretrial Services Office of the Administrative Office of the United States Courts to provide educational materials related to voter registration and voting to all eligible individuals under the supervision of the Probation and Pretrial Services Office, and to facilitate voter registration and voting by such individuals.” The Probation and Pretrial Services Office supervises people in pretrial services, including pretrial release and diversion; and people on post-conviction supervision, including probation and supervised release. On September 30, 2019, there were 237,510 individuals under the office’s supervision, including 108,606 in pretrial services and 128,904 under post-conviction supervision. Many of these individuals are likely eligible to vote, particularly those in pretrial services, and those on post-conviction supervision who are serving a misdemeanor sentence or who reside in the 18 states that restore the vote after release from custody, or in the two states and D.C. that don’t disenfranchise at all. 4.  Obtaining voter identification for those formerly incarcerated  The last part of Biden’s directive requires the Attorney General to “take appropriate steps, consistent with applicable law, to support formerly incarcerated individuals in obtaining a means of identification that satisfies State voter identification laws, including as required by 18 U.S.C. 4042(a)(6)(B).” A “bureaucratic maze” in the federal government leaves many incarcerated individuals without identification upon their release, according to The Atlantic. Helping released individuals obtain ID is important not only for overcoming voting barriers, but for successful reentry more generally, including obtaining housing and employment. Conclusion While President Biden’s executive order will not limit or eliminate conviction-based disenfranchisement under state laws, it has the potential to transform a primary barrier to voting for many people with a record: lack of awareness about who is and who is not eligible to vote. The confusion that currently prevails is laced with intimidation and fear caused by state prosecutions of people who make innocent mistakes about their eligibility, like Crystal Mason whose case was described in the introduction. By implementing a robust program to inform and empower the hundreds of thousands, or millions, of voters or potential voters who pass through federal custody and supervision in the coming years, the Justice Department can help revive its earlier reputation as a stalwart protector of voting rights in the states. Read more

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: Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession. Allows for contemporaneous sealing of felony acquittals and dismissals with the consent of the prosecuting attorney. 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. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process. 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. A push for racial equity gave rise to criminal legal reforms Virginia’s criminal legal system has disproportionately targeted Black people since colonial times. Virginia executed 185 Black people and 46 white people between 1900 and 1969. And while Virginia executed 73 Black people for non-murder offenses, the commonwealth never executed a single white person for a non-murder offense. As of 2018, Black people were 3.4 times more likely to be arrested for marijuana possession in Virginia. Although Black people comprise only 19% of Virginia’s population, 57% of all prisoners housed by the Virginia Department of Corrections are Black. Racial disparities are arguably worse for Virginia’s youth. A majority of children who are suspended from school and detained in local youth jails in Virginia are Black, as are 72% of young people committed to the Department of Juvenile Justice. Years of relentless advocacy from people impacted by the sordid state of Virginia’s criminal and juvenile legal systems finally moved Virginia to act, as well as a constellation of other factors: the global pandemic, the killing of George Floyd, sustained protests of the police in the capital city of Richmond, a new Democratic majority in the General Assembly, and a governor eager to move on racial justice issues because of an embarrassing blackface scandal. In a series of seemingly nonstop legislative sessions since January 2020, Virginia has passed bills to abolish the death penalty, decriminalize and then legalize marijuana, end jury sentencing, end driver’s license suspensions for court debt, end pretextual stops, end presumptions against bail, and dozens of other criminal legal reforms. Because of differing approaches taken by the Virginia House and Senate on expungement reform, however, the lifelong consequences of a criminal record that follow from racially disparate contact with the criminal legal system threatened to remain unaddressed. What’s allowed under current law Virginia is one of seven states that does not allow any record clearance for convictions. Since 1977, the commonwealth has provided for expungement of non-convictions, but only if the subject of the record files a civil suit in circuit court, gets fingerprinted at a law enforcement agency, and convinces a judge that continued dissemination of the record would constitute a manifest injustice. In a 2020 study, the Virginia State Crime Commission found Virginia courts issue an average of 4,000 non-conviction expungement orders each year, in a state where 1.6 million people have at least one criminal record. How this record sealing legislation came about Directly impacted individuals have pushed for many years to update and expand Virginia’s outdated expungement law. Rep. Don McEachin, who previously served as a state senator, introduced a bill in 2010 that would have allowed individuals to expunge numerous convictions after a five-year waiting period. The bill failed in committee, 13–1 (McEachin was the lone dissenting vote). After Democrats recaptured the Virginia House in the fall of 2019, an opportunity arose. Legislators filed two dozen expungement bills in the 2020 regular session, most of which aimed to moderately expand the existing petition-based expungement process. A Senate bill that would have allowed expungement of alcohol and marijuana possession convictions for offenses before age 21 was sponsored by the Senate minority leader and passed that chamber unanimously. But the speaker of the house referred all 24 record clearance bills, including the Senate bill, to the Virginia State Crime Commission, a legislator-led body with full-time staff, to study and report back on the issue. When the governor called a special session in the summer of 2020 to address the pandemic and ongoing protests of police following the death of George Floyd, the list of racial justice issues to address in the criminal legal system was long but the ability to expunge past convictions was among them. During the special session, the Crime Commission produced a report on automatic expungement and a draft bill modeled after Pennsylvania’s Clean Slate Act. Herring carried House Bill 5146, which would have established a system of automatic expungement for non-convictions and more than 100 convictions, including some low-level felonies. The list of eligible convictions was revised by the time the bill reached the House floor, but the bill gathered bipartisan support and passed, 59–37. The Senate bill more closely resembled the bill that had passed the Senate during the 2020 regular session than the House bill. It sought to moderately expand the petition-based system to a few misdemeanor convictions. It passed, 38–2. A committee formed to reconcile differences between the two bills was unable to reach an agreement, and both bills died in the fall of 2020. Advocates supported the automatic expungement approach because of its potential to help more people. Sheba Williams, a Richmond woman whose experience in Virginia’s criminal legal system influenced her to start her own nonprofit, Nolef Turns, testified in support of Herring’s bill during the special session but urged the inclusion of even more offenses. Consumer protection advocates also warned that if the legislature passed a sweeping record clearance overhaul without regulating the private market for criminal records, Virginians would be no better off. After the special session, individuals directly impacted by criminal records organized to form the Virginia Expungement Council. The group held pro-automatic expungement rallies in Richmond and Charlottesville. Members of the group met with individual legislators and educated them on how their records continued to serve as barriers years after they had served their sentences. In January, the General Assembly returned for its regular session, this time in a Virginia election year. Herring introduced the same automatic expungement bill that passed the House during the special session but added a section to regulate private companies that buy and sell criminal records. Surovell introduced a very different bill to expand the petition-based system to include misdemeanor and low-level felony convictions. The House bill passed again with bipartisan support, 60–39, while the Senate bill passed on party lines, 21–18. Rather than wait for a committee of conference, in a highly unusual step Governor Northam stepped in to help the two patrons resolve the differences between the two bills. Herring and Surovell announced a compromise record sealing bill in mid-February. All Democrats and a handful of Republicans voted for the measure in each chamber, sending it to the governor’s desk. What the bill does, explained The bill defines sealing as restricting dissemination of any records related to an arrest, charge, or conviction held by either the Virginia State Police or the court system. Once sealed, records cannot be accessed by most private and public employers, landlords, home sellers, or insurance companies. Those entities will not be able to ask individuals about the existence of sealed records, nor will individuals be required to disclose them. The record sealing portions of the bill can be divided into three types: 1) automatic sealing, 2) contemporaneous sealing, and 3) petition-based sealing.    1)  Automatic sealing: Under the legislation, charges that qualify for automatic sealing include: Charges involving mistaken identity or unauthorized use of identifying information; Deferred dismissals for possession of marijuana and underage possession of alcohol; Convictions for the following misdemeanors: underage possession of alcohol, petit larceny, concealment, trespass after having been forbidden, instigating others to trespass, trespass on posted property, possession with the intent to distribute marijuana, possession of marijuana, and disorderly conduct; and Misdemeanor non-convictions (excluding traffic infractions). There are some exceptions for non-convictions, such as when the charge is dropped as part of a plea agreement. Non-convictions that do not qualify for automatic sealing can still go through the petition-based process. To qualify for automatic sealing, seven years must have passed since the conviction or deferred dismissal, the person must not have any new convictions during that time, and on the date of disposition, the person must not have been convicted of another offense that is ineligible for automatic sealing.     2) Contemporaneous sealing: Felony acquittals and dismissals with prejudice can be sealed by the court immediately at the time of disposition, without filing a petition, if the Commonwealth’s attorney consents. If the prosecutor refuses or contemporaneous sealing is denied by the court, the individual can still petition to clear the record.    3) Petition-based sealing: The greatly expanded petition-based sealing portion of the bill covers a broad range of offenses. Nearly all other misdemeanor convictions, except DUI and domestic assault, are eligible if the person was not convicted of a new crime in the seven years after conviction or release from incarceration. Class 5 felonies (1–10 years in prison), Class 6 felonies (1­–5 years in prison), and felony larceny convictions (except certain DUI offenses) are eligible for petition-based sealing if the person has not been convicted of any offense in the ten years after the conviction or release from incarceration, whichever is later. Other conditions apply to petition-based sealing. For example, there is a lifetime limit of two on the number of sentencing events that an individual can have sealed. A person must also never have been convicted of an offense that carries a maximum of life in prison if they want another low-level felony or misdemeanor conviction sealed. Deferred dismissals for offenses other than marijuana and alcohol possession are also eligible for petition-based sealing. This is a change from the existing expungement law, which was designed to assist “an innocent person’s ability to obtain employment, an education and to obtain credit.” This is significant in light of a 2020 expansion of the deferred disposition law to include crimes against property for anyone not previously convicted of a felony. Court-appointed legal assistance:  Individuals who cannot afford an attorney for help with the petition-based sealing process can request one. The bill establishes a Sealing Fee Fund, which will collect filing fees from individuals who can afford them and use that money to pay court-appointed attorneys. Court debt no barrier:  Notably, court debt will not be a barrier to record clearance under the legislation. Clerks will continue to have access to records for the purpose of collecting court debt owed by individuals on sealed offenses. The legislation also removes the requirement that individuals seeking record clearance go to a law enforcement agency to get fingerprinted as part of the petition process. The prosecutor will supply that information instead. Regulation of private background screeners: The other major component of the bill addresses the regulation of private companies that buy and sell individuals’ criminal records. As advocates warned during the 2020 special session, these records can continue to appear on private background checks long after the public records have been sealed or expunged. The bill takes several steps to alleviate this problem. First, private companies (defined as “business screening services” under the bill) have an obligation to delete sealed records and must take steps to ensure they do not maintain sealed or inaccurate records. Second, these companies must register with the Virginia State Police to receive electronic copies of sealed records. Third, the companies must include the date they collected an individual record when they disseminate it. Fourth, the companies must allow individuals to request a copy of their own criminal history record information from the company. Finally, individuals or the attorney general may initiate a civil action to enforce this section of the legislation, and the companies may be forced to pay damages if they violate it. What’s next for record clearance in Virginia Advocates and legislators are already looking at ways to improve on the transformational bill that just passed. Del. Herring announced in late January that petition-based sealing of more serious offenses is “up next” in 2022. Other potential reforms include moving up the 2025 enactment date, eliminating the lifetime limit on offenses that can be sealed, reducing the waiting periods, and expanding the list of offenses that are automatically sealed to include more charges that disproportionately target Black people. Rob Poggenklass is an attorney at Legal Aid Justice Center in Charlottesville, Va., where he works on policy reforms and represents individuals impacted by the Virginia criminal and juvenile legal systems. He also teaches the Child Advocacy Clinic and Civil Rights Clinic at the University of Virginia Law School.  Previously, Rob led the Race Equity Project at Iowa Legal Aid, where he worked on reducing barriers to employment, housing, education and transportation for people with previous criminal legal involvement in his home state of Iowa.  We first met Rob several years ago when he invited CCRC to file an amicus brief on a petition for certiorari from the Iowa Supreme Court, in a case involving court debt as a bar to sealing that he was arguing while at Iowa Legal Aid. We are happy to see him transplanted to a jurisdiction evidently eager to become a national leader in record clearance.     Read more

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. Business Roundtable: “Justice System” Prison Education & Training “Business Roundtable endorses the Promoting Reentry through Education in Prisons (PREP) Act of 2019, which would strengthen education and workforce training programs for incarcerated individuals.” “Business Roundtable reaffirms its 2019 endorsement of the Restoring Education and Learning (REAL) Act of 2019, which would extend Pell Grants eligibility to inmates.” Criminal Record Relief “Business Roundtable supports expansion of deferred adjudication policies as well as congressional reforms that authorize federal courts to avoid conviction and prison sentences for, and to extend expungement to, a broader class of defendants.” “Business Roundtable  endorses the Clean Slate Act of 2019, which would automatically expunge certain non-violent federal records.” “Business Roundtable endorses the RE-ENTER Act of 2019, which would grant federal courts the authority to issue a certificate of rehabilitation for certain federal crimes.” “Business Roundtable supports reforms to the Fair Credit Reporting Act to restore the seven-year limit on dissemination of conviction records by credit reporting companies, a limit that now applies only to non-conviction records.” Employment & Occupational Licensing “Business Roundtable will partner on the creation of a business coalition to advance second-chance hiring by employers.” “Business Roundtable supports passage of ‘Ban the Box’ legislation in all states, which would require removal of criminal records inquiries from employment applications.” “Business Roundtable supports reforms to federal and state statutes that prohibit hiring or licensure of individuals who have been convicted of, or entered pretrial diversion for, certain crimes unrelated to public safety.” Fines & Fees “Business Roundtable endorses the State Justice Improvement Act of 2020, which would provide technical assistance to states to create more equitable justice system fee structures.” “Business Roundtable endorses the Driving for Opportunities Act of 2020, which would incentivize states to repeal laws that suspend driver’s licenses for unpaid justice-related fees.” Policing: “Business Roundtable calls on Congress to commit to pass bipartisan policing reform that aligns with the principles of data collection and transparency, accountability, standards, training, and community engagement.” Read more

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.” National Ranking of States on Laws Restoring Rights and Opportunities 1 2 3 4 5 5 7 8 8 10 10 12 12 12 15 15 17 Illinois California Utah Minnesota Connecticut Nevada Colorado Delaware New York N. Dakota Pennsylvania N. Hampshire New Jersey Oklahoma Massachusetts New Mexico Indiana 18 18 18 18 18 23 23 23 26 27 27 27 30 30 32 33 34 Louisiana Nebraska Rhode Island Vermont Washington Arkansas Kentucky Ohio North Carolina Idaho Michigan Tennessee Missouri Wisconsin Georgia Mississippi Hawaii 35 36 36 36 39 40 41 42 42 44 44 46 46 48 49 50 51 Maryland Arizona Oregon S. Carolina Maine D.C. Kansas Montana West Virginia South Dakota Virginia Iowa Wyoming Texas Alabama Alaska Florida   Read more