Category: Policy

“The Many Roads to Reintegration”: A 50-state report on laws restoring rights and opportunities

We are pleased to release a new report describing the present landscape of laws in the United States aimed at restoring rights and opportunities after an arrest or conviction. This report, titled The Many Roads to Reintegration, is an update and refresh of our previous national survey, last revised in 2018. The report covers voting and firearms rights, an array of record relief remedies such as expungement and pardon, and consideration of criminal record in employment and occupational licensing. In each section of the report we assign a grade to each state for each type of relief. We collate these grades to produce an overall ranking on the nine categories that we graded. That ranking is reproduced below. We are encouraged by the amazing progress that has been made in the past few years toward neutralizing the effect of a criminal record since the present reform era got underway less than a decade ago. The last two years in particular have produced a bumper crop of new laws in almost every U.S. jurisdiction. Some of our top performers have been long-time leaders in promoting reintegration, including Illinois, Utah, and Minnesota. But some of the most progressive lawmaking has come from states newer to the field, like Nevada, Colorado, and North Dakota. These and the other states in our Top Ten set an example that we hope will inspire other jurisdictions in the months and years to come. The executive summary of the report is reprinted below. The full report is available in PDF and HTML formats. Voting, Record Relief, Employment & Licensing The report considers remedies for three of the four main types of collateral consequences: loss of civil rights, dissemination of damaging record information, and loss of opportunities and benefits, notably in the workplace.[1] Its first chapter finds that the trend toward restoring the vote to those living in the community—a long-time goal of national reform organizations and advocates—has accelerated in recent years. Further reforms may be inspired by the high-profile litigation over Florida’s “pay-to-vote” system, which shines a national spotlight on financial barriers to the franchise. This chapter also finds that systems for restoring firearms rights are considerably more varied, with many states providing relief through the courts but others requiring a full pardon. The second chapter deals with laws intended to revise or supplement criminal records, an issue that has attracted the most attention in legislatures but that has benefited the least from national guidance. It is divided into several parts, based on the type of record affected (conviction or non-conviction) and the type of relief offered (e.g. pardon, expungement, set-aside, certificates, diversion, etc.). The wide variety in eligibility, process, and effect of these record relief laws speaks volumes about how far the Nation is from common ground. The third chapter concerns the area in which perhaps the most dramatic progress has been made just since 2018: the regulation of how criminal record is considered by public employers and occupational licensing agencies. Legislatures have been guided and encouraged by helpful model laws and policies proposed by two national organizations with differing regulatory philosophies: The Institute for Justice, a libertarian public interest law firm, and the National Employment Law Project, a workers’ rights research and advocacy group. Regulation of private employment has also been influenced by national models, although to a lesser extent and more needs to be done in this area. This report makes clear that substantial progress has been made in the past several years toward devising and implementing an effective and functional system for restoring rights and status after arrest or conviction. The greatest headway has been made in restoring rights of citizenship and broadening workplace opportunities controlled by the state. The area where there is least consensus, and that remains most challenging to reformers, is managing dissemination of damaging criminal record information. Time will tell how the goal of a workable and effective relief system is achieved in our laboratories of democracy. Grading and Ranking the States After our discussion of each type of relief, we assign a grade to each state, D.C., and federal law. In an appendix, we collate these grades to produce a ranking of states and D.C. on the nine categories that we graded.[2] That ranking is below. Our grading judgments deserve a comment. Gabriel Chin’s introduction to the report describes the operational features of a desirable relief system: accessible, effective, coordinated, fair, and administrable. Because we have not studied the actual operation of the relief systems in the report, we cannot say for certain whether or to what extent any of them deliver on these five features. Our grades are based solely on the text of each state’s law, leaving more nuanced judgments to practitioners, researchers, and the law’s intended beneficiaries. Hopefully, these grades will challenge, encourage, and inspire additional reforms in the months and years ahead. National Ranking of Restoration Laws 1 2 3 4 5 5 7 8 8 10 10 12 12 12 15 15 17 18 18 18 18 18 23 23 23 26 27 27 27 30 30 32 33 34 35 36 36 36 39 40 41 42 42 44 44 46 46 48 49 50 51 Illinois California Utah Minnesota Connecticut Nevada Colorado Delaware New York North Dakota Pennsylvania New Hampshire New Jersey Oklahoma Massachusetts New Mexico Indiana Louisiana Nebraska Rhode Island Vermont Washington Arkansas Kentucky Ohio North Carolina Idaho Michigan Tennessee Missouri Wisconsin Georgia Mississippi Hawaii Maryland Arizona Oregon South Carolina Maine District of Columbia Kansas Montana West Virginia South Dakota Virginia Iowa Wyoming Texas Alabama Alaska Florida *On October 5, 2020, some grades and rankings were revised, based on further review for our new resource: “The Reintegration Report Card.” NOTES [1] This report does not cover the fourth main type of consequence: limits on personal freedom—including sex offender registration, civil commitment, and immigration consequences. Relief mechanisms for these are quite complex and built into the law of each issue. We offer a 50-state comparison chart for relief from sex offender registration, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-relief-from-sex-offender-registration-obligations/. For resources on immigration consequences, see https://www.ilrc.org/crimes. With respect to the third type of consequence: loss of opportunities and benefits, this report covers laws providing relief for employment and occupational licensing (the two areas most subject to relief under state law), but does not cover housing, government benefits, or other opportunities. [2] The nine categories graded are: loss and restoration of the vote, pardon, conviction relief (felony and misdemeanor graded separately), judicial certificates, deferred adjudication, non-conviction records, employment, and occupational licensing. In determining these rankings, each of the nine categories was assigned equal weight, except that deferred adjudication and certificates of relief were each assigned 50% weight. We did not grade restoration of firearms rights because the laws were too varied to helpfully compare. Read more

Expungement, sealing & set-aside of convictions: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available. Last month we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report in draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing,” as well as several sections of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society. The sections published so far are “pardon policy and practice,” “deferred adjudication,” “non-conviction records,” and “judicial certificates of relief.” This final installment of the record relief chapter concerns expungement, sealing, and set-aside of conviction records. These remedies alleviate the stigma and discrimination of a conviction record by restricting access to the record and/or vacating the conviction. At the end of the section, we include a report card with grade for each state’s misdemeanor and felony conviction relief laws. We expect to publish the entire “Many Roads” report later this week.  In addition to a series of “report cards” on specific relief mechanisms, it will include an ranking of states for the effectiveness of their overall combined relief schemes. A PDF of the section on conviction relief is available here. The full text follows, with end notes. II(B)(3).  Expungement, Sealing, and Set-Aside of Convictions Tens of millions of Americans have been convicted of a felony or misdemeanor.[1]  This number has grown substantially in the last four decades as a result of the policies of “mass incarceration” and so-called “war on crime,” with disproportionate impacts on black and brown people.[2] The vast network of collateral consequences that can flow from a conviction in the modern era has been described as a new form of “civil death.”[3] In addition to formal legal consequences, the widespread dissemination of criminal records on the internet and in background checks operates as a form of “digital punishment.”[4] In the current era of restoration of rights reforms that begin in 2013, advocates and policymakers have been most active in efforts to authorize or improve laws for expunging, sealing, and setting-aside convictions.[5] At a minimum, such remedies promise to alleviate the stigma and discrimination that are produced by a criminal record in social and economic contexts.[6]  Expungement and sealing laws restrict access to criminal records and sometimes even provide for their destruction.[7]  Set-aside laws authorize a court to “vacate” a conviction in order to signal a person’s rehabilitation, relief that may or may not be followed by sealing the record.[8] Studies have shown that people who obtain this type of record-revising relief experience improved employment outcomes and low recidivism rates.[9] We call these remedies “record-revising” to distinguish them from the “record-supplementing” remedies of executive pardon and judicial certificates of relief discussed in other sections of this chapter. States in recent years have passed dozens of laws authorizing record-revising relief, some for the first time and others continuing to expand existing eligibility and/or improve procedures.[10] Despite the pace of reform, the law remains uneven. In many states and for many types of convictions, eligibility is restrictive, procedures are burdensome, and effect is uncertain.[11] Moreover, only a small percentage of those who are eligible for relief actually obtain it. Scholars attribute this “second chance gap”[12] to multiple factors, including lack of information, cost and complexity of procedures, absence of counsel, and distrust of the legal system.[13] In addition, people who are made to wait up to a decade or more after finishing their sentence to become eligible to apply may no longer want or need relief. Even if people do obtain relief, they typically face daunting challenges in trying to make it effective, including trying to have expunged records removed from the internet and commercial databases.[14] There are few best practices or model laws addressing these forms of relief. While national law reform organizations have endorsed judicial certificates that dispense with mandatory collateral consequences and signal rehabilitation, none has endorsed record-sealing or set-aside.[15] With the lack of national guidance, state laws differ widely. The following discussion is an overview of diverse approaches, with grades assigned at the end of the section for misdemeanor and felony sealing and set-aside provisions in each state. Readers wishing more specific information are invited to consult the appendices and the Restoration of Rights Project. We begin by describing the broad structural categories of record-revising relief currently in effect across the country, then turn to more specific eligibility criteria, procedural requirements (including judicial standards), and legal effect. At the end of the section we grade each jurisdiction’s law on its scope, accessibility, and effect, grading separately for felonies and misdemeanors. Scope of relief by category Looking at record-revising relief for convictions, the 50 states, federal system, and District of Columbia can be divided into five categories: broader felony and misdemeanor relief (13 states) limited felony and misdemeanor relief (21 states) relief for pardoned convictions and for misdemeanors (4 states) misdemeanor relief only (4 states and D.C) no general conviction record-revising relief (8 states, federal system) More than two-thirds of the states (34) now have laws that extend eligibility for record-revision to both misdemeanor and felony convictions, apart from the pardon process. Six states have joined this list in the last two years alone: Oklahoma and Maryland extended sealing eligibility to felonies in 2018, and four of the five states that enacted their first general sealing laws in 2019 extended relief to felonies (North Dakota, New Mexico, West Virginia, Delaware). Of this group of 34 states, 13 have broad eligibility standards that encompass a relatively wide range of convictions.[16] An additional 21 states have more limited eligibility, typically excluding many offenses, with longer waiting periods, and other requirements (e.g., 14 of the 21 states confine felony eligibility to a single conviction).[17] States often apply different standards for felonies and misdemeanors so that some with restrictive felony expungement have quite generous misdemeanor relief (e.g., Kentucky, New Jersey). The next group of four states allows felonies to be expunged, but only if they have first been pardoned.[18] Connecticut relies exclusively on the pardon power to seal conviction records, but the other three states (Georgia, Pennsylvania, and South Dakota) also have misdemeanor expungement laws that do not require a pardon. South Dakota’s 2016 law was the nation’s first automatic conviction-sealing law, although it applies only to Class 2 misdemeanors after a 10-year waiting period.[19] Pennsylvania’s more expansive Clean Slate Act of 2018 put automatic sealing on the map, making a wide range of misdemeanor convictions eligible, also after a ten-year waiting period, and a somewhat broader set of misdemeanors may be sealed by petition. A 2020 Georgia law—in addition to allowing pardoned convictions to be sealed—authorizes “record restriction” and sealing for a range of non-violent misdemeanor offenses after four conviction-free years, allowing up to two such convictions to be sealed in a lifetime. The next group of jurisdictions allows some misdemeanors but no felony convictions to be expunged (Iowa, Montana, South Carolina, Texas, and D.C.).[20] Even for misdemeanors, all but one of these authorities are relatively limited. Most restrictive is Iowa’s 2019 law, which makes only a single misdemeanor eligible if 8 years have passed since completion of sentence, if the person has no other convictions, and if additional requirements are satisfied.[21] D.C.’s law excludes many offenses and has a long waiting period, and Texas and South Carolina make prior convictions or diversion disqualifying. More favorably, Montana allows multiple misdemeanors to be expunged, with a presumption in favor of relief for most offenses, although only one expungement is allowed in a lifetime.[22] The last group of eight states and the federal system lack any general conviction relief, although most have narrow, specialized laws, applicable to minor marijuana convictions (Hawaii[23] and Virginia) or to victims of human trafficking (Alabama, Hawaii, Idaho, Florida, and Wisconsin).[24] Illinois’ sealing law is most expansive in the country. It extends eligibility to all but a few very serious felonies without regard to an applicant’s prior record, after a uniformly brief three-year waiting period. Nevada offers sealing for almost all felonies, the only proviso being a clean record during a graduated waiting period. Arizona permits its courts to “set-aside” or “vacate” most convictions upon successful completion of sentence and discharge, though it does not restrict access to the record. Among the states that extend record-revision to felonies, Maryland is at the other end of the spectrum,[25] authorizing expungement for only three specific felonies (theft, burglary, and drug possession with intent to distribute), after a 15-year conviction-free waiting period.[26] Between these two extremes, there are as many differing approaches as there are states, with scope generally dependent on seriousness of the offense, and eligibility often dependent on prior record and the passage of time. These differing approaches, captured in the grading system that follows this section, can be seen in the state-by-state summaries appended to this report. They are examined in detail in the state profiles from the Restoration of Rights Project. Beyond the general expungement, sealing, and set-aside laws that are the subject of the report cards that conclude this chapter, many states have enacted specialized authorities, often for the two categories already discussed: marijuana offenses and convictions of victims of human trafficking, as well as for youthful offenses. A total of 18 states and D.C. have enacted relief specifically for marijuana, decriminalized, and legalized offenses, including automatic relief in California, Illinois, New Jersey, New York, and Virginia.[27] At least 35 states have a specialized relief law for victims of human trafficking—sometimes covering prostitution offenses only and sometimes covering any offenses resulting from victim status. Several states also authorize their courts to reduce certain felony convictions to a misdemeanor, thereby avoiding the most severe consequences of conviction (e.g., California, Idaho, Indiana, Oklahoma, and North Dakota). Additional eligibility requirements In addition to basic limits on coverage, state laws impose a variety of more specific eligibility requirements, especially for felonies. Typically, certain categories of offenses will be excluded (i.e. higher classes of offenses, DUI, violence, sex, weapons, etc.), or certain people will be excluded based on their past or subsequent criminal record, including prior sealings, pending charges, probation violations, or sex offender registration requirements. Some states make record-closing a one-bite affair, including states with broad and sophisticated schemes like Indiana and Illinois. A number of states have waiting periods of a decade or more, which would seem too late to advance stated legislative goals of reducing recidivism.[28] We considered these and other more specific eligibility requirements in deciding how to grade each state’s law in the report card at the end of this section. Most states require the satisfaction of various forms of court debt, such as fines, fees, restitution, and costs, as a prerequisite to expungement.[29] Recognizing the unfairness of restricting relief to those with means to pay financial obligations, three states have enacted laws since 2018 to alleviate these requirements in the expungement process (Illinois, New Jersey, Washington).[30] In state after state, eligibility criteria are curiously complex, the evident result of expansion and contraction through the legislative bargaining process over a period of years.[31] It is not surprising that among the cleanest and broadest sealing laws in the country are the top-to-bottom schemes enacted in 2019 by New Mexico and North Dakota.[32] Procedural barriers Expungement petitions are frequently difficult, time-consuming, and expensive to prepare, especially without a lawyer. Typically, they require collection of various criminal history records and character evidence, formal service on multiple parties, filing fees, responses to objections, appearances at hearings, service of expungement orders on courts, agencies, and private parties, etc. These challenges have been compounded by limits on and dangers of physical access to courthouse and agencies during Covid-19. Ironically, the governor of Washington vetoed a bill calling for automatic relief precisely because of pandemic-related budgetary challenges, although such a measure would have reduced the need for in-person procedures.[33] Even aside from fees charged to obtain criminal records and run fingerprint checks, filing fees in a number of states may be prohibitively high and unwaivable ($300 in Kentucky and Alabama), while in other states fees have been reduced (from $450 to $280 to $100 in Tennessee) or may be waived. Some courts and agencies have made efforts to assist persons of limited means: Illinois courts and the Office of the State Appellate Defender, for example, publish model forms and instructions for different types of cases and provide guidance for those seeking relief. Once a petition is filed, the court may be required to hold a hearing in all cases (e.g. Michigan), for felony offenses (e.g. Arkansas), if the prosecutor or victim objects (e.g. Maryland), or at the court’s discretion (e.g. Delaware). Relief for eligible applicants may be mandatory, presumed, dependent on the court’s discretion, or require a strong showing of need. In some cases, the law specifies criteria to guide a court’s decision (e.g., Georgia: “the harm otherwise resulting to the individual clearly outweighs the public’s interest in the criminal history record information being publicly available”). In others the court’s discretion is unlimited (e.g., New Jersey), and in still others sealing is mandatory if statutory eligibility criteria are met (e.g., Indiana, Kentucky, Louisiana). In Utah, where most felonies may be expunged after a graduated waiting period, an order must issue unless the court finds that this would be “contrary to the public interest.” The enactment of laws requiring officials to automatically seal some convictions would obviate the need for individuals to apply for relief and thereby avoid the many access barriers that currently depress grant rates and produce the “second chance gap.”[34]  Since 2018, eight states have enacted laws providing for automatic sealing of certain convictions (usually misdemeanors).[35]  Most significantly, beginning in early 2021 California will automatically seal all convictions previously granted relief under the state’s longstanding set-aside authority for misdemeanors and certain low-level felonies, as well as similar convictions going forward.  There have been efforts in other states to streamline the sealing process short of automation through simplified administrative procedures. For example, Delaware mandates relief for people with eligible misdemeanors who present themselves to the state record repository with a set of fingerprints and a copy of their record.[36] Effect of relief The effect of sealing or expungement orders on opportunities restricted by law is unclear in many states. Some sealing laws make clear that they do not relieve firearms dispossession or sex offender registration, but many leave a recipient in doubt about their rights and responsibilities where mandatory restrictions are concerned. It is also true that many record-closing laws purport to authorize a person to deny having been convicted, but this is perilous advice when dealing with entities required by law to conduct a background check or governed by federal law. A few states make clear that expunged or sealed convictions must be disclosed for employment requiring a background check (e.g., Illinois, Indiana, New York). Kansas specifically requires disclosure of expunged convictions in certain licensing and public employment applications (health, security, gaming, commercial driver or guide, investment adviser, law enforcement), and Missouri has a similar disclosure requirement for professional licenses, or any employment relating to alcoholic beverages, the state-operated lottery, or provision of emergency services.   Missouri’s law is one of the few that makes clear that “an expunged offense shall not be grounds for automatic disqualification of an application, but may be a factor for denying employment, or a professional license, certificate, or permit.”  Some states require that even non-conviction records that have been expunged must be disclosed in some contexts (e.g., Alabama, Kansas, Louisiana). State record relief orders are given inconsistent effect in federal law. Some areas of law give effect to one form of relief (e.g., expungement) but not to another (pardon), and vice-versa. Further, whether a specific type of state relief is given effect may differ depending on how the federal rule defines the requisite elements of relief, and whether they apply a federal definition of a term like “expungement.”[37] Recipients of relief face also significant challenges with the proliferation of records on the internet and in commercial databases.[38] Certain companies, including those that conduct background checks, are regulated by the federal Fair Credit Reporting Act (FCRA), whose provisions would seem to prohibit reporting of expunged or sealed convictions.[39]  Despite efforts to compel compliance,  “[d]eficiencies of enforcement mechanisms, a certain degree of ambiguity in regulatory guidance, and practical difficulties in constantly keeping databases up to date make the problem of inaccurate and outdated criminal records hard to eradicate.”[40] Online “people search” services, which collect criminal records and make them available for a fee, have thus far successfully argued they are “mere information aggregators” not subject to FCRA by providing disclaimers that users are not to use the information for decision-making but only “in an information-gathering spirit.”[41] Some states have additional protections that supplement FCRA, notably including California’s Investigative Consumer Reporting Agencies Act, which antedates the federal statute.[42] Indiana’s 2013 expungement law, which post-dates federal FCRA,  prohibits commercial record providers from reporting any expunged convictions even if they have not also been sealed.[43] The Pennsylvania Courts provide a data file each month listing expunged cases that must be removed from private databases under the contract for purchasing court records.[44] With little regulation, the proliferation of records on the internet means that most sealed and expunged convictions will continue to appear in Google searches and persist on websites and databases.[45] People lack the time and resources to track down each place where a record appears on the internet, or the legal skills “to negotiate with, pay off, or sue every company” that profits from it.[46] Report card The following report card grades each state, D.C. and the federal system on their laws providing for sealing or set-aside of felony and misdemeanor convictions. We provide a separate grade for each type of record, since states that provide little if any remedy for felony convictions may be expansive toward misdemeanors. Our grades were somewhat subjective, but in general considered the law’s scope, accessibility (additional eligibility criteria and procedural barriers), and effect. Note that these grades may not correspond exactly with the categories in the map earlier in this section, which were based on structural coverage only. We stress that we have not studied how each of these laws operates in practice, including how difficult it may be to apply without a lawyer or how many people apply for and obtain relief, and our grades therefore may or may not reflect whether and to what extent a particular law actually delivers on its promise. Report card: Expungement, Sealing, and Set-Aside of Convictions State Felonies Misdemeanors AL F F AK F F AZ B B AR C A CA C A CO C B CT B B DE C B DC F D FL F F GA C D HI F F ID F F IL A A IN B B IA F D KS B A KY D B LA C C ME F F MD D C MA A A MI D B MN C A MS D B MO C B MT F B NE C B NV A A NH B A NJ D A NM A A NY D D NC D C ND A A OH C B OK C C OR D B PA F B RI D B SC F D SD C C TN D D TX F D UT C B VT D C VA F F WA B B WV D C WI F F WY D D FD F F   END NOTES [1] See J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2460, 2461-62 (June 2020) (estimating that between 19 and 24 million Americans have felony conviction records and an unknown “but presumably larger” number have misdemeanor conviction records), citing The Economic Impacts of the 2020 Census and Business Uses of Federal Data: Hearing Before the J. Econ. Comm., 116th Cong. 12 (2019) (statement of Nicholas Eberstadt, Henry Wendt Chair in Political Economy, American Enterprise Institute); Sarah K.S. Shannon et al., The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948–2010, 54 DEMOGRAPHY 1795, 1806 (2017); Megan Stevenson & Sandra Mayson, The Scale of Misdemeanor Justice, 98 B.U. L. REV. 731, 746 n.81 (2018). [2] See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration In The Age Of Colorblindness (2d ed. 2011); James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev. 21, 23, 36, 46, 47–48 (2012); Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315, 346–50 (2012). [3] Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L.Rev. 1789, 1811–14. [4] See Sarah Lageson, The Purgatory of Digital Punishment, Collateral Consequences Resource Center (Aug. 17, 2020), https://ccresourcecenter.org/2020/08/17/the-purgatory-of-digital-punishment/. [5] See CCRC’s legislative reports, available at https://ccresourcecenter.org/resources-2/resources-reports-and-studies/. [6] It is not clear the extent to which record-revising remedies operate to remove or alleviate formal collateral consequences such as firearm dispossession and registration. See Margaret Colgate Love et al., Collateral Consequences Of Criminal Convictions: Law, Policy and Practice §§ 7:17 (2018). Federal law frequently does not accord any legal effect to state expungement or record-sealing.  See infra note 37. [7] States use various other terms to describe restrictions on access to criminal records, including annulment (New Hampshire) and erasure (Connecticut), but for simplicity this report settles on the generic terms expungement and sealing and uses them interchangeably unless a more specific meaning is indicated. The functional effect of these remedies also varies from state to state. In some states sealed or expunged records remain available only to law enforcement, which is sometimes required to obtain a court order. In others, public employers and licensing boards may have access, or any private entities authorized by law to conduct a background check (e.g., employers working with vulnerable populations such as the elderly or disabled). In Indiana, an expungement does not limit public access to the record of most felonies, although expunged misdemeanors and non-conviction records are sealed. In some states, “expungement” is indistinguishable from “sealing” (e.g., Louisiana, Kansas, Rhode Island, and Vermont), and in others sealing and expungement are functionally distinct remedies (e.g., Illinois, Pennsylvania). In a few states the law directs that expunged records should be physically destroyed (e.g., Connecticut, Illinois Maryland, Montana, Pennsylvania, North Carolina), although even in these states non-public copies are ordinarily retained in a sequestered court file. [8] States increasingly have enacted laws to augment their set-aside remedy with record-sealing (i.e.,  California, New Hampshire, Oregon, Washington), such that only two states (Arizona and Nebraska) now retain the pure vacatur remedy contemplated by § 306.6 of the 1962 Model Penal Code. [9] See Prescott & Starr, supra note 1 at 2461, 2510-23, 2523-43 (large-scale, empirical study in Michigan finding that people who have their conviction set-aside and sealed have “extremely low” subsequent crime rates, comparing favorably to the general population, and it is “quite likely” that an expungement reduces a person’s recidivism risk below their previous baseline; also those who obtain relief experience a “sharp upturn” in wage and employment outcomes); Jeffrey Selbin, Justin McCrary, & Joshua Epstein, Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Crim. L. & Criminology 1, 9 (2018) (study in California of a random sample of law school clinic clients who received a set-aside or felony reduction to misdemeanor, finding evidence of improved employment rates and earnings). [10] See supra note 5. In 2019 alone, 27 states and D.C. made certain classes of convictions newly eligible for expungement, sealing, or vacatur relief.  Five of those states enacted their first general authority for expunging or sealing convictions (North Dakota, New Mexico, West Virginia, Delaware, Iowa), making record relief available for the first time to thousands of people.  See CCRC, Pathways to Reintegration: Criminal Record Reforms in 2019, 11 CCRC (Feb. 2020), https://ccresourcecenter.org/wp-content/uploads/2020/02/Pathways-to-Reintegration_Criminal-Record-Reforms-in-2019.pdf. [11] See supra note 5; see also Brian Murray, Retributive Expungement, 169 Pa. Law Rev. ___ (Forthcoming 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3617875 (arguing that because expungement was originally conceived through a rehabilitative framework, , many procedural hurdles in the law were intentionally designed to channel relief to those with unusual records of achievement; and suggesting that a retributive approach would support the case for broader eligibility, an obligation on the state to prove ineligibility, and automated relief. ) [12] Colleen V. Chien, America’s Paper Prisons: The Second Chance Gap, Mich. Law. Rev. ___ (Forthcoming 2020). [13] Prescott & Starr, supra note 1 at 2461, 2486-2510 (finding that among those legally eligible for set-aside and sealing in Michigan, only 6.5% obtain it within five years of eligibility; proposing the likely reasons for this low uptake rate). [14] See, e.g., Alessandro Corda and Sarah E. Lageson, Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and the Rise of a New Penal Entrepreneurialism, 60 British Journal of Criminology 245–64 (March 2020). [15] The collateral consequence relief proposals of the American Bar Association (2003), Uniform Law Commission (2010), and American Law Institute (2017), are discussed in the section on judicial certificates, infra _.  The 1962 Model Penal Code endorsed set-aside, and the 1983 ABA Standards endorsed expungement, but neither organization included this relief in their more contemporary proposals. The only model policies on sealing convictions were published in 2019 by a California nonprofit, suggesting four principles: relief should (1) include an automatic relief mechanism; (2) come at or soon after the end of sentence; (3) be focused to maximize safety; and (4) extend to a wide spectrum of offenses. Lenore Anderson et al., Creating Model Legislative Relief for People with Past Convictions, Alliance for Safety and Justice (2019), https://allianceforsafetyandjustice.org/wp-content/uploads/2019/09/Model-Policies-Brief.pdf. [16] Arizona, Arkansas, Colorado, Illinois, Indiana, Kansas, Massachusetts, Minnesota, Nevada, New Hampshire, New Mexico, North Dakota, and Washington. All seal convictions except Arizona, which has a broad set-aside authority that releases the person from “all penalties and disabilities” resulting from the conviction but does not limit public access to the record. Ariz. Rev. Stat. § 13-90. [17] California, Delaware, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, West Virginia, and Wyoming. All seal convictions except Nebraska, which authorizes people sentenced to probation to petition for the conviction to be set-aside, removing “all civil disabilities and disqualifications.” Neb. Rev. Stat. § 29-2264. [18] Relief for pardoned convictions is automatic in three states (Connecticut, Pennsylvania and South Dakota) and by court petition in Georgia. As noted in the previous section on pardon, about a dozen additional states make pardon grounds for expungement. Those states all have separate laws allowing at least some felony and misdemeanor convictions to be expunged or set-aside even if they have not been pardoned. [19] It also covers petty offense and municipal code violations. S.D. Codified Laws § 23A-3-34 [20] D.C. does make a single felony offense eligible for sealing: felony failure to appear. D.C. Code § 16-803. [21] Iowa Code § 901C.3. [22] Mont. Code Ann. § 46-18-1102, et seq. [23] Hawaii also authorizes expungement of first or second drug possession violations. Haw. Rev. Stat. § 706-622.5. [24] Alabama, Alaska, Florida, Hawaii, Idaho, Maine, Virginia, and Wisconsin. [25] The D.C. sealing law’s coverage of one felony (failure to appear) is too unique to be an appropriate bookend. [26] Many misdemeanors can also be expunged, but a 10- or 15-year conviction-free waiting period applies (marijuana possession sealing has a 4-year period and certain nuisance crimes have a 3-year period). Md. Code Ann., Crim. Proc. § 10-105. “If the person is convicted of a new crime during [the applicable waiting period], the original conviction or convictions are not eligible for expungement unless the new conviction becomes eligible for expungement.” Id. § 10-110(D)(1). [27] See 50-State Comparison: Marijuana Legalization, Decriminalization, Expungement, and Clemency, Restoration of Rights Project, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-marijuana-legalization-expungement/. [28] For example, by the time someone has satisfied the ten crime-free years after completion of sentence required by both New York and Louisiana, and the 15 years required by Maryland, they would appear to be in little jeopardy of subsequent conviction. [29] Recent advocacy has highlighted the extent to which many people lack the ability to pay these obligations. See, e.g., Fines and Fees Justice Center, https://finesandfeesjusticecenter.org/. A 2018 study of California residents with convictions found that 45% struggle to pay fines and fees. Repairing the Road to Redemption in California, Californians for Safety and Justice (2018), https://safeandjust.org/wp-content/uploads/CSJ_SecondChances-ONLINE-May14.pdf. Earlier this year, the federal district court in a major Florida voting rights case found that—of hundreds of thousands of people with a felony conviction who had served all their custody and supervision time, but still owed financial obligations—the “overwhelming majority” were “genuinely unable to pay” the owed amounts. Jones v. DeSantis, Case No. 4:19cv300-RH/MJF, 2020 WL 2618062, at *15 (N.D. Fla. 2020). [30] In 2018, Illinois prohibited courts from denying sealing or expungement petition because the petitioner had not satisfied an outstanding financial obligation by a court or local government, except that restitution to victims may be considered unless it was converted to a civil judgment. Ill. Comp. Stat. Ann. 2630/5.2(e)(6)(C). In 2019, Washington state modified its laws so that a person need not have satisfied financial obligations to obtain a certificate of discharge (a prerequisite for sealing), as long as all other requirements of the sentence are satisfied and five years have passed since completion of supervision.  Wash. Rev. Code § § 9.94A.637(4). In 2019, New Jersey allowed courts, when considering expungement petitions, to waive financial obligations or convert them to civil judgments. N.J. Stat. Ann. § 2C:52-2(a)(1). [31] For example, Minnesota limits felony sealing to a list of 50 offenses ranging from aggravated forgery to livestock theft.  Maryland has a long list of crimes eligible for expungement, and another list eligible for “shielding” (sealing) at an earlier date. In Oregon closure is available for many non-violent misdemeanors and less serious felonies, but only if the individual has not been convicted in the previous 10 years (or ever, if the record for which closure is sought is a Class B felony) nor arrested within the previous three years. Missouri’s 2017 sealing law permits closure of a significant number of felony and misdemeanor offenses, with seven years conviction-free waiting periods after completion of sentence for felonies and three years for misdemeanors; only one felony and two misdemeanors convictions are eligible for closure in a person’s lifetime. In New York and Michigan, many felony offenses may be sealed, but each applicant may only seal one felony conviction, and only if the person has no prior felonies (as well as less than 2 misdemeanors in New York, or less than 3 in Michigan). [32] See supra note 11. [33] Rachel M. Cohen, Washington Governor Vetoes Bill That Would Have Automatically Cleared Criminal Records, The Appeal (May 19, 2020), https://theappeal.org/politicalreport/washington-governor-vetoes-clean-slate-bill/. [34] See supra notes 12 and 13. [35] California (certain misdemeanors and low-level felonies; marijuana offenses); Illinois (certain marijuana offenses); New Jersey (certain misdemeanors and low-level felonies, including for marijuana); New York (minor marijuana offenses); Pennsylvania (a range of misdemeanors); South Dakota (minor misdemeanors); Utah (a range of misdemeanors); and Virginia (minor marijuana offenses). See 50-State Comparison: Expungement, Sealing & Other Record Relief, Collateral Consequences Resource Center, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/.  The Clean Slate Initiative has been a leader in advocating for automatic relief.  See https://ccresourcecenter.org/2020/08/03/the-clean-slate-initiative-a-national-bipartisan-coalition/. [36] Del. Code tit. 11, § 4373(a). [37] For example, in the immigration context, a non-citizen may avoid deportation based on conviction with a “full and unconditional” pardon, but state judicial relief is only recognized if granted “because of a procedural or substantive defect in the criminal proceedings,” and not if granted “for equitable, rehabilitation, or immigration hardship reasons.” See 8 U.S.C. § 1227(a)(2)(A)(vi); Prado v. Barr, No. 17-72914, 2020 WL 596877, at *3 (9th Cir. Feb. 3, 2020); Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004). There have been exceptions made to this non-recognition of expungement, including eliminating conviction as an absolute bar to obtaining Deferred Action for Childhood Arrivals (DACA) status. See https://www.ilrc.org/sites/default/files/resources/definition_conviction-kb-20180307.pdf. The FDIC, in regulating banking employment, until recently only recognized expungements that were “complete” (meaning the record can never be used for any subsequent purpose) but new regulations effective September 21, 2020, will give effect to any expungement or record-sealing. See FDIC Final Rule amending 12 CFR Parts 303 and 308, https://www.govinfo.gov/content/pkg/FR-2020-08-20/pdf/2020-16464.pdf. On the other hand, the Small Business Administration requires loans applicants to disclose convictions even if they have been expunged or sealed. See, e.g., SBA Standard Operating Procedures 50 10 5(K), pp. 110, 293 (eff. April 1, 2019). [38] See Sharon Dietrich, Ants Under the Refrigerator: Removing Expunged Cases from Commercial Background Checks, Criminal Justice (Winter 2016), https://ccresourcecenter.org/wp-content/uploads/2017/03/Ants-under-the-Refrigerator-published.pdf. [39] This law requires “reasonable procedures to ensure maximum possible accuracy”—and in the employment context, unless contemporaneous notice is provide to the person being screened, the use of “strict procedures” to ensure data is up to date. 15 U.S.C. §§ 1681e(b), 1681k. [40] Alessandro Corda, Beyond Totem and Taboo: Toward a Narrowing of American Criminal Record Exceptionalism, 30 Fed. Sent’g Rep. 241, 243 (2018). [41] Id. [42]  See Cal. Civ. C. § 1786 et seq. [43] In Indiana, an expungement does not limit public access to the record of most felonies, although misdemeanors and non-conviction records, as well as the records of the least serious felonies, are sealed following expungement. See Indiana profile, Restoration of Rights Project; see also CCRC Staff, Indiana’s new expungement law the product of “many, many compromises,” Dec. 15, 2014, https://ccresourcecenter.org/2014/12/15/indianas-new-expungement-law-product-many-many-compromises/. [44] See Dietrich, supra note 38. [45] See Lageson, supra note 4. [46] Id. Read more

Judicial certificates of relief: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available. Last month we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report in draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing,” as well as several sections of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society. The sections published so far are “pardon policy and practice,” “deferred adjudication,” and “non-conviction records.” This installment of the record relief chapter concerns judicial certificates, orders that courts or parole boards in a dozen states are authorized to issue to convicted individuals with the dual purpose of avoiding mandatory collateral consequences and helping to overcome discretionary ones. Later this week we will publish the final major section of this chapter, on conviction relief via expungement, sealing, and set-aside. We expect to publish the entire “Many Roads” report by the end of the month. In addition to a series of “report cards” on specific relief mechanisms, it will include an ranking of states for the effectiveness of their overall combined relief schemes. A PDF of the section on judicial certificates is available here. The full text follows, with end notes. II(B)(3)(c).  Judicial certificates of relief A growing number of states authorize their courts or parole boards to issue orders or “certificates” to convicted individuals with the dual purpose of avoiding or mitigating mandatory bars to employment, licensing, or housing, and providing some reassurance about the person’s rehabilitation to help with discretionary ones.[1] Influenced by the forgiving or dispensing tradition of executive pardon, judicial certificates do not remove information from a person’s criminal history or limit public access to the record.[2] Rather, generally, they relieve mandatory collateral consequences and may influence discretionary decision-making through an official judgment about a person’s reliability and good character. They are frequently available to individuals who may otherwise not qualify for expungement or sealing, or at an earlier point in time. Judicial certificates of relief have been proposed by the American Law Institute in the revised sentencing articles of the Model Penal Code, by the Uniform Law Commission, and by the American Bar Association.[3] Under the two-step schemes advocated by these national law reform organizations, limited relief is available at sentencing to remove specific economic barriers to promote reentry, while more comprehensive relief to signify rehabilitation is available after a further waiting period. The three model schemes do not propose to seal or otherwise limit public access to the record. Instead, they aim to provide individuals both incentive and reward for law-abiding conduct, and might be said to satisfy the community’s need for a ritual of reconciliation. As Jeremy Travis has observed, “[w]e need to find concrete ways to reaccept and reembrace offenders who have paid their debt for their offense.” [4] Some advocates and practitioners are skeptical about the efficacy of a judicial certificate in the hiring process, including the vaunted New York certificates that have provided a model for similar certificate relief in other states.[5] Yet a 2016 study of certificates issued by courts in Ohio found that individuals who had been issued certificates were more likely to get an invitation to interview than those without, and at a rate not far removed from the call-back rate for those without a criminal record.[6] A study of the same certificates the following year in the context of applications for rental housing found a similar result.[7] The authors of these studies theorized that court-issued certificates provide valuable information about work-readiness and/or reliability, and that in addition they may be perceived as protection against lawsuits claiming negligence. Or their value might be less tangible: in a survey of certificate programs published by The Marshall Project in 2015, the chief judge of the Cook County Criminal Court in Illinois called his state’s certificates “a tool for redeeming people,” and a legal aid lawyer in North Carolina noted that a court’s certification “makes what has happened since the crime a fully official part of that person’s record, for all employers to see.” A dissenting voice about the value of certificates came from a legal aid attorney in Pennsylvania, a state that does not authorize judicial certificates, who considered them a “weak compromise” because they “rely on employers to do the right thing.” [8] In the recent wave of reform, legislatures have been slow to enact judicial certificate laws, possibly because the advocacy community strongly favors relief that limits public access to the record. But in the 12 states where they are available (California, Colorado, Connecticut, Illinois, New Jersey, New York, North Carolina, Ohio, Rhode Island, Vermont, Washington, and Tennessee), they extend to a broader range of offenses than sealing or expungement, and may be obtained after a shorter waiting period, making them potentially a more valuable aid to reentry. Eligibility for and effect of certificates vary from state to state, and they should be distinguished from more limited executive or judicial orders restoring voting and other civil rights, including firearms rights. Unlike record-sealing, certificates are frequently available to those with federal and out-of-state convictions who reside or do business in the state. In some states, a variety of certificate is available from correctional authorities when individuals complete a prison term, but these certificates do not have the same legal effect in removing mandatory restrictions as the certificates issued by the 12 states discussed in this section. Certificates have also made a cameo appearance in the federal system.[9] The certificate schemes in Connecticut and Vermont are the only ones that contemplate the same sort of bifurcation between early and late-stage remedies, or partial and complete relief, as the national law reform proposals described in the first paragraph. Vermont law authorizes the court to issue targeted relief from mandatory collateral consequences at sentencing (Order of Limited Relief), and more thorough relief after five years (Certificate of Restoration of Rights), and these certificates are available for a much greater range of convictions than record-sealing in that state. In Connecticut, the pardon board or court supervisory agency may issue certificates of rehabilitation in cases that do not yet qualify for a full pardon, to give relief from legal barriers to employment and/or licensure. Late-stage relief in the form of a pardon has the additional benefit of expunging or “erasing” the record. Both states make their certificates available to those with federal and out-of-state convictions (though only those with in-state offenses may qualify for a pardon). New York’s certificate scheme is the oldest, dating from the 1940s, and its “Certificates of Relief from Disabilities” (CRD) and “Certificates of Good Conduct” (CGC) have far-reaching legal effect when coupled with the state’s nondiscrimination laws. Until the recent enactment of a limited sealing law, these certificates were the only individualized relief New York offered for convictions, and they remain the only mechanism for overriding mandatory legal disabilities, including firearms disabilities, since sealing does not appear to have that effect.[10] Unlike sealing with its lengthy eligibility waiting period and limit to a single felony, New York certificates are available to first felony offenders from the court as early as sentencing and to all others from the parole board after a brief waiting period, and they are not limited to people with a single felony conviction.[11] They are also offered to anyone with a federal or out-of-state conviction who lives or does business in the state. New Jersey’s certificate scheme also extends relief at sentencing to persons with first felony offenses who are not sentenced to prison, and three years after completion of supervision for those who go to prison and have no other felony conviction within 10 years. It is not clear whether New Jersey’s certificates are available to those with federal and out-of-state convictions, as New York’s are. In contrast to New York and New Jersey, whose certificates differ according to a person’s record, Illinois’ two certificates perform different functions: a “Certificate of Relief from Disabilities” addresses occupational licensing restrictions and creates an enforceable “presumption of rehabilitation” that must be given effect by a licensing board. A “Certificate of Good Conduct” lifts mandatory bars to employment, occupational licensure, and housing. In Illinois, certificates may be issued by the sentencing court, either at the time of sentencing or after completion of sentence, or by the circuit court to those convicted of federal and out-of-state offenses, after a brief waiting period.[12] Certificates generally operate to convert mandatory disqualifications into discretionary ones, extending opportunities and benefits to individuals who would otherwise be barred from them by law. Some states go further to require that certificates be given weight in the discretionary decision-making process. In Ohio, for example, a “Certificate of Qualification for Employment” creates a “rebuttable presumption that the person’s criminal convictions are insufficient evidence that the person is unfit for the license, employment opportunity, or certification in question.”[13] Certificates in New York and Illinois have a similar weighty influence in connection with discretionary decision-making. Certificates in Ohio and Washington are specifically directed at employment barriers, but certificates in other states have a more general application and effect on any mandatory collateral consequences. Some certificates carve out exceptions for specific consequences, particularly those that relate to licensing and employment in sensitive occupations. For example, Washington’s “Certificate of Restoration of Opportunity” has a potent effect in many occupational licensing schemes, and is the only way a person with a felony record may be considered for employment by the school system, but it has no effect on licensing relief for nurses and physicians, private investigators, teachers, or law enforcement personnel. Illinois’ “Certificate of Relief from Disabilities” authorizes relief only in specified licensed fields. California’s “Certificate of Rehabilitation” limits consideration of felony convictions by licensing boards, relieves the obligation to register as a sex offender, and constitutes the first step in the executive pardon process. Certificates may also provide relief from informal consequences imposed by private actors by evidencing rehabilitation or, in the case of New York, creating an enforceable presumption of rehabilitation under the state’s Human Rights Law. Some certificates accomplish this by limiting an employer’s liability in negligent hiring actions. In Ohio, North Carolina, and Vermont, for example, reliance on a certificate creates a presumption of due care in hiring; in Illinois and Tennessee, reliance on a certificate is a complete defense to liability. In Ohio, protections may also extend to other similar forms of liability like negligence in connection with renting or admission to an educational program. Certificates are typically available for a broader range of offenses than sealing or expungement and may be granted earlier. Of the 12 states that offer certificates, seven (California, Connecticut, New Jersey, New York, Ohio, Tennessee, and Vermont) impose no categorical limits on who can approach the court for relief. Illinois excludes from eligibility individuals convicted of specified crimes involving serious violence, and Washington makes CROP certificates available only to individuals who have not been convicted at any time of a Class A felony, certain sex offenses, and a handful of other serious felonies. Colorado initially limited its “collateral relief” to individuals sentenced to community corrections, but later extended this relief to all but convictions involving serious violence or a requirement of registration. Only North Carolina and Rhode Island extend certificate relief only to those convicted of minor nonviolent crimes, and only Rhode Island and New Jersey limit eligibility to persons with no more than one felony conviction. Individuals may apply for certificates as early as sentencing in seven states (Colorado, Connecticut, Illinois, New Jersey, New York, Tennessee, and Vermont). In North Carolina, a certificate is available for more felony offenses after a significantly shorter waiting period than expungement (one year for a certificate vs. five to ten years for expungement). In Ohio, Certificates of Qualification for Employment are also available one year after completion of sentence. In some of these states, certificates somewhat anomalously purport to evidence rehabilitation even when issued as early as sentencing, which anecdotally has sometimes made courts wary of issuing them.[14] But in other states (notably Connecticut and Vermont) beneficiaries of an early order are required to return for more complete relief after a further waiting period. The Vermont scheme is modeled on the Uniform Act, including an early “Order of Limited Relief” and a later “Certificate of Restoration of Rights.” Connecticut also offers an early Certificate of Employability and a later full pardon. In Tennessee, individuals may regain their civil rights from the sentencing court upon completion of their sentence, and simultaneously petition the court for a “certificate of employability” that lifts most licensing barriers and protects employers from negligent hiring liability. At this second stage, the court makes findings after a hearing about character, need for relief (including for employment or licensing) and public safety. People with federal and out-of-state convictions are eligible for this more potent certificate and may obtain it from the court in their county of residence. State residents with federal and out-of-state convictions are eligible for certificates in Connecticut, Illinois, New York, Rhode Island, Tennessee, Vermont, and perhaps New Jersey, but not in California, Colorado, North Carolina, Ohio, or Washington. Some states require applicants convicted in more than one county to file multiple applications, but others (notably Ohio) permit consolidation of all convictions in one court. Issuance of a certificate is entirely discretionary in all states except Washington, and an otherwise eligible petitioner may be denied relief if the court is unable to make the necessary findings, sometimes weighing the applicant’s need for relief against the public welfare. Moreover, the scope of relief granted in any specific case is generally up to the court: a certificate may be unlimited in scope (subject only to legally established limits), or it may provide relief only from those consequences specified in the certificate itself. This allows the court to tailor the scope of relief to each petitioner and his or her specific circumstances, including employment, licensing, or other objectives. Most states authorize revocation of the certificate if the person has a subsequent conviction. It remains to be seen if judicial certificates of relief or restoration of rights will grow in popularity. Certainly, most of the advocacy around relieving collateral consequences has been in support of record-sealing, not the more transparent certificates that rely on the good will of employers, licensing boards, and landlords to give them effect. Like a pardon, a certificate “makes what has happened since the crime a fully official part of that person’s record, for all employers to see.”[15] As it becomes apparent that record relief must explore a variety of forms particularly where felony convictions are concerned, and as certificates are given broader eligibility and more specific and substantial legal effect, this form of relief may become more popular than some of the other tools in the arsenal.   END NOTES  [1] For ease of reference, we include under the general rubric of “judicial certificates” some that are issued by parole or pardon boards, as in Connecticut, New York, and Rhode Island, so long as they have some specific legal effect, including but not limited to dispensing with legal restrictions. State laws authorizing courts to issue certificates of restoration of rights, variously denominated, are collected and described in § 7:23 of Love et al., Collateral Consequences of Criminal Conviction: Law Policy and Practice (West/NACDL, 3d ed. 2018-2019). We have not included certificates issued by prison authorities that signify completion of training or good behavior while incarcerated because these rarely have the force of law. [2] See Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J. 1705, 1713 (2003) (judicial certificates do not propose to “rewrite history” but aim instead to “confront history squarely with evidence of change”). [3] See Model Penal Code: Sentencing, Final Draft, §§ 7.01 through 7.06 (April 2017), available at https://ccresourcecenter.org/wp-content/uploads/2015/10/article-6x.pdf; Uniform Collateral Consequences of Conviction Act, §§ 10 and 11 (2010), http://www.uniformlaws.org/Act.aspx?title=Collateral%20Consequences%20of%20Conviction%20Act; ABA Standards for Criminal Justice, Collateral Sanctions and Discretionary Disqualification of Convicted Persons, Standard 19-2.5 (“Waiver, Modification, Relief”) (3d ed. 2004). [4] Invisible Punishment: An Instrument of Social Exclusion, in Invisible Punishment: The Social Costs of Mass Imprisonment 36 (Meda Chesney-Lind & Marc Mauer eds., 2002). See also Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL’Y REV. 153, 162 (1999)(“ex-offenders should have access to a ceremony marking their official reintegration into the community and the end of their exclusion and degradation.”); Bernard Kogon & Donald L. Loughery Jr., Sealing and Expungement of Criminal Records—The Big Lie, 61 J. CRIM. L., CRIMINOLOGY & POLICE SCI. 378, 390 (1970)(“We solemnize the offender’s induction into the system. When he successfully concludes the program, though, we fail to institutionalize his departure correspondingly. It’s fun to catch the fish but hard to let him go.”). [5] See Heather Garretson, Legislating Forgiveness: A Study of Post-Conviction Certificates as Policy to Address the Employment Consequences of a Conviction, 25 B.U.Pub. Int. L. J. 1 (2016); Alec Ewald, Rights Restoration and the Entanglement of US Criminal and Civil Law: A Study of New York’s “Certificates of Relief,” Law & Soc. Inquiry, Winter 2016. Both articles, which rely on interviews and anecdotal evidence, are discussed in New York certificates fall short in practice, Collateral Consequences Resource Center, Feb. 29, 2016, https://ccresourcecenter.org/2016/02/29/new-york-certificates-of-relief-fall-short-in-practice/#more-7753. [6] Peter Leasure & Tia Stevens Andersen, The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study, Yale L. & Pol’y Rev. Inter Alia, Vol. 35 (2016). [7] Peter Leasure and Tara Martin, Criminal records and housing: an experimental study, 13 J. of Experimental Criminology 527 (2017). A collection of social science research into “strategies to improve reentry outcomes” judged court ordered certificates of rehabilitation “promising and worth further study” just based on this study and the one in note 6, along with diversion from incarceration and cognitive therapy. (Ban-the-box, intensive supervision, and transitional jobs were judged among the least effective by researchers). See Jennifer Doleac, Strategies to productively reincorporate the formerly-incarcerated into communities: A review of the literature. IZA Discussion Paper No. 11646 (2018). [8] Eli Hager, Forgiving v. Forgetting: For offenders seeking a new life, a new redemption tool, The Marshall Project, Mar. 17, 2015, https://www.themarshallproject.org/2015/03/17/forgiving-vs-forgetting. [9] See Jane Doe v. United States, 168 F. Supp. 3d 427, 446 (E.D.N.Y. 2016) (Gleeson, J.) (granting a “certificate of rehabilitation” in recognition of “Doe’s good conduct following completion of her sentence”). I evaluated Doe’s character when I sentenced her 13 years ago. I have done so again now, focusing not on her long-ago criminal acts but on her efforts to rebuild herself. Considering those efforts along with her life circumstances generally, I conclude that Doe is fit not only be hired by a nursing agency in need of a qualified employee, but she to also be relieved of the long list of collateral consequences she faces under state and federal law. Doe’s only important conviction today is her conviction to abstain from criminal conduct and to be a productive member of society. That conviction is most emblematic of who she is today. [10] N.Y. Crim. Proc. Law § 160.59(9)(sealed convictions remain available to state entities responsible for issuing firearm licenses). [11] N.Y. Correct. Law §§ 703-b(1), (3). [12] The Illinois certificate scheme was originally proposed by a freshman member of the Illinois legislature named Barack Obama, who was eager to make his mark during his first venture into public office. It is described in Love, Paying Their Debt to Society, note 2 supra, 54 How. L. J. at 761-62, 789-91. See also the Illinois profile from the Restoration of Rights Project. [13] A person who has fully discharged the sentence after a short eligibility waiting period (one year after completion of sentence for felonies, six months for misdemeanors) from the court of common pleas in the county of his residence (if a state resident), or in the court where he was convicted (if not a resident), for a “certificate of qualification for employment” (CEQ) that will provide relief from mandatory legal bars and allow him to be considered on the merits. See Ohio Rev. Code Ann. § 2953.25; see also Ohio Rev. Code Ann. §§ 2961.21 through 2961.24, authorizing the corrections authority and parole board to issue “certificates of achievement and employability” for certain DRC prisoners and parolees to be used by the recipient to generally obtain relief from “mandatory civil impacts” that would affect a potential job for which the person trained while in prison. [14] See articles cited at note 4, supra. [15] See notes 7 and 8, supra. Read more

Pardon policy & practice: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available. In July, we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.”  So far, we have previewed the report by publishing draft sections covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing.”  Today we publish a draft section on pardon, the ultimate expression of forgiveness and reconciliation from the sovereign that secured the conviction.  While pardon is no longer routinely available in all or even most U.S. jurisdictions, in the 18 states where post-sentence pardoning is frequent and regular it provides an important record remedy – frequently the only remedy – for those convicted of more serious offenses, for those seeking restoration of firearms rights, and for non-citizens seeking to avoid conviction-related immigration consequences. This section on “pardon policy & practice” is part of a chapter on “record relief.”  This chapter deals with any remedy that revises or supplements a person’s criminal record to reduce or eliminate barriers to opportunity in civil society.  Later this week, we will publish additional sections of the record relief chapter on deferred adjudication and judicial certificates, followed next week by sections on expungement, record-sealing, and set-aside.  We expect to publish the entire “Many Roads” report by the end of the month. A PDF of this section is available here.  The full text follows, with end notes. II(A).  Pardon Policy & Practice  Pardon has been described as the patriarch of restoration mechanisms, whose roots in America are directly traceable to the power of the English crown. Just as a power to pardon was assigned to the president in Article II of the U.S. Constitution, the constitutions of every state save two provide for an executive pardoning power.[1]  Both in theory and practice, a post-sentence pardon is the ultimate expression of forgiveness and reconciliation from the sovereign that secured the conviction.  For almost two centuries, executive pardon played a routine operational role in the criminal justice system throughout the United States, dispensing with court-imposed punishments and restoring rights and status lost because of conviction. Nowadays, in most U.S. jurisdictions pardon is a shadow of its once-robust self, particularly those in which it is exercised without institutional restraint or encouragement.  Since the 1980s, governors and presidents alike have been wary of exposing themselves to criticism from an ill-advised grant, and in many jurisdictions pardoning has stopped being thought of as part of the chief executive’s job — though being labeled “soft on crime” seems thankfully no longer a political kiss of death.  It is not surprising that reformers tend to regard pardon with suspicion, dubious about its legitimate operational role in the modern justice system. Yet pardon fills an important gap in restoration schemes across the country, supplementing judicial record relief mechanisms like sealing and expungement. For example, in 20 states pardon offers the only way to regain firearms rights lost because of conviction, including California, Colorado, Florida, Georgia, Nebraska, Oklahoma, and Wyoming. In 12 states ineligibility for jury service is permanent without a pardon, including Arkansas, Delaware, Oklahoma, Pennsylvania, South Carolina, and Texas. (By comparison, expungement restores firearms rights in only five states, and jury rights in only two.)  See infra, § 1.  A pardon may be necessary to enable a person to stand for elected office, or to demonstrate the requisite good character to secure a professional or business license. Perhaps most important for a substantial number of non-citizens, a pardon is the only state relief mechanism recognized by federal immigration law, providing the only way for a non-citizen convicted of an aggravated felony to avoid mandatory deportation and remove the conviction-related bar to citizenship.[2] Sometimes pardon is sought simply as a sign of official forgiveness, not a small matter to some people. Of greater moment, pardon represents the only potential source of record relief available for felony convictions in the 16 states whose courts have no authority to expunge or set aside more serious convictions.[3] Another 14 states limit judicial record relief to people who have been convicted of a single felony, so in these states too pardon constitutes an important auxiliary remedy for people with a lengthy felony record.[4]  It is easy to see why pardon’s vitality is or ought to be of considerable public concern to people in at least 30 states. The good news is that the pardon power is neither dead nor fatally compromised in most U.S. jurisdictions. In fact, in a significant number of states (18) the practice of pardoning still thrives as in integral part of the justice system.[5] In most of these states (colored gold on the map on the following page) the pardon power is either shielded from politics by institutional design or sanctioned by custom.  Ordinary people who can demonstrate their rehabilitation have a good chance of official forgiveness, obtaining relief from legal disabilities and certification of their rehabilitation and good character. In more than half of these 18 states, pardon now leads to expungement of the record. In four additional states, the pardon power appears to be in the early stages of a revival.[6] Not surprisingly, in most of these 18 states,  the governor either has little or no involvement in pardoning or is required to seek (and in some cases required to follow) the advice of other officials.[7]   In six of the 18 states (Alabama, Connecticut, Georgia, Idaho, South Carolina, Utah) the pardon power is exercised in most or all cases by an independent board of appointed officials.  In five of those independent board states, the power derives from the state constitution. (In Connecticut, the power to pardon has since colonial times remained within the legislature’s control, so that pardoning is both authorized and limited by statute.)  In all six of these independent board states, standards are clear, the process is transparent and accessible, and a high percentage of applications are granted.[8] In Alabama, Connecticut, Georgia, and South Carolina, hundreds of pardons are granted each year to people convicted of garden variety crimes who are seeking to mitigate the harsh lingering consequences of conviction. For example, in 2019 the Alabama board granted 889 pardons, or 80% of eligible applications, and the Connecticut board granted 593, or 80% of applications considered. The Idaho board gets fewer applications but grants a relatively high percentage of them. Utah for many years preferred to rely on a broad expungement remedy, but a recent tightening of the expungement process has produced a demand for reinforcements from the state pardon board. In another eight of the 18 states where pardons are frequent, the governor sits on a board with other high-level officials (Minnesota, Nebraska,[9] Nevada), or shares power with an appointed “gatekeeper” board whose affirmative recommendation is necessary before the governor may act (Delaware, Louisiana, Oklahoma, Pennsylvania, South Dakota). In these states pardon remains a viable form of relief, and pardoning occurs at regular intervals through a public process: Delaware and Pennsylvania are the stars of this category, but the governors of Oklahoma and South Dakota have traditionally also pardoned generously, and Louisiana’s current governor has revived pardoning in that state.  The three boards that include the governor as a member hold regular public hearings and grant a substantial percentage of the applications they hear, through the fourth board with this same set-up (Florida) has in recent years been notoriously stingy, recently characterized by a federal court as ;providing an “illusory remedy” to people who only want to regain their right to vote.[10] In the final four of the 18 states, the governors are less constrained by regulation, but they have authorized advice available to them. The governors of Illinois and Arkansas have customarily relied on a board’s recommendations produced by a formal process, though they are not required to do so. The governors of California and Virginia have also pardoned generously in recent years, though without the same degree of structure and transparency in their advisory system. But since the constitutions of both states require the governors to make a formal annual report to the legislature on their pardons, there is at least at least a post-hoc system of accountability in place. A regular process facilitates regular pardoning, but it does not guarantee it. For example, interest in pardoning in California, Florida, Illinois, Louisiana, Maryland, and Ohio has waxed and waned depending upon the predilections of the incumbent governor. The current governors of California, Illinois and Louisiana have been enthusiastic pardoners, but the power is still in a waning phase in Florida, Maryland, and Ohio. Texas and Arizona, both of which have a well-regulated process and “gatekeeper boards” that control who the governors may pardon, have in recent years seen, respectively, very few pardons and no pardons at all. New Hampshire and Rhode Island have complex procedures requiring the approval of other elected officials, a set-up that virtually guarantees no operational role for pardon in those states. Beyond the 18 states where the pardon power functions on a regular and productive basis, there are another three where recent efforts to revive the process are promising. Wisconsin’s governor has re-established that state’s pardon advisory board and began issuing grants in the fall of 2019 after a 9-year hiatus during which his processor expressed disdain for pardons and granted none at all; Colorado’s governor has also taken some steps to reinvigorate that state’s process; and Ohio’s current governor has enlisted two local law schools to supplement state agencies in developing an “expedited pardon project.”[11]  Washington’s recent governors have shown some interest in pardoning, but grants have been irregular and sparing.  In the other 28 states, the District of Columbia, and the federal system pardoning takes place, if at all, in an ad hoc and unreliable fashion. In 10 of the 18 “frequent and regular” states (Arkansas, Connecticut, Delaware, Georgia, Louisiana, Nebraska, Oklahoma, Pennsylvania, South Dakota, and Utah), a full pardon entitles the recipient to expungement (either upon application to a court or automatically, depending on the state). In an eleventh state, Illinois, the governor may specifically authorize this additional judicial relief. Pardon is uniquely valuable to people with felony records in five of these 11 states (Connecticut, Georgia, Nebraska, Pennsylvania, and South Dakota), because they otherwise offer no judicial record-sealing for felony-level convictions.[12] Sealing or expunging the record of a pardoned conviction is authorized in another nine states: Indiana, Kentucky, Maryland (non-violent first offenses), Massachusetts, New Jersey, Oregon, Tennessee, Texas, and West Virginia (one year after pardon and at least five years after discharge, with certain exceptions for violent crimes). In Washington, pardons result in automatic vacatur and nondisclosure of administrative records, but petitions to seal court records are subject to a balancing test. Maine treats pardoned convictions like non-conviction records subject to non-disclosure rules. In addition to providing record relief to individuals, pardon has been enlisted in recent years to advance criminal justice reforms on a broader basis in several states, notably to restore the vote and to implement marijuana decriminalization. In addition to large-scale programs to advance marijuana reform in states whose pardoning program is otherwise robust (notably Illinois, Nevada, and Pennsylvania), the governors of Colorado, North Dakota, and Washington have used their pardon power to deliver record relief to people convicted of marijuana possession before its decriminalization.  The Colorado legislature even passed a law authorizing class-wide pardon relief.[13]  The Nevada Board of Pardons Commissioners passed a resolution at the request of that state’s governor automatically pardoning approximately 15,000 people convicted of possessing one ounce or less of marijuana between 1986 and 2017.[14]  The legislature in Illinois also gave the governor’s pardon power a part to play in Illinois’ marijuana automated sealing effort, which resulted in a mass grant of pardon to 11,000 people.[15]  The governors in Iowa, Kentucky, New York, and Virginia have all used their power to restore voting rights on a class-wide basis.[16] It seems unfortunate but unsurprising that in more than half the states pardoning has been sporadic or rare since the 1980’s. Many of these states have no formal statutory advisory process in place, so the governor has no institutional encouragement to engage in what may seem a politically risky activity. In two of the states in this category (Mississippi and Kentucky) the pardon power was notoriously abused when out-going governors made hundreds of controversial grants, confirming popular suspicions about the corruptibility of the pardon power. In a few others, notably Rhode Island and New Hampshire, the constitutional limits on the governor’s power almost guarantee few pardon grants. But successive governors of Alaska, Kansas, Massachusetts, and North Carolina, who have issued almost no pardons since the mid-1990s, do not have the same excuse. They are not among the few states whose governors have no authority from the legislature to seek official assistance in their pardoning (Maine, Oregon, and Wisconsin), who have devised their own non-statutory advisory systems. A full thirty states require the pardoning authority to report annually to the legislature on their grants, frequently with reasons, including Oregon and Wisconsin.[17] The governor of Maine is joined only by the president of the United States in having neither statutory assistance nor obligation to account to the legislature for their pardoning,  The federal pardon process housed in the Department of Justice has steadily declined in productivity and reputation over the past thirty years,[18] though it has been ignored almost entirely by the current president through no apparent fault of its own. Overall, the number of presidential pardons granted in the past twenty years is small considering the volume of applications filed each year, and there has been only one presidential pardon granted for a D.C. Code conviction during this period.[19] In summary, in 18 states a person may file a pardon application with a reasonable expectation of success. There are signs that pardoning may revive in an additional handful of states, and hope springs eternal that future governors in other states will want to employ this uniquely personal power to help their constituents reintegrate and to advance the cause of criminal justice reform. But it seems premature to count any but the 18 as having a fully functional and reliable pardon process for present purposes. So, there are 32 states in which pardon cannot be counted on to provide record relief for anyone convicted of a felony. To be sure, in 23 of these 32 states there is some alternative individualized judicial record relief for felony-level offenses:  nine of the 32 offer sealing or expungement for many felonies,[20] another 12 offer relief for a single felony (usually a first felony offense),[21] and New York and New Jersey restore rights though judicial and administrative certificates.  But still and all, that means that there are 11 U.S. jurisdictions – nine states, the District of Columbia, and the federal system – in which neither executive nor judicial record relief is reliably available to people convicted of a felony.[22] More specific information about pardoning policies and procedures in each state is available in the 50-state material from the Restoration of Rights Project at Appendix A, and in the RRP’s individual state profiles.   ENDNOTES [1] In both Alabama and Connecticut, the power to pardon is regulated by the legislature. Ala. Const. amend. 38 (amending art. V § 124) (since 1939, power to pardon in all but capital cases in administrative board appointed by governor); Conn. Gen. Stat. § 54-124a(f) (since colonial times, pardoning regulated by the legislature).  For an overview of post-sentence pardoning in the United States, and additional citations, see generally Love, et al., Collateral Consequences of Criminal Conviction: Law Policy and Practice § 7:6 (“Executive Pardon: Generally”) (West/NACDL, 3d ed. 2018-2019); Margaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 St. Thomas L. Rev. 730 (2013). [2] See 8 U.S.C. § 1227(a)(2)(A)(vi).; see also Thompson v. Barr, 959 F.3d 476, 484 (1st Cir. 2020)(“A pardon waiver has the effect of automatically canceling removal”), Love et al., supra note 1, § 2:61(“Immigration Consequences – Pardon Waiver”), collecting cases and executive opinions. [3] See 50-state chart, “Authority for Expunging or Sealing Convictions,” Restoration of Rights Project,  https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/. [4] See also note 10, infra, pointing out that five of the states that offer no judicial record relief for felony convictions are ones where pardoning is frequent and leads to expungement. [5] The 18 states are Alabama, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Illinois, Louisiana, Minnesota, Nebraska, Nevada, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, and Virginia. [6] Colorado, Ohio, Washington, Wisconsin. [7] For more detail about the organization and authority of the pardoning authority in these 18 states, see the individual state profiles in the Restoration of Rights Project, and Love et al., supra note 1, at §§ 7:8 through 7:11. [8] All six boards have brief eligibility waiting periods (no more than five years after completion of sentence), but only Connecticut’s does not require payment of court debt as a condition of eligibility for pardon. See relevant state profiles from the Restoration of Rights Project. [9] Nebraska’s pardon board has in past years been among the most prolific in the country but staffing changes in 2019 led to a reduced hearing schedule and a sharp reduction in the number of grants that year. [10] See Jones v. DeSantis, 410 F.Supp.3d 1284, 1291-92 (“Florida has long had an Executive Clemency Board with authority to restore an individual’s right to vote. But the Board moves at glacial speed and, for the eight years before Amendment 4 was adopted, reenfranchised very few applicants. For the overwhelming majority of felons who wished to vote, the Executive Clemency Board was an illusory remedy.”) [11] In December 2019, Governor Mike DeWine announced the Expedited Pardon Project, a collaboration between the Governor’s Office and the Drug Enforcement Policy Center at Ohio State University and the Reentry Clinic at The University of Akron School of Law. This project aspires to expedite the process by which people apply for a pardon under Ohio’s laws, and will enlist law students to assist in preparing pardon applications. The Ohio Department of Corrections will conduct background investigations of applicants referred by the Project, and the Parole Board will then hold a hearing for each applicant, during which victims, judges and prosecutors involved with his or her case can offer their thoughts. The Parole Board will then vote the same day about whether to recommend clemency to the governor.  See Jeremy Pelzer, Gov. Mike DeWine creates streamlined pardon process to help Ohio offenders, Cleveland.com, Dec. 3, 2019, https://www.cleveland.com/open/2019/12/gov-mike-dewine-creates-streamlined-pardon-process-to-help-ohio-ex-offenders.html. [12] See 50-state chart, “Authority for Expunging or Sealing Convictions,” supra note 3. [13] See Colo. Rev. Stat. § 16-17-102(2). [14] The form issued by the Board for grantees to apply for documentation evidencing the pardon is at http://pardons.nv.gov/uploadedFiles/pardonsnvgov/draft%20marijuana.pdf. [15] Illinois established a tiered procedure to deal with marijuana arrests and convictions, with non-conviction records sealed automatically by the State Police, “minor cannabis offenses” made eligible for expungement through a streamlined pardon process, and more serious marijuana offenses required to petition for relief from the court. See Ill. Comp. Stat. Ann. 2630/5.2(i)(2). [16] See En Banc Brief for Amicus Curiae Collateral Consequences Resource Center in Jones v. DeSantis at 6, n. 10 (11th Cir., No. 20-12003, Aug. 3, 2020), accessible at https://ccresourcecenter.org/wp-content/uploads/2020/07/2020.08.03-Exhibit-A.pdf.; Iowa Exec. Order No. 7 (August 5, 2020), accessible at https://governor.iowa.gov/sites/default/files/documents/EO7%20-%20Voting%20Restoration.pdf?utm_medium=email&utm_source=govdelivery. [17] See 50-state chart, “Comparison of Pardon Policies,” Restoration of Rights Project, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncharacteristics-of-pardon-authorities-2/. [18] See generally Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169, 1193-2000 (2010). See also Love, Obama’s Clemency Legacy: An Assessment, 29 Fed. Sent. Rptr 271 (2017). [19] In 2018 the D.C. City Council authorized an independent pardon advisory process for those conviction of D.C. Code offenses, in an apparent effort to avoid an advisory process at the Justice Department that historically has been unfriendly to D.C. Code petitioners, but nothing appears to have come of it.  See § 24-481.01 et seq. [20] Colorado, Indiana, Kansas, Maryland, Massachusetts, New Mexico, North Dakota, Oregon, and New Hampshire. See the first column of the 50-state chart, “Authority for Expunging or Sealing Convictions,” note 3, supra. [21] See id., second column (all listed states except but Delaware and Utah). [22] The nine states are Alaska, Arizona, Florida, Hawaii, Iowa, Maine, Montana, Texas, Wisconsin.  Note that a few of these states provide for specialized relief for, e.g., youthful first drug offenses, prostitution convictions by victims of human trafficking.   Read more

The Purgatory of Digital Punishment

It doesn’t matter whether they’re accurate—criminal records are all over the internet, where anyone can find them. And everyone does. By SARAH ESTHER LAGESON On a frozen December day in Minneapolis, William walked into a free legal aid seminar, to try to fix his criminal record. Lumbering toward a lawyer, his arms full of paperwork, William tried to explain his situation quickly. “I want to show you my record here that I got from my probation officer. Here.” Frustrated, William waved papers in the air. After an employer and a landlord both denied his applications following private background checks, William started to suspect something was wrong with his criminal record. When he finally got a copy, the data made no sense. One arrest was dated to 1901. Another arrest was linked to an active warrant. “Now, here’s a thing about it. I got one [conviction] in ’82; that was the last time I was in jail.” William paused to scan the document. “And that was that charge here. All of this,” he said, pointing to the paper, “is not me.” It seemed as if someone with a similar name—and a far more extensive criminal history—had been matched to William’s identity in a state police or court record database. He quickly realized that not only was his record incorrect, but it had spread across databases used by background check companies—and was posted on the internet. It was as if someone had stolen his identity—but instead of using his identity to buy something, they used it to slip stolen goods into his pocket. The lawyers warned William of the Kafkaesque bureaucracy he would face. He had to fix the mismatched identity with the state police, ask the court to fix the 1901 data error, and close the mistaken (but open) warrant. Because he could not afford a lawyer, William had to rely on free legal aid or deal directly with the courts and state bureaus himself. This wasn’t what he wanted to hear. He had been trying for months to get help. The first time he’d tried to meet with a volunteer attorney, he was given an incorrect address and walked around downtown Minneapolis for hours trying to find the office. All of this confusion and frustration led him to the seminar today. He was about ready to give up. “It’s too much. It’s too frustrating,” William said. “You know, you ain’t done nothing in 30-something years and then all of a sudden you want to get an apartment and you can’t. You’re just stuck the way you are at. That’s just terrible. It’s a bad feeling. It’s like I’ve been on a standstill.” The problems William faced are rapidly multiplying across the country, in various forms. Incorrect or misleading records from years past pop up on Google searches. Criminal convictions that accurately appear on one background check don’t appear on another. Sealed, expunged, and juvenile records that are legally hidden from public view continue to live on across databases and websites. Criminal records and background checks have become a lucrative and central part of American life, ushered in by the creation of more records as our criminal justice system expanded over the past several decades and paired with greater demands for more access to these records. This is because the American public not only uses criminal records to make important decisions about whom we employ or rent to, but also as fodder for entertainment, voyeurism, and public shaming. Data brokers pay courts for bulk data sets that are repackaged with other sources of public and consumer data and then sold to background check services, market research companies, and even back to law enforcement. Websites post mug shots and charge people staggering fees to have their photos removed. Mobile apps purport to update users about sex offenders and recent arrestees in their neighborhood while simultaneously collecting and monetizing subscriber data. Google search results for a person’s name are accompanied by a litany of titillating background check and reputation management advertisements, and the search engine giant profits from this clickbait. All of this “data” is marked with rampant error and misleading information. Records now begin at the very early stages of arrest and extend across a person’s entire lifetime, whether or not they are found guilty. As records are downloaded, sold, and shared, they quickly become decontextualized and stale. This proliferation leads to a particular form of anxiety: Criminal record subjects are nearly always uncertain about where their records can be found and what will appear on them, even if charges were dismissed or their record sealed or expunged by the courts. Often, a person never knows what is on her criminal record because there isn’t one single criminal record to consult. The internet’s version is often wildly different than the state’s version. The consequences seep into everyday life. People begin to engage in digital avoidance—doing everything within their power to prevent someone else from Googling them, even if this means avoiding positive parts of life, like seeking better employment or housing, setting up an online dating profile, volunteering at their kid’s school, or meeting people in their neighborhood. Shana, in Florida, was arrested once in her life after a disruption at a nightclub nearly a decade ago. A few years ago, her mug shot appeared on a website demanding hundreds of dollars to have it taken down. She looks terrified in it. “Embarrassment is an understatement,” she said. “You are ashamed of your identity. It creates a self-doubt that permeates nearly every aspect of your life. … I have thoughts and feelings that I cannot ever be who I was. There is a sense of paranoia and fear of who might search your name and see the trail of tabloid sites. These thoughts are a daily thing now. It is beyond horrible.” Justin, in rural Indiana, was pulled over and booked for reckless driving in 2005 while in his early 20s. He appeared on an online roster of arrestees the next morning, and his arrest is still lodged in Google search results for his name to this day. This low-level record was legally sealed, but he cannot land a job. “It’s been painful,” he says. “You wouldn’t know the kind of guilt and shame I experience when I am overlooked by every employer I apply to because these records continue to exist, or the amount of pain it causes me to feel like I’ve failed my family.” Albert, in New Jersey, passed the background check for a new apartment. At age 82, he was 12 years past a forgery conviction and in the process of expunging his record. But vestiges of his record stayed on the internet. Days before Albert was due to move, his new landlord called him and told him, “I forgot to tell you it’s my policy to Google everyone’s name, and I see that you have a record here for fraud.” Albert sighed as he recounted the disappointment. “There was no changing his mind.” He lost the apartment. “I have to sort out four sources of this record,” he continued. “The police, the jail, the court, and the internet. The internet. That’s the biggest problem.” Though the circumstances vary, these experiences all point to the failures of data and technology companies to effectively modernize criminal justice operations. Through uneven rollouts and competing legal and political mandates, data-driven criminal justice churns out millions of publicly available criminal records each year—a messy spillover far from the original intent of criminal recordkeeping. The data are often outdated, incorrect, and bought and sold in private markets by data companies. Documenting everything from a police stop to a prison sentence, thousands of different types of records take on a digital life of their own as they are bought and sold and reposted across the internet. The result is “digital punishment,” where mere suspicion or a brush with the law can have lasting consequences. There’s a strong set of incentives for the criminal justice system to release data to the private sector. Lacking the necessary budget and expertise to maintain digital records themselves, busy and overburdened criminal justice agencies have turned, over the past two decades, to technological solutions offered by IT companies. Newly digital operations produce volumes of data, including the names, photographs, and home addresses of people arrested or charged with a crime, transforming what used to consist of millions of paper records into a valuable commodity. In digital criminal justice operations, a person’s disgrace is almost always up for sale. Regardless of factual or legal guilt, these records rapidly multiply across the private sector background checking and personal data industries. Once the personal data industry controls the information, there is no stopping its spread, leading to the errors in William’s record that cost him a job, or the Google search results that cost Albert his new apartment. Not only does digital punishment unequally stigmatize people already targeted by the criminal justice system because of their race or neighborhood, but it creates privacy inequalities. Members of these already sidelined communities are less likely to have the ability to address, remedy, or overcome a criminal record. The ability to curate an online reputation or challenge a government record is inextricably linked (and proportional) to one’s relationship with technology and one’s capacity to argue for the right to privacy in the first place. Though the errors in his record are not his fault, William is tasked with fixing them. Shana’s arrest photo is a profitable commodity for entertainment and extortion markets. But she must come up with the time and money to track down the source every time her booking photo or criminal record appears on the internet, and then she would need the legal skills to negotiate with, pay off, or sue every company that profited from her arrest data. In digital criminal justice operations, a person’s disgrace is almost always up for sale and available instantly for public consumption. A hard-earned and nearly spotless reputation can be tarnished indefinitely with just a few clicks of a mouse. The result is that many people now live in terror of their digital reputation. Perhaps we’ve opened Pandora’s box and our digital biographies have become irreparably cemented to our identities. Artificial intelligence, machine learning, facial recognition, and biometrics are increasingly incorporated into the tracking, surveillance, and record-keeping practices of the state. There will be voices pushing for transparency in data collection practices and privacy for the sharing of individual data, while corporations that buy and sell criminal records will seek to evade regulation. Eventually, background checks will probably get better, due to consumer demand and improvements to information technologies. But the reality for the short term is that millions of people in America will spend the rest of their lives digitally marked, their identities warehoused into vast collections of mug shots, jailhouse rosters, and court documents. There is no easy escape from digital punishment—punishment that is perpetual, and not determined by judge or jury. Americans have long been susceptible to claims about the need to crack down on crime and accept increasingly harsh penalties, leading to the war on drugs and mass incarceration. Data-driven advances in criminal justice operations have expanded an already wide net. The explosion of digital punishment has come without critical discussion of causes and consequences. But policy shifts can slow digital punishment. There is enormous potential for reform that better addresses the relationship between criminal punishment, individual privacy, and governmental oversight in the digital age. Medical records and credit reports are regulated and protected in the U.S., partly to protect this personal information from falling into the wrong hands or being leveraged against a person. Criminal records could be treated the same way. Background check companies could be held legally accountable for reporting incorrect or outdated data. The private sector can remedy this pain without legal regulation. Google could import aspects of the European “right to be forgotten” for those whose records have been sealed, expunged, or illegally disclosed. Facebook could stop allowing mug shots to be posted before a criminal conviction, or at least turn off the racist and terrifying commentary that follows. Digital punishment is not the inevitable outcome of digital life. Technological advances do not determine their own fate; people and organizations use technologies and share data for specific ends. Decisions for how to collect, organize, and disclose records is a human-powered process. The ways we use criminal records—and the power of the private market to distribute this data—is a political choice. The openness and lifelong punishment of a criminal record looks very different outside of America, where rehabilitation policies are valued over punishment. The justice system and information technology systems are both operating at unforeseen levels of activity. Humming along, each system touches more and more lives each day. And there are serious consequences to this confluence. As criminal records drift online, the internet exacts a criminal-like penalty—guilt-by-Google—before, or even without, prosecution or conviction. The widespread public release and sale of criminal justice data is leading to new forms of everlasting punishment. Our data handling and processing practices need not be at the mercy of tech innovation and invariably encroaching systems of surveillance, though. Our current state of affairs is the result of very human processes. Policies are the result of choices. And we can always choose differently.   This article is adapted from Digital Punishment: Privacy, Stigma, and the Harms of Data-Driven Criminal Justice by Sarah Esther Lageson, published by Oxford University Press. It was first published by Slate on June 24, 2020.   Sarah Esther Lageson is an assistant professor of sociology at the Rutgers University–Newark School of Criminal Justice. She has written extensively on the subject of criminal records technology, and was an adviser to CCRC’s Model Law on Non-Conviction Records. Last summer CCRC Board Chair Jack Chin reviewed an article by Professors Lageson and Alessandro Corda comparing how criminal records are treated in Europe and the United States.  Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and The Rise of A New Penal Entrepreneurialism, The British Journal of Criminology, Volume 60, Issue 2, March 2020, Pages 245–264. Read more