Category: Reports

Waiting for Relief: A National Survey of Waiting Periods for Record Clearing

Our new report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years. Typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law. These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases.

Waiting for Relief: A National Survey of Waiting Periods for Record Clearing 

The waiting periods for misdemeanor convictions range from a high of 10 or 15 years in Maryland (depending on the nature of the offense) to 0 years in Mississippi (although only first-time offenses are eligible), with most states falling at the lower end of that range. Of the 44 states that authorize clearing of misdemeanor convictions, a near-majority have waiting periods of 3 years or less (19 states) and the vast majority have waiting periods of 5 years or less (35 states).

The waiting periods for felony convictions range from as high as 10 or 20 years in North Carolina to as low as 0-2 years in California, with most states falling at the lower end of that range. Of the 35 states that authorize clearing of felony convictions, a near-majority have waiting periods of 7 years or less (17 states).

Many waiting periods, notably longer ones, reflect a concept of record clearing via expungement or sealing as “recognition of successful rehabilitation and reason to terminate legal disqualifications and disabilities.”[1] In recent years, however, many states have shortened waiting periods in recognition of the constructive role that record clearance plays in facilitating reentry and rehabilitation, reasoning that individuals “need the most assistance immediately after release from prison or termination of sentence.”[2] The seven (7) states that have enacted a general conviction sealing authority for the first time since 2018 have generally (though not invariably) provided shorter waiting periods than states with more venerable systems.[3]

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“The High Cost of a Fresh Start”

The High Cost of a Fresh Start: New Report Examines Court Debt as a Barrier to Clearing a Conviction Record

Download the report: https://ccresourcecenter.org/wp-content/uploads/2022/06/Report-High-Cost-of-Fresh-Start.pdf

BOSTON – A new report from the National Consumer Law Center and the Collateral Consequences Resource Center explores the extent to which court debt—such as criminal fines, fees, costs, and restitution—is a barrier to record clearing that prevents poor and low-income people from getting a second chance. For the nearly one-third of adults in the U.S. with a record of arrest or conviction, their record is not simply part of their past but a continuing condition that impacts nearly every aspect of their life. Their record makes it hard to get a job and support a family, secure a place to live, contribute to the community, and participate fully in civic affairs.

“Criminal record clearing must not be reserved only for those who can easily pay for it,” said Margaret Love, executive director of CCRC. “States should ensure people are not being priced out of a chance at a fresh start.”

The High Cost of a Fresh Start: A State-by-State Analysis of Court Debt as a Bar to Record Clearing analyzes whether outstanding court debt bars record clearing under the laws of each of the 50 states, the District of Columbia, and the federal system. The report finds that in almost every jurisdiction, outstanding court debt is a barrier to record clearing, either rendering a person entirely ineligible or making it more difficult for them to qualify.

In recent years, most states have passed laws aimed at restoring economic opportunity, personal freedoms, and human dignity to millions of people by providing a path to clear their record. But for too many, this relief remains out of reach because of monetary barriers, including not only the cost of applying for record clearing but also requirements in many jurisdictions that applicants pay off debt incurred as part of the underlying criminal case before they can have their record cleared. This debt can include fees imposed for every month someone spends on probation or on GPS monitoring, and for their representation by a public defender—a fee that is levied only on people whom the court has deemed too poor to pay for their own defense. Interest and payment penalties can add to this court debt over time.

“The total amount of court debt can run to thousands of dollars for even minor infractions, which presents a high bar to clear,” said Ariel Nelson, staff attorney at NCLC. “Perversely, because a record makes it much harder to get a job, having an open record makes it harder to pay off court debt and therefore harder to qualify for record clearing.”

This burden falls especially heavily on Black and Brown communities, which are more likely to have high concentrations of both criminal records and poverty because of long-standing structural racism in criminal law enforcement and in the economy.

Based on their research, the authors offer the following recommendations:

  • Court debt should never be a barrier to record clearing.Qualification for record clearing should not be conditioned on payment of court debt, and outstanding court debt should not be a basis for denying relief, regardless of whether record clearing is petition-based or automatic.
  • Costs to apply for record clearing, including filing fees, should never be a barrier to record clearing. States should adopt automatic record-clearing processes that do not require individuals to incur costs to have their records cleared.
  • Jurisdictions should collect and report data on monetary barriers to record clearing.Jurisdictions where record clearing may be denied on the basis of outstanding court debt should collect and report data reflecting the impact of these barriers on record clearing.

Download the full report for report findings, recommendations, maps, graphics, and state-by-state analysis: https://bit.ly/lp-high-cost-of-a-fresh-start-22

The report’s appendix cointains a state-by-state analysis of the role played by outstanding court debt in qualifying for record clearing.  It may be separately downloaded at this link:  https://www.nclc.org/images/pdf/criminal-justice/High-Cost-of-Fresh-Start-Appendix.pdf 

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The nonprofit National Consumer Law Center® (NCLC®) works for economic justice for low-income and other disadvantaged people in the U.S. through policy analysis and advocacy, publications, litigation, and training.

The Collateral Consequences Resource Center (CCRC) works to restore rights and opportunities to people with a history of arrest or conviction through research and policy advocacy.

 

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CFPB documents the financial burdens imposed on justice-involved individuals

The Consumer Financial Protection Bureau has just issued an extraordinary new report on the financial challenges faced by justice-involved individuals in navigating each stage of the criminal justice system. The report, which describes itself as “the first of its kind done by the CFPB,” paints a devastating picture of how the criminal law enforcement system conspires at every step to exacerbate the financially precarious situation in which many entering the justice system already find themselves.

“Justice-Involved Individuals and the Consumer Financial Marketplace” documents in clear and compelling prose how the financial products and services marketed to individuals and families entangled in the criminal justice system “too often contain exploitative terms and features, offer little or no consumer choice, and can have long-term negative consequences for the individuals and families affected.” What the CFPB researchers found “raises serious questions about the transparency, fairness, and availability of consumer choice in markets associated with the justice system, as well as demonstrating the pervasive reach of predatory practices targeted at justice-involved individuals.”

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Reintegration Champion Awards for 2021

Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing.  Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords.  (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state’s reintegration scheme in our Restoration of Rights Project.)

Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking:  Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation.

  • Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors.
  • Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking.

Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Read more

“From Reentry to Reintegration: Criminal Record Reforms in 2021”

At the beginning of each year since 2017, CCRC has issued a report on legislation enacted in the past year that is aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. These reports have documented the steady progress of what last year’s report characterized as “a full-fledged law reform movement” aimed at restoring rights and status to individuals who have successfully navigated the criminal law system. The legislative momentum, which slowed a bit during the first year of the pandemic, picked up again in 2021.

The title of this post introduces our annual report on new laws enacted during the past year, and emphasizes the continuum from reentry (for those who go to jail or prison) to the full restoration of rights and status represented by reintegration. Recent research indicates that most people with a conviction never have a second one, and that the likelihood of another conviction declines rapidly as more time passes. The goal of full reintegration is thus both an economic and moral imperative.

In the past year the bipartisan commitment to a reintegration agenda has seemed more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers who are essential to rebuilding the businesses that are the lifeblood of the economy. If there is any one thing that will end unwarranted discrimination against people with a criminal history, it is a recognition that it does not pay.

Our 2021 report highlights key developments in reintegration reforms from the past year. It documents that 40 states, the District of Columbia, and the federal government enacted 151 legislative bills and took a number of additional executive actions to restore rights and opportunities to people with an arrest or conviction history. As in past years, a majority of these new laws involved individual record clearing: All told, an astonishing 36 states enacted 92 separate laws that revise, supplement or limit public access to individual criminal records to reduce or eliminate barriers to opportunity. Most of these laws established or expanded laws authorizing expungement, sealing, or set-aside of convictions or arrest records. Several states enacted judicial record clearing laws for the very first time, and a number of states authorized “clean slate” automatic clearing. Executive pardoning was revived in several states where it had been dormant for years.

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A radical new approach to measuring recidivism risk

NOTE: This post has been updated as of 4/2 to incorporate additional research.

Researchers at the RAND Corporation have proposed a radical new approach to measuring recidivism risk that raises questions about decades of received truth about the prevalence of reoffending after people leave prison.  At least since the 1990s, the Bureau of Justice Statistics has measured risk of recidivism at the time of a person’s last interaction with the justice system, when the statistical cohort includes many who are frequent participants in the criminal system as well as those for whom it is a one-time affair.  As a result, employers and others tend to interpret background checks as overstating the risk posed by someone who in fact may have been living in the community for years without criminal incident, and is unlikely to become criminally involved again.

In Providing Another Chance: Resetting Recidivism Risk in Criminal Background Checks, Shawn Bushway and his RAND colleagues argue that risk should instead be measured at the time a background check is conducted, after an individual has had an opportunity to demonstrate their ability to reintegrate lawfully as well as their propensity to reoffend.  They label this the “reset principle,” and argue that this more individualized approach to risk assessment promises to improve the predictive value of criminal background checks.  In fact, they propose that it will “strengthen the case that people with convictions can, and usually do, change their ways.”

Coupled with other studies showing that the risk of recidivism depends on a variety of factors (e.g., age at time of offense), this new RAND study suggests that general “time to redemption” research should not be relied upon to predict future behavior of specific individuals.

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CCRC’s First Newsletter

Dear Subscribers,

We write with an update on our continued work to promote public discussion of restoration of rights and opportunities for people with a record. Highlights from this year’s work are summarized below, including roundups of new legislation, case studies on barriers to expungement, policy recommendations, and a new “fair chance lending” project to reduce criminal history barriers to government-supported loans to small businesses. We thank you for your interest and invite your comments as our work progresses. Read more

Reintegration reform returns to pre-pandemic levels in first half of 2021

This year is proving to be a landmark one for legislation restoring rights and opportunities to people with a criminal record, extending the remarkable era of “reintegration reform” that began around 2013. Just in the past six months, 30 states and the District of Columbia have enacted an extraordinary 101 new laws to mitigate collateral consequences. Six more bills await a governor’s signature.  It appears that legislative momentum in support of facilitating reintegration has returned to the pre-pandemic pace of 2019.

Overall, the past 30 months have produced an astonishing total of 361 laws aimed at neutralizing the adverse effect of a criminal record, plus more than a dozen additional executive actions and ballot initiatives.

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Study reveals potential for racial bias in presidential pardon process

Last week the RAND Corporation published its long-awaited Statistical Analysis of Presidential Pardons, commissioned in 2012 by the Bureau of Justice Statistics to determine whether the Justice Department process for deciding who to recommend for a presidential pardon is tainted with “systematic” racial bias. The RAND study appears to have been a direct response to an investigative report published jointly in December 2011 by ProPublica and the Washington Post, which concluded based on an examination of pardon cases granted and denied during the administration of George W. Bush, that race was “one of the strongest predictors of a pardon.”

Specifically, the ProPublica study concluded that “White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities” while “Blacks have had the poorest chance” of receiving a pardon.

In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.)  At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.”

The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both.

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“Tribal Pardons: A Comparative Study”

This is the title of a fascinating new working paper by Andrew Novak, Assistant Professor of Criminology, Law and Society at George Mason University, about a little-studied issue: collateral consequences of tribal convictions and how they are mitigated or avoided.  This is an important topic not currently addressed in our national resources on restoration of rights and record relief.  Here is the abstract:

This paper surveys American Indian tribal justice systems to assess whether collateral consequences attach to convictions and whether a pardon or expungement process exists to remove tribal convictions. Tribal criminal jurisdiction is often limited to lesser crimes and only those occurring on a reservation by members of the tribe; with exceptions, other cases are transferred to U.S. state or federal court. The framework of the tribal pardon power varies widely across jurisdictions: it may be exercised by a tribal executive, a tribal legislature or council, a specially appointed pardons board or committee, a vote of the tribal membership, or some combination of the above. Some jurisdictions instead have a traditional peacemaking, forgiveness, or reconciliation ritual process in lieu of a true pardon or expungement process.

Many Indian tribes impose collateral consequences for convictions both in tribal court and in state or federal court. Most commonly, these consequences restrict tribal membership and rights, including the right to vote in tribal elections or hold tribal office, but they may extend to housing, gaming licenses, tribal employment, and other areas. Many tribal jurisdictions do not have a pardon or expungement process, despite having collateral consequences attach to convictions. Several tribal courts have considered whether their tribal constitutions create an implied pardon power where one is not specifically provided for in tribal law. As a normative matter, this paper takes the position that tribal jurisdictions should have a pardon or expungement process (or its equivalent in indigenous law) where collateral consequences attach to conviction.

The draft of this working paper is available here.

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