Category: Reports

New 2019 laws reduce workplace barriers for people with a criminal record

This is the second in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief.  The full report on 2019 laws is available here.

Consideration of criminal record in occupational licensing and employment

In 2019, 26 states and the federal government enacted 42 separate laws limiting consideration of criminal record in either employment or occupational licensing, or both.  For the first time, Congress joined the lively national conversation about the need to reduce record-related barriers in the workplace that are inefficient and unfair.

Regulation of licensing accounted for 30 of these new laws, continuing a trend begun in 2017 that has transformed the licensing policy landscape and opened opportunities in regulated professions for many thousands of people.  As explained in our report on 2018 laws, these licensing reforms are particularly important in supporting reintegration, since studies have shown that more than 25% of all jobs in the United States require a government-issued license.

The new wave of licensing reforms resurrects a progressive approach to occupational opportunity that dates from the 1970s, and it has been strongly influenced by model legislation developed by the Institute of Justice (IJ), a libertarian public interest law firm, and the National Employment Law Project (NELP), a workers’ rights research and advocacy group.  Despite their origin in differing regulatory philosophies, the IJ and NELP model laws reflect a similar approach:  they limit the kinds of records that may result in disqualification, rejecting vague “good moral character” and other criteria irrelevant to competence,  insisting that individual denials be grounded in findings of rehabilitation and public safety with rigorous due process guarantees, and making agency procedures more transparent and accountable.  In the IJ model, applicants can seek binding preliminary determinations of qualification, and agency compliance is monitored by disclosure and reporting requirements.

The new licensing laws borrow features of the comprehensive schemes enacted in 2018 in states like Indiana and New Hampshire, though in 2019 most states took a more cautious approach to reining in licensing agencies.  Some states (like Mississippi and Nevada) enacted generally applicable laws for the first time, while others returned to the task begun in previous legislative sessions.  Arizona, for example, has enacted significant licensing reforms for three years running, while Texas enacted no fewer than five separate licensing measures in 2019 alone—two of them of general application and quite significant, and the other three opening opportunities in health care occupations to people who may have been denied them earlier in life.  Arkansas, North Carolina and Oklahoma significantly expanded existing licensing schemes.

Compared to occupational licensing, 2019 was not a banner year for new fair employment laws.  Still, ten states and the federal government enacted a total of 14 new measures to promote opportunities in the workplace.  Most of the new laws continue the expansion of “ban-the-box” laws in public and private employment, including a significant new law covering employment by federal agencies and contractors.

The only 2019 enactment that directly prohibits consideration of criminal record in employment is Illinois’ extension of its Human Rights Act to bar employers and housing providers from considering arrests not resulting in conviction and juvenile adjudications.  Since 2019 was also a year that saw doubt cast on the legality of the EEOC’s extension of Title VII of the Civil Rights Act of 1964 to cover employment discrimination based on criminal record, more states may step up in coming years.  As of the end of 2019, only four states (California, Hawaii, New York, and Wisconsin) include criminal record discrimination in their general fair employment schemes, and all but California’s law date from the 1970s.  Colorado, Connecticut, and Nevada have, like Illinois, more recently prohibited some employers from considering certain criminal records, but those prohibitions are not integrated into a broader nondiscrimination law.

The new 2019 licensing and employment laws are described in more detail below, and can be viewed as they interact with other relief provisions in the relevant state profiles from the CCRC Restoration of Rights Project.

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Model law proposes automatic expungement of non-conviction records

An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction.  Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law.  It is available in PDF and HTML formats.

“Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project.  “Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs.”

In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record.  Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction.  The group regards its model as the first step in a broader law reform initiative that will address conviction records as well.

Law enforcement officials make over 10 million arrests each year, a substantial percentage of which do not lead to charges or conviction.  Records of these arrests have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation.  These checks often turn up an “open” arrest or charges without any final disposition, which may seem to an employer or landlord more ominous than a closed case.

Very few states have taken steps to deal with the high percentage of records in repositories and court systems with no final disposition indicated.  Paul McDonnell, Deputy Counsel for New York’s Office of Court Administration and a project advisor, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.”

Current state and federal laws restricting access to and use of non-conviction records have limited application and are hard to enforce.  Eligibility criteria tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating.  In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of non-convictions, leading some states to simplify and broaden eligibility for relief, reduce procedural and financial barriers to access, and in a handful of states to make relief automatic.

Rep. Mike Weissman, a Colorado State Representative and model law project advisor, noted that Colorado has recently overhauled its laws on criminal records with broad bipartisan support.  “It is heartening to see similar reforms underway in other states, both red and blue, as well.  I commend the practitioners and researchers who helped formulate the model law for illustrating avenues for further progress in reducing collateral consequences.”

The model law would take this wave of criminal record reforms to a new level.  It recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused.  Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction.  Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending.

The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies.  It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them.

David LaBahn, President of the national Association of Prosecuting Attorneys, indicated that organization’s support for the model law, stating that the collateral consequences of non-convictions “do not serve to make the community safer,” and that “the current structures in place to expunge a non-conviction record can be confusing and difficult for the layperson to navigate alone.”

This model law sets the stage for jurisdictions to address record relief for convictions more generally, and its structure and principles can be brought to bear on that important work.

The Collateral Consequences Resource Center organized this model law project.  An early draft of the model law was discussed at an August 2019 Roundtable conference at the University of Michigan that was supported by the Charles Koch Foundation.  The model law report was supported by Arnold Ventures.

Read the model law in PDF or HTML.

Legislative update: third quarter 2019 sees more new licensing and expungement laws

In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction.  A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions.  Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing.  In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record.  Another area of progress was restoring voting rights.

Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions.  Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions).  (California enacted a “clean slate” law shortly after the beginning of the fourth quarter.)  At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.)

By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon.

All of the laws described briefly below are more fully analyzed in the context of the state’s overall restoration scheme, in the detailed profiles of the Restoration of Rights Project.

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CCRC to hold roundtable on criminal records at U. Michigan Law School

We are pleased to announce that we are convening a roundtable meeting in August 2019, hosted by the University of Michigan Law School, to develop a model law on access to and use of criminal records, specifically in cases that do not result in a conviction.

In March, we began a major study of the public availability and use of these non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to criminal records through mechanisms like sealing and expungement increases the earning ability of those who receive this relief, which in turn benefits their families and communities.

The problems of access and use are not limited to private actors:  a recent court decision in New York suggests that police departments in some jurisdictions make operational use of sealed non-conviction records even when the law prohibits it.

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Survey of law enforcement access to sealed non-conviction records

As part of our non-conviction records project, we have researched what state laws provide on law enforcement agency access to and use of sealed or expunged non-conviction records for routine law enforcement purposes.  This issue is particularly salient in light of an ongoing lawsuit against the New York Police Department in which a New York state court found that the NYPD’s routine use and disclosure of sealed arrest information—without securing a court order—violates New York’s sealing statute.

Looking across the country, we found an almost even split on this issue: exactly half the states either do not allow law enforcement access to sealed records for routine law enforcement activity, or condition law enforcement access on a court order (as in New York) or formal written request.  Specifically, we identified 25 states and two territories that appear to limit law enforcement agency access to and/or use of non-conviction records, either absolutely (12 states and two territories), or without a court order (11 states) or formal written request to the state custodian of records for a specified purpose (two states).  The other 25 states, plus two territories, the District of Columbia and the Federal system, exempt law enforcement agencies generally from sealing or expungement laws, or in a few cases have no law authorizing sealing of non-conviction records (American Samoa, the Federal system, and Wisconsin).

Note a couple of things about the way we conducted this research.  First, our results apply only to records that do not result in a conviction (though in many states the answer is the same for records that do), and we classified them according to their apparent application to law enforcement operations (some states allow law enforcement agency access for employment and certification purposes).  There are a handful of states that bar law enforcement agency access but allow access by prosecutors, both generally (NC) and in specific situations (AR, KS), and we classified these as barring law enforcement access, because the possibility of police access to records through prosecutors is not the kind of unregulated direct access at issue in the New York litigation.

The second thing to note is that our results say nothing about how easy or hard it is to get a non-conviction record sealed or expunged, or who is eligible for this relief.  For example, of the states whose laws bar access, New York offers sealing of non-conviction records right at disposition as a routine matter, with the burden on the prosecutor to show why sealing isn’t appropriate (and it is a high bar).  Other states in the “no access” or “court order” categories (e.g. Virginia, Kentucky, West Virginia) require a defendant to file a separate civil petition after an eligibility waiting period, disqualify based on prior record, require a hearing at which the petitioner has the burden of showing why relief should be granted, and even impose civil filing fees.

Our classification tells a bit more about the scope or effect of sealing/expungement relief in each state more generally, since states that “delete” or “erase” non-conviction records are more likely to specifically bar law enforcement agency access than states that merely limit public access to the record.  But even states that provide some public access (e.g., by licensing boards) may also bar access for law enforcement functions (e.g., KS).  (Further information about the effect of sealing or expungement relief in each state may be found in the Restoration of Rights Project profiles.)

Our state-by-state research follows.

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Updated report on 2018 fair chance and expungement reforms

On January 10, 2019, we released a report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  Since that time, we discovered five additional laws enacted in 2018 (in AL, PA, OR, MO, and the U.S. Virgin Islands), and have updated our report accordingly.

In 2018, 32 states, the District of Columbia, and the U.S. Virgin Islands enacted at least 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime. The CCRC report analyzes last year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.

Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.

The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box:

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Press release: New report on 2018 fair chance and expungement reforms (updated)

Washington, D.C. — The Collateral Consequences Resource Center (CCRC) has released a new report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  In the past twelve months, 32 states, the District of Columbia, and the U.S. Virgin Islands have enacted 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime.  The CCRC report analyzes the past year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.  The report, titled “Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018,” is available to download here. 

Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.

The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box:

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“The Scale of Misdemeanor Justice”

There is a growing awareness that the consequences of a misdemeanor arrest or conviction have become exponentially more serious in recent years.  We also know that the misdemeanor system is enormous, and that its very size makes it particularly susceptible of abuse.  Yet we have very little reliable information about how many people in the United States have a misdemeanor record.  A new research report by Professors Megan Stevenson and Sandra Mayson begins to fill this gap, in the process challenging the conventional wisdom that the misdemeanor system is expanding.
Based on “the most comprehensive national-level analysis of misdemeanor criminal justice that is currently feasible,” the report reaches the surprising conclusion that both the number of misdemeanor arrests and cases filed each year have “declined markedly” in recent years.  At the same time, unsurprisingly, it concludes that there is “profound racial disparity” in misdemeanor arrest rates for most offense types, and that this disparity has “remained remarkably constant” over almost four decades.   While the report confirms current perceptions about the scale of misdemeanor justice and its disparate racial impact, its fascinating findings of “declining arrest and case-filing rates present a challenge for misdemeanor scholarship.”

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Michigan set-asides found to increase wages and reduce recidivism

Preliminary results of an empirical study by two University of Michigan law professors show that setting aside an individual’s record of conviction is associated with “a significant increase in employment and average wages,” and with a low recidivism rate.  We know of only one other similar study, conducted by researchers at the University of California at Berkeley, and it came to essentially the same conclusion.  One relevant difference between the two studies is that in Michigan set-aside results in sealing of the record, while in California it does not.  Such studies are rare because of the difficulty of obtaining data, particularly where relief seals the record, but they are a very important way of advancing a reform agenda.  Thus, Professors Sonja Starr and J.J. Prescott propose that their research “provides important empirical guidance to the broader social policy debates associated with set-aside laws and accessibility of criminal records.”  In the hope that their work will encourage others to undertake similar research, we reprint the entire report below.

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New report: Roundup of 2017 expungement and restoration laws

A new report from the Collateral Consequences Resource Center shows that states across the country are continuing to expand opportunities to avoid or mitigate the adverse effects of a criminal record.  If anything, the trend first documented last winter in Four Years of Second Chance Reforms, 2013 – 2016 has accelerated in 2017. 

Second Chance Reforms in 2017 identifies 23 states, blue and red, that in the past year broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  Using research from the Restoration of Rights Project, the report describes specific changes to the law in each state during the past year along with relevant citations, analyzing and comparing approaches taken by different states.

The most frequent type of reform involves limiting public access to criminal records: new sealing or expungement laws were enacted in several states that previously had none, eligibility requirements were relaxed for many existing record-sealing authorities, and new limits were imposed on access to non-conviction and juvenile records – all making it easier for more individuals to get relief at an earlier date. However, there is remarkably little consistency among state record-closing schemes, and most states extend relief only to less serious offenses after lengthy eligibility waiting periods. Moreover, eligibility criteria are frequently so complex as to defeat the sharpest legal minds. Other recurring reforms limit employer inquiries into criminal history at the application stage, and a few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing.

The fast pace of reform in the states reflects a dawning realization that the problem of mass conviction is at least as significant in economic and social terms as the problem of mass incarceration.  At the same time, the dizzying variety and complexity of the new provisions indicates that there is still no consensus about the most effective way to avoid or mitigate the adverse effects of a criminal record. Because there has been very little empirical research into the relative effectiveness of different forms of relief, it is not surprising that experimentation seems to be the order of the day.

These new laws and significant reform proposals of the past several years – notably the collateral consequences provisions of the Model Penal Code: Sentencing – will be discussed at a Roundtable conference in Washington, D.C. on January 12, 2018, sponsored by the American Law Institute and the National Conference of State Legislatures.

Each new reform is more fully explained in the state-by-state profiles in the Restoration of Rights Project.  The Executive Summary follows, and the full report is available here.    

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