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

CCRC files congressional testimony on fair chance lending

The Collateral Consequences Resources Center submitted a statement for the record ahead of tomorrow’s hearing before the Subcommittee on Diversity & Inclusion of the House Committee on Financial Services: “Access Denied: Eliminating Barriers and Increasing Economic Opportunity for Justice-Involved Individuals.” The CCRC statement recommends that Congress conduct oversight on criminal history restrictions in federally sponsored small business lending policies, and facilitate access to these resources for small businesses owned by justice-impacted individuals.

CCRC’s statement describes some of its research about the the U.S. Small Business Association’s (SBA) criminal history policies and identifies the following concerns:

  • The SBA’s extensive criminal history restrictions are not provided by statute.
  • Many of the SBA’s criminal history restrictions are also not included in its published regulations.
  • The SBA’s criminal history restrictions are overbroad and lack specific justification.
  • The SBA’s criminal history restrictions have racially disparate impacts.

You can read the statement here.

North Carolina court restores the vote to 56,000

Update: This decision was stayed by the North Carolina Court of Appeals on September 3, 2021. As a result, the decision will not go into effect either until the appeal is resolved or further order of the court.

A three-judge state court in North Carolina has ruled that state’s felony disenfranchisement law unconstitutional as applied to individuals under supervision in the community, immediately restoring the vote to some 56,000 individuals. The decision means that in 24 states and the District of Columbia individuals convicted of felonies and serving a sentence in the community may vote.  North Carolina is the first southern state to restore the vote to convicted individuals upon release from prison.

As the New York Times noted in describing the court’s action, the ruling was “not entirely unexpected,” since “the same court had temporarily blocked enforcement of part of the law before the November general election, stating that most people who had completed their prison sentences could not be barred from voting if [the] only reason for their continued supervision was that they owed fines or court fees.”  See Community Success Initiative v. Moore, No. 19-cv-15941 (N.C. Super. Ct. Sept. 4, 2020).

While last year’s preliminary decision rested on the ground that requiring payment of court debt represented an poll tax, the challenge to North Carolina’s reenfranchisement scheme relied more broadly on its origins in intentional post-Civil War discrimination against Black people.  As the Times article noted, the decision “followed a trial that bared the history of the state’s disenfranchisement of Black people in sometimes shocking detail.”

The law struck down on Monday, which was enacted in 1877, extended disenfranchisement to people convicted of felonies in response to the 15th Amendment, which enshrined Black voting rights in the Constitution. But in the decade before that, local judges had reacted to the Civil War’s freeing of Black people by convicting them en masse and delivering public whippings, bringing them under a law denying the vote to anyone convicted of a crime for which whipping was a penalty.

A handful of Black legislators in the General Assembly tried to rescind the 1877 law in the early 1970s, but secured only procedural changes, such as a limit on the discretion of judges to prolong probation or court supervision.

The court has not yet released its opinion, and state officials may decide to appeal.

Federal policies block loans to small business owners with a record

Starting a small business is increasingly recognized as a pathway to opportunity for individuals with an arrest or conviction history—particularly given the disadvantages they face in the labor market. An estimated 4% of small businesses in the United States have an owner with a conviction (1.5% have a felony conviction). Small businesses provide “a vital opportunity for those with a criminal record to contribute to society, to earn an honest profit, and to give back to others.” They also frequently employ people with a record and help reduce recidivism. A growing number of organizations and government programs are devoted to supporting individuals with a record in building their own businesses.

Yet many structural barriers remain, including a series of little-known federal regulations and policies that impose broad criminal history restrictions on access to government-sponsored business loans, notably by the U.S. Small Business Administration (SBA).  A recent article illustrates the steep challenges faced by business owners with a record by telling the stories of several entrepreneurs who were either denied an SBA loan or were discouraged from even trying for one because of a dated felony conviction.  One of those entrepreneurs comments: “You might do five years, ten years, one year, but you pay for it until you’re in the grave.”

To illuminate and help reduce these barriers, our organization is working to develop a new “Fair Chance Lending” project. We hope to show that—rather than broadly exclude individuals with a criminal history—officials should draw record-based restrictions as narrowly as feasible, facilitate access to resources, and celebrate entrepreneurial efforts, consistent with growing national support for reintegration and fair chances in civil society.

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.

Read more

New fair chance employment and housing laws in 2021

In the first half of 2021, two states enacted major laws significantly expanding protections against discrimination based on criminal record: Illinois in the area of employment and New Jersey in housing decisions. Several other states also enacted new laws regulating consideration of criminal records in employment and housing, which are summarized below.

Fair chance employment

  • On March 23, 2021, Illinois Governor Pritzker signed into law HR1480, a major expansion of the Illinois Human Rights Act to add a new section prohibiting discrimination in employment based on criminal record. Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency or labor organization to use a conviction record as a basis to refuse to hire or to take any other adverse action unless: 1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or 2) the granting or continuation of the employment would involve a public safety risk. “Substantial relationship” means that the position offers the opportunity for the same or a similar offense to occur and “whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” In making a determination the employer must consider various factors, including the time since conviction and evidence of rehabilitation. If the employer makes a “preliminary decision” to take adverse action, the employer shall notify the employee in writing, and explain the person’s right to respond. The employer must consider information submitted by the employee before making a final decision, and if the final decision is based “solely or in part” on the person’s conviction record, the employer must notify the person of their reasoning, inform them of whatever avenues of appeal may exist, and of their right to file a charge with the Department of Human Rights.
  • Louisiana‘s HB707 prohibits consideration of non-conviction records in employment decisions and requires employers to make an individual assessment of whether an applicant’s criminal record has “a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position,” considering certain specified factor relating to the criminal case and the applicant’s subsequent history. This law applies to any public or private employer.
  • Maryland enacted a ban-the-box rule applicable to private employers, after the legislature overrode Governor Hogan’s veto. Companies with 15 or more employees may not ask an applicant about their criminal history or conduct a background check at any time before the first in-person interview.
  • New Mexico enacted SB2, amending its 1974 law prohibiting certain discrimination in public employment and occupational licensure. (This law was written up in our earlier post on occupational licensure.) The new law bars consideration of convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.”

Fair chance housing

  • On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The law prohibits consideration of any criminal record at the initial rental application stage, allows only certain records to be considered after a conditional offer is made, and imposes substantive and procedural standards for withdrawal of a conditional offer. Violations may be sanctioned with up to $10,000 in fines and other compliance measures, civil immunity is provided for landlords from claims based on decisions to rent to individuals with a record, and reporting requirements are included. The specific provisions of the new law were described in detail in a June 22 post by David Schlussel.
  • IllinoisSB1980 requires local housing authorities in Illinois to collect data on the number of applications for federally assisted housing by people with a criminal record, how many applications denied, and how many overturned after a records assessment hearing. The data must be reported to the Illinois Criminal Justice Information authority and to the legislature, and posted on the CJIA website. Per a 2020 law, the Illinois Human Rights Act also prohibits inquiries about, or discrimination in public and private employment and “real estate transactions” based on “arrest record,” defined as “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.”
  • Louisiana‘s HB374 requires landlords in Louisiana to give notice to prospective tenants if they will consider criminal record information.

More details on these laws are available in the Restoration of Rights Project.

Restoration of voting and other civil rights in 2021

Voting rights

In the first half of 2021, three states enacted laws authorizing automatic restoration of the vote to anyone not actually incarcerated for a felony, and a fourth state did so through executive order, while beginning the process of amending its constitution to accomplish this result.

New York and Connecticut repealed provisions disenfranchising anyone on parole, while Washington restored the vote to anyone no longer confined for a felony. In March 2021, Virginia Governor Ralph Northam issued an executive order restoring the vote to 69,000 people who had been released from prison but had not yet completed their supervision, culminating a process of automatic expansion of the franchise by gubernatorial executive order that began in 2013. The Virginia legislature approved a proposal to amend the state constitution that, if approved a second time by the next legislature and by a referendum, will disenfranchise only people who are sentenced to a prison term for a felony and will restore their right to vote upon release from prison.

Three other states clarified the timing of restoration of voting rights or facilitated their exercise. Louisiana clarified its law to ensure that a return to jail for violating parole will not extend the 5-year period after which a person released on parole may vote. Maryland passed a law to ensure that individuals detained in Baltimore’s jail may vote, and Illinois passed a law to facilitate registration by those exiting prison.

At the federal level, President Biden issued an Executive Order titled “Promoting Access to Voting” whose Section 9 (“Ensuring Access to Voter Registration for Eligible Individuals in Federal Custody”) requires the Attorney General to take four important actions to ensure access, for people in federal custody or under federal supervision, to voter registration and educational materials on restoration of voting rights.

Jury eligibility

Connecticut limited ineligibility for jury service to a period of actual incarceration, and Louisiana replaced its lifetime bar with a five-year period after release from prison or probation.

Office-holding 

Illinois recognized its governor’s authority to restore eligibility for municipal office to a person with a federal conviction, by granting a certificate of restoration of rights.

Firearms

Kansas expanded the effect of expungement to restore firearms rights.

More details on these laws are available in the Restoration of Rights Project.

New collection of research on sex offense registration

Cambridge University Press has just published a new book, edited by Professors Wayne A. Logan and J.J. Prescott, containing chapters from the nation’s leading social science researchers on the many important empirical questions surrounding sex offense registration and community notification (SORN).  Since SORN’s origin in the early 1990s, basic questions have existed regarding its effects, including whether it actually achieves its intended purpose of reducing sexual offending.

SORN surely numbers among the most significant social control methods of the past several decades.  Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach.

An updated review of caselaw from Professor Logan on SORN and other collateral consequences triggered primarily by sex offenses will be included in the forthcoming fourth edition of Love, Roberts & Logan, Collateral Consequences of Arrest & Conviction: Law Policy & Practice (West/NACDL, 4th ed. 2021). Also, as readers might be aware, the American Law Institute, as part of its overhaul of the Model Penal Code’s sex offense-related provisions, has tentatively approved a slate of reforms advocating a vastly reduced approach to registration and discontinuation of community notification. (We plan a post about the MPC’s important new model in the near future.)

Read more

New Jersey puts “fair chance housing” on the national agenda

People with a record frequently experience challenges in obtaining or maintaining housing. For those who have been incarcerated, on supervision, charged, and/or arrested, the background check for rental applications can be a persistent obstacle. Lack of stable housing is a major roadblock to successful reintegration into the community or the pursuit of social and economic opportunities. It is therefore encouraging that states have begun to enact laws limiting record-based disqualifications in housing decisions.

On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The NAACP New Jersey State Conference, Latino Action Network, Fair Share Housing Center, and New Jersey Religious Action Center of Reform Judaism led organizational advocacy for the measure. Senator Troy Singleton, one of the bill’s primary sponsors, cited the “staggering amount of data on the national level that shows securing housing is one of the key barriers to reducing recidivism,” according to the New York Times. “This measure will allow those who have paid their debt to society to move forward with their lives in a productive manner.” Another sponsor, Assemblyman Benjie Wimberly, noted that “We’re fighting generational poverty, homelessness, and hopelessness through social justice reform measures such as this one.”

With New Jersey’s legislation—following on the heels of laws enacted in 2019 in Colorado, Illinois, and New York, legislation in D.C. in 2017, and a slew of local ordinances since 2016— “fair chance housing” has arrived on the national reintegration agenda. While many states have adopted reforms that limit the use of criminal records in employment and occupational licensing, until these recent developments housing does not appear to have been a priority for lawmakers, at least at the state level.

Read more

New Mexico a new leader in criminal record reforms

This year, New Mexico enacted three significant laws restoring rights and opportunities to people with a criminal record, continuing a recent trend of major reforms in this area. The three measures involve adopting most of the provisions of the Uniform Collateral Consequences of Conviction Act, authorizing automatic expungement for a broad range of marijuana offenses as part of legalization, and expanding existing law regulating public employment and licensure to prohibit consideration of many types of convictions. A fourth new law significantly limits burdens imposed by court debt. These developments follow 2019 reforms introducing expungement into the state’s legal system for the very first time—through a comprehensive system of petition-based relief for most types of criminal records—and adopting a private sector ban-the-box law.

For these 2019 reforms, New Mexico earned an “honorable mention” for a productive legislative season in our reintegration report card for that year. This year’s noteworthy follow-up measures, summarized below, make New Mexico a contender for CCRC’s “reintegration champion” award in 2021.

Read more

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