Category: Criminal Records

Marijuana legalization and record clearing in 2022

CCRC is pleased to announce a new report on recent cannabis-specific record sealing and expungement reforms in the past 18 months. The report, extending CCRC’s fruitful collaboration with the Drug Enforcement and Policy Center at The Ohio State University, is available here. 

An accompanying infographic (reproduced at the end of this postr) summarizes the report’s findings, and includes a color-coded US map showing which states have enacted cannabis-specific record-clearing provisions.  To supplement the map, the report includes an appendix classifying and describing marijuana-specific record clearing statutes in all 50 states, based on CCRC’s 50-state comparison chart on “Marijuana Legalization, Decriminalization, Expungement and Clemency.” 

To put our new report in context, CCRC and DEPC reported 18 months ago on an “unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform in the first months of 2021,” with four states (New Jersey, New Mexico, New York, and Virginia) legalizing marijuana possession and at the same time providing criminal record relief for past convictions along with a variety of social equity provisions. 

Our report shows this trend continuing into 2022. Since our 2021 report, four additional states (Connecticut, Maryland, Missouri, and Rhode Island) have adopted similar record-clearing provisions in connection with adult-use cannabis legalization, authorizing sealing and expungement provisions that in most cases extend well beyond convictions for legalized conduct.

All four states made at least some relief automatic, removing the burden of a criminal record from many individuals while raising the bar on standards for marijuana record relief nationwide. Like the four states discussed in our earlier report, these four also address racial disparities in marijuana criminalization by directing tax revenue and business opportunities for legal marijuana to individuals and communities disproportionately affected by criminal law enforcement. During this same timeframe, three additional states (California, Colorado, and Massachusetts) enhanced their existing marijuana-specific record sealing statutes.

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Applying for federal disaster assistance with a criminal record

In addition to its lending and other programs in support of small businesses, the U.S. Small Business Administration provides long-term low-interest loans under Section 7(b) of the Small Business Act directly to individuals, businesses, and nonprofits in declared disaster areas. The current devastation wrought by Hurricane Ian in Florida — the subject of a dedicated new page on the SBA’s website — reminded us of some research we published two years ago, at the height of the pandemic, about how people with a criminal record were faring under the SBA’s COVID-related disaster relief program.  The answer initially was “not well.”

Our research indicates that neither FEMA (emergency aid) nor the USDA (farm loans) impose criminal record restrictions on disaster assistance.  But the SBA does.  What’s more, the SBA’s restrictions are not formalized in a regulation but buried in operating procedures.

The criminal history restrictions on SBA economic injury disaster loans (EIDL) under the CARES Act were initially even more restrictive than those that applied to its PPP relief, and they too were never formalized in a rule. The PPP restrictions were rolled back in response to public outcry and lawsuits, and the following year the COVID-related EIDL policy was also rolled back to disqualify the same limited population as the PPP itself (people in prison or on probation or parole, with pending felony charges, or with recent financial fraud and related convictions).  However, criminal record restrictions in the SBA’s general non-COVID lending programs, including its general disaster assistance programs, were not affected.

Now that the SBA’s disaster assistance programs are no longer administered under the exceptional and well-publicized approach of the pandemic-related authorities, we thought it would be timely to take another look at how those programs — presumably including the one that specifically applies to Hurricane Ian relief — are available to people with a criminal record.    

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California poised to expand record clearing to cover most felonies

NOTE: On September 29, Governor Newsom signed into law both of the bills discussed in the post below. They will take effect on January 1, 2023.   

California Governor Gavin Newsom is expected to sign this week two bills that will give that state the broadest record-clearing laws in the nation. Senate Bill 731 would extend both automatic and petition-based and record relief to felony-level offenses, while Senate Bill 1106 would preclude denial of relief based on outstanding court debt in most cases.

When signed into law, Senate Bill 731 will place California at the forefront of record clearing nationwide. It would expand automatic record relief to all felony non-convictions since January 1, 1973, six years after the date of arrest. California law currently excludes felony arrests from eligibility for automatic relief if the charge is serious enough to potentially result in incarceration at a state prison. Other felony non-convictions remain eligible for automatic relief after three years unless the charge was punishable by eight years’ incarceration or more in a county jail, for which the new six-year wait period applies.

SB 731 also expands eligibility for automatic relief to persons convicted of a felony and sentenced to probation on or after January 1, 2005, if they violated probation but later completed all terms of supervision. Current law excludes from relief anyone who violated their probation. The new law requires a four-year conviction-free period after completion of the sentence. This expansion of automatic relief does not apply to certain serious and violent felonies, and ones for which the person is required to register as a sex offender. As noted below, all but the last-mentioned category will now be eligible for relief by petition.

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A closer look at racial disparities in California’s automatic record clearing

Numerous studies have demonstrated how Black Americans are treated more harshly at every stage of the criminal legal system—from over-policing to overcharging to more punitive sentencing. New research from California shows how eligibility limitations on criminal record relief perpetuate racial disparities in the criminal justice system, and have a disproportionately adverse effect on Black Americans.

The study, by Alyssa Mooney, Alissa Skog, and Amy Lerman, and published in Law & Society Review, examined recent legislative changes to criminal record relief laws in California, one of the first states to automate relief. The study assessed the equity of California’s existing automatic record relief laws by examining the share of people with criminal records who are presently eligible for automatic record clearing, and variations across racial and ethnic groups.

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Racial disparity in clean slate record clearing? California responds

Reproduced below is a press release describing new research by three California scholars published in the Law & Society Review, based on California sentencing data, showing how eligibility criteria for automatic record clearing “can inadvertently perpetuate racial inequity within the criminal justice system.”

This conclusion seems to us unsurprising, and likely has broader national application for two interrelated reasons:  Prosecution policies nationwide have tended to result in more Blacks than Whites being convicted of more serious felonies resulting in prison sentences, while eligibility for automatic record clearance has to date been authorized primarily for non-convictions and misdemeanors (see sections 2 and 3 from the 50-state charts at this link from our Restoration of Rights website: https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside-2/.) The authors recommend that “to reduce the racial gap in criminal records, a change in policy needs to happen to extend record clearance eligibility to a wider range of cases—for example, people with felonies or those sent to prison who are currently excluded.”

The California legislature seems to have anticipated the recommendations in this report,  for on August 18 it enrolled and sent to Governor Newsom’s desk a bill that would extend existing automatic record clearing authority to most felonies after four felony-free years, and for the first time to felony non-conviction records. See SB 731. This makes California’s “clean slate” law by far the most extensive in the country.

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