Category: Topics

Sex offense registries in Europe and around the world

We are pleased to publish new research by Stephen Schulhofer about the treatment of sex offense registration in the UK, Canada, Australia, New Zealand, and the EU. The research, presented here with an introduction by Alessandro Corda, comes from material prepared for inclusion in an upcoming draft of the Model Penal Code: Sexual Assault and Related Offenses (full citation and disclaimer below).

Introduction: An Important Look at Foreign Policy and Practices Regarding Sex-Offense Collateral Consequences

By Alessandro Corda, Lecturer in Law, Queen’s University Belfast School of Law

The American Law Institute’s ongoing project aimed at reforming the Model Penal Code provisions on sexual assault and related offenses includes within its reach not only substantive criminal law provisions, but also collateral consequences applicable specifically to persons convicted of a sexual offense, in particular sex offense registries.

Sex offense registration and notification laws are a quintessential example of a collateral consequence of conviction that flourished during the so-called “tough-on-crime era.” The first sex offense registries in the United States were enacted in the late 1940s as a way “to inform the police of the whereabouts of habitual sex offenders.” The idea soon lost favor to so-called sexual psychopath laws. By the 1970s, however, such laws had likewise lost approval, “either being repealed or widely ignored as ineffective and unjust policies” (Hoppe, 2016, p. 577; see also Rice Leave, 2009). Everything changed in the 1990s, following high profile cases of abduction and sexual torture of children in the context of a climate of raising punitiveness.

The first state sex offense registration law was passed in Washington State in 1990 and applied to people convicted of certain sexual offenses. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act as part of the controversial Clinton Crime Bill, requiring states to implement sex offense registries. In 1996, the so-called Megan’s Law amended the 1994 Act to require each state to provide notification and information to communities about convicted sex offenders living in the area for public safety purposes.[*] Prior to that, individuals convicted of a sexual offense only had to register with local law enforcement agencies, with public notification procedures available under certain circumstances. The subsequent Sex Offender Registration and Notification Act of 2006 (SORNA), also known as the Adam Walsh Act, rewrote the law in its entirety to mandate the creation of a nationwide online registration and notification system and provided a set of minimum standards to be followed across the United States (Jones & Newburn, 2013, pp. 444-46; Logan, 2009, pp. 429 ff.). Since 2006, a number of federal bills have added to SORNA’s provisions to address issues such as online safety and international travel by registered individuals.

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Updated: “Who Must Pay to Regain the Vote? A 50-State Survey”

We are pleased to publish an update of our 50-state report on how unpaid court debt blocks restoration of voting rights lost as a result of a felony conviction:

Who Must Pay to Regain the Vote? A 50-State Survey

This report examines the extent to which state reenfranchisement laws consider payment of legal financial obligations (LFOs), including fines, fees, and restitution, in determining whether and when to restore voting rights to people disenfranchised due to a felony conviction. (Our national survey discusses and ranks each state’s general approach to loss and restoration of voting rights based on conviction.)

We first published this research in July 2020 during litigation over Florida’s 2018 voting rights ballot initiative, which many expected would restore voting rights to more than a million people disenfranchised because of a felony conviction. However, the initiative was interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which drastically limited its anticipated reach. A federal district court found this system unconstitutional, but the U.S. Court of Appeals for the Eleventh Circuit reversed that conclusion in a 6-4 decision.

During the appeal, an amicus brief by the State of Texas, joined by seven other states, asserted that “States across the country have similar rules [to Florida] for felon voting” and that the district court’s holding “called into question the widespread practice” of permanently disenfranchising people who are not able to “pay their debts to society.”  As we demonstrated in our original report and amicus brief, the assertions in the Texas brief were not well-founded: few states have laws like Florida’s that indefinitely deny reenfranchisement based on any unpaid debt related to a disqualifying conviction.

This updated report documents whether and to what extent unpaid LFOs restrict voting rights in each state, and reflects developments in California, where voters early this month passed a constitutional amendment to restore voting rights to those on parole; and in Iowa, where the governor in August issued an executive order to restore voting rights after completion of incarceration and supervision, regardless of payment of LFOs.

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Marijuana expungement accelerates across the country

In November’s election, four more states legalized marijuana at the ballot box: Arizona, Montana, New Jersey, and South Dakota. The measures in Arizona and Montana included provisions for expunging the record of convictions for certain marijuana arrests or convictions. During this year’s presidential campaign, President-elect Joseph R. Biden called for decriminalizing marijuana use and automatically expunging all marijuana use convictions.

As legalization continues to advance, the expungement of criminal records has finally attained a prominent role in marijuana reform, a development we documented in March. Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in 23 states and D.C.

Until very recently, most such laws extended to very minor offenses involving small amounts of marijuana and required individuals to file petitions in court to obtain relief. Now, a growing number of states have authorized marijuana record relief that covers more offenses and either does away with petition requirements or streamlines procedures.

With these developments, we have again updated our chart providing a 50-state snapshot of:

(1) laws legalizing and decriminalizing marijuana;

(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized; and

(3) pardon programs specific to marijuana offenses.

As of this writing, 15 states and D.C. have legalized adult-use marijuana, and 16 additional states and one territory have decriminalized marijuana to some degree. Twenty-three states and D.C. have enacted expungement, sealing, or set-aside laws specifically for marijuana, or targeted more generally to decriminalized or legalized conduct (compared to 17 states and D.C. as of March 2020). Six states have developed specialized pardon programs for marijuana offenses (compared to 4 states as of March 2020)

This comment describes some of the history of marijuana decriminalization, legalization, and expungement reforms, recent trends, and the current state of the law in this area. It provides strong evidence of what Professor Douglas A. Berman has described as the “linking and leveraging” of the marijuana reform and expungement movements.

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Federal Certificate Offers New Hope for Americans in ‘Internal Exile’

The title of this post is the title of our op-ed in The Crime Report in support of a bipartisan Senate bill that would authorize judges to issue a “Certificate of Rehabilitation” to qualified individuals with federal convictions.  The bill in question was included in the Business Roundtable’s “Second Chance Agenda,” which was the subject of a post here two weeks ago.  The op ed is reprinted below:

Federal Certificate Offers New Hope for Americans in ‘Internal Exile’

The collateral consequences of a federal conviction have thrust many Americans into what some have termed an “internal exile.” Barriers that prevent full reintegration into society are liberally distributed in federal and state laws and regulations.

Congress is now weighing a new form of relief—a Certificate of Rehabilitation—intended to address the absence of any general federal restoration of rights regime, leaving aside the once-robust, now rare and erratic presidential pardon power.

Under the proposed RE-ENTER Act of 2019 (S. 2931), the certificates would be issued by a judge to alleviate the burdens of a criminal record.

The concept was pioneered by New York more than half a century ago, and is currently authorized in 12 states. It has been recommended by the major national law reform organizations.

Now more than ever, there is a pressing need for judicial relief to supplement the federal pardon power: President Donald Trump’s neglect of the Justice Department advisory process has produced a 3,000-case backlog of post-sentence pardon applications.

So far, the RE-ENTER Act has been languishing in committee, despite bipartisan support.

While the Senate is otherwise occupied at the moment, a recent endorsement by the Business Roundtable may have given it new momentum. It’s possible that S. 2931 will be considered in the lame duck session or reintroduced after the new Congress is seated.

For tens of thousands of Americans, that would be welcome news.

There are several things to like about the bill.

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Business community endorses broad second-chance agenda

The Business Roundtable, which represents the CEOs of major U.S. companies, yesterday issued corporate and public policy recommendations to advance racial equity and justice in the wake of 2020’s triple crises disproportionately impacting communities of color: pandemic, recession, and protests in response to police violence.  The policy recommendations have six themes: employment, finance, education, health, housing, and the justice system.  The justice system policy report was developed with the assistance of CCRC’s Margaret Love and David Schlussel, who provided general advice in connection with the Roundtable’s consideration of second-chance policies.

The second-chance recommendations are extremely encouraging, signaling the business community’s embrace of a broad agenda for alleviating barriers to economic and social opportunities for people with a criminal record.

The Roundtable endorsed specific pending federal legislation dealing with automatic expungement, judicial certificates of relief, fines and fees reforms, and prison education and training programs.  The Roundtable also expressed support for expanding federal and state deferred adjudication (judicial diversion) policies, limiting the dissemination of dated conviction records in background checks, “banning the box” in hiring in all states, and relaxing state and federal hiring and occupational licensing bans.

As part of its action agenda, the Roundtable has committed to partnering on the creation of a business coalition to advance second-chance hiring by employers. Coalition members will exchange best practices, learn from subject matter experts, and develop and deploy tools to improve second-chance hiring, as part of a workforce diversity strategy.

Our recent national report, “The Many Roads to Reintegration,” which surveys the current state of the law on many of the issues addressed by the Roundtable recommendations–including employment, licensing, expungement, judicial certificates, deferred adjudication, and other forms of record relief–is available here.

The Roundtable’s full set of justice system recommendations are listed below.

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Michigan makes sealing of convictions automatic, including for some felonies

On October 12, Michigan Gov. Gretchen Whitmer signed a series of bills that will dramatically reform that state’s “set-aside” authority, colloquially known as “expungement.” The bills will establish a new automatic mechanism to expunge certain convictions without a person having to ask for it, and significantly expand eligibility for expungement under the existing petition-based application system.

“This is a historic day in Michigan. These bipartisan bills are a game changer for people who are seeking opportunities for employment, housing, and more, and they will help ensure a clean slate for hundreds of thousands of Michiganders,” said Governor Whitmer. “This is also an opportunity to grow our workforce and expand access to job training and education for so many people. I am proud to sign these bills today alongside Lieutenant Governor Gilchrist and many of the bipartisan leaders who worked on them.”

“Everyone deserves the chance to build a good life for themselves and their families. But far too many people enter the criminal justice system and end up cut off from those opportunities and are pushed toward a cruel cycle of poverty and crime. That’s not right, and it creates bad outcomes for all of us,” said Republican House Speaker Lee Chatfield. “These bills are an important step to righting that wrong and helping good people who’ve paid their debt get back on their feet. I am glad we were able to find common ground on this important issue and deliver reform that will help people statewide.” 

It is estimated that the bills will make hundreds of thousands of Michiganders eligible for expungement for the first time, and that relief will be delivered automatically to a significant percentage of them when the automatic feature is expected to become operative in October 2022 (subject to necessary appropriation and a potential 180-day extension). The other bills signed into law, including one that streamlines expungement for marijuana misdemeanors, are effective immediately.

This legislative package makes Michigan the sixth state to enact an automatic conviction-sealing law covering a range of offenses. It also makes Michigan the third state to make relief automatic for some felony convictions, joining New Jersey and California. (An additional three states plus California have enacted more specialized laws to automatically seal low-level marijuana convictions.)

The specific provisions of the Michigan bills, as well as automatic sealing laws in other states, are discussed below.

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The Reintegration Report Card

We are pleased to publish “The Reintegration Report Card,” a new resource that ranks and grades all 50 states on how their laws address voting rights, record relief (including expungement and pardon), fair employment, and occupational licensing for people with a criminal record.

This Report Card supplements our recent 50-state report, “The Many Roads to Reintegration.” That report surveys U.S. laws aimed at restoring rights and opportunities after arrest or conviction. It grades the states on nine different types of restoration laws, including voting rights, six different record relief remedies, and laws regulating consideration of criminal record in employment and occupational licensing. Based on these grades, the report includes an overall ranking of the states and D.C.

This Report Card provides the grades and rankings in a more easily accessible form. It also includes a brief narrative summary of how each state’s law stacks up in the different graded categories. Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its overall ranking. An appendix collects all the grades and rankings (the rankings are also at the end of this post).

We emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries. We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them. In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

The Reintegration Report Card is available at this link. For more details and legal citations for each state, see the Restoration of Rights Project. For essays surveying each topic, consult “The Many Roads to Reintegration.”

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Michigan to be sixth state with automatic conviction relief

*Update (10/12/20): Gov. Whitmer signed the legislation into law.

On September 23, the Michigan legislature approved a series of bills that would dramatically reform that state’s “set-aside” authority, colloquially known as “expungement.” The bills, which are headed to Gov. Gretchen Whitmer for signature, would significantly expand eligibility for expungement under the existing petition-based application system, and establish a new automatic mechanism to expunge certain convictions without a person having to ask for it.

It is estimated that the bills will make hundreds of thousands of Michiganders eligible for expungement for the first time, and that relief will be delivered automatically to a significant percentage of them when the automatic feature becomes operative in October 2022. The other provisions of the bills are effective immediately.

This package would make Michigan the sixth state to enact an automatic conviction-sealing law covering a range of offenses. It would also make Michigan the third state to make relief automatic for some felony convictions, joining New Jersey and California. (An additional three states plus California have enacted more specialized laws to automatically seal low-level marijuana convictions.)

The specific provisions of the Michigan bills, as well as automatic sealing laws in other states, are discussed below.

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“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.

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NC court rules vote may not be denied based on court debt

On September 4, a North Carolina state court issued a major decision on restoration of voting rights.  In North Carolina, voting rights lost upon a felony conviction are automatically restored upon “unconditional discharge” of sentence or unconditional pardon.  A three-judge panel, observing that “unconditional discharge” can be delayed for up to eight years because of unpaid restitution and other financial obligations, ruled that conditioning the vote on payment of money violates the state constitution’s guarantee of equal protection and ban on property qualifications in voting.  The court held, in a 2-1 ruling, that the state may not withhold the vote from people whose only remaining aspect of their sentence–other than regular conditions of probation–is payment of a financial obligation. The dissenting judge opined that people convicted of felonies have no “fundamental interest” in voting.

The court issued a summary judgment order and preliminary injunction requiring the state to allow individuals to register to vote immediately if: (1) their “only remaining barrier to obtaining a ‘unconditional discharge’ other than regular conditions of probation…is the payment of a monetary amount”; or (2) they have been discharged from probation and owed a monetary amount upon termination of probation, including if the amount was reduced to a civil lien.

Forward Justice, Protect Democracy, and Arnold & Porter represent the plaintiffs in the case: Community Success Initiative, the North Carolina State Conference of the NAACP, Justice Served NC, Inc, and Wash Away Unemployment. Forward Justice’s press release is here.

Meanwhile, the questions raised by Florida’s “pay-to-vote” system remain under consideration by the federal court of appeals for the 11th Circuit.  CCRC filed an amicus brief in that case describing how court debt affects restoration of voting rights in all 50 states. The full court heard argument in the case Jones v. DeSantis on August 18, but it is not clear whether there will be a decision before the October 5 deadline to register to vote in that state.

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