Category: Expungement/sealing

A closer look at Indiana’s expungement law

More than four years ago, Indiana’s then-Governor Mike Pence signed into law what was at the time perhaps the Nation’s most comprehensive and elaborate scheme for restoring rights and status after conviction.  In the fall of 2014, as one of CCRC’s very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy.  Later posts on this site reported on judicial interpretation of the law.  Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois.

We have been impressed by the evident enthusiasm for Indiana’s “expungement” law within the state, from the courts, the bar, the advocacy community, and even from prosecutors.  So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce.  We also wanted to see what light this might shed on what has brought to the forefront of reform so many politically-conservative states.  Spoiler alert: the Chamber of Commerce was one of the strongest proponents of the law.

We expect to be able to post our account of the Indiana expungement law shortly after Labor Day.  In the meantime, we thought it might be useful to reprint our 2014 interview with former Rep. Jud McMillan, which has been among our most viewed posts.

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Illinois enacts boadest sealing law in Nation

On Fiday Illinois governor Bruce Rauner signed into law what appears to be the broadest sealing law in the United States, covering almost all felonies and requiring a relatively short eligibility waiting period of three years. We expect to provide a more in-depth discussion of the law next week from practitioners working on the ground in the state, and will soon update the Illinois Restoration of Rights Project profile to reflect these important changes.  In the meantime, we share the following from Cabrini Green Legal Aid, which was among the organizations that helped push the legislation through.

This afternoon, Governor Bruce Rauner signed into law six pieces of legislation that impact people with arrest and conviction records, including HB 2373 – the sealing expansion bill. This marks the LARGEST expansion of a sealing law in the United States and is a huge win in criminal justice reform. Effective immediately, this new law will provide thousands of people in Illinois the opportunity for criminal records relief by allowing them to petition the court to remove barriers in their lives as a result of their past criminal record. On behalf of our partners with the Restoring Rights and Opportunities Coalition of Illinois (RROCI),* Cabrini Green Legal Aid (CGLA) appreciates the support and involvement of so many of you who took action making phone calls, sending emails and traveling to Springfield.

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Preview of 50-state report on effective relief mechanisms

The Collateral Consequences Resource Center is currently finalizing a 50-state report on the availability of relief from the adverse civil effects of a criminal arrest or conviction. Using research from the Restoration of Rights Project (RRP), the report analyzes the data in several different categories, including executive pardon, judicial record-closing and certificates, and regulation of employment and licensing.  It showcases those states that have the most comprehensive and effective relief mechanisms, and at the same time provides a snapshot of the extraordinary recent interest in restoration of rights and status in state legislatures across the country.  It also looks at what states are doing to enable less serious offenders to avoid a criminal record altogether, through statutory deferred adjudication programs managed by the courts.

We preview here the report’s conclusions, illustrated by a series of color-coded maps that create a visual image of where people with a criminal record appear to have the best chance of regaining their rights and status through a variety of different relief mechanisms.  The full report will be published shortly after Labor Day.

Table  

1. Executive pardon

2. Judicial record-closing

3. Deferred adjudication

4. Regulation of employment and licensing

5. Loss and restoration of voting rights

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“More Justice and Less Harm: Reinventing Access to Criminal History Records”

This is the title of an important new article published by Alessandro Corda in the Howard Law Journal proposing a radical way of addressing the malign social impact of our current policies on public access to arrest and conviction records.  Corda traces the evolution of record dissemination policies and practices since the 1950s, contrasting the American and European experience where “informal collateral consequences” are concerned.  He critiques “partial remedial measures” like expungement and certificates of rehabilitation, and argues for making publication of a defendant’s record an “ancillary sanction” ordered (or not) by the court at sentencing.

While this solution may at first blush seem a bit ambitious, there are states (like Wisconsin) whose sentencing courts can offer the promise of set-aside and expungement upon successful completion of sentence, and that is indeed how the federal Youth Corrections Act operated before its repeal in 1984.

At the very least, Corda makes a convincing case that strong measures are necessary to mitigate the permanent stigma of a criminal record in the information age.  The historical and international material will be of particular value to those currently working on this problem in legislatures across the country.  Here is the abstract:

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Montana just authorized expungement of adult convictions

For the first time in its history, Montana has enacted a law authorizing its courts to limitfish public access to adult conviction records. On April 13, Governor Steve Bullock signed into law House Bill 168, giving district courts the power to “expunge” the records of misdemeanor convictions after completion of sentence, effective October 1 of this year. This makes Montana the 30th state since 2012 to enact some form of record-closing law, or to expand an existing one. The possibility of full destruction of the record for all misdemeanor convictions makes Montana’s one of the more ambitious collateral consequences reform measures of the past several years.

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New York surprises with broad new sealing law

new-york-methodist-hospital-center-for-allied-health-education-7IMJb2-clipartLate Sunday night, the New York Senate finally passed the beleaguered 2017-18 budget bill, which was signed by Governor Andrew Cuomo the following day. And while the passage of the bill was good news to New Yorkers eager to avoid a government shutdown, it should be even better news to a significant number of New Yorkers with criminal convictions. Tucked away inside the massive bill is an unheralded provision creating the state’s first general sealing authority for adult criminal convictions. Previously, record sealing was available only for non-conviction records and diversion and drug treatment dispositions. Now sealing will be available for misdemeanors and all but the most serious felony offenses.

The new law, which takes effect in October, gives New York one of the most expansive record-closing authorities in the Nation, rivaling such traditional sealing centers as Massachusetts, Washington, and Minnesota.

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Second chance employment bill approved in West Virginia

CARDINAL_ownby1High drama on the final day of the West Virginia legislative session produced a last minute compromise between House and Senate over SB76, the WV Second Chance for Employment Act.  If the governor signs the bill into law, individuals convicted of non-violent felonies will be able to return to court after 10 years to have their convictions reduced to misdemeanors. [NOTE: The bill was signed into law on April 25.]

For several years the WV legislature has been considering how to improve employment opportunities for people with non-violent convictions, but the House and Senate had different ideas about how to do it.  The Senate approach would have expanded the state’s expungement law, which now applies only to youthful misdemeanors, while the House preferred reducing nonviolent felonies to misdemeanors.   As the seconds ticked toward midnight on April 8, the Senate agreed to accept the “forgiving” approach favored by the House, creating a new category of “reduced misdemeanor” that need not be reported on employment applications but will be reflected in background investigations.

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“Ants under the refrigerator”

The following post is republished, with permission, from the National Clean Slate Clearinghouse listserv.  In it Sharon Dietrich points out that even after criminal records have been expunged or sealed, they may still be reported by commercial criminal record providers in violation of the Fair Credit Reporting Act.   (See our recent 50-state survey of record-closing laws, with their intended effect.)

 

You probably are wondering, “What is she talking about, with a subject line like that?”  The answer to your thought is that I use this phrase when giving clients an important warning about the effect of their expungement orders.  I am illustrating for them the idea that I can’t guarantee removal of their expunged cases from every possible background check, especially those prepared by commercial screener such as Sterling, HireRight, First Advantage and countless others.

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Restrictions on access to criminal records: A national survey

We have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement.  This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records.  The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004.  We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials.

A brief overview of research methodology and conclusions follows.

Background

A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life.  Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse.  In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety.  One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.”  Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.

At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions. The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.
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New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction

4 year report coverSince 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.

In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.

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