Category: Uncategorized

Marijuana legalization and expungement in early 2021

The Collateral Consequences Resource Center, with support from the Drug Enforcement and Policy Center, produced a report and an accompanying infographic that summarize the groundbreaking criminal reforms enacted this year as part of marijuana legalization and situate them in the national context. The report finds that: “With broad public support now for legalization, there is growing enthusiasm and bipartisan goodwill around state marijuana reforms, which in turn allows room for policy innovation. In early 2021, this was particularly evident with four states authorizing expansive marijuana expungement and other criminal reforms, along with social equity measures, in conjunction with legalization.” Read more Read more

Pennsylvania expands access to 255 licensed occupations for people with a record

On July 1, Pennsylvania Governor Tom Wolf signed into law an expansive new regulation of the state’s occupational licensing process, giving the agencies that control access to 255 occupations detailed new standards for considering criminal records in the licensing process.  Pennsylvania has not addressed these issues on a state-wide basis since the 1970’s, and with proper implementation the new law promises a path to the middle class for skilled individuals whose career prospects might otherwise be limited. While Pennsylvania’s law is by far the most ambitious one of its kind passed this year, five other states have also passed laws since the beginning of 2020 regulating consideration of criminal record in occupational licensing.  Two were states that previously had no general law governing this issue (Idaho and Missouri) and three were states that extended laws passed in recent years (Iowa, Utah and West Virginia). Pennsylvania’s new law is analyzed in detail below.  The provisions of the other five states’ new licensing laws are summarized briefly at the end of the post, and the laws of all six states are written up in greater detail in the relevant state profiles in the Restoration of Rights Project. Pennsylvania’s new occupational licensing law Pennsylvania’s new law (SB637) is very strong substantively.  To summarize, it supersedes provisions in existing law that provide for “good moral character” criteria for certain licenses, as well as laws that mandate disqualification, including 10-year bars that apply in numerous health-related licensing schemes.  It requires each licensing agency to identify offenses that may be disqualifying as “directly related” to the occupation, pursuant to a notice-and-comment rule-making process.  If an offense is not considered “directly related,” the new law mandates an individualized assessment of each applicant pursuant to detailed criteria that emphasize public safety.  It gives individuals recently released from prison a chance to demonstrate their abilities through offering “restricted” licenses to those who cannot immediately demonstrate fitness under the law’s new standards.  Finally, it expands the category of records that may not be considered to include convictions that are subject to an order of “limited access.”  At the same time, unlike recent licensing reforms in some other states, it does not rule out consideration of dated or minor convictions. The new law is not as strong from a procedural standpoint as some other recent licensing reforms, and its due process provisions are not well-developed.  For example, it does not require licensing agencies to defend record-related denials with written reasons, nor does it provide for an administrative appeal, so that applicants who have been denied a license must seek redress in the courts through the state’s administrative procedure act.  In this respect, disappointed applicants seeking to  challenge an agency decision are in no better position under this 2020 law than disappointed applicants for employment under Pennsylvania’s 1980 law, which also has strong standards but no enforcement mechanism. It is possible that the legislature decided to wait to see how licensing agencies perform under the new substantive criteria before imposing new procedural requirements.  As an interim accountability measure, the new law includes a requirement that each agency make detailed statistical reports to the legislature after two years.  If the agencies proceed with good will to implement the new criteria, many individuals previously excluded should benefit. As background, in 2017 Governor Tom Wolf directed the Bureau of Professional and Occupational Affairs (BPOA) in the Department of State to study several licensing-related issues in Pennsylvania, including how licensees are disciplined, how licenses from other jurisdictions are considered, and how a criminal record operates to deny many licenses either by operation of law or because of unaccountable discretionary decisions.  The resulting report (Review of State Occupational and Professional Licensure Board Requirements) found a number of flaws in how people with criminal records are treated in the licensing process: Criminal history bans also vary from board to board, with significant bans set in statute for most healthcare-related occupations. Lastly, the requirement to demonstrate “good moral character” is loosely defined and while this administration has provided guidance through policy statements regarding the use and review of criminal histories there is the potential for it to be applied unevenly across boards. The governor and administration officials should examine the impact of criminal history bans and “good moral character” requirements on ensuring Pennsylvania residents are able to engage in the workforce without unnecessary barriers. The report found that, particularly with respect to health-related licenses, “[a]mong the regional comparison group, Pennsylvania is an outlier in applying an automatic criminal history licensure ban.”  See report at p. 25, also listing professions that have a 10-year bar.  The report made a number of recommendations which provided new organization for the 29 agencies and commissions that regulate 255 licensure types, a single disciplinary structure, and licensure by endorsement for people with out-of-state licenses.  Most importantly for our purposes, the report made a number of recommendations related to criminal records that two years later have now made their way into SB637. The new law applies to the 29 licensing agencies under BPOA jurisdiction, and includes architects, pharmacists, veterinarians, podiatrists, psychologists, physicians, nurses, barbers and cosmetologists, occupational therapists, nail technicians, and engineers.  Building trades requiring a license, teachers, and lawyers are not covered. Under preexisting law, licensing agencies “may consider convictions of the applicant of crimes but the convictions shall not preclude the issuance of a license, certificate, registration or permit.” 18 Pa. Cons. Stat. § 9124(a).  Licensing agencies may not consider records of arrest if there was no conviction of a crime based on the arrest; convictions which have been annulled or expunged; convictions of a summary offense; convictions for which the individual had received a pardon from the Governor; or “convictions which do not relate to the applicant’s suitability for the license, certificate, registration or permit.”  § 9124(b)(2).  Agencies are free to suspend or revoke a license because of a felony conviction, or where the applicant was convicted of “a misdemeanor which relates to the trade, occupation or profession for which the license, certificate, registration or permit is sought.”  § 9124(c). SB637 established in Title 63 of the Pennsylvania statutes a new Chapter 31 to establish standards for consideration of criminal record in licensing.  The new law amends existing § 9124(a) to add to records that may not be considered any that have been made subject to limited access, including by the state’s automated “clean slate” process.  It also specifically supersedes any other provision of law that disqualifies an individual for a license or provides for “good moral character” findings.  § 3113(a).  It then establishes in §§ 3113(b) and (c) an elaborate two-stage inquiry to determine qualification for licensure: First, the agency must determine, considering a list of potentially disqualifying crimes developed through a notice-and-comment process under § 3117, whether there is a “direct relationship” between the applicant’s criminal record and the profession. (“Direct relationship is defined in § 3102 as having “a direct bearing on the fitness or bearing on the fitness or ability to perform one or more of the duties of responsibility necessarily related to the profession trade or occupation”).  § 3113(b) Second, if there is not such a direct relationship, the agency must make an “individualized assessment” as to whether licensing the individual would pose a public safety risk, as determined under a long list of specified factors.  § 3113(c). Section 3113(d) makes clear that those convicted of sexual offenses may not qualify for health-related licenses, and § 3113(e) establishes a separate test for offenses involving violence. Additional features of the new law: § 3114 prohibits consideration of juvenile adjudications (this is in addition to the various exclusions in § 9124(a) above for non-conviction records, and records of convictions that have been expunged or sealed); § 3112 authorizes restricted licenses for applicants who cannot immediately demonstrate fitness due to a criminal conviction, §§ 3112 (barbers and cosmetologists) and 3112.1 (all other occupations), with various standards for demonstrating “fitness” that relate to conduct in prison and supervision, and “a commitment to living a law-abiding life,” §§ 3112(B) and 3112.1(B); § 3115 provides for a “preliminary determination” for applicants considering undergoing training for a license, which is binding unless the crime is one on the list of crimes “directly related,” in which case it may be subject to further inquiry when a formal application is filed; § 3116 provides for issuance of a best practices guide; § 3117 provides for a process (involving the business community as well as the boards) for identifying crimes that will be presumptively considered “directly related” for each profession, and for publishing them for public comment. Section 3118 provides for a report to the legislature within two years by the Secretary of the Commonwealth on the implementation of each section of the act, and statistical report on applications received, granted and denied under each section of the act.  Effective date: Sections 3112 through 3115 are effective at end of 2020, the rest are effective immediately. Other new occupational licensing laws enacted in 2020 Idaho: As of 2020, licensing agencies must determine whether a person’s criminal record is “currently relevant to the applicant’s fitness” to engage in the occupation, using a multi-factor test; vague terms like “moral character” are prohibited.  Individuals may apply for a non-binding preliminary determination. SB1351 Iowa: A 2020 general licensing law enacted a direct relationship standard, defined rehabilitation broadly (and presumed it after 5 years for most crimes), provided for a preliminary determination, and provided for strong due process protections.   HF2627.  Previously, the only licenses for which consideration of criminal records was limited were in trades taught in the state’s prisons (e.g., electrician, plumber, mechanical, contractor, and barbering licenses). Missouri: The 2020 Fresh Start Act requires licensing agencies to apply a “direct relationship” standard, and provides that they may not deny a license “solely” because an applicant has a felony conviction.  Licensing agencies may consider a conviction “some evidence of an absence of good moral character,” but they must also consider the nature and date of the crime, as well as conduct after the conviction.  A license may not be denied “primarily” because of a conviction that was pardoned, and expunged records may be grounds for denial of some licenses involving sensitive employment.  HB2046. Utah: An occupational licensing agency may not disqualify based on conviction unless it is “substantially related” to the occupation, and applicants must be given individualized consideration pursuant to a multi-factor test, with an appeal in the event of denial.  Non-convictions, and most convictions after seven conviction-free years may not be considered.  Potential applicants may apply for a preliminary determination as to whether their criminal history will be disqualifying.  SB201. West Virginia: Licensing agencies may not disqualify an applicant because of a conviction unless it has a “rational nexus” to the desired occupation, determined by specified standards including seriousness of crime, passage of time, and evidence of rehabilitation.  Agencies are not required to give reasons for denial, but they are authorized to give potential candidates a preliminary determination respecting likely disqualification.  An applicant who is denied licensure may reapply after 5 years (with violent and sexual crimes subject to a longer period). HR4352, HR4353. Read more

How to expand expungement: base it in retribution instead of rehabilitation

A thoughtful new article by Brian Murray recommends a new way of conceptualizing expungement that should make it easier for reformers to justify facilitating access to this record relief.  In “Retributive Expungement,” forthcoming in the University of Pennsylvania Law Review, Murray argues that expungement should be seen as a way to end warranted punishment rather than to recognize and incentivize rehabilitation.  The argument goes that if the legal and social disadvantages of a criminal record function as part and parcel of the criminal sentence imposed by the court, as opposed to a loosely related system of civil penalties that are activated by other laws and other actors, then the court has an obligation at some point to discharge it.  While this argument is not new, Murray places it squarely in a modern retributivist framework. In an earlier era, the drafters of the 1962 Model Penal Code embraced this idea of tying up the loose ends of criminal punishments through court-ordered dispensation, although they chose a more transparent form of remedy in judicial vacatur or set-aside.  Before that, this function of ending punishment was performed by executive pardon.  In modern times, as ubiquitous background checking has made a criminal record a lasting Mark of Cain, most agree that the record should be made unavailable for private and most public purposes at some point, unless disclosure is ordered by the court for some purpose authorized by law.  Facilitating access to this record relief should be easier with the theoretical frame proposed by Murray. Here is the abstract and a link: Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy. Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry. But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief. Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel. And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy. Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records. But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed. In exploring this reality, this Article illustrates that expungement procedure is stuck in a rehabilitative and privacy-centric paradigm. While this framework inspired the creation of expungement remedies and recent reforms, it also has justified onerous procedural obstacles and the placing of the burden of persuasion on the petitioner rather than the state. Outside of automated expungement, which is still relatively rare and restricted to only certain types of petitions, most expungement regimes in substance or through procedure invert what should be the state’s burden to justify retention of criminal records that enable extra punishment by state and private actors. An alternative theoretical basis for expungement is necessary to convince policymakers and decision-makers of the need for broader substantive and procedural reform. This Article suggests a different paradigm: retributive based expungement. It proposes that incorporating retributive constraints that already underlie the criminal system can benefit petitioners. Plenty of arrestees do not deserve stigma and ex-offenders have done their time, meaning punitive stigma from public criminal records can amount to unwarranted punishment. A retributive-minded expungement procedure would all but guarantee expungement in the case of arrests, where the desert basis is questionable, and would place the burden of proof on the state for convictions once desert has been satisfied. As such, this approach can supplement the case for broader eligibility, automated expungement, and favorable pre-hearing procedures that limit the uptake gap. It also has legal and political viability given that many states already maintain retributivist constraints on sentencing and given that huge swaths of the public perceive desert as a crucial component of any criminal justice issue. In fact, some states are already moving in this direction and can serve as a model for the rest of the country. In short, retributivist constraints can trim procedural overgrowth to supplement substantive reforms that already recognize the disproportionate effects of a public criminal record. Read more

“Executive Clemency in the United States”

This is the title of CCRC Executive Director Margaret Love’s new article for the Oxford Research Encyclopedia.  The article describes the historic role played by the executive pardon power in reducing punishments (including collateral ones) and explains clemency’s diminished vitality and reliability in modern times in most states and in the federal system.  Love concludes that “[i]t appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.” Here’s the abstract: Executive clemency has a rich history in the United States, both as an agent of justice and as a tool of politics. A presidential power to pardon was included in Article II of the Constitution, and all but one of the state constitutions provides for a clemency mechanism. States have established a variety of ways to manage and sometimes limit a governor’s exercise of the constitutional pardoning power, but the president’s power has remained unlimited by law. Until quite recently, clemency played a fully operational part in both federal and state justice systems, and the pardoning power was used regularly and generously to temper the harsh results of a criminal prosecution. Presidents also used their power to calm and unify the country after a period of strife, and to further policy goals when legislative solutions fell short. But in modern times unruly clemency’s justice-enhancing role has been severely diminished, initially because reforms in the legal system made it less necessary, but later because of theoretical and practical objections to its regular use. A reluctance on the part of elected officials to take political risks, as well as clemency-related controversies, have further eroded clemency’s legitimacy. As a result, in most U.S. jurisdictions clemency now plays a limited role, and the public regards its exercise with suspicion. There are only about a dozen states in which clemency operates as an integral part of the justice system, in large part because its exercise is protected from political pressures by constitutional design. At the same time, the need for an effective clemency mechanism has never been greater, particularly in the federal system, because of lengthy mandatory prison sentences and the lifelong collateral civil consequences of conviction. It appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform. Read more

Pardons for immigrants: legal, legitimate, and long overdue

In the past year, California Governor Jerry Brown and New York Governor Andrew Cuomo made generous use of their power to pardon state crimes committed by noncitizens, reinvigorating a much-neglected means by which long-term residents may stave off conviction-based deportation.  The personal stories of the individuals who benefited from the Brown and Cuomo pardons no doubt illustrate how individuals and families can be spared from unjustified hardship through the power to pardon.  But were the governors justified in asserting a role for state interests in tempering federal immigration enforcement policies they evidently regarded as too harsh?  In this post, I will briefly explain the legal and theoretical framework that supports a role for state pardons in the immigration context, and then argue for a more generous use of the pardon power in principled and transparent ways. As an historical matter, the pardon power is rooted in a state’s inherent authority to govern its residents through punishment and forgiveness. Indeed, the use of pardon to promote social cohesion by encouraging rehabilitation dates to colonial times. The Framers considered the pardon power to be a “fail-safe” for justice, as well as a political tool, and over the course of the Nation’s history pardons have long been recognized as integral to maintaining the legitimacy of the criminal justice system through error correction and individuation. Pardon has also been the mechanism by which Congress has recognized a role for state interests in the immigration context.  Since 1917, when the first statute providing for deportation on the basis of criminal history was enacted, federal law explicitly recognized the power of full and unconditional state pardons to avoid that federal collateral sanction. (As I have shown elsewhere, there is evidence that even before Congress made the role of pardon explicit in the 1917 Act, federal authorities recognized the nullifying effect of state pardons in immigration matters.)  For much of the twentieth century, immigration law allowed state pardons to defeat deportation based on any of the specified crime categories, just as it allowed state courts to decide whether a specific criminal defendant should be deported through a “judicial recommendations against deportation” (JRAD). In more recent decades, Congress has limited state power to control immigration outcomes, but it has not nullified it.  To be sure, in 1990 state judges were deprived of a formal role in the immigration equation by repeal of the JRAD authority.  Additionally a restructured immigration code specified a role for pardon in connection with just four deportation categories, and was silent about the effect of pardon for other deportation categories.  While principles of federalism should caution against interpreting the statute in ways that undermine state police power without a clear statement of Congressional intent, courts that have considered the issue have determined that pardons will have preclusive effect only for the specifically enumerated categories. In any event, there is no doubt that Congress intended full and unconditional state pardons to remove the immigration consequences that would normally flow from state convictions falling in the following deportation categories: crimes involving moral turpitude, multiple criminal convictions, aggravated felonies, and high-speed flight from an immigration checkpoint. Notably, these broad provisions incorporate many sub-categories that include relatively minor crimes that are neither aggravated nor felonies, although most controlled substance offenses are carved out of the ambit of crimes that would benefit from state pardons. (It’s worth observing that pardons may still help lawful permanent residents with drug convictions avoid removal through adjudicatory discretionary relief mechanisms like cancellation of removal; many of the noncitizens pardoned by Governor Cuomo and at least one person pardoned by Governor Brown had been convicted of drug crimes.) Rather than undermining immigration law, then, pardons that fall within the specified categories further the statutory design, which explicitly allocates responsibility for deciding a noncitizen’s continued right to membership to the same sovereign that rendered the predicate conviction in the first place. This delegation makes sense because the federal immigration system rarely makes its own determination about whether a particular noncitizen is actually dangerous or is likely to transgress societal norms. Instead, the enforcement scheme directly relies on state and local law enforcement systems to determine which noncitizens should be priorities for removal, using the proxies of conviction and sentencing. Through this choice, which represents huge resource-savings benefits to the federal government, Congress has in essence incorporated state laws of general applicability into the federal regulatory scheme. Especially today, when federal enforcement policy has taken a sharp turn towards a less nuanced and more draconian direction, governors should take seriously the responsibility given to them by the immigration code to be the ultimate arbiters of whether a state conviction should result in deportation, as Governors Brown and Cuomo evidently have. The widespread use of the pardon power in principled and transparent ways would spare many individuals and families from unjustified hardship, recognize the time-honored role of state law in immigration determinations, and promote competing norms of justice and empathy in the national dialogue about appropriate immigration enforcement policy. ________ Jason A. Cade is an Associate Professor of Law at the University of Georgia School of Law. His scholarship explores the role of nonfederal actors and institutions in the modern immigration system, judicial review of deportation procedures, and intersections between immigration enforcement and criminal law. Read more