For the past several years, the Collateral Consequences Resource Center has been documenting an extraordinary legislative trend aimed at helping individuals overcome the collateral consequences of arrest and conviction. It appears that lawmakers in many states are coming to terms with one result of the vast expansion of criminal prosecutions over the past thirty years: almost a third of the adult U.S. population is now burdened with some sort of criminal record.
Just in the first half of 2019, 36 states enacted 94 separate laws to deal with the problem of discrimination based on arrest and conviction, including limits on public access to the record, restrictions on the power of licensing agencies to exclude qualified applicants based on vague “good moral character” standards, and restoration of the right to vote. Some states passed multiple laws addressing the same subject (Texas has five new laws regulating consideration of conviction in the occupational licensing process) and some dealt with several issues in a single law (New York’s 2020 budget has no fewer than 12 provisions covering different aspects of the collateral consequences problem).
The remarkable variety in these new restoration laws, illustrated in the following report on second quarter legislative activity, indicates either that the spirit of experimentation is alive and well in the States, or that States are desperate for law reform guidance, or both.
This variety in law-making extends even to a problem as seemingly simple as the treatment of cases resolved in favor of an accused. These non-conviction records include arrests that were never charged, charges that were dismissed, acquittals, and diversionary dispositions resolved without a conviction. It is hard to believe that individuals who have never been convicted of a crime are stigmatized and excluded almost as routinely as those who have, but it is unfortunately true in many states. Thus the problem of lack of uniformity is compounded by lack of fairness, particularly evident where this population is concerned.
To begin to address the lack of uniformity in the treatment of criminal records from state to state, CCRC is convening a group of practitioners and scholars at the University of Michigan Law School in August to develop policy and a model law on non-conviction records, ostensibly the least controversial category of criminal record. CCRC’s hosts and collaborators for the August meeting are Michigan Law Professors JJ Prescott and Sonja Starr. The goal of the meeting is described at this link.
New Restoration Laws Take Center Stage In Second Quarter of 2019
State legislatures across the country are moving quickly and creatively to repair some of the damage done by the War on Crime, which left a third of the adult U.S. population with a criminal record. In the second quarter of 2019, 26 states have enacted an eye-popping total of 75 separate new laws aimed at addressing the disabling effects of a record – bringing the first-half total to 94 new laws enacted by 36 states. By way of comparison, in all of 2018 there were 61 new restoration laws enacted in 32 states and two territories, which was then a record.
Much of the new legislation this quarter is quite significant. Some states made their first substantial effort in decades to deal with the problems presented by record-based discrimination, while others refined and extended reforms enacted in the recent past. Some states enacted multiple laws dealing with the same restoration issue (Texas stands out with five laws on occupational licensing alone), and some dealt with multiple issues in one law (New York dealt with no fewer than twelve separate issues in a 2020 budget bill). Many of the specific laws enacted in the second quarter were anticipated by laws enacted by other states in the first.
As in the past, state lawmakers this quarter focused most of their attention on facilitating access to record-clearing, although a significant number of new laws regulate consideration of criminal record in the occupational licensing process. Another important area of progress is in restoration of voting rights. Other matters addressed by new laws include driver’s licenses and firearms; diversionary dispositions; and immigration consequences. Surprisingly few of the new laws deal directly with employment, perhaps on the assumption that limited access to criminal records will also limit employment discrimination, at least where a background check is not mandated by law (frequently an exception to sealing). Only one law enacted during this past quarter took a step backward to restrict an existing restoration measure (a significant development in Florida in the area of voting rights).
The new laws also display a remarkable variety, indicating either that the spirit of experimentation is alive and well in the States, or that States are desperate for law reform guidance, or both. Meanwhile, in stark contrast to this prolific state law-making, Congress has not attempted to deal with the problem of reintegration for more than a decade—either by reducing federal collateral consequences or by restoring rights to people with federal convictions.
Below, we describe some of the more significant new laws by category, covering voting rights, record-sealing, occupational licensing, immigration, and what for want of a better term we call “odds and ends.” For those interested in further details about the new laws, we have described and analyzed them in the state profiles and summary charts of the Restoration of Rights Project. (In order to access the full analysis of the new laws in the RRP, you must clink the link on the “summary” sheet labeled “Read the Full Profile.”)
I. Voting rights
During the quarter, states took steps to expand voter eligibility and awareness. Three states made more people with a criminal record eligible to vote:
- Arizona repealed its law that makes automatic restoration of the vote depend on payment of court debt (but those who owe restitution must still apply to the court to regain their voting rights);
- Colorado restored the vote to former prisoners on parole supervision; and
- Nevada revised its complex system for restoring civil rights so that all people with felony convictions may now vote except during actual incarceration. Under the new law, all civil rights are subject to a simplified restoration scheme that no longer varies depending upon the nature of the offense and the person’s prior record. (By virtue of this new law, and last year’s reforms in New York and Louisiana, of the states that disenfranchise only those sentenced to prison, California and Idaho remain the only states that withhold the vote for the entire period a former prisoner is under supervision in the community.)
One of the most frustrating collateral consequences issues is that many convicted people believe they cannot legally vote even when they can. For example, it is not widely known that in almost half the states, if a person is not sentenced to prison, they do not lose the vote at all. Three states this quarter took steps to ensure that people with a conviction are aware of their right to vote when they exit custody:
- Washington joined Colorado in making correctional officials responsible for informing individuals leaving their custody about the process for registering to vote; and
- Oklahoma revised ambiguous statutory language to clarify that people become eligible to vote as soon as their custodial sentence is complete, even if they owe court debt.
The one law enacted during the quarter that restricts rather than enlarges opportunities to avoid collateral consequences is also one of the most noteworthy and far-reaching: in the wake of Florida‘s 2018 restoration of the franchise, by ballot initiative, to more than a million state residents who had completed their court-imposed sentence, the Florida legislature passed a law interpreting “completion of sentence” to include payment of fines, fees and court costs. While Florida is not the only state to interpret “completion of sentence” to include payment of court debt, the outraged reaction of proponents of the 2018 ballot initiative has drawn national interest to this issue. Individual Florida resident and advocacy groups have brought a challenge to the new law on constitutional grounds. If this law is invalidated on grounds that its burden falls disproportionately on the poor, wealth-based barriers to the vote in other states may be vulnerable. Voting is not the only context in which court debt is under attack as an unconstitutional barrier to reintegration.
II. Record-closing and record-clearing
Once again, as in the first quarter, most states are addressing collateral consequences by limiting public access to the record. More than half the new laws enacted during the second quarter (46 out of 75) expand eligibility for expungement and sealing, and streamline or automate record-closing procedures, in a variety of ways:
- Like New Mexico last quarter, Delaware, Iowa and North Dakota all enacted their first general authority to seal adult criminal records. North Dakota’s new law is as comprehensive as New Mexico’s, covering almost all felony convictions (even ones involving violence, with a longer waiting period) and all misdemeanor convictions. (In North Dakota, non-conviction records are sealed by court rule.) Delaware’s new law applies to fewer convictions but is arguably more forward-looking in being automatic upon application. Iowa’s new law applies only to misdemeanors.
- Colorado revised and reorganized its entire chapter on criminal records, notably extending sealing for the first time to misdemeanor and less serious felony convictions beyond drug cases, and streamlining the process for immediate judicial sealing of cases terminated in favor of the accused, including for first-time diversionary dispositions. Provisions in existing law that conditioned sealing of non-conviction records on the running of a statute of limitations were not reenacted, nor were provisions precluding sealing if the defendant still owed restitution, fines, or other court debt, which now apply only to sealing of conviction records. Finally, the new law directed the state crime commission to report to the legislature on the feasibility of automated sealing.
- Louisiana made anyone entitled to its constitutionally guaranteed “first offender pardon” eligible for immediate expungement, avoiding the otherwise applicable 10-year waiting period, and extending relief to those convicted of drug crimes.
- Washington, whose constitution prohibits limiting public access to court records except in “compelling circumstances,” extended its vacatur relief to some categories of “violent” offenses, shortened the waiting period, and eliminated financial barriers to relief.
- Arkansas, Mississippi, Montana, and Oklahoma also amended existing record-sealing schemes (e.g., extending eligibility to additional crimes, reducing waiting periods, and reducing filing fees).
- Tennessee‘s decision to eliminate entirely its exorbitant expungement filing fee, reduced just last year, was particularly welcome. (While Kentucky reduced its “expungement fee” from $500 to $300 in the first quarter, it added a new requirement that it be paid in full before expungement can be completed with no possibility of waiver.)
- Illinois undertook to expunge the records of more than 770,000 individuals arrested or convicted of marijuana offenses before legalization, though an automated process managed by the state police for arrests and the pardon board for convictions. Oregon and Washington also facilitated set-aside for marijuana convictions.
- Oregon authorized sealing for pardoned offenses, and it also created a process by which individuals pardoned in past years may avail themselves of this relief.
- Five states extended set-aside and sealing relief for convictions related to status as a victim of human trafficking, four of them (DE, NV, TN and VT) to a range of non-violent crimes beyond prostitution. Texas extended eligibility to one additional prostitution-related crime, but (uniquely in our research) conditioned sealing relief on the victim’s cooperation with law enforcement. (In the past half dozen years almost every state has enacted some record-clearing relief for victims of human trafficking, and it is the one area of restoration law where there is a degree of uniformity thanks to the model provided by the Uniform Law Commission.)
The attention being paid by many legislatures to making the record-closing process more efficient and accessible is providing useful material for the model law project we currently have underway. We have taken particular note of Colorado‘s efforts to simplify and make more accessible the sealing process for non-conviction records, and of the efforts in a number of states to automate the record-clearing process, such as Tennessee (misdemeanors after three years) and Illinois(marijuana arrests and convictions). Delaware’s new law makes relief automatic for non-conviction records and less serious misdemeanors, but only upon application. Florida‘s new law, signed one day too late to qualify for inclusion in this quarter’s tally, also provides for automated sealing of non-conviction records. Adding to Utah’s law in the first quarter and Pennsylvania’s last year, these new “clean slate” initiatives appear to be the wave of the future.
III. Occupational licensing
Occupational licensing was the second most frequent area of law reform. Seven states, five in the South or Southwest, emerged from their legislative seasons this quarter having adopted proposals intended to give people significant new opportunities to join a regulated occupation or profession despite a criminal record, without unfair exclusions on vague “moral character” grounds:
- Arkansas went the farthest with the first revision of its licensing laws in 10 years, eliminating “good moral character” as a licensing criterion and prohibiting consideration of felony convictions after 5 crime-free years, sealed convictions, and pardoned convictions;
- Mississippi, Nevada and West Virginia for the first time imposed general procedural and substantive limits on their licensing boards;
- Texas further restricted its boards’ discretionary authority to deny a license based on a conviction more than five years old, absolutely prohibited consideration of non-conviction records, and created a new “restricted license” in air-conditioning and electrical work aimed at people returning to the community from prison;
- Arizona made significant modifications to its licensing laws for the third year in a row, prohibiting consideration of felonies after 7 years, without regard to whether they have been set-aside;
- Alabama created a process allowing individuals to avoid mandatory bars on licensing via a court order of relief;
- New York eliminated statutory licensing barriers in many occupations.
All told, 13 states enacted 17 laws regulating occupational licensing in one form or another, with Texas accounting for five of the 17. (The licensing reforms enacted this year by Ohio and Utah were discussed in our first quarter report, and Florida’s significant and extensive new licensing law, signed into law on July 1, will be discussed in our next quarterly report.)
The occupational licensing reforms enacted so far in 2019 are not as dramatic as those enacted in 2018, and do not share common features to the same extent. However, many of the new provisions are familiar ones (e.g., providing for a preliminary determination, deleting references to moral character, barring consideration of certain types of records at all and other types after a period of time, and requiring agencies to publish a list of disqualifying convictions). The continuing influence of model laws published by the Institute for Justice and the National Employment Law Project is evident in almost all of the comprehensive new schemes.
IV. Immigration consequences
Another highlight from the first half of 2019 is that three states moved to reform their sentencing laws to help non-citizens avoid deportation: Colorado and New York both limited the potential penalty for certain misdemeanors to 364 days imprisonment, thereby avoiding the automatic deportation trigger that comes with conviction carrying a potential prison sentence of one year or more. Both states gave non-citizens a statutory opportunity to vacate a guilty plea entered without advice concerning immigration consequences, and New York also provided for resentencing of certain individuals whose actual sentence to one year or more triggered mandatory deportation. These two states become the sixth and seventh to adopt 364-day legislation (joining Washington, Nevada, California, Oregon, and Utah).
Oregon removed a guilty plea requirement from its controlled substances diversion statute, making this benefit available to non-citizens without exposing them to deportation. On the other hand, Oregon also added a provision to this statute requiring defendants to agree to pay restitution and appointed counsel fees as a condition of participation, with no provision for waiver, joining Iowa in what appears to be a small group of states that restrict the benefit of a non-conviction disposition to people who can pay for it.
V. Odds and ends
A few other generally applicable laws passed in the past three months are worth mentioning:
- Colorado added private employment to its ban-the-box law (as New Mexico did in the first quarter);
- Mississippi and New York repealed provisions making loss of a driver’s license part of the penalty for a drug crime, and Montana and Virginia repealed laws mandating loss of a driver’s license for failure to pay court costs;
- New York barred private parties’ reliance on non-conviction records to deny employment and housing, and outlawed release of booking information and “mugshots” by police departments without a law enforcement purpose; and
- Connecticut established a “Council on the Collateral Consequences of a Criminal Record,” composed of high-ranking members of the legislature and the executive branch and representatives of advocacy groups and unions, and charged it with making recommendations by February 1, 2020, for legislation to reduce or eliminate discrimination based on criminal history.
Overall, the pace of legislative efforts to dismantle the apparatus of collateral consequences has quickened over the past three months, and many states have become newly sensitive to the importance of delivering relief to people of limited means. But there is still a notable degree of inconsistency and inefficiency in how different states approach the same problem, including even a problem as apparently simple and uncontroversial as how to avoid discrimination when a case terminates without a conviction. The value of national guidance is suggested by the two areas in which states have achieved a degree of uniformity, both the subject of model laws: (1) vacatur and sealing for victims of human trafficking; and (2) consideration of criminal record in occupational licensing.
The new laws described in this quarterly report, along with numerous other less significant restoration laws enacted in the past three months, have been added to the state profiles and 50-state charts in the Restoration of Rights Project. We will continue to track restoration bills throughout the year, and report periodically – particularly when a significant new law is enacted. At the conclusion of the year we will again publish an annual report summarizing the year’s legislative developments.