Legislation New legislation

New restoration laws take center stage in second quarter of 2019 |

State legislatures across the nation are shifting shortly and creatively to restore some of the injury achieved by the Conflict on Crime, which left a third of the adult U.S. inhabitants with a felony document.  Within the second quarter of 2019, 26 states have enacted an eye-popping complete of 75 separate new laws aimed toward addressing the disabling results of a report – bringing the first-half complete to 94 new laws enacted by 36 states.  By approach of comparison, in all of 2018 there have been 61 new restoration laws enacted in 32 states and two territories, which was then a report.

A lot of the new legislation this quarter is sort of vital.  Some states made their first substantial effort in many years to cope with the problems introduced by record-based discrimination, whereas others refined and extended reforms enacted in the current past.  Some states enacted a number of laws dealing with the same restoration problem (Texas stands out with 5 laws on occupational licensing alone), and a few handled a number of issues in one regulation (New York dealt with no fewer than twelve separate issues in a 2020 price range bill).  Many of the precise laws enacted in the second quarter have been anticipated by laws enacted by different states in the primary.

As in the previous, state lawmakers this quarter targeted most of their attention on facilitating access to record-clearing, though a big number of new laws regulate consideration of legal report in the occupational licensing course of.  Another essential area of progress is in restoration of voting rights.  Other matters addressed by new laws embrace driver’s licenses and firearms; diversionary tendencies; and immigration penalties.  Surprisingly few of the brand new laws deal instantly with employment, perhaps on the idea that limited access to legal data may also restrict employment discrimination, no less than where a background examine is just not mandated by regulation (often an exception to sealing).  Only one regulation enacted during this past quarter took a step backward to restrict an present restoration measure (a big improvement in Florida in the world of voting rights).

The new laws also show a exceptional selection, indicating either that the spirit of experimentation is alive and properly in the States, or that States are determined for regulation reform steerage, or each.  In the meantime, in stark distinction to this prolific state law-making, Congress has not attempted to cope with the problem of reintegration for greater than a decade—both by decreasing federal collateral consequences or by restoring rights to individuals with federal convictions.

Under, we describe some of the more vital new laws by category, masking voting rights, record-sealing, occupational licensing, immigration, and what for want of a greater term we name “odds and ends.”  For these interested in further details concerning the new laws, we have now described and analyzed them in the state profiles and summary charts of the Restoration of Rights Challenge.  (As a way to access the complete analysis of the brand new laws in the RRP, you should clink the link on the “summary” sheet labeled “Read the Full Profile.”)

I.  Voting rights

Through the quarter, states took steps to increase voter eligibility and awareness.  Three states made more individuals with a legal document eligible to vote:

  • Arizona repealed its regulation that makes automated restoration of the vote rely upon cost of courtroom debt (however those who owe restitution must still apply to the courtroom to regain their voting rights);
  • Colorado restored the vote to former prisoners on parole supervision; and
  • Nevada revised its complicated system for restoring civil rights so that each one individuals with felony convictions might now vote except throughout precise incarceration.  Underneath the new regulation, all civil rights are subject to a simplified restoration scheme that not varies relying upon the character of the offense and the individual’s prior document. (By advantage of this new regulation, and final yr’s reforms in New York and Louisiana, of the states that disenfranchise solely those sentenced to jail, California and Idaho stay the only states that withhold the vote for the complete interval a former prisoner is beneath supervision in the group.)

One of probably the most irritating collateral penalties points is that many convicted individuals consider they can’t legally vote even once they can.  For instance, it isn’t extensively recognized that in virtually half the states, if an individual is just not sentenced to prison, they don’t lose the vote at all.  Three states this quarter took steps to ensure that individuals with a conviction are conscious of their proper to vote once they exit custody:

  • Washington joined Colorado in making correctional officers answerable for informing people leaving their custody concerning the process for registering to vote; and
  • Oklahoma revised ambiguous statutory language to clarify that folks turn out to be eligible to vote as soon as their custodial sentence is complete, even when they owe courtroom debt.

The one regulation enacted through the quarter that restricts slightly than enlarges opportunities to keep away from collateral penalties can also be one of probably the most noteworthy and far-reaching:  in the wake of Florida‘s 2018 restoration of the franchise, by ballot initiative, to more than one million state residents who had completed their court-imposed sentence, the Florida legislature passed a regulation deciphering “completion of sentence” to incorporate cost of fines, charges and courtroom prices.   Whereas Florida shouldn’t be the one state to interpret “completion of sentence” to incorporate cost of courtroom debt, the outraged reaction of proponents of the 2018 ballot initiative has drawn national interest to this difficulty.  Individual Florida resident and advocacy groups have brought a problem to the brand new regulation on constitutional grounds.  If this regulation is invalidated on grounds that its burden falls disproportionately on the poor, wealth-based obstacles to the vote in different states may be weak.  Voting is just not the one context in which courtroom debt is beneath assault as an unconstitutional barrier to reintegration.

II.  Report-closing and record-clearing

As soon as once more, as in the primary quarter, most states are addressing collateral penalties by limiting public entry to the document.  Greater than half the brand new laws enacted in the course of the second quarter (46 out of 75) increase eligibility for expungement and sealing, and streamline or automate record-closing procedures, in a spread of ways:

  • Like New Mexico final quarter, Delaware, Iowa and North Dakota all enacted their first common authority to seal grownup felony data. North Dakota’s new regulation is as comprehensive as New Mexico’s, masking virtually all felony convictions (even ones involving violence, with an extended waiting interval) and all misdemeanor convictions.  (In North Dakota, non-conviction data are sealed by courtroom rule.) Delaware’s new regulation applies to fewer convictions however is arguably more forward-looking in being automated upon software. Iowa’s new regulation applies solely to misdemeanors.
  • Colorado revised and reorganized its whole chapter on legal data, notably extending sealing for the first time to misdemeanor and fewer critical felony convictions beyond drug instances, and streamlining the process for quick judicial sealing of instances terminated in favor of the accused, together with for first-time diversionary tendencies.  Provisions in present regulation that conditioned sealing of non-conviction data on the operating of a statute of limitations were not reenacted, nor have been provisions precluding sealing if the defendant still owed restitution, fines, or other courtroom debt, which now apply solely to sealing of conviction data.  Finally, the new regulation directed the state crime fee to report back to the legislature on the feasibility of automated sealing.
  • Louisiana made anybody entitled to its constitutionally assured “first offender pardon” eligible for fast expungement, avoiding the otherwise applicable 10-year waiting interval, and increasing aid to those convicted of drug crimes.
  • Washington, whose constitution prohibits limiting public access to courtroom data except in “compelling circumstances,” prolonged its vacatur aid to some classes of “violent” offenses, shortened the waiting interval, and eradicated financial obstacles to aid.
  • Arkansas, Mississippi, Montana, and Oklahoma additionally amended present record-sealing schemes (e.g., extending eligibility to further crimes, decreasing ready durations, and decreasing filing fees).
  • Tennessee‘s determination to remove completely its exorbitant expungement filing payment, lowered simply final yr, was notably welcome.  (Whereas Kentucky lowered its “expungement fee” from $500 to $300 in the primary quarter, it added a brand new requirement that it’s paid in full earlier than expungement might be completed with no risk of waiver.)
  • Illinois undertook to expunge the data of more than 770,000 individuals arrested or convicted of marijuana offenses before legalization, although an automatic course of managed by the state police for arrests and the pardon board for convictions.  Oregon and Washington additionally facilitated set-aside for marijuana convictions.
  • Oregon approved sealing for pardoned offenses, and it additionally created a process by which people pardoned in past years might avail themselves of this aid.
  • Five states prolonged set-aside and sealing aid for convictions related to standing as a victim of human trafficking, 4 of them (DE, NV, TN and VT) to a variety of non-violent crimes beyond prostitution.  Texas extended eligibility to at least one further prostitution-related crime, however (uniquely in our analysis) conditioned sealing aid on the sufferer’s cooperation with regulation enforcement.  (Up to now half dozen years virtually each state has enacted some record-clearing aid for victims of human trafficking, and it’s the one area of restoration regulation the place there is a degree of uniformity because of the mannequin offered by the Uniform Regulation Fee.)

The attention being paid by many legislatures to making the record-closing course of more efficient and accessible is offering helpful materials for the model regulation challenge we at present have underway.  We’ve taken specific notice 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 regulation makes aid automated for non-conviction data and less critical misdemeanors, but solely upon software.  Florida‘s new law, signed one day too late to qualify for inclusion in this quarter’s tally, additionally supplies for automated sealing of non-conviction data.  Including to Utah’s regulation in the primary quarter and Pennsylvania’s final yr, these new “clean slate” initiatives look like the wave of the longer term.

III.  Occupational licensing

Occupational licensing was the second most frequent space of regulation reform.  Seven states, 5 in the South or Southwest, emerged from their legislative seasons this quarter having adopted proposals meant to offer individuals vital new alternatives to hitch a regulated occupation or career regardless of a legal document, without unfair exclusions on obscure “moral character” grounds:

  • Arkansas went the farthest with the primary 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 primary time imposed common procedural and substantive limits on their licensing boards;
  • Texas further restricted its boards’ discretionary authority to deny a license based mostly on a conviction greater than 5 years previous, completely prohibited consideration of non-conviction data, and created a brand new “restricted license” in air-conditioning and electrical work aimed toward individuals returning to the group from jail;
  • Arizona made vital modifications to its licensing laws for the third yr in a row, prohibiting consideration of felonies after 7 years, with out regard to whether or not they have been set-aside;
  • Alabama created a process allowing people to avoid obligatory bars on licensing by way of a courtroom order of aid;
  • New York eradicated statutory licensing limitations in many occupations.

All advised, 13 states enacted 17 laws regulating occupational licensing in one type or one other, with Texas accounting for 5 of the 17.  (The licensing reforms enacted this yr by Ohio and Utah have been mentioned in our first quarter report, and Florida’s vital and in depth new licensing regulation, signed into regulation on July 1, can be discussed in our subsequent quarterly report.)

The occupational licensing reforms enacted to date in 2019 usually are not as dramatic as these enacted in 2018, and do not share widespread options to the identical extent.  Nevertheless, many of the brand new provisions are acquainted ones (e.g., offering for a preliminary willpower, deleting references to ethical character, barring consideration of sure varieties of data in any respect and other varieties after a interval of time, and requiring businesses to publish an inventory of disqualifying convictions).  The continuing affect of mannequin laws revealed by the Institute for Justice and the National Employment Regulation Undertaking is clear in virtually all of the great new schemes.

IV.  Immigration penalties

One other highlight from the primary half of 2019 is that three states moved to reform their sentencing laws to assist non-citizens keep away from deportation: Colorado and New York each restricted 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 yr or more.  Each states gave non-citizens a statutory opportunity to vacate a guilty plea entered with out recommendation regarding immigration penalties, and New York additionally offered for resentencing of sure individuals whose precise sentence to at least one yr or extra triggered obligatory deportation.  These two states turn into the sixth and seventh to adopt 364-day legislation (joining Washington, Nevada, California, Oregon, and Utah).

Oregon eliminated a responsible plea requirement from its controlled substances diversion statute, making this benefit obtainable to non-citizens with out exposing them to deportation. Then again, Oregon additionally added a provision to this statute requiring defendants to comply with pay restitution and appointed counsel charges as a condition of participation, with no provision for waiver, joining Iowa in what appears to be a small group of states that prohibit the profit of a non-conviction disposition to individuals who pays for it.

V.  Odds and ends

A couple of other usually relevant laws passed in the past three months are value mentioning:

  • Colorado added personal employment to its ban-the-box regulation (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 courtroom costs;
  • New York barred personal parties’ reliance on non-conviction data to disclaim employment and housing, and outlawed launch of booking info and “mugshots” by police departments and not using a regulation enforcement objective; and
  • Connecticut established a “Council on the Collateral Consequences of a Criminal Record,” composed of high-ranking members of the legislature and the chief branch and representatives of advocacy groups and unions, and charged it with making recommendations by February 1, 2020, for legislation to scale back or remove discrimination based mostly on felony historical past.


General, the pace of legislative efforts to dismantle the equipment of collateral penalties has quickened over the previous three months, and lots of states have turn out to be newly delicate to the significance of delivering aid to individuals of restricted means.  But there’s nonetheless a notable diploma of inconsistency and inefficiency in how totally different states strategy the identical drawback, including even an issue as apparently easy and uncontroversial as the way to avoid discrimination when a case terminates and not using a conviction.  The value of nationwide steerage is usually recommended by the two areas in which states have achieved a degree of uniformity, both the topic of mannequin laws: (1) vacatur and sealing for victims of human trafficking; and (2) consideration of legal document in occupational licensing.

The new laws described in this quarterly report, together with numerous other less vital restoration laws enacted in the previous three months, have been added to the state profiles and 50-state charts in the Restoration of Rights Undertaking.  We’ll proceed to track restoration payments throughout the year, and report periodically – notably when a big new regulation is enacted.  At the conclusion of the yr we’ll once more publish an annual report summarizing the yr’s legislative developments.

  • New restoration laws take center stage in second quarter of 2019 – July 9, 2019
  • “Wealth-based penal disenfranchisement” – July 1, 2019
  • CCRC to hold roundtable on legal data at U. Michigan Regulation Faculty – June 28, 2019
  • “Invisible Stripes: The Problem of Youth Criminal Records” – June 8, 2019
  • Administration withdraws proposal to require federal job-seekers to reveal diversions – Might 30, 2019
  • Should probably extreme collateral consequences set off enhanced procedural protections? – Might 24, 2019
  • Iowa excessive courtroom holds indigent lawyer fees bar expungement – Might 22, 2019
  • Abusing the pardon energy is not any joke – April 25, 2019
  • Marijuana reformers schedule National Expungement Week – April 22, 2019
  • CCRC opposes requiring federal job seekers to disclose some non-conviction data – April 18, 2019

View All Posts

About the author