Everything You Need to Know About All of Trump’s Latest Pardons and Commutations

President Donald Trump issued 11 pardons and commutations on Tuesday afternoon. The 45th president’s constitutional use of the pardon power was immediately met with a diverse array of reactions that exposed severe fault lines among criminal justice reform advocates and those who might be called the president’s professional detractors.

Left-wing criminal justice reform advocates praised many of Trump’s pardons.

“The Blagojevich pardon will rightly draw all the attention and criticism, but there’s actually some good news here, too,” noted the Brennan Center‘s Justice Program Senior Counsel Ames Grawert. “Crystal Munoz, and Tynice Nichole Hall–all lower-level drug offenders–received commutations today [and] Judith Negron‘s case didn’t involve drugs but was *supported by* drug policy reform advocates.”

Many liberals, however, bent themselves over backwards simply seeking any available avenue on which to condemn Trump—even in the exercise of mercy and grace.

New York City-based attorney Luppe B. Luppen fashioned two completely spurious narratives out of whole cloth in apparent attempt to keep himself from praising any of Trump’s pardons. University of Texas Law Professor Steve Vladeck suggested, without evidence, that Trump’s pardons gave an appearance of impropriety–and advised the president to rewrite Department of Justice clemency guidelines.

Other liberal attorneys chastised their ideological colleagues for essentially foaming at the mouth about Trump’s constitutional use of the pardon power.

”Not that his choices are remotely laudable per se, but given all the things he’s done, I refuse to get incensed about the exercise of the pardon power,” tweeted criminal defense attorney Scott Greenfield.

“Agreed,” said the popular Twitter attorney known only as @bmaz. “I am unpopular in this thought, but think it was actually good and righteous to commute Blago, who was seriously over-sentenced. Kerik is garbage, but who cares about him and the rest at this point? It just doesn’t matter. Like to see more regular people helped though.”

Here are all the people—a decidedly small number—given a shot at full redemption.

1. Edward DeBartolo, Jr.

The former San Francisco 49ers owner was convicted in 1998 of failing to report a felony after he paid $400,000 to Edwin Edwards, the former governor of Louisiana, in exchange for a riverboat gambling license. DeBartolo’s 49ers won five Super Bowls but the scandal cut his career short–though he avoided jail time by paying a $1 million fine and serving two years of probation.

“He’s the main reason why we won so many Super Bowls,” Hall of Fame NFL wide receiver and former 49er Jerry Rice said. “So today is a great day for him. I’m glad to be here and be a part of that. It’s just something I will never forget. This man, he has done so much in the community, has done so much in NFL football.”

2. Michael Milken

The financier was convicted of securities fraud and racketeering in 1990 after his firm went belly-up for selling high-yield junk bonds–resulting in thousands of job losses. That event, dubbed the “Valentine’s Day Massacre,” made Milken public enemy number one over the crime of insider trading. He was initially sentenced to 10 years in prison and a $600 million fine–but later had eight years slashed off his sentence after agreeing to cooperate with prosecutors.

“He’s done this and he suffered greatly,” Trump said, while announcing Milken’s pardon. “He paid a big price; paid a very tough price.”

3. Ariel Friedler

The technology investor, entrepreneur and former CEO of Symplicity Co. was convicted of conspiracy to access a computer without authorization in 2014 after admitting that he attempted to break into competitors’ servers. Friedler ultimately served two months in prison.

According to his LinkedIn profile: “Ariel took [Symplicity from book form] and created a software product that is now one of the largest college recruitment platforms in the world. Symplicity was able to expand its presence at college campuses by deploying dozens of tools that automated and enhanced the way university departments communicated with students and other constituencies.”

4. Bernard Kerik

Perhaps the most controversial of Tuesday’s exercises in executive leniency, the former New York City Police Department (NYPD) commissioner under Rudy Giuliani and Michael Bloomberg was convicted of tax fraud and lying to officials after he accepted bribes from organized-crime figures, defense contractors and an Israeli businessman while serving as NYPD’s top cop and then, later, as the interior minister of Iraq under then-president George W. Bush‘s ill-fated Coalition Provisional Authority–which ultimately led the invaded foreign nation into a state of ethnically-based terrorism, full-bodied anti-U.S. violence and chaos.

Kerik was recently in the news after insulting impeachment witness Lt. Col. Alexander Vindman by calling him a “dick.”

5. Paul Pogue

The construction company owner from the north Texas suburb of McKinney admittedly felt he was overpaying his taxes so he skimped by about 10-percent over a three-year period. After being caught, he fessed up to the matter, paid the government back and accepted a plea bargain that resulted in three years of probation plus a $250,000 fine in addition to paying $473,604 in restitution. Sure to cause controversy is that Pogue’s presidential gift was apparently the result of an intervention by former GOP senator Rick Santorum–who once received an $11,000 campaign contribution from the Texas man.

“He paid 90% of his taxes,” Santorum told the Philadelphia Inquirer. “It’s not like he didn’t pay taxes. He admitted he didn’t pay it because he thought he was paying too much. So he took a hit for it.”

6. David Safavian

The criminal justice reform advocate was initially arrested and charged with several crimes related to the Jack Abramoff lobbying and corruption scandal. He was at first convicted on four of five charges and sentenced to 18 months in prison before a court unanimously reversed those convictions due to his defense being unfairly limited. After a new trial, Safavian was convicted of obstruction of justice and making false statements and sentenced to a year in prison.

“Having served time in prison and completed the process of rejoining society with a felony conviction, Mr. Safavian is uniquely positioned to identify problems with the criminal justice system and work to fix them,” the White House said in the statement that very few with knowledge of the law and Safavian’s post-prison work were wont to dispute.

7. Angela Stanton

The best-selling author, TV star and motivational speaker previously served six months under house arrest for her role in a stolen vehicle ring involving fraud, embezzlement and theft. Since being released, she turned her life around and authored the popular memoir, Life of a Real Housewife: Tell The Truth and Shame The Devil.

Her pardon was promoted by Alveda King, niece of the Civil Rights legend Martin Luther King, Jr.–and apparently for good reason. According to the White House’s official statement: “[Stanton] works tirelessly to improve reentry outcomes for people returning to their communities upon release from prison, focusing on the critical role of families in the process.”

8. Rod Blagojevich

The former Illinois governor was famously convicted of attempting to sell Barack Obama‘s former U.S. Senate seat after he became the nation’s 44th president.

Some in Illinois were none-too-pleased with the Blagojevich commutation, however, with Illinois House Republican Leader Jim Durkin calling the hair-obsessed former politician “rogue on steroids” when he “abused the office.” Durkin added: “I guess Donald Trump’s not concerned about the state of Illinois next November.”

9. Tynice Nichole Hall

The prison educational teacher is a mother who was harshly victimized by the nation’s failed War on Drugs. She served nearly 14 years of an 18-year sentence for allowing her boyfriend to sell cocaine out of her house–but was never accused of any crime with an actual victim or of doing anything violent whatsoever. Her clemency request was promoted by the criminal justice reform organization Clemency for All Non-Violent Drug Offenders Foundation (CAN-DO Foundation), which promotes justice through clemency—and which scored several victories in Tuesday’s slate of clemency decisions.

Notably, another advocate for Hall was Alice Johnson, the grandmother was famously freed thanks to Kim Kardashian‘s influence with the Trump White House.

“It will be a phenomenal blessing to my family when I am released,” Hall told CAN-DO. “I have been absent most of my adult life so to rekindle my family’s love and be able to fill the gap of my absence will make my family whole again. Being able to have a full and complete family reunion will provide my family with great joy. We have all fought for so long to bring me home, which will close the missing link in our family circle.”

10. Crystal Munoz

Johnson also worked to secure Munoz’s commutation after she also fell prey to the waste and cruelty of the drug war. According to the White House, she spent 12 years locked in a cage for “having played a small role in a marijuana smuggling ring.” Notably, this commutation was also supported by various other criminal justice reform advocates–including the author’s alma matter by way of the Texas A&M University School of Law Criminal Defense Clinic. Editor’s note: Gig ’em.

CAN-DO noted: “Her nightmare began when DEA agents visited Munoz’s home. They assured the young mother of an infant daughter, who happened to be pregnant with her third child at the time, that she was not in any kind of trouble. The agents claimed they merely needed to speak with Crystal to get a few questions answered and details cleared up about an incident that had taken place 3 years earlier.”

11. Judith Negron

Yet another victory for CAN-DO, Johnson and her life’s work after incarceration was the commutation of Negron’s 35-year sentence for defrauding the federal government while she owned a healthcare company.

“I will be returning back home to my husband of 27 years and my two amazing (now teen) sons who have been there for me no matter how far I have been sent,” she told CAN-DO. “I will utilize my newly acquired plumbing skills to gain employment at my husband’s commercial pool construction business. I will continue to be involved in Alternatives to Violence Project (an international non-profit organization that dedicates their work to reducing prison violence – among other settings) of which I am currently the Inside Coordinator at Coleman-Camp. I will continue to implement my artistic talent as a tool to assist children of incarcerated parents in exploring better forms of expression when dealing with the stigma brought about by their parent’s mistakes.”

[image via Mark Wilson/Getty Images]

via Law & Crime https://lawandcrime.com

February 18, 2020 at 07:14PM

Revenge Porn Victims Caught Between Tech and the Law

Victims of revenge porn are stuck between recalcitrant Silicon Valley technology service providers and the comparatively glacial pace of courts and legislators.

They have few rights even under laws that treat the public, nonconsensual distribution of intimate images as a crime against privacy or public decency, and they are hobbled by  laws that protect websites from liability.

To victims, the repeated sharing of their images—even if the acts in the images were consensual at the time pictures were taken—often feels like a form of ongoing sexual assault.

Many victims report outcomes like job loss and a sense of shame in their communities. Witness Katie Hill, who resigned her seat in the U.S. House of Representatives after her  intimate images were nonconsensually shared.

In even more extreme cases, family disownment, physical abuse, even honor killings, aren’t unheard of, either.

It’s a problem tech can’t necessarily solve.

Tech companies like Facebook have begun to shift from relying on users to report images—unlikely to happen in closed groups created for sharing purposes—to developing “digital fingerprints,” or hashes, which a single changed pixel could throw off.

The kinds of artificial-intelligence solutions that identify child sexual abuse material could also identify other forms of image-based abuse, but aren’t without their own problems.

Differentiating consensual from nonconsensual material in both Western and non-Western cultures, where nudity may not be a factor, is one such challenge. Another is the fact that algorithms which lack images of people from a certain race or ethnicity may not proactively identify their nonconsensual images.

Other issues include:

      • Reliance on contextual language. In an interview with The Crime Report, David Bateman, a partner in the law firm K&L Gates and a co-founder of the Cyber Civil Rights Legal Project, said these kinds of posts are “not deeply contextual” compared with, say, grooming conversations.
      • Self-limiting deployment. The New York Times reported that Apple doesn’t scan files saved in its cloud servers; Dropbox, Google and Microsoft only scan for shares, not uploads. Video content is a blind spot for virtually all major tech companies.
      • Lack of cross-platform information sharing, also as reported in the Times.

Enablers Have Legal Protection

As tech companies struggle to respond, the burden of removing images often falls to the victims—a protracted, “whack-a-mole” process that requires victim-survivors to rely on themselves or trusted friends to seek out their own abuse online.

Creative solutions, such as using the Digital Millennium Copyright Act (DMCA) to file takedown notices against hosts, are limited to cases where the original images belong to the victim.

In part, that’s why New York State’s new statute, “Unlawful dissemination or publication of an intimate image,” requires websites to remove the material as soon as they are notified of its existence and its nonconsensual nature. If a site refuses, it can be held liable.

On the other hand, this could run afoul of Section 230 of the 1996 Communications Decency Act (CDA), which protects websites, internet service providers, and others from liability for what their users post.

Indeed, in 2018, Google successfully managed to block the passage of New York’s law based on that single requirement. More recently, the New York Times reported, IBM, Disney, and Marriott have all taken up an anti-CDA mantle, albeit for different reasons.

It isn’t that the law can’t adapt.

The 2018 passage of two anti-human-trafficking laws, the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), create exceptions to the CDA— making online providers liable for third-party ads that promote prostitution.

On the criminal side, United Kingdom law professor Clare McGlynn has proposed classifying image-based offenses as sex crimes. This would make consent, not intent, the crucial factor. It could help to ensure more investigative resources are devoted to the crimes.

It would also afford victims more rights, such as protections against using sexual history during trial, or against being called to the stand as witnesses having to face their abuser.

However, the requirement to register as a sex offender may do more harm than good.

In an interview, Robert Peters, senior attorney with the Zero Abuse Project, said that, for example, placing juvenile first-time offenders—who may not have been aware of the consequences of their actions—on a registry alongside convicted adult offenders could damage a second individual and “overburden” an already strained system.

There is a third way.

Many women surveyed across the U.K., Australia, and New Zealand discussed the need for “some kind of punishment, but not prison,” according to a report, Shattering Lives and Myths, published in the U.K. in 2019.

Taking Responsibility

A restorative-justice approach could respond to that. It would help offenders understand the impact of their actions and to take responsibility.

“Traditional cases place the government in one big bubble and the defendant in another,” Peters explained, “where the victim does not have equal bargaining power.”

By mapping out the rights and responsibilities of both plaintiff and defendant, Peters argued, restorative justice could rebalance the power differential, reducing the government’s role in favor of the victim’s.

In other words: No longer would a victim have to serve as a witness in the government’s attempt to prove an invasion of privacy or offense to public decency beyond a reasonable doubt. Instead, they would be able to describe in their own words the impact that nonconsensual intimate image sharing had on their life and livelihood. They would be able to ask questions of their own.

And they could have a say in what “restoration” might look like for them.

It has already been used successfully:

Peters acknowledges that in order to work, restorative justice requires the right systems and structures.

“We have to ensure we meaningfully elevate the victim’s perspective in the criminal justice process, free of coercive dynamics that result in manipulation of victims to the offender’s benefit,” he explained.

For example, less experienced prosecutors may be assigned revenge-porn or domestic-violence cases that are typically viewed as lower profile and often, more frustrating to deal with. Disempowered victims may try to drop cases, while overextended prosecutors may offer plea bargains to defendants.

But frequently, said Peters, victims don’t fully understand the legal ramifications of a plea bargain, taking the prosecutor’s word that going to trial would result in undue stress—even if it also led to a lesser sentence.

“Restoration can’t happen when we don’t have an accurate picture of what that looks like from the victim’s genuine perspective, free of undue influence,” Peters added.

Properly trained facilitators are one way to ensure this accuracy. While they needn’t be court-appointed, Peters said, a court-sanctioned example is modeled by the nonprofit organization Court Appointed Special Advocates. In the United Kingdom, facilitators enable dialogue to take place either in person or remotely.

The downside, reported NPR in 2017, is that improperly trained facilitators can do more damage. Other factors that can derail restorative justice include the failure to protect offenders from legal jeopardy under the Fifth Amendment.

Christa Miller

Christa Miller

In some cases, restorative justice could even be misused when a traditional approach would be more appropriate—such as when a multiple offender is shown to prey on victims. In those cases, a traditional punitive approach and perhaps registered sex offender status would be called for.

However, these are solvable problems as long as legislators, the courts and policy-makers are willing to look closely at all the nuances, listen and learn from victims’ needs, and commit to find solutions that are in step with everyone’s goals.

Christa Miller is a freelance writer based in Greenville, S.C. She specializes in writing about technology and criminal justice, with particular interest in issues related to digital evidence.

via The Crime Report https://ift.tt/2myW3Gx

February 10, 2020 at 08:33AM

How Witness Identifications Send Innocent People to Prison

In the summer of 1984, a man broke into the Burlington, North Carolina, apartment of 22-year-old Jennifer Thompson-Cannino and raped her at knifepoint. Police met her at the hospital that same night, where they worked up a composite sketch based on her description of the attacker. Three days later, a detective showed her photos of six men, asking if she saw his face before her.

After a few minutes of studying, Thompson-Cannino managed to narrow down the field to just two. Finally, she settled on the picture of Ronald Cotton, also 22, who worked at a nearby restaurant. “This is the one,” Thompson-Cannino told the detective, according to her 2010 memoir. But she hedged a little, too. “I think this is the guy.”

The detective pressed her. “You ‘think’ that’s the guy?” he replied. “It’s him,” Thompson-Cannino answered. He asked if she was sure; this time, she said she was “positive.” When she asked how she’d done, he offered reassuring praise. “You did great,” he said.

Police lineups and photo arrays are mainstays of shows like “Law and Order,” which portray them as time-honored investigative techniques that confirm the results of diligent detective work. But the story of Ronald Cotton, featured on a 2009 episode of “60 Minutes,” is one of several cautionary tales discussed in a report on the inherent unreliability of eyewitness identification procedures. The report was commissioned in 2016 by the U.S. Court of Appeals for the Third Circuit—which, as its authors note, is the first federal court to formally tackle the subject.

The task force’s findings, which appear in the fall 2019 volume of Temple Law Review, offer a snapshot of the criminal legal system’s chronic over-reliance on eyewitness accounts. As the report notes, mistaken identifications have been involved in nearly 70 percent of post-conviction exonerations based on DNA evidence. In 2012, Supreme Court Justice Sonia Sotomayor called eyewitness evidence “a unique threat to the fairness of trial,” citing research showing that misidentifications are the “single greatest cause” of wrongful convictions in America.

Several days after she identified Cotton as her attacker in the photo array, Thompson-Cannino picked him out of a live lineup, too. Again, though, she hesitated, telling the detective administering the procedure that Cotton “look[ed] the most like” her rapist. Again, he asked if she was certain, and again, she replied that she was. The detective then revealed that Cotton was the same man whose photo she had selected previously, which allowed her to feel, as she later put it to PBS’s “Frontline,” “a huge amount of relief.” She had gotten it right, and would get the justice she deserved.

For this and another assault that took place that same night, Cotton was found guilty and ultimately sentenced to a pair of life sentences plus 54 years in prison. He would serve more than 10 years before modern DNA testing confirmed his innocence—and the guilt of Bobby Poole, who was already incarcerated alongside Cotton for a separate series of rapes in the area.


People who witness a crime may identify the wrong person as the perpetrator for a multitude of reasons, many of which relate to basic psychology, the authors of the report write: In the room with law enforcement, a nervous witness wants to be helpful, and may strain to deliver the answer they believe the authority figure standing next to them wants to hear.

Officers want just as badly to solve the case and may unintentionally provide suggestive clues about the suspect’s identity—a phenomenon known as the “expectancy effect.” Beginning a lineup with comments like “We got the guy and just need you to pick him out,” for example, can prompt an otherwise hesitant witness to hazard a guess.

If a witness has previously seen someone—in an earlier photo lineup, for example, or on social media—they might incorrectly believe they remember that person as the perpetrator. For this reason, the report’s authors recommend against including the same person in successive identification procedures, and urge law enforcement to discourage witnesses from doing their own amateur detective work online.

Police sketches, another staple of criminal procedurals, are another potential source of error. Research shows that people “typically process faces holistically, not feature-by-feature,” which means that a composite cobbled together from a witness’s description of individual features may end up looking nothing like the perpetrator. Yet police, with little else to go on, are likely to start looking for people who look like the composite—straying further away from the witness’s actual description, and perhaps ignoring promising leads in the process.

For the witness, the composite immediately becomes the most tangible representation of someone they may have only briefly glimpsed. During subsequent identification attempts, they may focus on a person’s resemblance to the sketch, as opposed to their recollections of the perpetrator. Because composite or sketch evidence is involved in about a quarter of DNA exonerations, the report authors recommend that law enforcement “only use them rarely and with great caution.”

The process by which Thompson-Cannino identified Cotton some 35 years ago was riddled with these kinds of compounding errors. Cotton’s face appeared in her photo array, and then again in her live lineup several days later. Poole, the man who committed the crime for which Cotton was found guilty, did not appear in the initial photo array or the subsequent lineup.

On both occasions, when she told detectives that she wasn’t especially confident, they pressed her until she offered more-assured responses. And after she implicated Cotton, she received immediate feedback that she had done the right thing.


Courts have long been at least somewhat aware of the shortcomings of these identification procedures. Whether police show a suspect in a photo array or alone, “it is obvious that risks of suggestion attend either form of confrontation,” Supreme Court Justice William Brennan wrote in United States v. Wade.

And as Brennan noted in a different case, Watkins v. Sowders, it is difficult for jurors—impassive observers with no firsthand knowledge of what took place—to be skeptical of an earnest witness who saw a crime with their own eyes and swears to tell the truth in court. Quoting renowned psychology professor and memory expert Elizabeth Loftus, Justice Brennan wrote that “all the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”

By the time jurors file into the courtroom, though, it is far too late to warn them about all the different mistakes that can occur along the way. At that point, a suspect is an indicted defendant, and after confirming and reconfirming that the defendant is the responsible party, the witness has grown comfortable repeating this narrative to others. As a result, they may have formed a “memory” that never took place.

The physical evidence linking Cotton to the crime was thin, but Thompson-Cannino’s compelling, unflinching testimony proved to be enough to convince the jury of his guilt. After that conviction, Poole’s name surfaced in connection with the attack, and at a retrial obtained by Cotton’s lawyers, Thompson-Cannino even had the opportunity to face Poole in court and identify him as the true perpetrator. But in that proceeding, too, she remained adamant about whom she had seen that night, and whom she had not.  “I was absolutely, positively, without-a-doubt certain [Cotton] was the man who raped me when I got on that witness stand,” Thompson-Cannino told ABA Journal in 2001.

“And nobody was going to tell me any different.”


There are simple strategies available to law enforcement for minimizing the risks of these errors, and the report goes through them in detail: For example, whenever possible, police should conduct double-blind lineups and photo arrays, where neither the witness nor the officer administering the procedure knows who the suspect is. If double-blind procedures are impractical—for example, in smaller departments where everyone knows the suspect’s identity—officers can at least use “blinded” techniques, in which the officer cannot see which suspect or suspects the witness is viewing at any given moment.

So-called filler lineup participants—the people asked to stand next to a suspect in a lineup—should match the elements of the witness’s description of the perpetrator, and not merely look similar to the suspect. The authors also caution against giving witnesses books of mugshots to browse, a practice that may result in witnesses over-committing to their initial identification and being less reliable during subsequent attempts. In 2001, New Jersey Attorney General John Farmer ordered law enforcement agencies to do away with “mugshot-searching” altogether and instead present witnesses with sequential, one-at-a-time lineups. The move, prompted by a U.S. Department of Justice report published two years earlier, made New Jersey the first state to embrace such a shift based on the evolving understanding of memory science.

Using standardized instructions can reduce the likelihood of tainting the proceedings, too. The report suggests that police issue a series of caveats and reminders before each identification attempt: that the suspect “may or may not be present,” for example, and that “it is just as important to free innocent people from suspicion as it is to identify the guilty.” In 2007, lawmakers in North Carolina passed the Eyewitness Identification Reform Act in an effort to modernize identification procedures throughout the state. The act prescribes a set of initial instructions to be given to witnesses, and requires that law enforcement either conduct identifications using independent administrators who are not involved with the case, or use blinding techniques that prevent administrators from knowing whose face the witness is looking at.

Once the witness has made an identification, the report’s authors add, police should take one final, critical step: Immediately ask witnesses for a self-assessment of their confidence, and record it without comment. Detectives should also refrain from giving any sort of suggestive feedback, even after the attempt is ostensibly “complete.” No matter what evidence later comes to light, it can be difficult to convince a witness who saw a detective pump his fist in triumph that the answer they gave was anything other than the right one.

Ronald Cotton and Jennifer Thompson-Cannino became close friends after his exoneration in 1995. They co-wrote a best-selling book, and continue to act as advocates for reforming the legal system’s uncritical treatment of eyewitness testimony. Cotton married, had a daughter, and bought a home using the $110,000 in restitution money he received from the North Carolina state government. It at first offered him only $5,000, but Thompson-Cannino lobbied on his behalf, urging lawmakers to ensure that he received a more generous settlement.

None of this, of course, erases what happened to Cotton, who spent a decade of his life behind bars for a crime he did not commit. But cases like his shine a badly needed spotlight on the risks associated with relying on eyewitness testimony—no matter how confident the person offering it may be—in order to lock people up.

via The Appeal https://theappeal.org

February 11, 2020 at 09:03AM

Prosecutors, Legislators Push Back Against Bail Reform

Some prosecutors and legislators around the U.S. are pushing back against changes that largely eliminated bail for low-level and nonviolent offenders, saying they have resulted in dangerous criminals being released, reports the Wall Street Journal. The shifts, adopted by more than 20 states and many counties, have been a rare example of bipartisan cooperation, as politicians agreed cash bail was unnecessarily keeping suspects jailed before trial due to a lack of financial means. As the laws have gone into effect, some of the same officials now say they are seeing too many dangerous people being let out, prompting a battle over whether the changes need to be scaled back. “Cities and states are trying to strike a balance between the need for a consistently fair and firm bail system, and one that was simply defaulting to everybody remaining behind bars,” said Bill Raftery of the National Center for State Courts. “Where that balance gets struck is tricky.”

In New York, a bail overhaul that went into effect in January has caused the state’s jail population to shrink to about 15,000 prisoners from 21,000, says the Vera Institute of Justice. New York City’s police commissioner blamed the law for a spike in crime in January compared with the year before. Last week, an upstate New York judge defied the new rules when he set $100 bail for a man charged with a low-level misdemeanor, setting up a court fight on the law’s constitutionality. Last year, officials in Harris County, Texas, which includes Houston, agreed to overhaul its bail practices after settling a 2016 federal lawsuit brought by plaintiffs arrested for misdemeanors. Harris County prosecutors said the changes were well-intentioned, but there have been many instances where released offenders continued committing crimes, sometimes violent ones.

via The Crime Report https://ift.tt/2myW3Gx

February 11, 2020 at 09:09AM

Man who refused to decrypt hard drives is free after four years in jail

A Philadelphia man has been freed after a federal appeals court ruled that his continued detention was violating federal law. Francis Rawls, a former police officer, had been in jail since 2015, when a federal judge held him in contempt for failing to decrypt two hard drives taken from his home. The government believes they contain child pornography.

In 2015, law enforcement raided Rawls’s home and seized two smartphones, a Mac laptop, and two hard drives. Prosecutors were able to gain access to the laptop, and police say forensic analysis showed Rawls downloading child pornography and saving it to the external hard drives. But the drives themselves were encrypted, preventing the police from accessing the downloaded files.

Francis RawlsFrancis Rawls

A judge ordered Rawls to decrypt the hard drives. In its recent ruling, the 3rd Circuit Court of Appeals described what happened next. Rawls “stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination.”

The judge held Rawls in contempt and ordered him imprisoned. Rawls challenged his imprisonment, arguing that it violated his Fifth Amendment right against self-incrimination. But in 2017, the 3rd Circuit rejected his argument.

The Fifth Amendment gives witnesses a right not to testify against themselves. Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to encrypt them. So ordering Rawls to decrypt the drives wouldn’t give the government any information it didn’t already have. Of course, the contents of the hard drive might incriminate Rawls, but the contents of the hard drive are not considered testimony for Fifth Amendment purposes.

An 18-month limit?

After losing that appeal Rawls raised another challenge: the federal statute that allows judges to hold witnesses in contempt for refusing to testify, passed in 1970, states that “in no event shall such confinement exceed eighteen months.”

The government argued that this provision didn’t apply to Rawls because he was a suspect, not a witness. Also, the rule applies to a “proceeding before or ancillary to any court or grand jury.” But because the government hadn’t formally charged Rawls with a crime, the government argued, there was no court proceeding under way.

Last week, a three-judge panel of the 3rd Circuit rejected this argument in a 2-1 vote. The court’s two-judge majority held that Congress had intended for the 18-month limitation to apply broadly to any legal proceeding, not just a formal trial. And while Rawls was a suspect in the case, he was also a witness.

The practical result is that, at least in federal court, someone can only be imprisoned for 18 months for refusing to open an encrypted device. That’s probably a harsh-enough penalty to induce most people to comply with decryption orders. But suspects in child-pornography cases might be tempted to “forget” the passwords on their encrypted device if doing so could save them from a conviction and a much longer prison term.

The ruling might not help Rawls very much, however. The government says it has piles of other evidence suggesting that Rawls was trafficking in child pornography. For example, last week’s ruling notes that Rawls’s own sister testified that “Rawls had shown her hundreds of images of child pornography on the encrypted external hard drives, which included videos of children who were nude and engaged in sex acts with other children.” Rawls’s smartphone also contained “approximately twenty photographs focusing on the genitals of Rawls’ six-year-old niece.”

So prosecutors may be able to piece together enough evidence to convict him, even without access to his encrypted hard drives. One of the two judges who formed the 3rd Circuit’s majority urged the trial court judge to consider the four years of imprisonment Rawls has already served if he eventually has to sentence Rawls after a child pornography conviction.

Dissent

One judge, Jane Richards Roth, dissented from last week’s appeals-court ruling. Roth argued that Rawls wasn’t being asked to testify at all—and hence that the 18-month limit didn’t apply. She argued that Rawls was merely being asked to comply with a search warrant.

The government’s ability to execute search warrants—and a judge’s ability to hold people in contempt for ignoring them—can be traced back to a 1789 law called the All Writs Act. Roth argued that this law, not the 1970 law about compelled testimony, should govern the Rawls case. And that act doesn’t impose a time limit on persons being held for contempt.

“It is not clear that Congress intended the provisions of that statute to limit the power of courts to hold individuals such as Rawls, the recipient of a valid search warrant, in civil contempt,” Roth wrote. “Rawls is not a ‘witness,’ as his contempt relates only to the decryption order replying that he comply with the government’s search warrant by producing his devices in a fully encrypted state.”

via Policy – Ars Technica https://arstechnica.com

February 12, 2020 at 03:51PM

Record-breaking number of new expungement laws enacted in 2019

This is the third in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief.  The first post in this series described new laws restoring the right to vote and other civil rights.  The second post described laws reducing record-related workplace barriers.  This third post looks at the 67 separate new laws authorizing expungement or some other form of record relief.  Our full report on 2019 laws, to be published shortly, will continue our efforts to show overall patterns and emerging trends in an extraordinarily fruitful period of law reform in the United States.

Criminal record relief (expungement, sealing, set aside)

As in past years, the reform measure most frequently enacted in 2019 was record relief, i.e. expungement, sealing, or other mechanism to limit access to criminal records or set aside convictions.  This past year, 31 states and D.C. enacted no fewer than 67 separate bills creating, expanding, or streamlining record relief.  This total does not include a dozen other new laws authorizing non-conviction dispositions that will be eligible for record-clearing under existing law.  A trend we observed in our 2018 report toward “a growing preference for more transparent restoration mechanisms” that limit use of a criminal record, as opposed to access, does not appear so obvious to us this year.  If anything, jurisdictions appears to be looking for new efficiencies in record clearance.

In 2019, 27 states and D.C. made certain classes of convictions newly eligible for expungement, sealing, or vacatur relief.  Five of those states enacted their first general authority for expunging or sealing convictions (North Dakota, New Mexico, West Virginia, Delaware, Iowa), making record relief available for the first time to thousands of people.   Nonetheless, most potential beneficiaries of these new relief schemes find them hard to navigate:  eligibility criteria are frequently complex and unclear, and court procedures are usually intimidating, burdensome and expensive.  These and other barriers to access have been shown to discourage the law’s intended beneficiaries.

To obviate the need for individual applications, in 2019 three states followed the example set by Pennsylvania’s 2018 “Clean Slate Act” by enacting automatic relief for a range of conviction and non-conviction records (Utah, California, New Jersey).  Specific provisions of these important new laws are described in the following pages, and in greater detail in the relevant state profiles in the Restoration of Rights Project.  Five additional states focused automatic relief provisions on specific offenses or dispositions (Illinois, New York, Virginia, Nebraska, Texas).

Also notable were bills providing relief for victims of human trafficking and for marijuana offenses.  Seven states and D.C. authorized relief for victims of human trafficking, allowing them to vacate, expunge, and seal a range of criminal records resulting from their status as a victim.   Seven other states—all of which have legalized or decriminalized marijuana—authorized record relief for certain marijuana offenses, including two automated relief measures (New York and Illinois).

In addition to these marijuana measures, which often extend to arrests and other non-conviction records, eleven states extended relief to certain non-conviction records for the first time.  Most far-reaching, new provisions in New York’s annual budget bill limited access to cases in which there has been no docket entry for five years; precluded the inclusion of such undisposed cases in background check reports; and extended New York’s automatic sealing of non-convictions to cases decided prior to the enactment of that relief in 1992

Finally, thirteen states enacted 18 laws to streamline and/or make more effective the procedures for obtaining relief under existing mechanisms.  Three states (Colorado, Washington, and New York) made particularly noteworthy and broad-based procedural reforms to their criminal records laws.

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To summarize the bounteous haul of record relief laws enacted in 2019, we have organized them into three categories: (1) new automatic relief schemes; (2) new petition-based relief; and (3) improved procedures and effect of existing record relief mechanisms.

  1. New automated “clean slate” relief

In 2019, efforts to automate criminal record relief gained widespread attention as a response to what scholars have called the “uptake gap” or “second chance gap” in petition-based schemes.  The “gap” refers to the large percentage of a law’s intended beneficiaries who never even apply for relief, deterred by multiple barriers to access that include unclear eligibility criteria and burdensome court procedures.  Automated schemes close the gap by requiring the government to grant relief to all individuals deemed eligible by the legislature, without requiring individuals to ask for it.

Initially inspired by the need for large-scale relief in the wake of marijuana legalization, automation entered the law reform mainstream in 2018 when Pennsylvania passed its Clean Slate Act, providing a term that is now generally understood to refer to automated schemes (though is not in  practice always so limited).  While Pennsylvania’s automated sealing law did not extend relief much beyond cases that had been previously eligible (capped at the misdemeanor level), the law was unusually ambitious in its retroactive application to millions of state records accumulated over decades.

While a few states have for years made sealing mandatory for non-conviction and juvenile records, until Pennsylvania’s law none had attempted to make sealing relief self-executing and retroactive.  By mid-2020, when the statutory implementation schedule is complete, more than 32 million non-conviction and misdemeanor records held by the Pennsylvania courts and state police will have been closed off to the public.  Extensive cooperation between the Commonwealth’s records custodians and courts was necessary to make this law operational, and to implement a system of notifying those whose records had been sealed.  Pennsylvania’s automated process, which will be completed for older cases in mid-June 2020, is described in detail in the Pennsylvania profile from the Restoration of Rights Project.

In 2019, three more states joined Pennsylvania in enacting “clean slate” automatic sealing laws of their own.

  • Utah’s clean slate law will provide for automatic expungement of a variety of non-conviction, infraction, and misdemeanor criminal records (and deletion of certain traffic records) when the law takes effect on May 1, 2020, and will apply retroactively to cases adjudicated prior to its effective date (HB 431). (Utah provides sealing relief to almost all convictions, excluding only serious felonies, so its automation feature applies only to cases on the lowest tier.)
  • California’s 2019 clean slate law provides for automatic record relief in the form of dismissal or set-aside certain convictions and arrests occurring after the bill’s effective date of January 1, 2021. The new law supplements but does not supplant the existing system of petition-based relief (eligibility criteria are slightly different).  While its automatic feature is prospective only, for the first time prohibits courts and the state repository will be prohibited from disclosing information about conviction records that have been dismissed or set aside under either the new automatic process or the older petition-based system. The new law does not impose new limits on disclosure of arrests and other non-conviction records occurring prior to the law’s effective date, which must still be sealed under the existing petition-based system. (AB 1076)
  • New Jersey’s clean slate law, the final record relief measure signed into law in 2019, directs the State to develop and implement a process by which all but certain convictions, as well as non-conviction records, will be automatically made “inaccessible to the public” ten years after completion of the sentence imposed for the most recent conviction. The retroactive application of the law must be completed by mid-June 2020.  The law also extends eligibility and improves procedures for petition-based discretionary relief from courts, which (as under Pennsylvania’s law) is available to a broader range of cases than those eligible for automated relief (S4154).

These three clean slate laws are described in greater detail in the relevant state profile from the Restoration of Rights Project.

In addition to these large-scale automation projects, five states enacted automatic relief measures focused more narrowly on marijuana offenses, pardoned offenses, non-conviction records, and juvenile records.

  • Illinois’s marijuana legalization bill authorized the automatic expungement of arrests and convictions for “minor cannabis offenses” (not more than 30 grams, no enhancements, and no violence); and petition-based expungement for more serious marijuana convictions (HB1438; SB 1557).
  • New York extended its automatic sealing of non-conviction records to cases decided prior to the enactment of that relief in 1992 (A7584), and to undisposed cases after five years of inactivity. (S1505).  It also authorized automatic vacatur and expungement of convictions for possession of two ounces or less of marijuana, with a presumption that a plea to such an offense was not knowing, voluntary, and intelligent for purposes of avoiding immigration consequences (S6579; S6614).
  • Nebraska enhanced its procedures for automatic sealing of juvenile records (LB 354).
  • Texas directed juvenile courts upon entering a finding that charges are unfounded, to seal all records immediately and without a hearing (HB 1760).
  • Virginia provided for automatic expungement for persons granted an “absolute pardon” (exoneration) (HB 2278).

The Clean Slate Initiative reports that several states are considering automated “record-clearing” laws in the 2020 session.  Among the issues that must be worked out are how to simplify eligibility criteria for algorithmic treatment, and how to notify those whose records have been cleared.

  1. New petition-based relief

The second category of record relief laws expanded the availability of petition-based relief to new classes of persons. Twenty-four states and D.C. enacted no fewer than 41 laws that authorize people to apply for relief for convictions or dispositions that were previously ineligible.

Five states made particularly dramatic changes to authorize relief for a range of non-conviction records, misdemeanor convictions, and felony convictions.

  • North Dakota passed that state’s first general authority for sealing conviction records: it authorizes people with misdemeanor or felony convictions to apply after a charge-free waiting period of three and five years, respectively, with certain exceptions, and a seven year period for DUIs (HB1256; HB1334).
  • New Mexico enacted a comprehensive law authorizing expungement of most non-conviction records after a one-year waiting period, and of conviction records in all but the most serious violent and sexual crimes after conviction-free waiting periods ranging from two to ten years upon a finding that “justice will be served” (HB 370).
  • Delaware, which previously only authorized expungement for pardoned misdemeanors, enacted a dramatic expansion of this record relief, making it mandatory for cases “terminated in favor of the accused” and certain less serious misdemeanors, and discretionary for more serious misdemeanors and eligible felonies. Mandatory relief is administered by the state records repository, while discretionary relief is administered by the courts, with variable waiting periods and limits on number of offenses. See SB 37.  Delaware’s new law stops short of automating relief in “mandatory” cases, since people must apply to the repository before their cases will be considered.
  • West Virginia, which previously only authorized expungement of convictions for youthful misdemeanor first offenses, expanded eligibility to include most misdemeanors and some non-violent felonies, with waiting periods of up to five years (SB 152).
  • Kentucky made class D felonies, with some exceptions, eligible for expungement after a five-year conviction-free period, along with charges dismissed without prejudice after five years (SB 57).

Seven states and D.C. passed laws authorizing vacatur, sealing, and/or expungement relief for victims of human trafficking:

  • District of Columbia (expungement and vacatur for convictions for all offenses except a list of ineligible serious offenses; expungement of non-conviction records for any offense) (B22-0329).
  • Delaware (pardon or vacatur and expungement of non-violent convictions) (HB 102).
  • North Carolina (expunction of most nonviolent misdemeanor or low-level felony conviction) (H198),
  • Tennessee (expungement of prostitution conviction along with other non-violent offenses) (SB 577).
  • Texas (non-disclosure of conviction or deferred adjudication for certain prostitution, theft, and marijuana offenses) (SB 1801).
  • Utah (vacatur for juvenile prostitution and related offenses) (HB 108).
  • Vermont (vacatur and expungement of offenses other than serious violent offenses; this bill also revises the broader expungement and sealing scheme, reducing some waiting periods and expanding the number of eligible conviction offenses) (H 460).
  • Nevada expanded the list of eligible offenses for vacatur and sealing relief for victims of human trafficking (SB 173).

Relatedly, Hawaii authorized vacatur of prostitution offenses (SB1039).

Five states provided for petition-based relief for marijuana offenses, over and above the two automatic marijuana sealing measures enacted by Illinois and New York, discussed above.

  • New Hampshire provided for annulment of arrests or convictions for marijuana possession of ¾ of an ounce or less (HB 399).
  • Hawaii decriminalized and provided for expungement of marijuana possession of three grams or less (HB1383).
  • Delaware decriminalized youthful marijuana possession and made clear than a prior conviction for such an offense can be expunged (SB 45).
  • Oregon authorized expedited set asides and reductions of offense classifications for qualifying marijuana convictions (SB 420; SB 975).
  • Washington authorized expedited vacatur of misdemeanor marijuana convictions for conduct committed at age 21 and older, with no waiting period or other eligibility criteria (HB 5605).

Additional laws authorized sealing and expungement of felony, misdemeanor, first, youthful, decriminalized, and pardoned offenses, as well as wrongful arrests.

  • Iowa enacted its first authority to expunge conviction records, covering certain misdemeanors, with an eight year waiting period as well as other requirements, including that a person may be granted only one expungement, unless multiple charges arose from one incident (SF 589).
  • Oklahoma made more felonies and pardoned offenses eligible for expungement (HB 1269; SB 815).
  • Mississippi extended sealing to more felonies and larceny of motor fuel, and repealed the loss of one’s driver’s licenses due to a drug conviction (HB 1352; HB 940).
  • Missouri authorized expungement for several property crimes (SB 1).
  • Montana expanded eligibility for misdemeanor expungement (HB 543).
  • Maryland authorized expungement of misdemeanor boating offenses (HB259).
  • Nevada provided for sealing of decriminalized offenses, expungement of wrongful arrests, and set aside of conviction after completion of specialty court program (AB 192; AB 222; AB 315).
  • Vermont authorized expungement of records of juvenile diversion cases after two years without a subsequent conviction and payment of restitution (S 105).
  • Louisiana made entitlement to a first offender pardon the basis for filing a motion for expungement, except for violent or sexual crimes (SB 98).
  • North Carolina authorized expungement of criminal court records when a case is remanded for juvenile adjudication (S413).
  • Texas authorized nondisclosure of certain deferred adjudications for intoxication offenses and for veterans, as well as expunction of the records of completion of a mental health court program TX (HB 3582; HB 714; SB 562).
  • Arizona eased restrictions on setting-aside convictions: previously, a conviction was ineligible if there was a victim under age 15; a new law specifies that non-felony offenses with such victims are eligible (HB 2480).
  • Oregon authorized the sealing of pardoned offenses (SB 338).
  1. Procedural reforms in existing relief schemes

Thirteen states enacted 18 laws to streamline and make more effective existing relief mechanisms, making them more accessible and effective.  Three states made particularly noteworthy and broad-based reforms.

  • Colorado repealed, reorganized, and reenacted its entire chapter on criminal records: major changes include shortened waiting periods and reduced filing fees for sealing less serious drug convictions; a significantly simplified process for sealing uncharged arrests and non-conviction records; expanded eligibility for conviction relief; expanded mandatory juvenile expungement; authority for judges to discontinue juvenile registration; and direction to a commission to take recommendations on automatic sealing and alternatives to incarceration for drug offenses. (HB 1275; HB 1335; SB 8).
  • Washington substantially amended its eligibility requirements, including consolidating waiting periods and easing requirements to satisfy financial obligations. Now the necessary conviction-free period will be coextensive with the otherwise applicable waiting period, and a person need not have paid all court debt in order to qualify for relief if five years have elapsed since release from custody and all non-financial requirements are met.  The bill also makes eligible for the first time certain assault and robbery felonies, as long as they did not involve a firearm or “sexual motivation” (HB 1041).
  • New York, in addition to providing for automatic sealing of marijuana convictions (see above), extended relief to cases in which there had been no docket entry for five years; precluded the inclusion of such undisposed cases in background check reports; and clarified that eligibility for sealing of petty offenses does not depend on the initial offense charged(S1505; A7584).

Additional states reduced or eliminated waiting periods and filing fees, streamlined procedures, and expanded the effect of relief.

  • Arkansas eliminated the 5-year waiting period for certain felonies and the 60-day waiting period for misdemeanors and infractions to become eligible for record sealing, eliminated the $50 filing fee for petitions to seal, and declared this as “the first step in a multi-step process to attempt to make the sealing of certain records of a person’s criminal history that involve nonviolent and nonsexual offenses an automatic operation” (HB1831).
  • Louisiana provided that only one filing fee is required in an application to expunge multiple offenses resulting from the same arrest (HB 9).
  • Illinois extended a pilot program in Cook County for waiving filing fees for sealing or expungement of non-convictions (SB482).
  • California prohibited the charging of a fee for sealing juvenile records (AB 1394).
  • Indiana and Utah specified that that records of a collateral actions (i.e. forfeiture) related to an expunged criminal record is also subject to expungement (IN SB 235; UT HB 212).
  • Florida rolled-back a scheduled repeal of the confidentiality of treatment court records (HB 7025).
  • New Hampshire created a “confidential” category of criminal history information, including non-convictions and annulled convictions, to be subject to restrictions on public access (HB 637).
  • Tennessee authorized the disposal of juvenile records after the young person reaches age 28; repealed a $180 fee for petitioning for an expunction of certain criminal offenses and a $350 fee for applying for expunction following diversion; and required sentencing judges to notify those convicted of misdemeanors about eligibility for expungement (SB 214; SB 797; SB 778).
  • Wyoming improved its rules for expungement of juvenile records and the records of minors, including authorizing the prosecutor to seek expungement, eliminating filing fees, and authorizing expungement of a minor’s records of diversion, deferral, or non-conviction (HB 44).

via Collateral Consequences Resource Center https://ift.tt/12x2kEw

February 6, 2020 at 09:27AM

They Went to Jail. Then They Say They Were Strapped to a Chair for Days

Shortly after Christmas in 2016, Albert Okal began acting strangely in the Wayne County Jail. He was “jumping around, seeing things,” his lawyer says. The 41-year-old was facing a charge of driving while intoxicated in southeastern Missouri.

February 7, 2020 at 06:05AM

Florida Weighs Lifting Statute of Limitations for Child Sex Offenses

Florida lawmakers are considering legislation that would remove the statute of limitations of reporting on any sexual battery case if the victim is under the age of 18, reports WUFT/PBS.

The bills,  HB 199 and SB 170, are named “Donna’s Law” to honor Donna Hedrick, who was assaulted as a child by her chorus teacher but kept her story buried for years .

Speaking to legislators on the bill Tuesday in Tallahassee, the state capitol, she described  her feelings of terror and powerlessness.

As tears welled in her eyes, Hedrick, now 63, said she later learned that the same teacher  abused other children.

It took her decades to process what happened and report it to law enforcement, only to find out she reported it too late.

“I was told to put on a happy face,” she said.

Hedrick is one of a handful of sexual assault survivors writing, researching and lobbying for legislation to reform and protect other survivors’ rights and change the statute of limitations for victims who are minors.

The Florida House Criminal Justice Subcommittee unanimously passed HB 199 the first week of the 2020 legislative session. It again moved quickly and unanimously through the House Justice Appropriations Subcommittee Tuesday.

Another survivor, Katrina Duesterhaus, told state representatives about being sexually assaulted at a high school party. Duesterhaus said it plays over and over in her  memory like clips in a movie.

Years later when Duesterhaus finally told law enforcement, police dismissed the story and questioned its legitimacy.

“Worst of all, I was told it was too late for an investigation,” Duesterhaus said.

One of the bill’s House sponsors, Rep. Scott Plakon, R-Longwood, said that although the bill wouldn’t apply retroactively, he hopes it’ll give victims more time and better opportunity to pursue one’s attacker.

“It would put more tools in a prosecutors toolbox,” he said.

Kim Porteous, the president of Florida NOW, National Organization for Women, argued the  doesn’t go far enough — it needs to expand beyond minors.

As a survivor who was assaulted after the age of 18, she stressed college-aged women, young adults and males also face abuse.

“If we don’t address this, then what are we really doing here,” Porteous said.

The story was originally reported by Fresh Take Florida.  a news service of the University of Florida College of Journalism and Communications.

via The Crime Report https://ift.tt/2myW3Gx

February 5, 2020 at 11:08AM

New 2019 laws reduce workplace barriers for people with a criminal record

This is the second in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief.  The first post in this series described new laws restoring the right to vote.  Our full report on 2019 enactments will be published shortly.

Consideration of criminal record in occupational licensing and employment

In 2019, 26 states and the federal government enacted 41 separate laws limiting consideration of criminal record in either employment or occupational licensing, or both.  For the first time, Congress joined the lively national conversation about the need to reduce record-related barriers in the workplace that are inefficient and unfair.

Regulation of licensing accounted for 30 of these new laws, continuing a trend begun in 2017 that has transformed the licensing policy landscape and opened opportunities in regulated professions for many thousands of people.  As explained in our report on 2018 laws, these licensing reforms are particularly important in supporting reintegration, since studies have shown that more than 25% of all jobs in the United States require a government-issued license.

The new wave of licensing reforms resurrects a progressive approach to occupational opportunity that dates from the 1970s, and it has been strongly influenced by model legislation developed by the Institute of Justice (IJ), a libertarian public interest law firm, and the National Employment Law Project (NELP), a workers’ rights research and advocacy group.  Despite their origin in differing regulatory philosophies, the IJ and NELP model laws reflect a similar approach:  they limit the kinds of records that may result in disqualification, rejecting vague “good moral character” and other criteria irrelevant to competence, insisting that individual denials be grounded in evidence of public safety risk established through rigorous due process procedures, and making agency procedures more transparent and accountable.  In the IJ model, applicants can seek binding preliminary determinations of qualification, and agency compliance is monitored by disclosure and reporting requirements.

The new licensing laws borrow features of the comprehensive schemes enacted in 2018 in states like Indiana and New Hampshire, though in 2019 most states took a more cautious approach to reining in licensing agencies.  Some states (like Mississippi and Nevada) enacted generally applicable laws for the first time, while others returned to the task begun in previous legislative sessions.  Arizona, for example, has enacted significant licensing reforms for three years running, while Texas enacted no fewer than five separate licensing measures in 2019 alone—two of them of general application and quite significant, and the other three opening opportunities in health care occupations to people who may have been denied them earlier in life.  Arkansas, North Carolina and Oklahoma significantly expanded existing licensing schemes.

Compared to occupational licensing, 2019 was not a banner year for new fair employment laws.  Still, nine states and the federal government enacted a total of 13 new measures to promote opportunities in the workplace.  Most of the new laws continue the expansion of “ban-the-box” laws in public and private employment, including a significant new law covering employment by federal agencies and contractors.

The only 2019 enactment that directly prohibits consideration of criminal record in employment is Illinois’ extension of its Human Rights Act to bar employers and housing providers from considering arrests not resulting in conviction and juvenile adjudications.  Since 2019 was also a year that saw doubt cast on the legality of the EEOC’s extension of Title VII of the Civil Rights Act of 1964 to cover employment discrimination based on criminal record, more states may step up in coming years.  As of the end of 2019, only four states (California, Hawaii, New York, and Wisconsin) include criminal record discrimination in their general fair employment schemes, and all but California’s law date from the 1970s.  Colorado, Connecticut, and Nevada have, like Illinois, more recently prohibited some employers from considering certain criminal records, but those prohibitions are not integrated into a broader nondiscrimination law.

The new 2019 licensing and employment laws are described in more detail below, and can be viewed as they interact with other relief provisions in the relevant state profiles from the CCRC Restoration of Rights Project.  Our full report on 2019 laws, to be published shortly, will continue our efforts to show overall patterns and emerging trends in an extraordinarily fruitful period of law reform in the United States.

OCCUPATIONAL LICENSING

In the past year, four states that previously had no general law regulating consideration of criminal records in occupational licensing (Alabama, Mississippi, Nevada, and West Virginia) took steps to limit licensing agencies’ ability to reject individuals based on their record.  Seven states (Arizona, Arkansas, Maryland, North Carolina, Ohio, Oklahoma, and Texas) made significant modifications to existing licensing schemes, and three more states (Delaware, Illinois and Indiana), made minor modifications to extensive schemes enacted in the past several years.  New York lifted mandatory disqualifications from several licensed professions, allowing applicants for the first time to be considered under the state’s general non-discrimination law.  Several states took steps to facilitate licensure in barbering and various construction trades.  Florida, for example, enacted a five-year limit on consideration of conviction in licensing those trades, as well as any other trade taught in its prisons.

Many of the new laws contain provisions that were familiar in 2018 reforms:

  • Preliminary determination: Providing for a preliminary determination of qualification, for a small fee with quick turnaround and written reasons;
  • Relevant standards: Deleting vague standards like “good moral character” in favor of standards likely to evidence low risk and rehabilitation;
  • Prohibited considerations: Barring consideration of certain types of records and other types after a specified time;
  • Transparency: Requiring agencies to publish a list of disqualifying convictions and to provide written reasons for rejection in individual cases; and
  • Accountability: Including reporting requirements intended to monitor agency compliance.

Significant new licensing laws:

Alabama, until 2019, had no general law regulating consideration of conviction in occupational licensure.  Effective September 1, 2019, SB163 created a process modeled on the Uniform Collateral Consequences of Conviction Act, whereby a person who would otherwise be disqualified by law from obtaining a particular occupational license may obtain from the circuit court an “Order of Limited Relief” to dispense with that mandatory penalty and allow their consideration by the licensing board on the merits.  People with federal offenses are eligible, as are people with out-of-state convictions who have received a similar certificate in the jurisdiction of conviction.  A person may not be serving a prison sentence with more than six months left to serve, nor can they have pending charges.   There is a filing fee of $100 that may not be waived, and a rather onerous process of document production – but no standards are specified, and the court’s order is appealable.

Arizona made significant modifications to its licensing laws for the third year in a row (HB 2660), further modifying the standards set forth in § 41-1093.04(D) to require an agency to conclude before denying a license both that (1) there is an important state interest in “protecting public safety that is superior to the person’s right” to licensure; and (2) the person was convicted within the past seven years of a felony that has not been set-aside, including any offense the agency is specifically required to consider by law, but excluding certain serious and dangerous crimes.  Arizona’s set-aside law is described here.  Under the 2018 law, agencies are required beginning in 2019 to submit annual reports to the governor and the legislature that contain the following information for the previous year: the number of petitions received from persons with a criminal record for a preliminary determination; the number of petitions granted and denied, and the types of offenses involved in each category.  § 41-1093.04(I).

Arkansas enacted the first revision of the state’s licensing laws in 10 years, prohibiting consideration of most felony convictions after 5 crime-free years, as well as sealed convictions, pardoned convictions, and non-conviction records (SB 451).  The new law amends the Criminal Offender Rehabilitation Act of 2010 by establishing standards for waiving disqualification (though certain serious violent crimes remain grounds for permanent disqualification), and by eliminating “good character” and “moral turpitude” as licensing criteria.  Licensing agencies must “state explicitly in writing the reasons for a decision which prohibits the applicant from practicing the trade, occupation, or profession if the decision is based in whole or in part on conviction of a felony.”  Among the legislature’s findings were that “Arkansas is taking a leading role in the nationwide pursuit of reforms to the system of occupational licensing,” and that the state was one of 11 states “chosen to participate in the Occupational Licensing Policy Learning Consortium, an initiative funded by a grant from the United States Department of Labor and supported in partnership with the National Conference of State Legislatures, the Council of State Governments, and the National Governors Association.”

Florida added a new provision to its general licensing law to prohibit consideration of a conviction more than five years old in licensing of barbers and cosmetologists, plumbers, electricians, mechanical engineers, roofers, a number of other building trades, and “any other profession for which the department issues a license, provided the profession is offered to inmates in any correctional institution or correctional facility as vocational training or through an industry certification program” (H7125).  See § 455.213(3)(a)(2019) (“A conviction, or any other adjudication, for a crime more than 5 years before the date the application is received by the applicable board may not be grounds for denial of a [specified] license.”).  Boards are permitted to consider violent and sexual offenses but only if they “relate to the practice of the profession.”  Persons are permitted to apply for a license prior to their release from confinement or supervision.  Starting on October 1, 2019, and updated quarterly thereafter, each relevant licensing board must compile a list indicating each crime used as a basis for a license denial.  For each crime listed, the board must identify the crime reported and for each license application the date of conviction or sentencing date, whichever is later; and the date adjudication was entered.

Maryland prohibited occupational licensing boards from denying an application based solely on a non-violent conviction if 7 years or more has passed since completion of sentence without other charges, even if the agency determines that the conviction is directly related to the occupation and even if “issuance of the license or certificate would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public,” unless the person is required to register as a sex offender (HB22).  Md. Crim. Proc. Code §1-209(f)(1) and (2).   Drug convictions are specifically subject to a similar statutory policy and standards, although there is no exception for crimes involving violence.  See Md. State Gov’t Code § 10-1405(b).  In 2018, licensing agencies were required to report each year to the governor and the general assembly on applications for licenses that would be eligible for relief under § 1-209, including the number granted and the number denied.

Mississippi, until 2019, had no general law regulating consideration of conviction in connection with occupational licensing.  Under the Fresh Start Act of 2019,  effective July 1, 2019, no one may be disqualified from engaging in any licensed occupation “solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation” (SB2781) (not yet codified).  Only law licensure is excepted.  Under Section 4, licensing authorities shall not include in their rulemaking “vague or generic terms including, but not limited to, ‘moral turpitude,’ ‘any felony,’ and ‘good character.’”  In determining whether a conviction is “directly related,” the licensing authority shall make its determination by a clear and convincing standard of proof based on such factors as the seriousness of the crime, the passage of time, and evidence of rehabilitation.

The law provides for a preliminary determination of whether the individual’s criminal record will disqualify them from obtaining a license, for which no more than $25 may be charged.  If a license is denied in whole or in part because of conviction, the licensing authority shall notify the individual in writing of the reasons and their right to a hearing.  If an applicant’s criminal history does not require a denial of a license under applicable state law, “any written determination by the licensing authority that an applicant’s criminal conviction is directly related to the duties and responsibilities for the licensed occupation must be documented in written findings for each of the [applicable factors] “by clear and convincing evidence sufficient for a reviewing court.”  In any administrative hearing or civil litigation, “the licensing authority shall carry the burden of proof on the question of whether the applicant’s criminal conviction directly relates to the occupation for which the license is sought.”

Nevada, until 2019, had no generally applicable law regulating consideration of conviction in occupational licensure.  New sections of Chapter 622 of the Nevada Revised Statutes will require licensing agencies to develop and implement a process by which a person with a criminal history may petition for a preliminary determination whether that history will disqualify them from obtaining a license from the regulatory body (HB 319). The agency must respond within 90 days, and may not charge more than $50.   If the agency proposes disqualification, it “may” advise the person what can be done to qualify.  The agency also “may” post on its website a list of crimes that would result in a disqualification determination.  HB 319 also amended Nev. Rev. Stat. § 622.001 to require each licensing agency to submit quarterly reports to the legislature the number of petitions received from people with a criminal record, the number of determinations of disqualification, and the reasons for each.  Under a new section of Chapter 232B, the “Sunset Subcommittee” of the Legislative Commission is charged with reviewing the reports of each agency “to determine whether the restrictions on the criminal history of an applicant for an occupational or professional license are appropriate.”  Similar requirements are specifically imposed on various certifying entities of state government and the courts through additions to various chapters of the Nevada statutes, for certifications as varied as court interpreter, firefighter, boiler inspector, driller, milk tester, and medical marijuana provider.

North Carolina’s general licensing non-discrimination law, enacted in 2013, prohibited occupational licensing boards from automatically disqualifying an individual based on a criminal record unless the board is otherwise authorized by law to do so.  This law was substantially amended in 2019 to enhance both substantive and procedural protections for people with a record, and to extend its provisions to “state agency licensing boards” as well as “occupational licensing boards” (HB770).  HB770 amends N.C. Gen. Stat. § 93B-8.1 to impose a “direct relationship standard” for all licenses; to require a board to consider certain factors that before were discretionary, giving effect for the first time to a drug treatment program and Certificate of Relief (see above); and to exempt only licenses governed by federal law.  § 93B-8.1(b)-(b3).  It provides for robust procedural protections for applicants, including written reasons in the event of a denial and an appeal procedure.  § 93B-1(b4)-(b5).  It also specifies that individuals may at any time apply for a “predetermination” as to whether their record is “likely” to be disqualifying, a determination that is “binding” on the board in the event of a subsequent application.  § 93B-8.1(b6) though (b7).   Finally, it amends § 93B-2(a) to require each board to report annually to the legislature and to the State Attorney General on how many applications it has received from people with a record, and how many were granted and denied.

Ohio‘s legislature, on December 27, 2018, enrolled SB 225, which became law 10 days later without action by the governor.  Ohio licensing boards have been required since 2009 to promulgate regulations on crimes that would be disqualifying under a general “substantial relationship” standard, and the new law requires these crimes to be listed on the agency’s website.   Ohio Rev. Code Ann. § 9.78(C)(2019).  In addition, anyone with a conviction may request at any time that a licensing authority make a preliminary determination whether their conviction will be disqualifying.  § 9.78(B).  A fee of no more than $25 may be charged.  Within thirty days of receiving a request, the licensing authority must inform the person of its decision.  The decision is not binding if the licensing authority determines that the person’s convictions differ from what was included in the request.  Id.   Finally, SB 225 enacts an elaborate legislative sunset review procedure that will presumably include consideration of how licensing agencies treat individuals with a criminal record under the applicable “least restrictive alternative” standard.

Oklahoma enacted a comprehensive revision of its occupational licensing laws, with certain generally applicable provisions contained in a new Section 4000.1 of Title 59, and conforming provisions added into specific licensing schemes (HB1373).  Section 4000.1(b) provides that a person with a criminal history record may request an initial determination from the licensing agency of whether his or her criminal history record would potentially disqualify him or her from obtaining the desired license, including before obtaining any required education or training for such occupation.  Section 4000.1(C) requires each state entity with oversight authority over a particular licensed occupation or profession must “list with specificity any criminal offense that is a disqualifying offense for such occupation.”  Any disqualifying offense must “substantially relate” to the duties and responsibilities of the occupation and “pose a reasonable threat to public safety.” “Substantially relate” is defined to mean the nature of the criminal conduct for which the person was convicted has a direct bearing on the fitness or ability to perform one or more of the duties or responsibilities necessarily related to the occupation.”  “Pose a reasonable threat” means “the nature of the criminal conduct for which the person was convicted involved an act or threat of harm against another and has a bearing on the fitness or ability to serve the public or work with others in the occupation.”  Each entity must respond within 60 days and may charge no more than $95.  In addition, the specific regulatory schemes of dozens of professions and occupations were amended by HB1373 to strike references to “good moral character” and “moral turpitude,” and to include the two requirements of disqualification (“substantial relationship” and “reasonable threat”) in the conjunctive.

Texas enacted five separate laws affecting the occupational licensing process for people with a criminal record.  The most comprehensive of the new laws deleted a provision in existing law that allowed disqualification based on a conviction unrelated to the occupation within five years of application, and otherwise made major modifications to the standards and procedures for obtaining a license in most occupations (other than the medical field) (, HB 1342).  The law creates a new “restricted license” aimed at facilitating licensure in air-conditioning and electrical work for people returning to the community from prison.  HB1342 also tightens procedures and standards applied by licensing agencies, and requires an agency to explain its reasons for denial in writing.   Certain violent and sexual crimes, and drug felonies are excepted from the requirements of the law.  A second law, prohibits licensing agencies affected by HB 1342 from considering arrests not resulting in conviction or placement on deferred adjudication community supervision (SB 1217).  A third law modifies standards that apply to certain specific licenses, primarily by deleting overbroad categories of disqualification or antiquated references to moral integrity (podiatrist, midwife, electrician, animal breeder, auctioneer) (HB1531).  Two narrower laws loosened restrictions on licenses for health care providers and massage therapists (HB 1865; HB 1899).

Utah authorized preliminary determinations as to whether a criminal record would disqualify individuals from obtaining a license in an occupation or profession regulated by Title 58 of the Utah code (HB 90).  Utah Code Ann. § 58-1-310.  A fee may be charged (although, unlike most similar laws enacted in other states since 2018, no cap is established).  Within 30 days of receipt of a completed application, the Division of Occupational and Professional Licensing must make a written determination, and the decision may include additional steps the individual could take to qualify for a license.  Id.  This new law also amends the definition of “unprofessional conduct” in § 58-1-501(2), based on which a license may be denied or restricted.  Existing law defines “unprofessional conduct” to include, among other things, a plea or conviction for a crime of moral turpitude or a crime that bears a “reasonable relationship” to safe or competent performance of the occupation.  § 58-1-501(2).  The new law replaces “reasonable relationship” with “substantial relationship.”

West Virginia, until 2019, had no general law regulating consideration of conviction in licensure, except a rule that that licensing authorities could not consider expunged convictions. W. Va Code § 5-1-16a(b).  Under a new law, licensing agencies, with a few exceptions (law, medicine, law enforcement, security guards), are subject to an elaborate scheme of regulations for consideration of criminal records (HB118). A new W. Va. Code § 30-1-24 addresses “Use of criminal records as disqualification of authorization to practice,” and provides that boards may not disqualify based on conviction “unless that conviction is for a crime that bears a rational nexus to the occupation requiring licensure.” §30-1-24(a).  In addition, it discourages the use of the term “moral turpitude,” unless the underlying crime satisfies the “rational nexus” standard.  § 30-1-24 (b).  Standards to determine “rational nexus” include seriousness of crime, passage of time and evidence of rehabilitation.  It does not require the board to give reasons for denial, though it does permit a candidate who has been denied, to reapply after 5 years (with violent and sexual crimes subject to a longer period of disqualification).  It also provides for a preliminary determination within 60 days (but no cap on application fee as with other similar laws).   Finally, it reenacts specific licensing schemes that prohibit convictions within the last five years, deleting provisions requiring applicants to have “good moral character.”

Other new licensing laws:

Delaware generally applies a “substantial relationship” standard to occupational licensing ship, and also requires licensing boards to promulgate regulations specifically identifying the crimes that are “substantially related” to the profession or occupation.  In 2019, additional amendments were made to further limit how criminal record may be considered in three licensing schemes:  massage therapy (HB 7), plumbing/HVAC/refrigeration (HB 124) and electricians (SB 43).  These licensing boards may not consider pending charges, or convictions more than 10 years old as “substantially related” if there have been no intervening convictions, excluding sexual offenses.  The bills also reduce the mandated waiting period for consideration of waiver to three years for violent felonies, to two years for other felonies, and they reduce the level of disqualifying parole supervision.

Illinois amended the Department of Professional Regulation Law, to define mitigating factors for the purposes of provisions concerning the licensure, certification, or registration of applicants with criminal convictions, and provide that mitigating factors are not a bar to licensure, but instead provides guidance for the Department when considering licensure, registration, or certification for an applicant with criminal history (HB2670).  See 20 ILCS 2105/2105-131.  The law is an evident effort to regulate the discretion of the DPR, which may have been treating mitigating factors as mandatory and their absence as a basis for denial.  A second law provides that a certificate of good conduct may be granted to relieve an eligible person of any employment, occupational licensing, or housing bar (rather than just an employment bar) (HB3580).  However, a certificate of good conduct does not limit any employer, landlord, judicial proceeding, administrative, licensing, or other body, board, or authority from accessing criminal background information; nor does it hide, alter, or expunge the record.  The existence of a certificate of good conduct does not preclude a landlord or an administrative, licensing, or other body, board, or authority from retaining full discretion to grant or deny the application for housing or licensure.

Indiana made minor changes to the sweeping 2018 overhaul of Indiana’s occupational licensing scheme as it affects individuals with criminal records, including some minor changes for dieticians, dentists, dental hygienists, audiologists, and management appraisal companies (HB1569).

Iowa narrowed barriers to licensing based on conviction for electricians, plumbers, mechanical trades and contractors, and barbers (SF 567).   The new law permits waiver of disqualification based on conviction that is deemed “related to” the occupation.  It limits disqualification to specified sexual and violent offenses, and strikes provisions allowing reprimand, revocation, suspension based on any felony conviction.  For barber licenses, provides that a person who completes a barbering apprenticeship training program while in state custody shall be allowed to take the licensing examination.

Montana passed a joint resolution calling for an interim study of occupational licensing barriers based on criminal conviction (SJ 18).

New Hampshire created two categories of criminal history information to be maintained by the state police records repository, one “confidential” and the other “public” (HB 637).  “Confidential criminal history information” (defined to include non-conviction records and records of convictions that have been annulled) will no longer be included in background checks for employment and licensing purposes.

New York modified a variety of specific licensing schemes that imposed mandatory bars to licensure based on conviction, to make licensing decisions discretionary and specifically subject to the nondiscrimination provisions of Article 23-A (S1505 (2020 Budget), Part II, subpart A).  Among the specific licenses affected are operation of games of chance, banking, education councils, notary public, work activity employer, and driving school.

Oregon loosened standards for employment in care-giving positions, providing that in conducting fitness determinations pursuant to criminal records checks for certain employees in agencies providing direct care to vulnerable populations, state licensing agencies “may not consider” convictions more than 10 years old, non-conviction records (including diversions), marijuana convictions, DUI more than five years old (SB 725).  The new standards do not apply to certain specified serious offenses, or to positions in residential care centers, home health aides, childcare centers or workers, or EMTs.

Vermont authorized a study of licensure to consider unnecessary barriers to licensure (S 162).

EMPLOYMENT

A majority of the fair employment laws enacted in 2019 took the form of limits on inquiry into criminal history at early stages of the employment application process.  The most significant of these laws in terms of scope and likely impact was the extension of so-called “ban-the-box” provisions to federal agency employers and federal contractors as part of the massive year-end Defense Authorization Act of 2020.  When this law takes effect in December 2021 (two years after its enactment), covered employers will be prohibited from inquiring into an applicant’s criminal record until a conditional offer of employment has been made, and the law will also preclude making inquiry of individuals seeking federal contracts. Two states (Maine and North Dakota) for the first time enacted state-wide ban-the-box laws applicable to public employment, while two other states that already covered public employment (Colorado and New Mexico) extended their laws to private employers.  This brings the total of states with any ban-the-box law to 35 plus D.C., and the number of states with ban-the-box laws applicable to private employers to 13.   (The law already covered consideration of sealed or expunged convictions by employers.)

The only law enacted in 2019 that directly prohibits employment discrimination based on criminal record is Illinois’ extension of its Human Rights Act to bar employers and housing providers from considering arrests not resulting in conviction and juvenile adjudications.  In addition, New Hampshire’s law, discussed in the section above on licensing, provides that non-conviction records and records of convictions that have been annulled will no longer be included in background checks for employment and licensing purposes.

Significant new fair employment laws:

Federal employers and contractors were for the first time directly regulated by a fair employment law through the Fair Chance to Compete for Jobs Act of 2019, enacted as part of the National Defense Authorization Act of 2020 (S.1790).  This law, long sought-after by the advocacy community, amends Titles 2, 5 and 28 of the U.S. Code to prohibit employers in all three branches of the federal government, and private-sector federal contractors, from asking about job applicants’ arrest and conviction record until a conditional offer of employment has been extended. The Act’s “ban the box” prohibition on pre-offer inquiries extends to records that have been “sealed or expunged pursuant to law,” and sealed records of juvenile adjudications.  5 U.S.C. §§ 9201(4)(B) and (C), 9206.  Certain types of employment would be excepted, including employment that otherwise requires inquiry into criminal history, and employment in the military, in law enforcement, and in national security.  The Director of OPM is permitted to designate additional exemptions, including positions that involve “interaction with minors, access to sensitive information, or managing financial transactions.”  § 9202(B) and (C).  The law contains provisions for enforcement and sanctions.  In additional to extending ban-the-box requirements to employment on federal contracts, including defense contracts, it would also prohibit agency procurement officials from asking persons seeking federal contracts and grants about their criminal history, until an “apparent award” has been made.  Post-offer, it would appear that non-conviction records could continue to be the subject of inquiry by federal hiring and contracting authorities, as well as any records that have been sealed or expunged – but only if they are otherwise available to criminal justice agencies for background checks.  The Act will become effective two years after enactment, or December 28, 2021.

Colorado extended a ban-the-box requirement to private employers, making Colorado the 13th state to do so (HB 1025).  This law prohibits inquiry into criminal history on an “initial” application form, but a broad exception allows employers to review an applicant’s publicly available criminal history report at any time.  Compare Colorado’s law regulating consideration of criminal records in public employment, which requires that an applicant be a “finalist” or that an applicant receive a “conditional offer of employment” before public employers may perform a background check, § 24-5-101(3)(b).   HB 1025 also lacks language analogous to Colorado’s public employment law that requires employers to exclude non-convictions, arrests, pardons, expunged and sealed records, and orders for collateral relief from consideration when making hiring decisions.  As a result, the law leaves room for private employers to deny employment merely for an arrest or a charge that does not result in a conviction, or for records where a person has obtained judicial or executive relief.  The new law includes enforcement provisions that authorize the Department of Labor and Employment to investigate complaints and impose civil penalties for violations.  The law does not apply to certain positions that federal, state, or local law or regulations forbid employing individuals with a specific criminal history, or where an employer is required by law to conduct a criminal history background check for the position, or if the position is designated to participate in a government program to encourage employment of people with criminal histories.  HB 1025 has an effective date of August 2, 2019, and the law includes a two-year phase-in period for its provisions: (1) beginning on September 1, 2019, the prohibitions on consideration of criminal records will apply to private employers with 11 or more employees; and (2) beginning on September 1, 2021, the provisions will apply to all private employers.

Illinois amended its Human Rights Act to broaden the category of criminal records that may not be used to deny employment, and extended its non-discrimination provisions to “real estate transactions” as well.  As amended, the Act prohibits inquiries into or use of an “arrest record,” defined as “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.”  See SB1780.  Previously the law covered only employment, and only discrimination based on “the fact of an arrest” and expunged or sealed records.    At the same time, this law does not prohibit use of criminal records obtained under federal or state laws requiring a background check, or under authority of the Illinois Criminal Records Act “in evaluating the qualifications and character of a prospective employee.”  

Maine enacted a prohibition on inquiries about an individual’s criminal history on applications for employment for a position in state government, “except when, due to the nature and requirements of the position, a person who has a criminal history may be disqualified from eligibility for the position”  (HP 133).  The provision covers positions in the legislative, executive or judicial branch of State Government or a position with a quasi-independent state entity or public instrumentality of the State, but not “a school administrative unit, municipality, county or other political subdivision of the State.”  Me. Rev. Stat. Ann. tit. 5, §792.

New Mexico added a “ban-the-box” provision applicable to private employment, making New Mexico the 12th state to do so (SB 96).  Under this law, an employer may not make a criminal history inquiry on the application, “but may take into consideration an applicant’s conviction after review of the applicant’s application and upon discussion of employment with the applicant.”  In addition, it expressly permits the employer to notify the public or an applicant that the law or the employer’s policy would disqualify an applicant who has a certain criminal history from employment in specific positions with the employer.  This law is substantially weaker than the provision that applies to public employment, which allows a background check only after an applicant has been selected as a finalist, and prohibits consideration of records of arrest not resulting in conviction, and misdemeanor convictions (unless they involve “moral turpitude”).

North Dakota banned inquiries into or consideration of criminal history by public employers “until the applicant has been selected for an interview by the employer” (HB 1282).  N.D. Cent. Code § 12.1-33 -05.1, et seq. (school districts are excluded).  This does not apply to the department of corrections or to “a public employer that has a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.”

Other new employment laws:

Arkansas relaxed employment requirements for licensed school personnel with a conviction, if the conviction has been sealed, expunged, or pardoned, deleting a requirement that the conviction be more than ten years old (HB 1544).  Ark. Code § 6-17-410(b)(2)(B).

Colorado created a second chance scholarship for youth previously committed to the division of youth services (SB 231).  Colo. Rev. Stat. § 8-2-130.

Illinois authorized “workforce intermediaries” and lawyers providing pro bono services to individuals with disqualifying convictions applying for health care worker positions to initiate background checks and request a waiver (SB 1965).

Louisiana relaxed restrictions on fostering and adoption for people with convictions (HB 112).  La. Rev. Stat. Ann. § 46:51.2(C).

New Hampshire limited inclusion of non-conviction and annulled records in background checks in the employment context.  See entry in licensing section on HB 637, above.

South Carolina enacted a law generally tightening restrictions on employment of registered sex offenders, but also authorizing circuit courts to approve such a person’s employment at any location where a minor is present and the person’s responsibilities or activities would include instruction, supervision, or care of a minor or minors (S 595).  S. C. Code § 63-13-1110.

Texas required the corrections department to provide persons released from prison with documents to help with employment (HB 918).  A second law makes a defendant who is a veteran placed on community supervision for a misdemeanor offense eligible to participate in a veterans reemployment program, and to obtain an order of nondisclosure upon successful completion of the program (HB 714).

More thorough analysis of most of the restoration laws mentioned in this comment is available through our Restoration of Rights Project.

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February 4, 2020 at 01:31PM

Police Find Illegal Narcotics Stash Inside Pouch Labeled “Bag Full Of Drugs”

After pulling a car over for speeding late Saturday afternoon, Florida cops searched the vehicle and discovered an array of narcotics–cocaine, Ecstasy, meth, fentanyl, and GHB–stashed inside a pouch labeled “Bag Full Of Drugs,” investigators report.

According to police, the 2020 Kia was being driven by Ian Simmons, a 34-year-old Orlando resident. The only passenger in the sedan was Joshua Reinhardt, 34, who lives in Windermere, a town outside Orlando. The auto was pulled over on Interstate 10 in the state’s northwestern corner.

The above police photos show the narcotics, drug paraphernalia, and “Bag Full Of Drugs” bags seized by state troopers and Santa Rosa County Sheriff’s Office deputies.

Simmons and Reinhardt (seen below) were each arrested on multiple felony drug charges and booked into the county jail, where they are both locked up in lieu of $117,000 bond.

The “Bag Full Of Drugs” bags, which measure 12.5” x 8.5”, are available online for $22.99. The pouches are “perfect for travel, carrying tech gear and tablets, art supplies and cosmetics,” according to one retailer, who adds that, “There’s nothing more fun than walking around town with your ironic bag full of drugs. Perfect for getting a laugh or a stare out of passers by and to take advantage and poke fun at profilers looking to judge you for you amazing swag.”

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February 4, 2020 at 02:26PM