Occupational Licensing Reform
SB 1436 allows a person with a criminal record to petition a licensing agency, including before obtaining any requirements for licensure, for a determination of whether the person’s criminal record will disqualify the person from obtaining a license. Licensing boards can only disqualify ex-offender applicants if the offense is “substantially related” to the state’s interest in public safety and if the person is more likely to reoffend with the credential. Agencies will report each year the number of applicants that had a criminal-history petition, the number of petitions that were granted, denied, and rescinded, and their associated offenses.
AB 2138 will prohibit licensing boards from denying, revoking or suspending an applicant’s license if a conviction of a crime did not occur in the preceding 7 years from the date of application that is substantially related to the qualifications, functions or duties of the business or profession.
Currently, state or local agency must consider an individual’s criminal record when deciding whether to issue a licensure or permit. HB18-1418 changes the determination to consider whether the person is qualified. Also can’t consider arrests when not charged and allows DORA to issue conditional licenses.
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HB 97 modifies the impact of criminal history on an applicant's eligibility for licensure. It gives the Board discretion to grant waivers for a felony conviction for crimes committed against a person where more than 3 years have elapsed, and more than 2 years have elapsed for other felonies. The Board is precluded from considering a conviction where more than 10 years have elapsed since date of conviction.
SB 2853 requires the Department of Financial and Professional Regulation to make available on its website general information on how the Department uses criminal history information in its decision on licensure applications, including a list of enumerated offenses that bar licensure
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HB 1245 requires that any disqualifying offenses be “directly related” to the occupation and that licensing boards take into account evidence of rehabilitation but not most offenses dating back more than five years. The applicant is entitled to written findings explaining a board’s decision, and individuals may petition the board for a background check decision before satisfying all the other licensing requirements.
HB 2386 requires any disqualifying offenses to be directly related to each occupation, and it precludes the boards from adopting broad moral turpitude disqualifications. In addition, the boards may not take into account arrests or many offenses date back more than five years since the sentence was served (not including felonies and Class A misdemeanors).
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HB 1597 requires certain Executive Branch Departments to report to the Governor and the General Assembly by October 1, 2018, regarding how many applications for occupational licenses and certificates were received during the preceding 5 years, how many of these applicants had a certain criminal record, how much time had passed since the criminal conviction, how many applications were denied based on the applicant’s criminal record, and under which provision of law the license was denied.
SB 2371 is an omnibus criminal justice reform bill, which included a provision allowing people with sealed records to deny that they have a record for licensing and housing purposes.
Michigan Governor Rick Snyder announced that the Department of Licensing and Regulatory Affairs had removed all criminal history questions from licensing applications, unless required by federal or state law. He also signed an executive directive that prevents state departments from asking job seekers about their criminal history on their initial applications.
LB 299 is a general deregulation of licensing that includes a provision whereby individuals with a criminal record may obtain a preliminary determination on their eligibility from the relevant licensing board, which must issue a written determination within 90 days giving its "findings of fact and conclusions of law."
SB 589 now allows ex-offenders to petition a licensing board at any time to see if their criminal record would be disqualifying and can include the time since the offense and any evidence of rehabilitation in their petition. Licensing boards can only disqualify applicants if the criminal record is a felony or violent misdemeanor and if the board can show with clear and convincing evidence that an individual is more likely to re-offend with the license. The office of professional licensure and certification will annually report on a searchable public website the number of petitions, approvals and denials, the associated offenses and any other data.
SB 2465 provides for a preliminary determination of eligibility by a licensing board and written reasons for denial. However, it also contains a more detailed set of standards and procedures that apply to a board's consideration whether a conviction is "directly related" to the license, and also contains a presumption in favor of issuing a license (with certain exceptions). Among other things, the licensing authority "must demonstrate by a preponderance of the evidence that [the applicant's conviction] is related to the applicable occupation, profession, business, or trade." The boards must provide the applicant with a written notice explaining the justification for the denial and an opportunity to present mitigating evidence before the issues a final determination.
AB 829 - Effective August 1, 2018, licensing boards in Wisconsin will be prohibited in most cases from denying or revoking a license based on arrests or pending charges, and required to justify in writing any adverse action based on conviction. Boards will also be required to give applicants a preliminary determination as to whether a particular conviction will be disqualifying.
Restoration of Rights
AB 1793, introduced in response to the 2016 passage of Proposition 64 that legalized recreational marijuana, puts in place a process for the resentencing and sealing of prior marijuana convictions. The state’s Department of Justice has until July 1, 2019 to identify past convictions that are eligible and notify the prosecutors. Prosecutors will have until July 1, 2020 to review all cases and determine whether to challenge the resentencing.
AB 2599 amends existing law which authorizes a person who has suffered an arrest that did not result in conviction to petition the court to have his or her arrest and related records sealed. Existing law requires the Judicial Council to furnish forms to be utilized by a person applying to have his or her arrest sealed. This new law will now require a facility at which an arrestee is detained to, at the request of the arrestee upon release, provide the forms described above to the arrestee. The bill would additionally require a facility at which an arrestee is detained to post a sign that contains a specified notice regarding the sealing of arrests.
HB18-1344 authorizes a court to enter an order for collateral relief at time of conviction or thereafter. It also adds the authority for a juvenile court to enter an order for collateral relief using the same process as criminal courts.
SB 197 provides mandatory expungement eligibility to individuals who were convicted of the possession, use or consumption of marijuana prior to Delaware's decriminalization of these offenses. To be eligible for the mandatory expungement, the marijuana conviction must be the applicant's only criminal conviction.
District of Columbia
B22-0452, the Clemency Board Establishment Act of 2017, creates a Clemency board to grant local control over the process of reviewing applications for pardons and commutations of D.C. Code offenders. The Clemency board is tasked with selecting cases for recommendation to the President of the United States for clemency. The bill establishes the board’s composition and the eligibility criteria for offenders. This bill was enacted on July 30, 2018 as part of DC Act 22-434, the Fiscal Year 2019 Budget Support Emergency Act of 2018.
B22-0268, the Returning Citizens Opportunity to Succeed Amendment Act of 2017, requires the creation of a database containing the names, location, and contact information of all DC residents held by the Federal Bureau of Prisons outside of the District of Columbia expected to return within the following year. The bill allows the Mayor’s Office of Returning Citizens Affairs (MORCA) to request data from the Federal Bureau of Prisons and to send information to offenders six months prior to their release. The bill creates a pilot program for FY19 that establishes a $60,000 fund for a public transportation subsidy program for people being released from prison, as well as a second pilot program for the same fiscal year aimed at waiving fees for driver’s licenses and non-drivers identification for the same population. This bill was enacted on July 30, 2018 as part of DC Act 22-434, the Fiscal Year 2019 Budget Support Emergency Act of 2018.
HB 1065 expands expungement eligibility for court-order expungement to include a person who received a judgement of acquittal by a judge or a not guilty verdict, whether by judge or jury. A person seeking expungement of acquittal or not guilty verdict is no longer required to first seal the record for ten years.
HB 265 restores the voting rights to people on probation and parole after a five year waiting period. Currently, the state restores voting rights once individuals have completed their probation and parole sentence.
HB 382 clarifies that a person may petition for expungement of any civil offense or infraction, except a juvenile offense.
SB 101 repeals the 3-year waiting period generally applicable to filing a petition for expungement based on an acquittal, a nolle prosequi, or a dismissal and generally authorizes a petition for expungement based on these dispositions to be filed at any time.
SB 2371 is an omnibus criminal justice reform measure. It would make eligible for expungement from criminal records some crimes committed by offenders up to age 21, while adults would be able to apply to have their records expunged of crimes that are no longer considered illegal in Massachusetts, such as possession of marijuana.
SB 954 allows individuals found guilty of the offense of unlawful use of a weapon by the carrying of a concealed weapon prior to January 1, 2017, to apply for an order to expunge records relating to such offense.
LB 1132 allows victims of human trafficking to ask a judge to set aside convictions of prostitution-related offenses and other offenses and seal their criminal record.
H. 774 will expand certificate of relief eligibility to people with multiple misdemeanor and low-level felony convictions. Current eligibility is one incident of up to 2 convictions of a Class G, H, or I felony or misdemeanor. H774 expands eligibility to people with up to 3 incidents of Class H and I felony convictions and an unlimited number of misdemeanor convictions. All H or I felony convictions disposed in the same session of court count as 1 conviction for purposes of COR eligibility. Class G felonies were removed from eligibility.
SB 650 would let offenders request their criminal record be expunged after five years, with certain requirements.
HB 1419, the Clean Slate Bill, will automatically seal arrests records not ending in a conviction immediately, summary offense convictions after 10 years, and some misdemeanor convictions after 10 years. It also expands Pennsylvania's sealing law to include some first-degree misdemeanors.
S. 2447 provides for immediate eligibility for expungement consideration of those offenses that have been de-criminalized.
H. 3209 expands the types of nonviolent crimes eligible for expungement. Under the new law any first offense conviction for drug possession can be expunged after three years, first offense conviction for unlawful possession of a prescription drug can be expungement after three years, and first offense conviction for possession with intent to distribute can be expunged after 20 years. The new law also allows persons to expunge multiple convictions out of the same sentencing hearing if they are closely related.
SB 2505 authorizes any person who is tried and adjudicated delinquent or unruly by a juvenile court for an offense that, if tried as an adult, would be considered prostitution or aggravated prostitution to subsequently file a motion for expunction of all court files and juvenile records. The court may order all or any portion of the requested expunction if, by clear and convincing evidence, the court finds that conduct upon which the adjudication is based was found to have occurred as a result of the person being a victim of human trafficking.
SB 62 amends the states expungement law to no longer disqualify someone, otherwise eligible for expungement, with outstanding court debt from having their record expunged. A person would only be disqualified for expungement due to debt if that debt was related to the crime. Unrelated debts can no longer prevent expungement.
S. 173 seals criminal history records when there is no conviction.
S. 234 expunges, within 30 days after the date of successfully completing the terms and conditions of the sentence, the criminal history records of an individual who was 18-21 years of age at the time the individual committed a qualifying crime.
HB 1298 prohibits employers from asking about arrests or convictions before an applicant is determined otherwise qualified for a position.