Collateral Consequences Policy Snapshots

4/22/2020

Collateral consequences are the legal and regulatory sanctions and restrictions that limit or prohibit people with criminal records from accessing employment, occupational licensing, housing, voting, education, and other opportunities. NCSL’s “Collateral Consequences Policy Snapshots” provide concise briefings on the key policy issues, state laws, and ramifications related to the various collateral consequences that those with a criminal record may face.

Criminal Record Clearing: The Terminology

Introduction

Roughly 70 million adults in the U.S. have a criminal record. Additionally, more than 1 million youth are charged with crimes and acquire juvenile court records each year. This amounts to roughly 1 in 3 Americans. Of those, millions are eligible to have their records cleared; however, a University of Michigan Law School study shows that less than 10% of Americans get their records expunged, even if they are entitled to it. This problem—called the Second Chance Gap by some researchers who study the issue—is causing growing concern among policymakers across the country.

In recent years, policymakers and criminal justice stakeholders have paid increasing attention to the substantial barriers to employment, housing and social integration that criminal records can pose. These indirect sentencing consequences are often referred to as collateral consequences. Some examples include restrictions on public benefits eligibility and occupational licensing.

Some collateral consequences have a direct link to public safety matters, making them important to many policymakers. For example, people convicted of assault or physical abuse are prohibited from working with children or the elderly for the safety of the community. Similarly, barring someone who was convicted of fraud from a position of public trust is in the best interest of the community. Through criminal record-clearing policies, legislators are attempting to balance community safety with effectively reintegrating people with prior criminal records into the community.

States often use a variety of language to describe record clearance, including annulment, destruction, dismissal, erasure, expungement, sealing, set-aside and vacatur. In fact, some states may use the same language, but the terms have drastically different meanings. As such, it is important to identify and know your individual state’s definitions of these terms. This policy snapshot will define and explain the variety of terminology used by states when enacting criminal record-clearing laws.

Terminology

Despite language differences, the commonality between states’ criminal record-clearance laws is they enable an individual’s criminal history information to be removed from easy public access, most often with the goal of improving employment and other outcomes for the affected person.

Terminology

Annulment

The act of nullifying or making void.

Destruction

To damage (something) so thoroughly as to make unusable, unreliable or nonexistent; to ruin.

Dismissal

Termination of an action, claim or charge without further hearing, especially before a trial; a judge’s decision to stop a court case with an order or judgment that imposes no civil or criminal liability on the defendant with respect to the case.

Erasure

The removal of a conviction (especially for a first offense) from a person’s criminal record.

Expungement

To remove from a record, list or book; to erase or destroy.

Sealing

To prevent access to (a document, record, etc.), especially by court order; to seal the record of the proceedings.

Set-Aside

To annul or vacate (a judgment, order, etc.).

Vacatur

The act of annulling or setting aside.

*Definitions taken from Black’s Law Dictionary (11th ed. 2019)

Examples of Terminology

As you will see below, states have vastly different and nuanced approaches to record clearing. What might be called expungement in one state may be entirely different to expungement in another. A few examples of states’ definitions for record clearing are described below.

Annulment

Under New Hampshire law, a person whose record is annulled shall be treated in all respects as if he or she had never been arrested, convicted or sentenced. However, upon conviction of any crime committed after the order of annulment, the prior annulled conviction may be considered by the court in determining habitual offender status and sentencing. The law provides that court records relating to an annulled arrest, conviction or sentence shall be sealed and available only to the person whose record was annulled, his or her attorney, a court for sentencing, or for law enforcement personnel for legitimate law enforcement purposes.

Additionally, the law states in any application for employment, license or other civil right or privilege, a person does not have to report his or her criminal conviction. A person may be questioned about a previous criminal record only in terms such as, “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?”

Dismissal

Under Louisiana law, completion of a deferred sentence allows a court to dismiss the case. Deferred sentencing is a process in which courts postpone sentencing as long as the defendant abides by certain restrictions, such as supervised or unsupervised probation. Because sentencing has not been carried out, the case remains active throughout the deferral period and may be dismissed upon completion. Dismissing the case has the same effect as an acquittal, except the criminal record may be considered a prior offense in any subsequent prosecution. However, the criminal record may be considered as a prior offense and provide the basis for subsequent prosecution of the party as a multiple offender. Additionally, Louisiana law expressly states that nothing shall be construed as being a basis for destruction of records of the arrest and prosecution of any person convicted of a misdemeanor.

Erasure

Under Connecticut law, any person who receives an erasure shall be deemed to have never been arrested within the meaning of the general statutes and may so swear under oath.

Expungement

Under Delaware law, expungement means all law enforcement agency and court records— including any electronic records—relating to a case in which an expungement is granted are destroyed, segregated or placed in the custody of the State Bureau of Identification. They are not typically released.

In contrast, under Indiana law, I.C. 35-38-9-6, expungement only prohibits the release of the person’s records to anyone without a court order. If a person is required to register as a felony sex offender, expungement does not release him or her from that responsibility. Also, expungement of a crime of domestic violence does not restore a person’s right to possess a firearm.

Sealing

Under Arkansas law, sealing means to expunge, remove, sequester and treat as confidential the record or records in question. It does not include the physical destruction of a record of a conviction unless noted specifically in the law.

The law allows the person whose record has been sealed to have most privileges and rights restored. However, sealing in Arkansas does not reconfer the right to carry a firearm if that right was removed as the result of a felony conviction. When a person’s record is sealed, it shall be deemed as a matter of law that it never occurred, and a person does not have to admit to having committed a crime. A sealed record can still be used in certain court proceedings, such as to determine habitual offender status, and may still be examined when applying for licensure from a health care agency or for a position in law enforcement.

By contrast, the definition of sealing in Colorado is very different. Under Colorado law, a sealed arrest or other criminal records are still available to law enforcement agencies, criminal justice agencies, prosecuting attorneys, or agencies required to conduct a criminal history record check on an individual. Employers, state and local government agencies, officials, landlords and employees cannot require an applicant to disclose any information contained in sealed conviction records in any application or interview, with some exceptions. Finally, sealing does not mean there is any physical destruction of conviction records.

Set-Aside

Under Michigan law, a person receiving a set-aside is considered not to have been previously convicted, with some exceptions. Like Indiana’s expungement, Michigan’s set-aside has no effect on sex offender registration.

By contrast, under Nebraska law, an order to set aside a conviction nullifies the conviction and removes all civil disabilities and disqualifications imposed. This means (among other things) a person with nullified felony convictions has the right to be a part of jury and hold public office. To determine whether to set aside the conviction, Nebraska courts consider the behavior of the offender after sentencing and the likelihood that the offender will not engage in further criminal activity. Once again, like Michigan’s set-aside and Indiana’s expungement, Nebraska’s set-aside does not affect sex offender registration.

Vacatur

Under Washington law, vacatur means the offender’s conviction cannot be included in his or her criminal history for sentencing purposes. Again, the offender is released from “all penalties and disabilities resulting from the offense,” meaning he or she has the right to vote, be a part of a jury and run for public office. The offender also does not have to disclose the vacated conviction on employment applications. Additionally, a conviction that has been vacated may not be disseminated or disclosed by any law enforcement agency to anyone other than criminal justice enforcement agencies in the state.

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State Policies to Clear Criminal Records

Processes for Record Clearing

Alongside the different terms used to describe clearing criminal records, states have developed their own record-clearing processes that are distinct and nuanced. This policy snapshot provides general definitions and explains the variety of processes used by states to clear criminal records.

The primary difference between states is whether record clearing is mandatory or discretionary. Statutes that use the words “shall” or “must” are mandatory and direct public officials to clear records as the statute sets forth. For example, Utah law states, “the following traffic offenses shall be deleted without a court order or notice to the prosecuting agency…” Statutes that use the word “may” are discretionary and give public officials the decision-making authority on whether to grant record relief or not. For example, Colorado law states, “a court may enter an order of collateral relief.”

Sometimes, states have a hybrid system that allows public officials discretion, but the law limits the circumstances the public official may consider. For example, Oregon law states, “If no objection from the prosecuting attorney is received by the court within 30 days…, the court shall grant the motion and enter an order.” The law further provides that the prosecutor “may file an objection to granting the motion only on the basis that the person’s conviction is not a qualifying marijuana conviction.”

There are three distinct processes that states use for record clearing: on petition, automatic or automated. Often, states use a hybrid method for record clearing or multiple methods alongside each other.

Record-clearing processes

On Petition

Petition is the process in which a convicted offender files a motion with the courts to clear a record. If the petition is successful, record clearing will be ordered by the court.

Automatic

Once state agencies determine eligible convictions, the records of those convictions are automatically cleared based on the mandatory criteria laid out in statute. The initiation of the record-clearing process does not require any action on the part of the defendant. The process starts “automatically” without a petition.

Automated

Automated record clearing is on the forefront of policy and technology, bringing together automatic record clearing with technology. Software is used to automatically clear records based on the mandatory criteria laid out in statute.

Recent Trends in Criminal Records Policy

Legislators have attempted to address issues related to cumbersome record-clearing processes in a multitude of ways. At least two states, Arkansas and Colorado, enacted legislation in 2019 requiring the state to study the options and best processes for those seeking to seal or expunge their record. Specifically, Colorado’s legislation is looking for a process to automatically seal criminal records for some drug offenses.

Many states use multiple processes and allow automated or automatic expungement for certain categories of offenses, while maintaining a petition process for other offenses.

According to a study by the University of Michigan, almost two-thirds of U.S. states (33 in total) have adopted policies addressing record-clearing processes in 2018 alone and a number of changes were instituted in 2019 . Below are 2019 enactments (unless otherwise noted) related to restoration of rights, employment, record clearing for specialized populations, and automatic and automated record clearing.

Restoration of Rights

A few states have recently enacted laws restoring rights, like the right to own a firearm, to those who have had their record cleared. Arizona passed HB 2480, which provides for a “set-aside” petition procedure, a legal pathway for restoring the right to possess a gun or firearm. Similarly, Arkansas passed HB 1678, which amends the licensing requirements to carry a concealed handgun. The bill allows applicants who have been convicted of a felony but granted a pardon or had their record expunged to receive a license. California SB 310 restores the right to be a prospective trial juror for those convicted of a felony who have completed any supervision or parole requirements. Colorado HB 1266 restores the right to vote for individuals serving a sentence of parole.

Employment

Other states are working to help those with criminal records seek better employment opportunities. For example, Alabama SB 163 addresses occupational licensing. Under the bill, people convicted of a crime can petition the court to obtain an Order of Limited Relief to prohibit an occupational licensing board or commission from automatically denying a certificate or license. Utah HB 212 prohibits a public or private employer from inquiring into an applicant’s expunged criminal history, except for certain circumstances. Maryland passed HB 1167, which establishes the Apprenticeship Career Training Pilot Program for Formerly Incarcerated Individuals. The bill also creates standards under which certain employers may be eligible to receive grants to offset additional costs, if any, associated with hiring apprentices.

Record Clearing for Specialized Populations

Cannabis Use

Eleven states and the District of Columbia have legalized small amounts of marijuana for adult recreational use. Those states are also enacting policies to clear criminal records for people who have marijuana-related convictions for offenses that are now legal. Illinois passed HB 1438, known as the Cannabis Regulation and Tax Act. Alongside regulation and taxation of cannabis, the bill provides for automatic expungement of minor cannabis offenses. Those with more serious cannabis offenses may petition a court for expungement. Nevada AB 192 establishes a procedure for requesting the sealing of certain records of criminal history when offenses are decriminalized. Similarly, Oregon passed SB 420, which automatically sets aside certain marijuana convictions that would not constitute a crime under current law.

New Hampshire HB 399 provides an opportunity for those convicted of possessing just under an ounce of cannabis or less to petition the court to have their convictions annulled. If there is no objection from the prosecuting agency, the petition must be granted. Washington passed SB 5605, which vacates misdemeanor marijuana convictions. For more information, please see NCSL’s cannabis record-clearing webpage.

Victims of Human Trafficking

State lawmakers have enacted criminal protections for victims of human trafficking, like creating mechanisms to seal, vacate or expunge previous criminal convictions. Tennessee SB 577 provides a procedure for victims of human trafficking to have their nonviolent convictions resulting from their status expunged if it is in the best interest of justice and public safety. Delaware HB 102 allows certain victims of human trafficking to file an application for a pardon or expungement or make a motion to vacate judgment. Crimes deemed to be violent felonies are excluded. In addition to record-clearing assistance, the bill directs public awareness signs about human trafficking to be displayed at adult entertainment facilities, job recruitment centers, hospitals and emergency care providers.

Automatic and Automated Record Clearing

Clean Slate

In 2017, Pennsylvania passed HB 1419, the first-ever clean slate bill, which provides for an automated record-clearing system. Under the bill, those who committed an eligible offense, including second- and third-degree misdemeanors, and stay conviction-free for 10 years will have their records automatically shielded from public view. Three other states followed suit, enacting clean slate legislation in 2019.

Utah passed a clean slate bill, HB 431, with full implementation expected in May of 2020. Under the law, traffic offenses are expunged through an automated process. Other eligible offenses will be expunged through an automatic system, with judges being required to enter an order. The law provides prosecutors notice of eligible cases and an opportunity to object for enumerated reasons.

California passed AB 1076, an automatic record-clearing law with a 2021 effective date. The law creates two procedural tracks—one for conviction records and one for arrest records. Each track has its own nuances. The law covers infractions, misdemeanors and some less serious felony convictions. The expungement provided for by the California bill does not remove all collateral consequences, such as firearm possession prohibitions, associated with arrest or conviction.

New Jersey passed clean slate legislation in 2019, but the first attempt was vetoed by the governor. In his veto message, the governor recommended using an automated system instead of the originally proposed automatic system. In turn, the legislature passed SB 4154, which requires the state to implement an automated clean slate expungement system, which is to be developed by a task force.

Automatic

In 2019, several states passed legislation requiring the automatic expungement of some records. For example, Tennessee passed HB 266, which requires the automatic expunction of a nonviolent misdemeanor charge or conviction if the defendant is not charged with any subsequent offenses within three years of the initial charge. Colorado now allows juveniles who successfully complete diversion as an alternative to being charged with an offense to have any law enforcement or school record expunged automatically. Nebraska enacted similar provisions, requiring that any juvenile’s record be sealed automatically upon satisfactory completion of diversion, mediation, probation, supervision or other treatment program. The record can also be sealed automatically if the charges are dismissed.

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Assessing Fines and Fees in the Criminal Justice System

Introduction

The monetary penalties and legal financial obligations associated with being involved in the criminal justice system—and their effect on low-income defendants—are causing growing concern among policymakers across the country.

Cities, states, courts and district attorney’s offices levy fines or fees on defendants at nearly every stage of the criminal justice system. Fines are monetary punishments for infractions, misdemeanors or felonies, and are intended to punish offenders and deter others from committing similar offenses. Fees, according to a report by the White House Council of Economic Advisors, are “itemized payments for court activities, supervision, or incarceration, charged to defendants.” These fees, like clerk or transcript fees, are intended to support operational costs in the criminal justice system. Collectively, fines, fees and surcharges are known as “legal financial obligations” or LFOs.

Stakeholders in justice systems around the country have argued that some LFOs are important to funding day-to-day court operations. Some believe that people convicted of crimes, rather than taxpayers, should bear responsibility for the increasing costs of running the justice system.

In recent years, however, it has been revealed that some jurisdictions, like Ferguson, Mo., used criminal justice fees as revenue generators. In addition, imposing excessive fines and fees can have a devastating effect on the lives of low-income offenders. For those who cannot afford it, the accumulation of fines and fees associated with infractions, traffic tickets and criminal convictions can initiate and perpetuate a cycle of poverty. The impartiality, fairness and equality of the justice system are called into question when punishment can be determined by financial status.

Recent legal developments have also prompted state policymakers to act. In Timbs v. Indiana, the U.S. Supreme Court ruled that the Eighth Amendment Excessive Fines Clause applies to states and local governments. Writing for the court, Justice Ruth Bader Ginsburg acknowledged that being free from excessive fines and fees is a fundamental right. Additionally, all 50 state constitutions have excessive fines clauses that apply to states and local governments.

How Much Can the Fees Add Up?

The amount of LFOs a person may have to pay varies by jurisdiction and level of offense. A report from the Vera Institute related that in Louisiana, judges have the authority to impose dozens of discretionary fees, including court costs that can be as high as $2,500 in felony cases and $500 for misdemeanor cases. State law in Louisiana requires courts to impose certain mandatory fees, like a $45 fee to the public defender’s office and a $50 to $100 fee for each drug-related probation sentence, which goes to support drug education and treatment. In New Orleans, 8,331 residents in 2015 were charged fines and fees averaging about $460 per person.

Paying fines and fees, even in what seem to be lower amounts, can be difficult for poor and low-income individuals and families. Researchers in Alabama surveyed 980 residents from 41 counties about their experience with court debt, including 879 people who owed money themselves and 101 people who were paying debt for others. The survey found that:

  • 83% gave up necessities like rent, food, medical bills, car payments and child support in order to pay down their court debt.
  • 50% had been jailed for failure to pay court debt.
  • 44% had used payday loans to cover court debt.
  • 38% admitted to committing a crime to pay off court debt.
  • 20% were turned down for a diversion program like drug court because they could not afford it.
  • 66% received money or food assistance from a faith-based charity or church that they would not have had to request if it were not for their court debt.

The Consequences of Not Paying Legal Financial Obligations

Driver’s License Suspension

In at least 26 states, nonpayment of certain fines and fees will result in a mandatory driver’s license revocation. It can be harder for individuals to meet any financial obligations when they are unable to drive to work, a problem compounded in rural areas that lack public transportation. According to the National Center of State Courts, one study in New Jersey found that almost 45% of suspended drivers lost their jobs after their license was suspended. The same number of drivers who lost their jobs could not find other employment while their license was suspended. Since most suspensions for nonpayment end only when the suspended driver pays the full amount of the fine, late fees and interest compound and a person can easily remain in debt indefinitely. And if a suspended driver continues to drive to work or school, this can lead to more criminal sanctions and incarceration.

Examples of Fines and Fees Across the Nation

LFOs can come in many forms and can occur at many points in the criminal justice system. Here are just a few examples:

  • Bond fees.
  • Clerk filing fees.
  • Jury fees.
  • Crime lab analysis fees.
  • Diversion program fees.
  • Registration or application costs associated with obtaining a public defender.
  • Fees for electronic monitoring and other pretrial supervision.
  • Pre- and post-conviction supervision fees.
  • Fees for required programs like drug, alcohol or anger management treatment.
  • Evaluations for the court, such as competency and presentencing reports.
  • Costs of incarceration, including pretrial room and board in a jail.
  • Costs of prosecution.

There are efforts in a number of cities and states around the country to help those who have had their license suspended for not paying fees get back on their feet.

The municipal court in Phoenix has a Compliance Assistance Program that allows a person to enter a payment plan for all traffic and parking charges without having to see a judge. In Spokane, Wash., the city prosecutor has a relicensing program that provides eligible participants with the opportunity to waive collection fees, combine all traffic-fine payments into a manageable monthly amount, and have participating jurisdictions release holds on license reinstatement.

In 2019, Montana removed the suspension of a driver’s license as a sentencing option for nonpayment of LFOs. The state allows people who previously had their licenses suspended for nonpayment to petition the court for reinstatement without paying a reinstatement fee. Louisiana passed a similar provision. A budget amendment in Virginia lifted current driver’s license suspensions for unpaid or delinquent court debt beginning July 2019 and lasting until June 2020. In Maine, driver’s licenses are still suspended for nonpayment of fines and fees, but the state created a restricted license in 2018, allowing those individuals to drive to work or school. More information on legislation related to driver’s licensing can be found in NCSL’s Traffic Safety State Bill Tracking Database.

Economic and Employment Consequences

Nonpayment of LFOs can affect a person’s credit score. Some states, including Florida, Georgia and Illinois, allow at least some forms of criminal justice debt to be converted into civil judgments. This means the debt is filed with a county clerk and becomes public record available for credit reporting agencies.

The nonpayment of LFOs can also seriously limit a person’s employment opportunities. For example, in Chicago, people are denied employment in any city or school district job if they have outstanding fines and fees. Because many times a criminal case is not discharged until all financial obligations are paid, some people are barred from applying for jobs that require an occupational license, like cosmetology, for years or decades after the crime was committed. More information can be found at NCSL’s Occupational Licensing Legislation Database.

Some states are looking to mitigate these and other consequences by enacting legislation that requires offering a repayment plan. Arkansas, Florida, Maine, Michigan, Missouri, Nebraska, Nevada, New Hampshire, New York, Ohio, Pennsylvania, South Carolina, Texas, Virginia and Washington all have statutes allowing repayment plans for some offenders. Other states, like Nevada, are looking to give courts the power to order community service in lieu of all or part of any administrative fee in certain circumstances.

Incarceration for Nonpayment

Although “debtors’ prisons” are illegal in all 50 states, incarceration can be used to collect criminal justice debt, but only if the person has the means to pay the fines and willfully refuses to. In 1983, the Supreme Court ruled in Bearden v. Georgia that it is unconstitutional for courts to jail people for nonpayment if they are unable to do so. The court wrote that “depriv[ing] a probationer of his conditional freedom simply because, through no fault of his own he cannot pay a fine...would be contrary to the fundamental fairness required by the Fourteenth Amendment.” The Bearden case requires a judge to first consider whether the defendant has the ability to pay or simply “willfully” refuses, and that the determination take place before someone is jailed for nonpayment of criminal justice debt.

Although unconstitutional, thousands of people each year end up in jail for their inability to pay LFOs. There is no national data on how many people are incarcerated for failure to pay fines and fees, but one study out of Huron County, Ohio, found that failure to pay LFOs accounted for 20% of all jail bookings. This happens because judges sometimes issue warrants to arrest those who have not paid fines or defendants are jailed for their inability to pay before they get a hearing with a judge. Some states have a system that credits time spent in jail for debt; therefore, people can “choose” to serve time in jail to reduce their LFOs.

Payment of fines and fees can be a condition of probation or parole, and if the person does not pay, the court can revoke supervision and order incarceration.

Policymakers are examining ways to strengthen protections and ensure defendant’s financial circumstances into account. California enacted AB 1421 in 2019, which prohibits revoking supervision, and thus sending a defendant back to jail, for failure of a person to pay fines, fees or assessments, unless the court has determined the defendant has willfully refused to pay. In 2017, Texas passed SB 1913 and HB 351, sweeping reforms related to a person’s ability to pay. Key provisions include requiring judges to ask defendants about their ability to pay before imposing fines, providing alternatives like community service or job skills training, and prohibiting the issuance of warrants for failure to pay without scheduling a hearing.

Data from the Texas Office of Court Administration shows the number of people incarcerated for nonpayment of fines and fees dropped from about 620,000 to about 450,000 a year after the passage of these measures.

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