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America’s Failure to Forgive or
Forget in the War on Crime
A Roadmap to Restore Rights and
Status After Arrest or Conviction

N ATIONAL A SSOCIATION OF
C RIMINAL DEFENSE LAWYERS

May 2014

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Supported by a grant from the Foundation for Criminal Justice.

COPYRIGHT © 2014 N ATIONAL ASSOCIATION OF C RIMINAL D EFENSE LAWYERS
This report is subject to a Creative Commons Attribution-Noncommercial-Nonderivative Work
license (see www.creativecommons.org). It may be reproduced, provided that no charge is
imposed, and the National Association of Criminal Defense Lawyers is acknowledged as the
original publisher and the copyright holder. For any other form of reproduction, please
contact NACDL for permission.

N ATIONAL A SSOCIATION OF
CRIMINAL DEFENSE LAWYERS

1660 L Street NW, 12th Floor
Washington, DC 20036
Phone: 202-872-8600
www.nacdl.org

A Roadmap to Restore Rights and
Status After Arrest or Conviction
JERRY J. COX
President, NACDL
Mount Vernon, KY

GERALD B. LEFCOURT
President, FCJ
New York, NY

STEVEN D. BENJAMIN
Immediate Past President, NACDL
Richmond, VA

NORMAN L. REIMER
Executive Director, NACDL
Washington, DC

ANGELYN C. FRAZER
State Legislative Affairs Director, NACDL
Washington, DC

NACDL Task Force on Restoration of Rights
and Status After Conviction
RICK JONES

VICKI H. YOUNG

Co-Chair
New York, NY

Co-Chair
San Francisco, CA

LAWRENCE S. GOLDMAN

ELISSA B. HEINRICHS

MARGARET COLGATE LOVE

New York, NY

Newtown, PA

Washington, DC

PENELOPE S. STRONG

GENEVA VANDERHORST

CHRISTOPHER A. WELLBORN

Billings, MT

Washington, DC

Rock Hill, SC

Reporter
JENNY ROBERTS
American University Washington College of Law

TABLE OF CONTENTS
ABOUT THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS . . . . . . . . . . .3
ABOUT THE FOUNDATION FOR CRIMINAL JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
METHODOLOGY AND TERMINOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

2

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
I.

The United States should embark on a national effort to end the second class legal
status and stigmatization of persons who have fulfilled the terms of a criminal sentence. . . . . .30

II. All mandatory collateral consequences should be disfavored and are never appropriate
unless substantially justified by the specific offense conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . .32
III. Discretionary collateral consequences should be imposed only when the offense
conduct is recent and directly related to a particular benefit or opportunity. . . . . . . . . . . . . . .35
IV. Full restoration of rights and status should be available to convicted
individuals upon completion of sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
V. Congress and federal agencies should provide individuals with federal convictions with
meaningful opportunities to regain rights and status, and individuals with state convictions
with mechanisms to avoid collateral consequences imposed under federal law. . . . . . . . . . . . .46
VI. Individuals charged with a crime should have an opportunity to avoid
conviction and the collateral consequences that accompany it. . . . . . . . . . . . . . . . . . . . . . . . .50
VII. Employers, landlords and other decision-makers should be encouraged to offer
opportunities to individuals with criminal records, and unwarranted discrimination
based on a criminal record should be prohibited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
VIII. Jurisdictions should limit access to and use of records for non-law enforcement
purposes and should ensure that records are complete and accurate. . . . . . . . . . . . . . . . . . . .54
IX. Defense lawyers should consider avoiding, mitigating and relieving collateral
consequences to be an integral part of their representation of a client. . . . . . . . . . . . . . . . . . .61
X. NACDL will initiate public education programs and advocacy aimed at curtailing
collateral consequences and eliminating the social stigma that accompanies conviction. . . . . .64

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
SUMMARY OF RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
APPENDIX A — DEFINITIONS OF KEY TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71
APPENDIX B — WITNESS LIST BY CATEGORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
APPENDIX C — SITE VISITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81
APPENDIX D — TASK FORCE MEMBER BIOGRAPHIES . . . . . . . . . . . . . . . . . . . . . . . . .82
ENDNOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84

ABOUT THE NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS

T

he National Association of Criminal Defense Lawyers (NACDL) is the preeminent
organization in the United States advancing the goal of the criminal defense bar to ensure
justice and due process for persons charged with a crime or wrongdoing. NACDL’s core
mission is to: Ensure justice and due process for persons accused of crime … Foster the
integrity, independence and expertise of the criminal defense profession … Promote the proper
and fair administration of criminal justice.

Founded in 1958, NACDL has a rich history of promoting education and reform through
steadfast support of America’s criminal defense bar, amicus curiae advocacy and myriad
projects designed to safeguard due process rights and promote a rational and humane criminal
justice system. NACDL’s approximately 10,000 direct members — and 90 state, local and
international affiliate organizations totalling up to 40,000 members — include private criminal
defense lawyers, public defenders, active U.S. military defense counsel, and law professors
committed to preserving fairness in America’s criminal justice system. Representing thousands
of criminal defense attorneys who know firsthand the inadequacies of the current system,
NACDL is recognized domestically and internationally for its expertise on criminal justice
policies and best practices.
The research and publication of this report was made possible through the support of individual
donors and foundations to the Foundation for Criminal Justice, NACDL’s supporting
organization. This report would not have been possible without support from the Foundation for
Criminal Justice and the Open Society Foundations.

For more information contact:

N ATIONAL A SSOCIATION OF
CRIMINAL DEFENSE LAWYERS

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600
www.nacdl.org

This publication is available online at
www.nacdl.org/restoration/roadmapreport

A Roadmap to Restore Rights and Status After Arrest or Conviction

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ABOUT THE FOUNDATION
FOR CRIMINAL JUSTICE

T

4

he Foundation for Criminal Justice (FCJ) is organized to preserve and
promote the core values of America’s criminal justice system guaranteed by
the Constitution — among them due process, freedom from unreasonable
search and seizure, fair sentencing, and access to effective counsel. The FCJ pursues
this goal by seeking grants and supporting programs to educate the public and the
legal profession on the role of these rights and values in a free society and assist in
their preservation throughout the United States and abroad.

The FCJ is incorporated in the District of Columbia as a non-profit, 501(c)(3)
corporation. All contributions to the FCJ are tax-deductible. The affairs of the FCJ
are managed by a Board of Trustees that possesses and exercises all powers granted
to the Foundation under the DC Non-Profit Foundation Act, the FCJ’s own Articles
of Incorporation, and its Bylaws.
For more information contact:

F OUNDATION

FOR

CRIMINAL JUSTICE

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600
www.nacdl.org/foundation

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FOREWORD

W

e are pleased to introduce this important report, which provides a blueprint
for people with a criminal record to regain their full rights and privileges.
We commend the National Association of Criminal Defense Lawyers for
undertaking this exhaustive study of the legal and social barriers that persist long
after a person has successfully completed the court-imposed sentence. It demonstrates
that the stigma of conviction can be permanent even when the collateral penalties
imposed by law are not. We are both pleased to have had the opportunity to share our
perspectives on these issues with the Task Force at hearings in Chicago and
Washington, D.C. While our political perspectives may differ, and both of us may not
agree with every recommendation in this comprehensive report, we share a belief
that more can be done to enable individuals with a criminal record to earn their way
to a fresh start.

Both of us have dealt with the problems identified in NACDL’s report. One of us cosponsored the Second Chance Act as a Member of Congress, and remains involved
in legislative efforts to eliminate the stigma of conviction in access to housing and
other public benefits. The other used the constitutional pardon power to restore rights
and status to individuals who had paid their debt to society, and remains engaged as
a private citizen in efforts to increase public understanding of the role forgiveness
plays in the justice system. As a result of our experiences, we have come to appreciate how facilitating reintegration contributes to public safety and strong communities, and to a general perception that the legal system is fairly administered. We
believe that our nation would be well-served by reforming policies and practices that
can convert even one adverse encounter with the law into a permanent Mark of
Cain. We therefore join in NACDL’s call for a national conversation about how this
goal can best be accomplished.

Danny K. Davis

Congressman, Illinois, 7th District

Robert L. Ehrlich, Jr.

Former Governor of Maryland, 2003-07
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F

ACKNOWLEDGEMENTS

irst and foremost, NACDL is extremely grateful to the more than 150 witnesses who testified at
the Task Force hearings. They generously gave their time and travelled great distances to provide
the Task Force with their expertise and personal stories. Although they expressed varying points
of view, reflecting various perspectives on the criminal justice system, each embraces a passion for
justice and is dedicated to ensuring public safety while supporting the need for the restoration of rights
and status. Many others contributed to this comprehensive project in myriad ways. NACDL gratefully
acknowledges the following individuals and institutions.

This project would not have been possible without the unwavering support of the Trustees of the
Foundation for Criminal Justice (FCJ); the NACDL Board of Directors; FCJ President Gerald B.
Lefcourt; NACDL President Jerry J. Cox; and NACDL Past Presidents Jim E. Lavine, Lisa M. Wayne
and Steven D. Benjamin.

Law Firm Support

The Task Force is most appreciative of several law firms, their attorneys and staff for providing
space, refreshments and logistical assistance for the hearings. They include:

In Chicago — Mayer Brown LLP

Marc R. Kadish, Director of Pro Bono Activities and Litigation Training, and Mike Gill, Partner, for sponsoring the Task Force and securing the conference space; Lauren B. Almandarz, Secretary to Mr. Kadish,
and Eloise Tobias, Conference Services Coordinator, for assisting with overall logistics for the hearings;
and Staff Assistant Jennifer Mielnicki for providing administrative support.

In Miami — Carlton Fields Jorden Burt

Kevin Napper, Shareholder, for sponsoring the Task Force and securing the conference space; Cathy
Jones, Director of Administration; Raymond Seara, Office Services Supervisor; Dawn Robinson,
Document Production Specialist; Portia Smith, Administrative Assistant; Charmaine Vassall,
Administrative Assistant; and Tresha Titus, Aramark Services Catering Manager, all for providing overall logistical support.

In Cleveland — McDonald Hopkins LLC

Special thanks to NACDL Board Member Elizabeth Kelley for initiating contact with McDonald
Hopkins LLC and for providing edits to the first draft of the report.

Dean DePiero, Of Counsel at McDonald Hopkins LLC, for sponsoring the Task Force and securing
conference space; Kate Hemsath, Director of Administration at the firm, and her assistant, Emily CoilHostess, for providing overall logistical support.

In San Francisco — Orrick, Herrington & Sutcliffe LLP

Special thanks to NACDL Member Martin A. Sabelli for initiating contact with Orrick, Herrington &
Sutcliffe LLP.

A Roadmap to Restore Rights and Status After Arrest or Conviction

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Walter F. Brown, Jr., Attorney at Law, Orrick, Herrington & Sutcliffe LLP, for sponsoring the Task Force
and securing conference space; Angela Wills, Assistant to Mr. Brown, and Myrna A. Maltez, IT Support
Specialist, for providing overall logistical support.

In New York — Cravath, Swaine & Moore LLP

Rowan Wilson, Partner, for sponsoring the Task Force and securing conference space; Janice Singh,
Executive Assistant to Rowan Wilson; James Swoboda, CTS Audio Visual Specialist; Coleen Ryan,
Conference Center Coordinator; and Marilyn Roman, Conference Center Coordinator, all for providing
overall logistical support.

8

Transcript Digests

The six hearings generated thousands of pages of transcripts that were digested by Columbia Law
School students in New York. The Task Force is indebted to Madeline Kurtz, Director of Public Interest
Professional Development at Columbia Law School, who helped identify students to digest transcripts.
The following students digested transcripts for the cities designated: Talia Epstein (Chicago and portions of Miami); Shimeng Cheng (portions of Miami); Nicholas Matuschak (Cleveland); Sharyn
Broomhead and Brian Hooven (San Francisco); Kate Mollison and Anne Silver (New York); and Joo
Young Seo (Washington, DC).

Institutional & Staff Contributions

The institutions and staff of various Task Force members were instrumental in assisting with the project in numerous ways. They include: Lauren Winston-McPherson, Executive Assistant to Task Force
Co-Chair Rick Jones, for coordinating Rick’s schedule, participating in hearings, and coordinating
Columbia Law Students; American University Law School Research Fund and American University
Washington College of Law Dean Claudio M. Grossman for supporting the work of Professor Jenny
Roberts on this project; Kathryn Wilson and Ashley Ahlholm, Dean’s Fellows for Professor Jenny
Roberts at American University Washington College of Law, for their significant research assistance
with the report; Professor Rebecca Green, Professor of the Practice of Law at William & Mary Law
School, for her insightful comments on criminal records reform; and Josh Gaines, Law Office of
Margaret Love, for cite-checking the report.

Finally, an undertaking of this magnitude necessitates the dedication and commitment of numerous members of the NACDL staff, including: Tom Chambers, Deputy Executive Director, for coordinating financial support for the project; Tamara Kalacevic, Director of Events, for coordinating accommodations for
the Task Force members; Obaid Khan and Elsa Ohman, National Affairs Assistants, for reaching out to witnesses, staffing hearings, and cite editing; Ivan Dominguez, Director of Public Affairs & Communications;
Tiffany M. Joslyn, Counsel for White Collar Crime Policy; and Quintin Chatman, Editor of The Champion
magazine, for their expert editing of the report; Catherine Zlomek, Art Director, for the layout and design
of the report; Vanessa Antoun, Senior Resource Counsel, for staffing and providing assistance to the Task
Force at the San Francisco hearing; Doug Reale, Manager for Strategic Marketing & Sales, for his technical video expertise and assistance with hearing site logistics; Steven Logan, Manager for Information
Services, for the project website and survey design; Nelle Sandridge, Member Services Assistant, for her
support during the Washington, DC hearings; and Angelyn C. Frazer, State Legislative Affairs Director and
project staff to the Task Force, for report editing and overall coordination of the project.

P

olicies and practices that at one moment seem prudent and logical can over
time have imprudent and illogical consequences. While much has been
written about the adverse impact of mass incarceration, another less
obvious but equally devastating development has accompanied the escalation
of criminal prosecution: the proliferation of collateral consequences. A vast,
half-hidden network of legal penalties, debarments, and disabilities that arise
not from the penal laws but from ancillary statutes and regulations now
stigmatizes the 65 million people in this country who have a criminal record.
Worse, a growing obsession with background checking and commercial
exploitation of arrest and conviction records makes it all but impossible for
someone with a criminal record to leave the past behind.

These collateral consequences, whether based on specific legal provisions or
the general discrimination they encourage, have produced untold collateral damage in the war on crime. Collateral consequences affect jobs and licenses, housing, public benefits, voting rights, judicial rights, parental rights, the right to
bear arms, immigration status, and even volunteer opportunities. Each individual consequence may have seemed prudent and logical when enacted, but their
overall effect is to consign millions to second-class status.

Traditionally, criminal defense lawyers and their clients part ways after a case
ends at the trial level or, in some cases, after an appeal of a conviction. In an age
of collateral consequences, however, that paradigm is no longer valid. The defense lawyer cannot effectively represent a client without an awareness of the
collateral consequences that may ensue. But even that may not be enough.

In 2011, NACDL’s leadership recognized that the defense bar could no longer
remain silent about the multitude of legal and social obstacles that confront
clients long after their case is concluded and their sentence served. Acting together, NACDL President Jim Lavine and President-Elect Lisa Wayne impaneled
the Task Force on the Restoration of Rights and Status After Conviction to study
the magnitude of the problem and articulate a solution. An overarching goal was
to identify laws and policies that will dismantle the functional exile to which
convicted persons are consigned in American society.

On the occasion of her installation as NACDL president in August 2011, Lisa
Wayne said that “we must determine how to tear down the barriers that have
turned hundreds of thousands of convicted persons into a permanent underclass,”
and urged the Task Force “to search far and wide throughout the country to find
out what works, what does not work, and what we can do to find a solution to
the problem.” This report is the product of that effort.

Responding to the challenge it was given, the Task Force did indeed search far
and wide. Its members took testimony from more than 150 witnesses over the
course of two years at public hearings conducted in six cities (a complete list

A Roadmap to Restore Rights and Status After Arrest or Conviction

PREFACE

9

PREFACE
of witnesses is provided in Appendix B to this report).1 They reviewed case law,
studies, statutes, and model standards; made numerous site visits (a complete
list of which is provided in Appendix C to this report); and engaged in countless
hours of discussion and analysis. Finally, they distilled the findings into a report
that is intended to provide the entire profession, lawmakers and society with a
roadmap to the restoration of rights and status after arrest or conviction.

After an extensive period for review, NACDL’s Board of Directors formally
adopted the report and recommendations on March 8, 2014, at its midwinter
meeting in New Orleans, Louisiana.

10

The work of this Task Force was strongly supported by NACDL’s Board of
Directors and has been funded by the Foundation for Criminal Justice with crucial support provided by the Open Society Foundations. The project was conducted by eight outstanding criminal defense lawyers from across the country,
reflecting an array of practice settings: Lawrence S. Goldman, Elissa B.
Heinrichs, Rick Jones, Margaret Colgate Love, Penelope S. Strong, Geneva
Vanderhorst, Christopher A. Wellborn, and Vicki H. Young. Professor Jenny
Roberts of the American University Washington College of Law served as the

Hearing Locations

PREFACE
project’s consultant and reporter. Professor Roberts’s dedication and skill were
essential to the development of this report. Her commitment to the project is a
consummate example of a partnership between the legal academy and the practicing bar in service to society. (Complete biographies of the Task Force members are provided in Appendix D to this report.)

While numerous members of NACDL’s staff provided ongoing and indispensable support for the project, NACDL State Legislative Affairs Director Angelyn
C. Frazer guided the project from start to finish. Ms. Frazer was principally responsible for assembling the extraordinary array of witnesses whose stories and
insights exposed the magnitude of the problem and defined the essential elements of the solution.

This report is the result of an unparalleled volunteer effort that reflects the highest level of professionalism and an unprecedented commitment by a bar association to further the cause of justice. The Task Force members and their reporter
contributed their experience, judgment, intellect, and thousands of hours to complete this project. That historic effort is evident in the transcripts of the hearings that are now available to the public. NACDL, the legal profession and
society, especially the millions who must cope every day with the collateral consequences of a criminal case, are indebted to these outstanding professionals for
their service.

The Foundation for Criminal Justice and NACDL proudly offer this report and
its conclusions and recommendations for consideration by all who have an interest or a role in shaping the nation’s criminal justice system, secure in the
knowledge that it reflects the highest aspirations of the criminal defense bar to
advocate for the dignity and humanity of every individual.

Norman L. Reimer

Executive Director, NACDL

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EXECUTIVE SUMMARY

C
12

ollateral damage occurs in any war, including America’s “War on Crime.”
Ironically, our zealous efforts to keep communities safe may have actually
destabilized and divided them. The vast expansion of the nation’s criminal
justice system over the past 40 years has produced a corresponding increase in the
number of people with a criminal record. One recent study estimated that 65 million
people — one in four adults in the United States — have a criminal record.2 At the
same time, the collateral consequences of conviction — specific legal restrictions,
generalized discrimination and social stigma — have become more severe, more
public and more permanent. These consequences affect virtually every aspect of
human endeavor, including employment and licensing, housing, education, public
benefits, credit and loans, immigration status, parental rights, interstate travel, and
even volunteer opportunities. Collateral consequences can be a criminal defendant’s
most serious punishment, permanently relegating a person to second-class status.
The obsession with background checking in recent years has made it all but
impossible for a person with a criminal record to leave the past behind. An arrest
alone can lead to permanent loss of opportunity. The primary legal mechanisms
historically relied on to restore rights and status — executive pardon and judicial
expungement — have atrophied or become less effective.

It is time to reverse this course. It is time to recognize that America’s infatuation
with collateral consequences has produced unprecedented and unnecessary collateral damage to society and to the justice system. It is time to celebrate the magnificent human potential for growth and redemption. It is time to move from the
era of collateral consequences to the era of restoration of rights and status.

NACDL recommends a broad national initiative to construct a legal infrastructure that will provide individuals with a criminal record with a clear path to equal
opportunity. The principle that individuals have paid their debt to society when
they have completed their court-imposed sentence should guide this initiative. At
its core, this initiative must recognize that individuals who pay their debt are entitled to have their legal and social status fully restored.

Until recently, defense lawyers have not regarded avoiding and mitigating collateral consequences as part of their responsibility to the client. This has changed, in
part because of court decisions recognizing collateral consequences as an integral
part of the criminal case, and in part because of the increasing social and economic significance of collateral consequences themselves. As a result, in 2011
NACDL established a Task Force on Restoration of Rights and Status After
Conviction to inquire into how existing restoration mechanisms are actually functioning and to determine how they can be improved. The Task Force conducted extensive hearings in six different major American cities in five distinct regions of
the country over more than two years and took testimony from more than 150 wit-

nesses. The result is this report and the following comprehensive recommendations for reform.

I.

The United States should embark on a
national effort to end the second-class
legal status and stigmatization of
persons who have fulfilled the
terms of a criminal sentence.

The three branches of government, on the federal, state and local levels,
should undertake a comprehensive effort to promote restoration of rights and
status after conviction. This is a major effort that requires a multifaceted approach. It should include enactment of laws to circumscribe or repeal existing
collateral consequences and a resolve to stop enacting new ones. More fundamentally, government entities, the legal profession, the media and the business community must promote a change in the national mindset to embrace
concepts of redemption and forgiveness, including a public education campaign to combat erroneous and harmful stereotypes and labels applied to individuals who have at one point or another committed a crime. As a
cornerstone of this movement, the United States and its states and territories
should establish a “National Restoration of Rights Day” to recognize the need
to give individuals who have successfully fulfilled the terms of a criminal sentence the opportunity to move on with their lives.

Defender organizations and offices, as well as individual defense attorneys and
the legal profession as a whole, have an important role to play in this effort.
They should propose and support efforts to repeal collateral consequences and
to enact effective ways to relieve any remaining collateral consequences. They
should participate in efforts to catalogue collateral consequences and make them
available in a form that is useful and educational to lawyers, courts, government agencies, researchers, and the public at large. These entities should work
to change the way people with a criminal record are depicted in the media and
discourage the use of disparaging labels such as “felon,” “criminal” and “excon” that reinforce fear-inducing stereotypes and perpetuate discriminatory laws
and policies. They should participate in efforts to educate the public about the
broad range of conduct that can result in conviction and the harmful effects of
permanently burdening those who are convicted. Further, they should support
efforts to provide equal opportunity to people with a criminal record, including
in their own employment policies and practices.

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EXECUTIVE SUMMARY
II.

14

All mandatory collateral consequences
should be disfavored and are never
appropriate unless substantially justified
by the specific offense conduct.

Legislatures should not impose a mandatory collateral consequence unless it
has a proven, evidence-based public safety benefit that substantially outweighs
any burden it places on an individual’s ability to reintegrate into the community.
This means that most mandatory collateral consequences should be repealed,
including the loss of voting and other civil and judicial rights, which serve no
public safety purpose at all. For those few mandatory consequences that can be
justified in terms of public safety, sentencing courts should be authorized to relieve them on a case-by-case basis at sentencing and while a person is under
sentence. Any mandatory consequence that is not relieved should automatically
terminate upon completion of an individual’s court-imposed sentence unless the
government can prove a public safety need for its continued application.

III.

Discretionary collateral consequences
should be imposed only when the offense
conduct is recent and directly related
to a particular benefit or opportunity.

Where a decision-maker is authorized but not required to deny or revoke a benefit or opportunity based upon a conviction, it should do so only where it reaches
an individualized determination that such action is warranted based upon the
facts and circumstances of the offense. States and the federal government should
develop and enforce clear relevancy standards for considering a criminal record
by discretionary decision-makers, requiring them to consider the nature and
gravity of the conduct underlying the conviction, the passage of time since the
conviction and any evidence of post-conviction rehabilitation. Administrative
agencies should be required to specify and justify the types of convictions that
may be relevant in their particular context, and to publish standards that they will
apply in determining whether to grant a benefit or opportunity. Benefits and opportunities should never be denied based upon a criminal record that did not result in conviction.

IV.

Full restoration of rights and status
should be available to convicted
individuals upon completion of sentence.

After completing their sentence, individuals should have access to an individualized process to obtain full restoration of rights and status, either from the executive or from a court, by demonstrating rehabilitation and good character. This
relief process should be transparent, accountable and accessible to all regardless
of means. Standards for relief should be clear and attainable, high enough to make
relief meaningful, but not so high as to discourage deserving individuals. A pardon or judicial certificate should relieve all mandatory collateral consequences,
and decision-makers should give full effect to a pardon or judicial certificate where
a collateral consequence is discretionary. Jurisdictions should give their residents
with convictions from other jurisdictions access to their relief procedures, and
should also give effect to relief granted by other jurisdictions.

V.

Congress and federal agencies
should provide individuals with
federal convictions with meaningful
opportunities to regain rights and status,
and individuals with state convictions
with mechanisms to avoid collateral
consequences imposed by federal law.

Congress should expand non-conviction dispositions for federal crimes, and federal prosecutors should be encouraged to offer them wherever appropriate.
Individuals convicted of federal crimes should have an accessible and reliable
way of regaining rights and status through the courts or a reinvigorated federal pardon process. Congress should limit access to and use of federal criminal records
through judicial expungement, set-aside or certificates of relief from disabilities.

Congress should authorize state and federal courts to dispense with mandatory
collateral consequences arising under federal law. By the same token, state legislatures should provide individuals with federal convictions a way to avoid
consequences arising under state law. Federal courts and agencies should recognize and give effect to state relief.

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EXECUTIVE SUMMARY
Federal agencies should provide incentives to public and private employers to
offer equal opportunity to persons with a criminal record. The federal government should fund research into whether relief mechanisms help individuals reintegrate into society and reduce recidivism.

VI.

16

Individuals charged with a crime
should have an opportunity to avoid
conviction and the collateral
consequences that accompany it.

To avoid harmful and unnecessary collateral consequences, diversion and deferred adjudication should be available for all but the most serious crimes,
and prosecutors and courts should be encouraged to use these alternatives.
Non-conviction dispositions should be sealed or expunged and should never
trigger collateral consequences. Decision-makers should be barred from asking about or considering such dispositions.

Collateral consequences should be taken into account at every stage of the case
by all actors in the criminal justice system. Defense lawyers should advise
clients about them and explore opportunities to avoid them through creative
plea bargaining and effective sentencing advocacy. Prosecutors should structure charges and negotiate pleas to enable defendants to avoid collateral consequences that cannot be justified. Courts should ensure that defendants are
advised about applicable collateral consequences before accepting guilty pleas,
and should take collateral consequences into account at sentencing.

VII. Employers, landlords and other
decision-makers should be encouraged
to offer opportunities to individuals
with criminal records, and unwarranted
discrimination based on a criminal
record should be prohibited.
Government at all levels should find creative ways to give employers, landlords, and other decision-makers affirmative incentives to offer opportunities
to those with criminal records. There should be meaningful tax credits for hiring or housing those with criminal records and free bonding to provide insurance
for any employee dishonesty. Decision-makers should be eligible for immunity

from civil liability relating to an opportunity or benefit given to an individual
with a criminal record if they are in compliance with federal, state and local
laws and policies limiting the use of criminal records and with standards governing the exercise of discretion in decision-making. Jurisdictions should enact
clear laws prohibiting unwarranted discrimination based upon an individual’s
criminal record, and should provide for effective enforcement and meaningful
review of discrimination claims.

VIII. Jurisdictions should limit access to and use
of criminal records for non-law enforcement
purposes and should ensure that records
are complete and accurate.
State repositories, court systems and other agencies that collect criminal records
should have in place mechanisms for ensuring that official records are complete
and accurate, and should facilitate opportunities for individuals to correct any
inaccuracies or omissions in their own records. Records must be provided in a
form that is easy to understand and that does not mislead. Records that indicate
no final disposition one year after charges are filed should be purged from all
records systems. The FBI must ensure that information relating to state relief,
such as expunged and sealed records, is reflected in its criminal record repository.

State and federal authorities should limit access to their central repositories to
those with a legitimate need to know. Court records should be available only to
those who inquire in person, in order to balance public access to records with
privacy concerns for individuals with a criminal record, and access to online
court system databases should be strictly limited. Law enforcement records (nonjudicial) should never be publicly disseminated. Criminal records that do not result in a conviction should be automatically sealed or expunged, at no cost to
their subject. Jurisdictions should prohibit non-law enforcement access to conviction records after the passage of a specified period of time, depending upon
the nature and seriousness of the offense, and should authorize courts to prohibit
access in cases where it is not automatic. Any exceptions should be justified in
terms of public safety, and persons who disclose records in violation of limitations on access should be subject to substantial civil penalties.
Employers and other decision-makers should be prohibited from asking about
or considering a criminal record to which access has been limited by law or court
order. For accessible records, decision-makers should comply with applicable
relevance and non-discrimination standards. Employers should also be prohibited from inquiring about an applicant’s criminal record until after a contingent
offer of employment has been made.

A Roadmap to Restore Rights and Status After Arrest or Conviction

17

EXECUTIVE SUMMARY
Jurisdictions should never sell criminal records and should strictly regulate private companies that collect and sell records. Federal law should prohibit credit
reporting agencies from disclosing records of closed cases that did not result in
conviction, and convictions that are more than seven years in the past. States
should enact their own restrictions on credit reporting companies to the extent
permitted by federal preemption. Jurisdictions should provide for effective enforcement of laws governing credit reporting agencies.

18

IX.

Defense lawyers should consider avoiding,
mitigating and relieving collateral
consequences to be an integral part of
their representation of a client.

Defense counsel should consider avoiding and mitigating collateral consequences
to be an integral part of their representation of a client, both at and after sentencing. If post-sentence representation is not feasible, defense counsel should
refer clients to organizations or individuals that can provide such representation.
Agencies that fund indigent defense services should fund representation in connection with restoration of rights and status.

X.

NACDL will initiate public education
programs and advocacy aimed at
curtailing collateral consequences and
eliminating the social stigma that
accompanies conviction.

NACDL resolves to use all of its resources, particularly the dedication of its
members who are on the front lines fulfilling the mandates of the Sixth
Amendment, to implement the preceding nine principles. The nation’s criminal
defense bar must be in the vanguard of the effort to make the full restoration of
rights and status a reality for all who successfully fulfill the terms of a sentence.
NACDL and the defense community will lead efforts to repeal or modify existing collateral consequences that cannot be justified in terms of public safety, to
avoid enacting any additional ones, and to implement meaningful restoration
procedures both during and after the conclusion of the criminal case.

METHODOLOGY AND TERMINOLOGY

T

his report is the result of the work of the Task
Force on Restoration of Rights and Status After
Conviction, established by NACDL Past
Presidents Jim Lavine and Lisa Wayne in 2011. The Task
Force heard testimony from more than 150 witnesses at
hearings in Chicago, Miami, Cleveland, San Francisco,
New York, and Washington, DC. Witnesses included
individuals with criminal records, defense attorneys,
state and federal judges, prosecutors, social scientists,
re-entry professionals, probation and correctional
personnel, employers, background screening companies,
a congressman, a former governor, and local, state and
federal officials. In connection with its hearings,
members of the Task Force also participated in site
visits. The Task Force also reviewed a wide range of
studies, reports, and articles on various restoration and
relief mechanisms, and on collateral consequences more
generally. See Appendices B and C for a complete list of
witnesses and sites visited. The transcripts of those
hearings are available on NACDL’s website at
www.nacdl.org/restoration/roadmapreport.

Throughout the hearings, the Task Force engaged in
discussions about the testimony and direction of the
report. Professor Jenny Roberts assumed primary
drafting responsibility for this report. Multiple drafts
were discussed and revised through a collaborative
process with the Task Force and NACDL’s staff and
Board of Directors. On March 8, 2014, the NACDL
Board of Directors adopted the Task Force draft report and recommendations.

Throughout the report, terminology is used to describe
individuals who have a conviction on their record.
NACDL subscribes to the principle that people with
convictions should not be referred to as “criminals,”
“convicts,” “offenders,” “ex-cons,” or other disparaging labels. However, uses of these terms are retained in
direct quotations from witnesses that appear in the report in order to ensure the accuracy of the quote.

Types of Collateral
Consequences:
Mandatory consequences apply
automatically as a matter of law,
regulation or policy, without
regard to the individual or the
circumstances of the conviction.
Some mandatory consequences
end when a person’s sentence
ends, some end after a
specified number of years,
and others apply indefinitely.
Automatically losing the right to
vote because of a felony
conviction is a mandatory consequence that generally ends
upon release from prison or
completion of sentence.
Discretionary consequences
are those an agency or official
is authorized but not required
to impose based on conduct
underlying a conviction. An
example is denial or revocation
of a real estate license based
upon a finding by the licensing
board that an individual
convicted of fraud lacks “good
moral character.”

Continued on next page

A Roadmap to Restore Rights and Status After Arrest or Conviction

19

Continued from previous page

20

Informal consequences (“stigmatization”) are policies and practices
based on social custom and cultural
attitude, as opposed to law or formal policy. Although frequently unwritten, they can be just as harmful
as restrictions that are formally
adopted and enforced. For example, someone unable to find a private landlord willing to rent him an
apartment is suffering the informal
consequences of conviction; his
family also suffers the economic
and psychological impact of this
stigma.3
Legal avenues for relief from the adverse effects
of arrest or conviction come in many forms and
variations, with a corresponding lack of clarity
and consistency from jurisdiction to jurisdiction.
Frequently, one jurisdiction has no mechanism
for dealing with convictions obtained or relief
granted in another, making it difficult for a convicted person to move from one state to another.
Relief mechanisms by the same name differ from
state to state in terms of applicable procedures
and eligibility criteria as well as in substantive
effect. For example, “expungement” of a criminal record can mean anything from actual destruction of the record in one state to mere
limitations on its use in another. A pardon may
or may not restore firearms rights, and may or
may not be given effect by a sister state.
Certificates may recognize “good conduct,” “rehabilitation” or “employability.”

The “Definitions of Key Terms” provided in
Appendix A of this report offers general working
definitions of the common terms and phrases
referenced here and many others used throughout this report.

Types of Relief
Mechanisms
Avoidance mechanisms allow an
individual to avoid a conviction in
the first place. For example,
diversion or deferral of judgment
may lead to dismissal of the
charges upon successful completion of any conditions.
Automatic restoration mechanisms are legislatively or administratively determined points in
time after which a particular collateral consequence terminates.
An example is the automatic
restoration of the right to vote
upon release from prison or
completion of sentence.
Individual restoration mechanisms
include pardon, expungement or
sealing of a record, and certificates
of good conduct or restoration of
rights. Some of these mechanisms
are consequence-specific such as
a court-ordered restoration of
firearms rights or certificate of employability, while others apply generally to lift all or most legal
restrictions, such as a pardon.
Systemic relief mechanisms operate outside of the individual case
to place general limits on consideration of conviction in allocating
benefits or opportunities. They
may be procedural (e.g., ban-thebox policies or limitations on liability) or substantive (“business
necessity” under Title VII).

INTRODUCTION

In 2004, Martha Stewart went to federal prison for five months after being convicted of obstructing justice and making false statements to federal investigators.4 Even before she finished her short sentence,
the groundwork was being laid for her redemption. One conservative columnist wrote, “Stewart is
paying her dues. As she prepares her comeback, there is simply no reason for anyone to attempt to deny
her right to leave her troubles in the past and start anew.”5 Although her conviction barred her from serving on a board or as an executive for any public company for five years,6 she returned to work immediately upon release from prison.7 Within two years, her company returned to profitability.8 By 2011,
Stewart was back on the company’s board of directors9 and, in 2012, returned as chairperson.10

Collat eral
Damage
Philadelphia Eagles owner Jeff Lurie
described a “surprise” phone call
from President Obama after the
team signed Michael Vick shortly
after his release from prison: “He
said, ‘So many people who serve
time never get a fair second
chance. . . . It’s never a level playing
field for prisoners when they get
out of jail.’ And he was happy that
we did something on such a
national stage that showed our faith
in giving someone a second chance
after such a major downfall.”13

Michael Vick had a similarly soft landing. In
2009, as soon as he finished 23 months in prison
for running a dogfighting ring, the National
Football League lifted Vick’s suspension. The
Philadelphia Eagles immediately signed him,
with Eagles Coach Andy Reid noting: “I’m a believer that as long as people go through the right
process, they deserve a second chance. . . . He’s
proven he’s on the right track.” Eagles President
Joe Banner added, “Everybody we talked to said
the same thing, that he was remorseful and that
he had gone through an incredible transformation,
that he was basically good at heart. We heard this
over and over again from people who felt he deserved a second chance.”11 While the Eagles were
undoubtedly motivated by more than compassion,
their decision received praise from President
Obama himself, who telephoned Eagles owner
Jeff Lurie to commend the team for doing “something on such a national stage that showed . . .
faith in giving someone a second chance after
such a major downfall.”12

Leaving her troubles in the past and starting anew.
Good at heart. On the right track. Showing faith
in giving someone a second chance. These expressions certainly apply to the many individuals
with convictions who testified at the Task Force
hearings. Yet Jessica Chiappone could not volun-

A Roadmap to Restore Rights and Status After Arrest or Conviction

21

22

teer at her children’s school because of a conviction that was 15 years in her past.14 Darrell
Langdon needed a dedicated attorney, a sympathetic judge, and media attention to persuade
school officials, 25 years after his drug possession conviction, to let him return to his longtime
work as a boiler room engineer.15 Mr. C, a business executive who learned crisis management
during his military service, was turned away from
volunteer work with the American Red Cross because of a minor fraud conviction.16 Brenda
Aldana trained as a dental assistant while in federal prison for a drug crime, and pursued this
work when first released, but could not risk the
cost and time of an additional program given the
likelihood that the licensing board would deny the
exemption she would later need based on her
criminal record.17 Jennifer Smith received a deferred adjudication on a shoplifting charge in
New York and lost out on a job offer from a bank
as a result — under federal law the bank could
not hire her, even though the charges against her
were eventually dismissed.18

These individuals encountered just a few of the
approximately 45,000 laws and rules in U.S. jurisdictions that restrict opportunities and benefits in one way or another based upon a
conviction (or, in Jennifer Smith’s case, charges
that were dismissed).19

“We don’t want you to roll out the red
carpet to us. We want to make sure
that when we do our time, our past
doesn’t dictate our future…. I think that
when you go 18 years without getting
into trouble…that shows something
about me, my character and what I’m
truly about.”
Ralph Martin, President &
CEO, RKRM Consulting
(Miami Day 1 at 20-24)

Brenda Aldana, Jessica Chiappone, Jennifer Smith,
Mr. C., and Darrell Langdon are not alone in suffering a different fate than Martha Stewart or

Michael Vick. More than one in four adults in the
United States — some 65 million people — has a
rap sheet. And this is a conservative estimate.20
There are 14 million new arrests every year.21 More
than 19 million people have felony convictions,22
and millions more have been convicted of less serious crimes. The nation’s shameful incarceration
rate — 2.2 million adults currently in jail or
prison23 — is the highest in the world.24

Branding so many millions of people with this
“Mark of Cain”25 has new and dangerous meaning
in the electronic age. Arrest and conviction records
are no longer pieces of paper that sit in court clerks’
files, accessible only by a trip to the local courthouse. Instead, they are usually on publicly available websites, open to all viewers who care to
search. These technological advances have led to
widespread background checking by employers,
landlords, and others, even when not required by
law. A recent survey showed that 92 percent of responding employers perform criminal background
checks on at least some job candidates, and 73 percent perform checks on all job candidates.26 This
means that a minor marijuana possession conviction, one of the most common misdemeanors,27 can
follow a person for the rest of his life. Charges that
are never prosecuted, or are eventually dismissed,
live on in the digital world. Some law enforcement
agencies actually sell arrest records, and the private data companies buying them or getting them
from public sites have proliferated, profiting from
the misery of innocent and convicted people. Even
with conviction records, the well-documented failure of states to record when charges are dismissed
or records sealed,28 and the failure of private data
companies to keep accurate records, hurt millions
of individuals.

The Disparate Racial and
Ethnic Impact of
Collateral Consequences
The troubling confluence of overcriminalization
and ever-expanding collateral consequences in the
electronic era has not affected all people equally.
Poor and minority communities, where residents
are policed most heavily and where zero-tolerance
policing practices have led to skyrocketing num-

bers of minor quality of life arrests, bear the brunt
of the nation’s criminalization obsession. The pervasiveness of these policies is highlighted most dramatically when considering minor drug offenses.
In 2010, of the 1,717,064 drug arrests in the United
States, more than half were for marijuana, the overwhelming majority of which were for possession.29
While these numbers alone are shocking, the enormous disparities that exist between arrest rates for
black and white Americans is even more telling —
the black arrest rate is 716 per 100,000 while the
white arrest rate is 192 per 100,000, despite the fact
that both populations use marijuana at similar rates
across all age groups.30 These troubling differentials extend far beyond arrest. New York City
Probation Commissioner Vincent Schiraldi, discussing “amazing levels of disparity” in the nation’s
corrections systems, stated, “We have a good system — but it’s the one that white kids get, which
diverts kids out of the system and retains the few
who really need to be in prison[.]”31
African-Americans and Hispanics also bear the
brunt of consequences that follow a criminal
record, even a minor misdemeanor record.
Collateral consequences are disproportionately
leveled against communities of color and are

“[W]e look at crime in a very different way
than most traditional criminologists because
we know there are a lot of antecedents to
crime. We know that people are not born
criminals. We know that anybody can be
defined as a criminal, depending on
whether or not they’ve been caught. . . .
We won’t ask for a show of hands because
we know that there are many people who
are professionals today, who had they . . .
gotten caught, would be defined as a
criminal. We don’t think that the criminal act
defines your total person. We don’t think
that a person who commits a crime is a bad
person, but simply a person who did
something not so good.”
Dr. Divine Pryor, Executive Director,
Center for NuLeadership on Urban Solutions (NYC
Day 3 at 275-76)

overly punitive, stripping many of the right to
vote, denying people public benefits, and making
housing and work considerably harder to find.

In a compelling demonstration of the unfairness
of this racial disparity, the documentary project
We Are All Criminals, based in Minnesota where
one in four people have criminal records, looks
at the other 75 percent, “those of us who have
had the luxury of living without an official reminder of a past mistake” and “opportunities to
move on and move up.”32 On the website
www.weareallcriminals.com, participants describe crimes they committed for which they were
never caught, ranging from drug possession and

A Criminal Record Hits
Black Job Seekers Harder
Than White Job Seekers
A recent large-scale study found that
men with a drug felony conviction
were 50 percent less likely than men
without a record to get a callback or
job offer for an entry-level job that required no previous experience and
no college degree. Most significantly,
black applicants suffered this “criminal record penalty” twice as often as
white applicants. The study authors
found that “[t]his interaction between
race and criminal record is large and
statistically significant, which indicates
that the penalty of a criminal record
is more disabling for black job seekers than whites.”33 In addition, evidence of the “persistent effect of race
on employment opportunities” using
matched pairs of testers applying for
employment in the Milwaukee area
found: “Blacks are less than half as
likely to receive consideration by employers, relative to their white counterparts, and black non-offenders fall
behind even whites with prior felony
convictions.”34

A Roadmap to Restore Rights and Status After Arrest or Conviction

23

sale to felony theft to sexual misconduct. These
individuals, many of whom “benefited from belonging to a class and race that is not overrepresented in the criminal justice system,” were
allowed to move on with their lives, and they are
now able to work as engineers, lawyers, corrections professionals, bank tellers, and teachers.

24

The situation has reached crisis proportions. A
study of arrest rates among youth in the United
States noted how arrests can lead to immediate
and long-term negative consequences. Using data
gathered from 1997 to 2008, the study found that
49 percent of black men, 44 percent of Hispanic
men and 38 percent of white men will be arrested
by age 23.35

Are We Really a
Nation of Criminals?
Are millions in the United States inherently bad
people, undeserving of the chance to move beyond
their past? NACDL, whose members interact daily
with individuals accused of crimes in courtrooms
all over the nation, does not believe that is the case.
After all, who are all these people with criminal
records? They are our friends and neighbors, and
sometimes ourselves. They are family members
and families of our co-workers. The brute force of
our criminal justice system, and the severe consequences that await people as they try to move on
from the system, hurts us all. It is time to confront
the notion that a person with a criminal conviction
is somehow different from the rest of us, our families, and our communities. We must move away
from fear and hesitation and towards forgiveness
and providing people the opportunity to move on
by restoring their rights and status.

The easiest solution to this urgent problem would
be to end the punishment for the crime once the
sentence has been served, by simply ending all collateral consequences and letting people move on
with their lives. But formal and informal collateral
consequences are deeply embedded in the nation’s
laws, regulations, policies, and culture. And millions of people in the United States are struggling,
right now, to live their daily lives in the face of
these existing obstacles.

The U.S. Lags Far
Behind Other Countries In
Restoration of
Rights and Status
As the United States struggles to compete with other nations in the rapidly
changing global workplace, a unique
obsession with labeling people as “criminals” is leading the country down a dangerous moral and economic path. Other
countries criminalize less, incarcerate
less, and let people fully re-enter and
participate in civic and daily life after a
conviction. In Europe, prisoners can
vote,36 and many countries extend criminal record confidentiality protections
into a person’s adulthood.37 The
Netherlands, France, Germany, and
Spain have strict policies that limit the
amount of information available in criminal records and limit access to these
files.38 And although employers in Spain
can ask applicants to disclose their criminal record, Professor James Jacobs testified, “It’s very, very rare that a private
employer asks.” Further, “there are . . .
no disabilities that come with a criminal
record, at least with respect to private
employment.”39 In a stark illustration of
the different way that European countries balance individual privacy and the
public’s right to access data from the
United States, Europe has a “right to be
forgotten” movement.40
There are a few avenues for relief from the many
harsh consequences of a criminal conviction, including pardon, sealing or expungement of the
record and certificates of good conduct or relief
from disabilities. There are also policies to help individuals with a conviction have a better chance in
the job market. These include “banning the box”
that asks applicants about their criminal history on
an initial job application, civil rights laws barring
discrimination based on a person’s criminal con-

viction, and tax incentives and immunity for employers willing to hire qualified individuals with a
conviction. But these relief mechanisms are limited
in their scope and effectiveness. They are not
widely known and are underutilized. In many jurisdictions, pardon is the only way a convicted person may regain rights and status, but pardons are
rarely granted. Relief based on restricting access to
a criminal record through sealing or expungement
offers only limited protection in an electronic era
that reveals all secrets.

Relief from the consequences of a criminal record
is currently made up of a patchwork of approaches
that are sometimes inconsistent and often irrational, with wide variations between states and
even within a particular state. The United States
desperately needs, and NACDL urges the nation to
adopt, a coherent national approach to the restoration of rights and status after a conviction. It must
include the repeal of mandatory consequences that
ignore individual circumstances; strict limits on
discretionary disqualifications so they are used
only when the conviction is closely related to the
opportunity at issue; legal mechanisms that formally and legally restore rights and opportunities;
and innovations and inducements to incentivize
employers, landlords and other decision-makers to
give individuals with convictions a chance.

“[I]ndividuals have to have a sense
of finality with respect to the
offense that they committed. They
have to be able to put it behind
them if they’re ever going to move
on with their lives.”
Sam Morison, former Staff Attorney,
Office of the Pardon Attorney, U.S.
Department of Justice (DC Day 2 at 228-29)

It is time to move on from the age of mass incarceration and overcriminalization, away from the
stigmatization produced by what might be a onetime adverse encounter with the justice system,
and into a new era of restoring the rights and status of individuals with criminal records.

Giving People the Opportunity
to Move Beyond a Criminal
Record Enhances Public
Safety and Saves Money

25

“When has helping someone turn
their life around been considered
being soft on crime?”
Ralph Martin, President &
CEO, RKRM Consulting41

Witness after witness at the Task Force hearings
— from law enforcement officials and legislators
to employment specialists and individuals with
criminal records — testified about how restoring
a person’s rights and status and letting a person
move beyond a conviction will reduce recidivism
and thus increase public safety.

Consistent research shows that the ability to earn
a living is the best way to keep someone from
committing another crime.42 Yet setting up impassable barriers for those with convictions undermines public safety. Alameda County DA
Nancy O’Malley, who chairs the California Sex
Offender Management Board, told the Task
Force, “We want people to not commit more
crimes, and we don’t want to have more victims
of crimes. So it’s in all of our best interests to help
people stay or get into a position where they have
the ability to be successful when they’re out of an
incarceration facility.”43

A Roadmap to Restore Rights and Status After Arrest or Conviction

“[W]hat is the cost-benefit analysis
when we don’t provide
opportunities to individuals, when
we simply judge people based on
these past criminal convictions? . . .
If we don’t provide them with real
opportunities for gainful legitimate
employment, we are putting people
in positions where they may have to
make other choices.”

26

Nicole Austin-Hillery, Director and Counsel
of the Washington Office of the Brennan
Center for Justice (DC Day 3 at 159, 162)

Wayne Rawlins, a community justice and
economic development consultant, testified, “A
person that can get a job, that can pay taxes, that
can feel vested in the community is less likely to
reoffend than someone that doesn’t.” However,
he noted, “the state of Florida has divested exfelons and ex-offenders from feeling invested in
community and society.”44 Bill Evans, who has
worked in Florida law enforcement for 30 years,
says that helping people with convictions
become productive members of society
“is a public safety issue. . . . If your only

skill sets were not the most law-abiding jobs in
the world but you really wanted to change in
your heart, if you got released and you still
couldn’t take care of yourself and feed your
children, would you go ahead and go back to
those things you were doing that would have
put some fast money in your pocket or would
you sit there and continue to let your children
go hungry?”45

he cost savings of allowing
people to earn an honest living
and keeping them out of jail or
prison is staggering. For example, in
2012 Ohio spent more than $49,000
to incarcerate each person in its
criminal justice system.46 A study involving 40 states revealed that the
total taxpayer cost in 2010 ranged
from a low of $76 million in Maine to
a high of well over $3 billion in New
York and Texas.47 As Deputy Attorney
General James Cole stated in a recent speech: “We have a greater percentage of our population in prison
than any other industrialized country,
and the cost to maintain this is unsustainable.”48 For every person who
can hold a job rather than sit in jail or
prison, a state saves not only the
cost of incarceration but also benefits from increased tax revenues and
the individual’s increased earnings.49

T

When Ronald Davis became chief of police for
East Palo Alto, a city once called “the murder
capital of the United States,”50 he believed police departments should be sending parolees
back to prison to keep people safe. A series of
events led Davis to change his approach, and he
soon embraced “the idea of redemption” and the
need for law enforcement to help remove unnecessary barriers to rehabilitation and a law-

abiding life. This led Davis to seek the passage
of legislation creating a day center, run by the
police department, where participants could
earn $10 an hour working for the California
Department of Transportation and get other
services. This effort was successful, and Davis
testified about how homicides went down by
half and recidivism rates plummeted in East
Palo Alto in the years after the implementation
of this program.51 He also described one change
he “didn’t foresee happening”:
The legitimacy of the police department
changed. Instead of being just a tool of
oppression that would incarcerate mass
numbers of these young men of color,
these people saw the officer as part of a
holistic response to treatment, to making
peoples’ lives better. . . . [W]hat we’re
seeing is that it’s a very effective crime
fighting strategy. It goes to the police legitimacy, it goes to the community’s trust
inside the police department, it goes to
giving people an option, it goes to families because a lot of these young men
we’re talking about have kids.52

In every jurisdiction the Task Force visited, law
enforcement officials were coming to similar
conclusions. Vincent Schiraldi was the commissioner of the New York City Probation
Department, which supervises 25,000 people on
probation. He testified about the central role a
probation department can play in advancing
public safety by giving individuals with criminal
records a second chance. The department’s probation officers work with anyone under their supervision who wants and is eligible for a
Certificate of Relief from Disabilities under
New York law, which judges can issue to lift employment barriers. “You’re supposed to get your
[Certificate] out of the box so you can cut hair
legally, and so you can be a security guard and
the hundreds of other things you . . . can’t do if
you don’t have it,” said Schiraldi.53
Gary Mohr, who directs Ohio’s Department of
Rehabilitation and Correction, testified that “at
the end of my time, I want to be measured by
recidivism rate[s].” His vision for his agency is

to “reduce recidivism among those people that
we touch, that includes our 50,000 inmates, our
30,000 on parole, and another 40 to 50,000 offenders that we are working with.”54 Using evidence-based practices to get there, Mohr
supported Ohio’s move to divert thousands of
individuals convicted of low-level felonies from
state prison to community supervision, where
they can get the services needed to overcome
employment and other barriers. For Mohr, it
simply does not make sense to bar for life someone convicted of a felony from a job like the unarmed guarding of a vacant building, without
considering the particular person’s situation.
This is particularly important where “1.9 million or 17 percent of Ohio’s population has been
convicted of a felony or misdemeanor that . . .
carr[ies] some collateral consequences or sanctions.”55 Mohr thus supported the 2011 Ohio
law creating a Certificate of Achievement and
Employability, which offers individuals relief
from Ohio’s many mandatory employment and
licensing bars, so that their applications can be
considered on the merits.56 Shortly after testifying at the Task Force’s Cleveland hearings,
Mohr described the “great feeling” he had signing Certificates, noting how they are “one of
our first steps to address collateral consequences for offenders who are trying to make a
better life for themselves and their families once
they’ve paid their debt to society.”57
This report focuses on legal avenues of relief
from the barriers to full participation in society
for those with a criminal record. Before any reform effort in this area can be successful, the
nation must first come to grips with the insurmountable barriers faced by people with criminal records and how these barriers actually hurt
public safety. This means stepping back to take
a bird’s eye view of the full web of consequences that entrap people just trying to get on
with their lives. The bleak view should convince legislators and policy-makers that, absent
firm evidence that a particular consequence significantly improves public safety and is narrowly tailored to achieve its purpose, the
consequence should be repealed.

A Roadmap to Restore Rights and Status After Arrest or Conviction

27

The Illinois Example: Identifying Employment Restrictions
That Are Unrelated to Public Safety
Recognizing that “[g]ainful employment after release from prison is one
of the critical elements necessary to achieve successful re-entry” and that
“employment has been shown to reduce recidivism,” Illinois legislators
created a task force to identify employment restrictions for individuals
with a criminal history that are not related to public safety.58
The task force recommended “internal review of all licensure requirements [to] determine whether existing restrictions are based on job-related criteria consonant with business necessity.” It also recommended:

28

v In state hiring, asking only about convictions that are related to the particular job and
consistent with business necessity and not asking about any such convictions on the
application itself.
v Banning state agency inquiry into or use of expunged or sealed criminal records or arrest records, with exceptions for certain jobs.
v Uniform procedures for criminal history background checks, with notice of the results
to the individual and an opportunity to be heard about the record’s accuracy and any
lack of nexus to the job.59
These recommendations would apply to employment in the more than 150,000 state jobs
in Illinois,60 and to the many government agencies that issue occupational licenses, certificates, and permits, and that must consider the 318 Illinois statutes with restrictions
based on an applicant’s prior criminal record. Illinois offers bonding for insurance purposes and tax incentives for employers who hire individuals with convictions; the state
also does outreach and provides education to employers and individuals with convictions.61 Carol Morris, statewide program manager for the task force, testified that “[t]he reentry employment service program is designed to support the reduction of recidivism
directly associated with the unemployment rate of the ex-offenders.”62
Attorney General Eric Holder has highlighted the efforts in Illinois when urging state attorneys general to eliminate barriers that do not increase public safety.63 Setting an important example, Holder “called upon all relevant federal agencies to conduct a similar
analysis of current regulations to identify any unintended consequences” and described
how “[w]ithin the Justice Department, we have evaluated more than 200 of our own regulations. And we have identified a number of rules that could be narrowed in scope without negatively impacting public safety.”64

The Need for Data-Driven
Decision-Making
“We actually know virtually nothing about the effectiveness of these different restoration of rights

mechanisms for individuals . . . seeking to improve
their lives,” noted Charles Loeffler, a postdoctoral
scholar at the University of Chicago Crime Lab.65

As with criminal laws and procedures, legislators
often enact conviction-based barriers, in the form

of collateral consequences, based on a single, highprofile incident or a desire to look tough on crime
rather than careful consideration of data showing
that the barrier will advance (or harm) public
safety. Professor Al Blumstein, testifying about
laws that ban a person from a right or benefit for
their entire life, stated: “The statutes get enacted
when somebody did something heinous and then,
as a response, the legislature doesn’t think of the
subtle tension between the social benefits of providing job opportunities and the private risks of
employers or the social or the public risk of someone doing something.” He described how “legislative bodies . . . have lots of knee-jerk responses,
which show up as a forever rule.”66 Since many of
these “forever” rules are retroactive, they apply to
employees who have been in a job for many years,
who will then suddenly lose that job because of an
old, often irrelevant, criminal record.

Instead of such knee-jerk reactions, there must be
evidence-based decisions to determine which consequences actually advance rather than harm public safety and which relief and restoration
mechanisms are most effective. Data is particularly important for emotionally laden issues, such
as laws imposing barriers to re-entry for individuals convicted of sex offenses. Nancy O’Malley,
Alameda County DA and chair of the California
Sex Offender Management Board, noted how
most people are sexually abused by someone they
know and how residency restrictions for those
convicted of sex offenses do little to address this
reality. She testified that “[n]obody wanted to hear
about the humanity of who’s behind the registration. And so . . . we held ourselves out as the experts who could help educate and bring that
evidence-based information to legislators.”67

Since collateral consequences are not intended to
be punishment, legislators should support them
only if there is solid data demonstrating a strong
public safety benefit for such a barrier that outweighs obstacles to reintegration. Professors
Alfred Blumstein and Kiminori Nakamura testified that their research shows how a conviction
becomes less relevant the older it is, and eventually reaches a point where an employer takes no
greater risk hiring that person than any other person. For example, one data point demonstrated

that once a person with a prior conviction has been
arrest-free for 3.8 years, that person’s risk of recidivism drops to the same or lower level than the
risk of arrest in the general population.68 At the
Task Force’s DC hearings, Justice Department official Amy Solomon, who Co-Chairs the Federal
Interagency Re-entry Council Working Group,
testified that “research sponsored by our National
Institute of Justice shows that people who stay out
of trouble for just a few years are largely indistinguishable from the general population in terms of
their odds of another arrest.”69 Such evidence
might also guide states in deciding when to limit
access to and use of criminal records, for example in sealing conviction records after a certain
number of years. Indeed, Massachusetts is one
state that has already done this.70
State and federal governments should fund studies on the effectiveness of different avenues of relief from a criminal conviction to see what works
and what does not. For example, there should be
an examination of whether sealing minor conviction records, combined with banning commercial
distribution of those records, prevents the discrimination that individuals with such records
currently experience. Mark Myrent, Research
Director for the Illinois Criminal Justice
Information Authority, stressed the need to “get
data from the agencies to try to do an assessment
of the impact of these [licensing and employment] restrictions, how many people are employed in these restricted positions, how many
people have applied, how many people have been
turned down because of the restrictions, how
many have applied for various forms of relief,
how many have made attempts to appeal that decision, either administratively or in court.”71 New
York City Probation Commissioner Vincent
Schiraldi raised a similar issue after describing
how much time his officers spend helping probationers get Certificates of Relief from
Disabilities: “Do I know whether getting somebody a certificate of relief is a better use of my
time than these other practices with a lot of evidence? . . . I don’t know the answer to that question. I don’t know if civil sealing would be worth
it. . . . Somebody’s got to research that because if
we don’t, it’s never going to be on the list for
these new probation commissioners to do.”72

A Roadmap to Restore Rights and Status After Arrest or Conviction

29

RECOMMENDATIONS

30

I. The United States should embark on a national effort to end the
second-class legal status and stigmatization of persons who have
fulfilled the terms of a criminal sentence.
v The three branches of government, on the federal, state and local levels, should undertake
a comprehensive effort to promote the restoration of rights and status after conviction.

v This major effort should include enactment of legal mechanisms to circumscribe or repeal
the collateral consequences of conviction and a resolve to stop enacting new consequences.

v Government entities, the legal profession, the media, and the business community must
promote a change in the national mindset to embrace the concepts of redemption and forgiveness, including a public education campaign to combat erroneous and harmful notions
about individuals with convictions.
v The United States and its states and territories should enact legislation establishing a
“National Restoration of Rights Day” to recognize the need to give individuals who have successfully fulfilled the terms of a criminal sentence the opportunity to move on with their lives.
v To support this campaign, defender organizations and offices, individual attorneys and
the legal profession as a whole should:

u propose and support efforts to repeal collateral consequences and to enact effective ways to relieve any remaining collateral consequences;
u participate in efforts to catalogue collateral consequences and make them available in a form that is useful and educational to lawyers, courts, government
agencies, researchers, and the public at large;

u work to change the way people with a criminal record are depicted in the media and
discourage the use of disparaging labels such as “felon” and “criminal” that reinforce fear-inducing stereotypes and perpetuate discriminatory laws and policies;

u participate in efforts to educate the public about the broad range of conduct that
can result in conviction, and the harmful effects of permanently burdening those
who are convicted; and

u support efforts to provide equal opportunity to people with a criminal record,
including in their own employment policies and practices.

As an overarching and guiding principle for the
work that must be done to combat the nation’s
collateral consequences crisis, there must be a
profound sea change in the national mindset regarding individuals with convictions. As a matter
of morality, the United States cannot justify saddling convicted persons with life-altering consequences that extend beyond the fulfillment of the
terms of sentence. As a matter of practicality, the
country must recognize the harm inflicted upon
individuals, families, and society generally by
collateral consequences, some of them imposed
for life, that make it impossible for individuals
with a criminal record to function as productive
members of society. As a matter of law, the
United States must protect against intentional or
unintentional discrimination against poor people
and people of color, who suffer disproportionately under the heavy burden of collateral consequences that effectively extend the criminal
sentence long after it should have ended.

As Luz Norwood, the manager of a
vocational training program for
inmates returning to the community in
Florida, explained:
“[We need a] re-education
process not only of the offender,
but of the employer. It’s just
telling them over and over again
what the person’s skills are, what
an offender can offer. Forget the
word ‘offender.’ Look at this
person as an applicant. Because
there but for the Grace of God,
[go] you or I. It’s that simple. We
have to show more compassion
and educate the community.”73

Collateral consequences are additional punishments, most of which bear no relationship to the
crime. They reach into every imaginable area of
life. A decorated veteran who is not yet a citizen
can be deported for a misdemeanor drug conviction. A mother supporting four children can never
work in a bank because of a shoplifting arrest that
was dismissed. A 75-year-old man with a public

Language Matters: “Person
With a Criminal Conviction,”
Not “Felon” or “Criminal”

“Walmart is hiring a lot
from us,” testified Luz
Norwood, who helps
find work for individuals
involved in the criminal
justice system at
Transition in Florida. But,
she noted, “They call it a
community jobs program
because Walmart will
never call it an offender
jobs program.”76
The labels “criminal,” “felon,” and
even “ex-offender” define a person
by one act and perpetuate negative
stereotypes and societal prejudice
against individuals with criminal
records. It is tempting to use shortcuts to categorize people, but the
disability rights, immigration reform,
and other movements teach the importance of recognizing the humanity of the person behind the label.77
One central component of restoration of rights and status efforts must
be to encourage the press, advocates, and the public to avoid labels
and instead use phrases that describe a person’s attributes or experiences, such as “individual with a
conviction,” “person with a criminal
record,” or, when speaking of convicted persons as a group, “members
of the affected community.”78

A Roadmap to Restore Rights and Status After Arrest or Conviction

31

32

urination conviction in California can never live
in public housing and will be on a public sex offense registry for the rest of his life. In the employment arena, as Mark Myrent, research
director of Illinois’ Criminal Justice Information
Authority, described it, “[t]here is confusing complexity to all these restrictions that becomes rather
nightmarish for both ex-offenders as well as employers.” He testified how “criminal history restrictions on employment have really proliferated
over many years by many entities. And there is not
any single place where they’re really catalogued in
one place where we can get our finger on that.
Typically, they’re spread over numerous chapters
of state laws. They’re buried in agency rules, lost
in obscure agency policy memos as well.”74 In addition to these formal collateral consequences,

people convicted of a crime face informal discrimination from employers, landlords, and neighbors who equate contact with the criminal justice
system with poor character.75 A major national effort currently underway to inventory all collateral
consequences in state laws and regulations — reflected at www.abacollateralconsequences.org —
has identified more than 45,000 separate collateral consequences currently in existence.

While NACDL recognizes that restrictions on
convicted persons may be appropriate where
there is a demonstrable nexus between a recent
crime and a specific benefit or opportunity, even
in those situations society needs to provide avenues for discretionary relief.

Recommendation
II. All mandatory collateral consequences should be disfavored and
are never appropriate unless substantially justified by the specific
offense conduct.
v Legislatures should not impose a mandatory collateral consequence unless its public
safety benefit substantially outweighs its burden on an individual’s ability to reintegrate
into the community.
v For mandatory consequences that can be justified in terms of public safety, sentencing
courts should be authorized to relieve them on a case-by-case basis at sentencing and
while a person is under sentence.

v Any mandatory consequence that is not relieved should automatically terminate upon
completion of an individual’s court-imposed sentence unless the government can prove
a public safety need for its continued application.

State and federal laws and policies have hundreds of mandatory collateral consequences that automatically flow from a conviction without regard to the individual or the circumstances of the conviction. For example, in Virginia there are 146 mandatory consequences affecting employment, ranging
from ineligibility to work for the state lottery to ineligibility to hold a notary commission, and 345
mandatory consequences overall.79 In Ohio, there are at least 533 mandatory consequences, affecting
areas ranging from contracting to child care to driving a truck.80
NACDL urges jurisdictions to follow Attorney General Eric Holder’s recommendation that states “evaluate the[ir] collateral consequences . . . to determine whether those that impose burdens on individuals
convicted of crimes without increasing public safety should be eliminated.”81 Such an analysis will
likely reveal many mandatory consequences that do not have a demonstrated public safety purpose,
supporting NACDL’s recommendation that most mandatory collateral consequences be repealed.

Although repeal of most mandatory consequences
is preferable, NACDL recognizes that there are currently millions of individuals suffering under the
burden of thousands of mandatory consequences.
For this reason, state legislatures and Congress
should pass relief-at-sentencing laws, giving the
sentencing judge authority to remove any mandatory collateral consequence. As Beth Johnson, staff
attorney at Cabrini Green Legal Services, described
it in her testimony to the Task Force, “instead of
legislature[s] amending each and every statute to
have a waiver, you have one law that allows a court
to waive any barrier.”82 The Uniform Collateral
Consequences of Conviction Act (UCCCA)
adopted in 2009 contains such a relief-at-sentencing
process,83 as does the recent revision of the sentencing articles of the Model Penal Code (MPC).84
NACDL commends both of these law reform efforts to state legislatures and to Congress.

An Unfair Mandatory
Public Housing Ban
Congress should reconsider federal law’s mandatory, lifetime disqualification from public housing
for any person who is required to
be on a sex offense registry for his
or her entire life. This mandatory
federal consequence depends on
the state registration law, and so
is unfairly harsh in states that put
more individuals on lifetime registration. In California, every person
on the registry is on for life, meaning that those convicted of public
urination in California are barred
for life from public housing while
those convicted of more serious
violent offenses are not.
New York has had a relief-at-sentencing law for
many years,85 but other states are now following
suit. For example, in 2013, the Colorado
legislature gave its judges the power to enter an
“Order of Collateral Relief” to “relieve a defendant

Repealing Harmful
Collateral Consequences
“In Ohio we found a large
number of sanctions that take
driver’s licenses away [based
on convictions] that have
nothing to do with driving. . .
. [I]t’s tough enough to get a
job, I can only imagine trying
to get a job without a driver’s
license.”
Gary Mohr, Director,
Ohio Department of Rehabilitation
and Correction (Cleveland Hearing
Day 2 at 390)

Many collateral consequences are put
into place in the name of public
safety, on the dubious theory that impairing the rights of individuals with a
conviction will keep them from committing other crimes. But collateral
consequences usually do not advance, and may actually hurt, public
safety by setting up barriers to reintegration and full participation in society after a conviction. Unless a
consequence has a proven, evidence-based public safety benefit
that substantially outweighs any burden it places on an individual’s ability
to reintegrate into the community, it
should be taken off the books.
Congress and federal agencies should
lead the way, repealing laws, regulations and policies that set up unnecessary and harmful bars based on a
criminal record. The federal government can also encourage reform of
state laws, regulations and policies by
directing existing federal resources to
states that reduce harmful barriers
and by withholding resources from
those that do not.

A Roadmap to Restore Rights and Status After Arrest or Conviction

33

34

of any collateral consequences of the conviction, whether in housing
or employment barriers
or any other sanction or
disqualification that the
court shall specify, including but not limited to
statutory, regulatory, or
other collateral consequences that the court
may see fit to relieve that
will assist the defendant
in successfully completing probation or a community corrections sentence.” Colorado judges
may order this collateral relief at sentencing when
it is consistent with the applicant’s rehabilitation;
would improve the applicant’s likelihood of successful reintegration into society; and is in the public’s interest. The judge has the power at any time
to “enlarge, limit, or circumscribe the relief previously granted,” or to revoke it if the person is later
convicted again.86 At the Task Force’s New York
hearings, several witnesses testified about that
state’s Certificate of Relief from Disabilities,
which allows the judge to lift mandatory barriers to
employment and licensing.87 At the Cleveland
hearing, Federal District Judge Dan Polster, who
supervises the re-entry court in his district, testified that he would welcome the authority to relieve
certain collateral consequences at sentencing, including in particular the restrictions on eligibility
for public housing.88

These approaches put mandatory consequences
where they belong: at sentencing. They put the
power of relief into the hands of the person who is
considering the appropriate punishment: the judge.

Voting and Other Civil Rights
Should Never Be Taken Away
An estimated 5.8 million Americans are denied the
right to vote because of a felony conviction.89
Three quarters are no longer incarcerated and a disproportionate number of disenfranchised
Americans are members of minority communities.
In three states alone—Florida, Kentucky, and

Virginia — this shameful vestige of the Jim
Crow laws means that more than one in five
African-Americans is denied the right to
vote.90 Even where voting rights are restored
automatically upon release from prison or
completion of sentence, convicted people are
frequently unaware of this fact and continue
to believe they are disenfranchised.

The denial of voting rights, testified
Dorsey Nunn, executive director of
Legal Services for Prisoners with
Children, “forces me to ask the
question: Am I a citizen or not? And I
shouldn’t be wrestling with that particular
question years after my conviction and
years after completion of my sentence.”91

A criminal conviction should never lead to the loss
of voting rights. Taking away someone’s right to
vote because they were convicted of a crime does
not serve any non-punitive, regulatory purpose,
such as making society safer or protecting against
voter fraud. Maine and Vermont have allowed prisoners to vote by absentee ballot for years. Other
states should encourage this civic engagement as
an important part of the re-entry process.92
Misguided disenfranchisement laws are just one
more example of how this nation is “Out of Step
With the World,” an aptly-titled study revealing that
“[a]lmost half of European countries allow all incarcerated people to vote while others disqualify
only a small number of prisoners from the polls.”93

Millions of individuals are also ineligible for jury
service and to hold public office based on a conviction. These rights should never be suspended
beyond any period of incarceration, except perhaps for convictions directly related to breach of
the public trust.

The Mandatory Loss of the Right
to Bear Arms Should Be
Significantly Circumscribed
Under federal law and the laws of most states, a
felony conviction results in the mandatory loss of
an individual’s right to possess a firearm and am-

munition.94 While there are surely circumstances
when someone otherwise entitled to possess a
firearm should lose that right for at least some period of time, the current approach sweeps far too
broadly. As with other mandatory bars, the lack of
a nexus between the prior criminal conduct and the
risk of harm renders the blanket firearm ban particularly onerous and reveals it as punitive. For example, there is no evidence that prohibiting an
individual with a fraud conviction from possessing
a firearm advances public safety. Indeed, if that individual needs a firearm for his or her livelihood,
the inability to continue in that line of work impairs
that person’s ability to be a productive member of
society. In some parts of the country, firearms are
relied upon to put food on the table.

Along with voting and civil rights, firearms dispossession stands out as a unique restriction on a
right that has been given constitutional protection
by the Supreme Court. Firearm consequences are
particularly severe because failure to comply is a
separate and independant criminal offense. Under
federal law, so-called felon in possession violations are punishable by up to 10 years in prison.95

Under the laws of many states, convicted individuals may regain firearms rights from a court
or an administrative agency. State relief, however,
is not always honored in a sister state96 and may
not relieve the person of federal law restrictions.97
As Professor James Jacobs described it, with respect to relief from this serious consequence, “the
states are all over the map.”98

“[I]f you were to say that a previously
convicted person should not be disabled
from exercising their Second Amendment
rights and if that were to become an
accepted proposition, then a lot of other
things would seem like they would easily
follow. Well, if they are responsible
enough to possess firearms, they’re
certainly responsible enough to work in
pesticide areas.”
Professor James Jacobs,
NYU School of Law (NY Day 3 at 154)

Recommendation
III.

Discretionary collateral consequences should be imposed only
when the offense conduct is recent and directly related to a
particular benefit or opportunity.
v Where a decision-maker is authorized but not required to deny or revoke a benefit or opportunity based upon a conviction, it should do so only where it reaches an individualized
determination that such action is warranted based upon the facts and circumstances of the
offense.

v States and the federal government should develop and enforce clear relevancy standards
for considering a criminal record by discretionary decision-makers, requiring them to
consider the nature and gravity of the conduct underlying the conviction, the passage of
time since the conviction, and any evidence of post-conviction rehabilitation.
v Administrative agencies should be required to specify and justify the types of convictions
that may be relevant in their particular context, and to publish standards that they will
apply in determining whether to grant a benefit or opportunity.
v Benefits and opportunities should never be denied based upon a criminal record that did
not result in conviction.

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35

36

“I committed a felony 29 years ago . . . receiving stolen property,
forgery and theft. That was my crime, and that has haunted me
since the day that it happened,” testified Charles Gunnell. He
described difficulties he has had finding jobs over the years. “You
go through hundreds [of] . . . rejections. I used to keep them all
at one point in time but there were so many, it was taking over
my little space in the house, hundreds of them. People look at
you in a different manner. There is a stigma that goes along with
this and it does lead to . . . a person maybe having feelings of
inferiority or not being equal and . . . puts them in a position a lot
of times where they cannot live to the full potential of their lives.”
Gunnell now mentors younger people, telling them “how they
have to work hard in order to survive in this society which does
not forgive people for criminal records.”99 He added: “In my
instance the person that committed that crime in 1983 is no
longer around, but it does not matter. . . .When I have to disclose
a felony, I am viewed in that circle, that part of society, as a felon.
So it has to change. It has to change.”100

Witness after witness testified about the difficulties individuals with criminal records face in the
employment and housing markets. Yet a job and
a stable home are critical factors in reducing recidivism.101 Everett Gillison, deputy mayor for
public safety and chief of staff for the mayor of
Philadelphia, described several city job training
initiatives for individuals with convictions. He
told the Task Force a story that highlights what
employers can gain by giving people a chance:
“I had a guy who started in our cooking
class that we did. . . [with] ShopRite . . .
[who’s been a] great partner. . . . They didn’t even take the $10,000 [tax] credit.
They were doing it because they said it’s
the right thing to do. The guy . . . passed
a safe food handling course, got his certificate, had a flair for cooking, put him
through another course. He ended up
graduating from that. . . . He was making
$9 an hour. He left that, and he got promoted [and] promoted. . . . He’s now the
head chef at the local university, and they
know he’s a returning citizen, but they
didn’t care because he had the skills.”102

Almost all employers require some or all job applicants to undergo a criminal background

check.103 Employers ask potential employees
about their criminal history to manage the risk
that employees will fail to perform adequately or
engage in misconduct; employers also worry
about being liable for negligent hiring. NACDL
appreciates this concern and recognizes that federal, state and local laws sometimes require an
employer to run a background check.
Individuals with criminal convictions are not a
class that is protected by fair employment laws in
most jurisdictions. However, decision-makers may
not consider an applicant’s criminal convictions in
a way that has disparate impact based on factors
that are prohibited, such as race, sex and ethnicity.
Because restrictive policies based upon arrest and
conviction have long been held to disproportionately affect racial minorities,104 decision-makers
must take extra care when considering the weight
to give an applicant’s criminal record.

The laws of more than half the states provide that
a conviction should be disqualifying only if it is
directly related to the benefit or opportunity at
issue.105 The Uniform Collateral Consequences of
Conviction Act provides that before a decisionmaker imposes a discretionary disqualification, it
should “undertake an individualized assessment”
to determine whether the facts of the offense are

“substantially related to the benefit or opportunity at issue[.]”106 NACDL believes that decisionmakers should never disqualify an individual
from any benefit or opportunity except pursuant
to such an individualized inquiry, using fair and
functional standards.

Employers, occupational licensing boards, housing officials, and private landlords often lack guidance on how to properly exercise their discretion to
consider a person’s criminal record. For example,
a state regulatory board might be authorized to
deny an occupational license or certificate to applicants who lack “good moral character” or are
“unfit or unsuited” to engage in the occupation or
profession. Mark Myrent, Research Director for
the Illinois Criminal Justice Information Authority,
testified that Illinois state agencies do not have a
uniform standard for exercising their discretion in
considering an applicant’s criminal record. Instead,
each agency’s personnel department sets its own
standard. And that standard might come from an
email that a personnel director sent three years ago.
In addition, Myrent noted, “In some instances, it’s
a completely subjective decision where there aren’t
specific offenses that are delineated, but it’s more
of a determination of . . . moral turpitude or something along those lines.” 107

NACDL recognizes that in limited circumstances
there may be a clear relationship between a recent
conviction and the particular benefit or opportunity sought, making discretionary consideration of
a person’s criminal conviction appropriate.
However, jurisdictions should have two things in
place that help ensure the fair, individualized exercise of discretion in a way that does not unlawfully discriminate on the basis of prohibited
factors, and that encourage decision-makers to give
equal consideration to individuals with records.
First, each should have clear, published standards
to guide decision-makers, whether in state law or
in more specific guidance from administrative
agencies specifying the types of convictions that
may be relevant in particular specialized areas.
And second, each should have rules or policies that
prohibit consideration of non-relevant criminal history and effective mechanisms to enforce them.
(See Recommendation VII, below).

Jurisdictions Should Have Clear
Relevancy Standards for
Discretionary Decision-Makers
Two recent, important publications have addressed
standards for employers conducting criminal history checks, both recommending discretionary
consideration of a person’s conviction only when
highly relevant to the job, license, or housing and
when such consideration advances public safety.
In 2012, the U.S. Equal Employment Opportunity
Commission (EEOC) issued “Enforcement
Guidance on the Use of Arrest and Conviction
Records in Employment Decisions under Title VII
of the Civil Rights Act of 1964.”108 In 2013, three
advocacy organizations co-published “Best
Practices Standards: The Proper Use of Criminal
Records in Hiring,” which seeks to “help employers properly weigh adverse personal history to find
those applicants who will contribute most to the
productivity of the organization.”109 NACDL
adopts — and slightly adapts — the recommendations of the Best Practices Standards Report, which
incorporate the EEOC Guidance. These recommendations counsel employers and background
checking companies to:
v Consider only convictions and pending prosecutions highly relevant to the application by
looking at the nature of the conviction, the
time elapsed since the offense, and the nature
of the job held or sought.
v Consider only convictions recent enough to
indicate significant risk and apply a presumption of a non-substantial relationship between
a conviction and an opportunity after a determined period of time.
v Refrain from asking about criminal records on
application forms, postponing any inquiry
until a provisional offer is made.

v Use only qualified Consumer Reporting
Agencies (CRAs), which are regulated by the
Fair Credit Reporting Act and required to
“follow reasonable procedures to assure maximum possible accuracy of the information
concerning the individual about whom the report relates” to conduct record checks.

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37

v Require CRAs to report only recent, relevant
convictions where full name and other identifiers match the applicant; confirm all information from online databases with the
original source; seek the current disposition
of all relevant information; and report all
charges related to a single incident as a single
entry to avoid confusion.
v Provide applicants the opportunity to challenge the CRA’s report.

38

v Consider evidence of rehabilitation from the
applicant, including the applicant’s current
age and the time elapsed since conviction;
facts and circumstances surrounding the conviction, sentence, and parole release; number
of other convictions; age at the time of conviction; pre- and post-conviction employment
history (including post-conviction performance of the same type of work without incidents of criminal conduct); post-conviction
education, training, and alcohol or substance
abuse program completion; references; postconviction bonding for employment under a
federal, state, or local bonding program; and
family stability and responsibilities.
v Minimize conflicts of interest by decisionmakers by training human resources staff and
maintaining a diversity program.

Although the Best Practices Standards Report
and EEOC Guidance do not discuss the effect
to be given relief such as pardon or certificates
of good conduct, those may give the applicant a
presumption of suitability for the benefit or opportunity despite any criminal history. New
York is one state whose law incorporates such a
presumption where the discretionary decisions
of public agencies and private employers are
concerned.110

Best “Ban-the-Box”
Practices
Many public and private employers require people to check a box on an initial application disclosing whether
they have any convictions, and some
even ask about arrests. Thanks to this
little box, most people with a criminal
record do not even get a foot in the
door. They never even get an interview. The box discourages many people with convictions from applying.
But 10 states and more than 50 cities
and counties now recognize that this
is a bad way to do business and that
it harms the local economy.111 These
jurisdictions have taken the initiative
and banned the box asking about
criminal history, postponing any inquiry until a later stage in the process.
Some jurisdictions have extremely limited “ban-the-box” policies that apply
only to state employment and allow
government interviewers to ask about
criminal history as early as the first interview. Best “ban-the-box” practices
do more. They do the following:
v Apply statewide

v Apply to both public and private
employers
v Prohibit criminal history
questions until the employer
extends a conditional job offer

v Have standards limiting criminal
history inquiries to recent
convictions with a business
necessity nexus to the job

Continued on next page

Continued from previous page
v Pair the ban with immunity from
negligent hiring for employers
who follow the rules
v Encompass landlords as well as
employers

In 2013, the EEOC endorsed ban-thebox policies in its guidance for considering arrest and conviction records
in employment decisions.112 In
California, former East Palo Alto Police
Chief and Interim Mayor Ronald Davis
supported a bill to ban-the-box
statewide, because it “allows people
with a conviction history to compete
fairly for employment without compromising safety and security on the
job.”113 In New York City, even though
the Department of Probation has an
exemption from the state’s “ban-thebox” law, Commissioner Vincent
Schiraldi followed the policy “for all
our non-public safety jobs, which we
have a lot of, secretaries, . . . IT people.” The agency also requires its vendors to ban the box, hire from the
neighborhoods where probationers
come from, and hire “credible messengers.” Schiraldi testified that this
approach means “that a lot of the
people in our vendor pool have priors.”114 In 2013, Target, the nation’s
second largest retailer, banned the
box on its employment applications.115 Private employers need to
follow Target’s lead and stop asking
about criminal history on initial applications, even when not required to
do so by law.

Public and Private Housing
Should Be Reopened to
Individuals With Convictions116
“Not only are you restricted from
government housing, but there are
numerous homeowners’ associations
that include that provision in their
bylaws. . . . [B]asically, [a conviction]
would prevent you from renting or
even owning a house if you have not
had your civil rights restored.”
Desmond Meade, President,
Florida Rights Restoration Coalition.117

David Rosa administers the permanent supportive
housing program at St. Leonard’s Ministries in
Chicago. He discussed the importance of stable
housing for individuals with convictions and the obstacles they face getting that housing. Because of
highly restrictive public housing policies, his organization has “had individuals who couldn’t stay
with their grandmother on the premises even though
they wanted to go there to look after her . . . . [T]hey
couldn’t do that because of fear that [housing officials] would kick their grandmother out.” Rosa,
who has been out of prison since 1999, was
turned down for several apartments until “[s]omeone came and talked for me to a landlord, and
they gave me the opportunity to have my first
apartment . . . I was ecstatic to have my own
place. Now, I own my own home.”118

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39

40

Public housing consists of Section 8 vouchers
for private housing and public housing units.
Both are governed by federal law and regulation, but local Public Housing Authorities
(PHAs) administer these programs and enjoy
enormous discretion to set policy and make decisions in individual cases. Federal housing law
currently requires PHAs to impose mandatory,
lifetime bans on access to public housing in two
circumstances: (1) for individuals convicted of
producing methamphetamine at a housing authority property and (2) for individuals subject
to a lifetime sex offense registry.119 PHAs must
also deny an application if any household member was evicted from public housing based on
“drug-related criminal activity” during the past
three years, although there is limited discretion
to lift this denial.120

Federal regulations also authorize local PHAs
to evict or deny housing when any household
member is or within a “reasonable time” of application has been engaged in (1) drug-related
activity; (2) violent criminal activity; or (3)
“[o]ther criminal activity which may threaten
the health, safety, or right to peaceful enjoyment
of the premises by other residents or persons residing in the immediate vicinity” or threaten the
owner or others working on the premises.121

These regulations grant PHAs broad discretion
to bar entire households even when no one in
the household has been convicted of a crime,122
making standards for and limits on discretion
particularly important. Roberta Meyers, director of the National HIRE Network, testified
how “[i]t’s haphazard. The policies differ all
across the country. You can go housing authority by housing authority, and you’ll have a different policy.”123
NACDL recommends the following to help
open up public housing and protect against unlawful discrimination:

v HUD should issue uniform national standards to PHAs about how to weigh a conviction record, including evidence of
rehabilitation, in order to allow greater
access to public housing. The eight points

for general standards for discretionary decision-makers described above should apply
to landlords and housing officials as well as
to employers and licensing boards. In addition, private landlords and PHAs must comply with the Fair Housing Act and other
federal housing laws, applicable state housing law, and Department of Housing and
Urban Development (HUD) regulations and
policies. HUD’s Office of Fair Housing and
Equal Opportunity and the Department of
Justice should fully enforce any disparate
impact or other housing complaints under
applicable laws.

v HUD should end its “One Strike Policy,”
which gives PHAs discretion to evict or
deny housing to an entire household if any
household member or guest violates local
policy, even if the rest of the household is
unaware of that member’s violation.124

v Local PHAs should heed HUD’s recent
reminders that PHAs have broad discretion to allow individuals with convictions
and their families into public housing in
appropriate cases. Pamela Lawrence, a
public housing revitalization specialist and
grant manager at HUD, testified that in 2011
and 2012, HUD sent letters to all PHAs to
remind them that they had broad discretion
to extend housing to more individuals (although these letters also noted the two
mandatory bars to public housing).125 Even
so, she noted the persistent problem of misinformation at the local level. “Locally, the
communication that goes to applicants and
housing advocates is that Federal
Government disallows us from leasing to
criminals who have misdemeanors and
felon[ies],” she stated. So it is “key that you
understand where the authority lies when attempting to try to influence new policy for
admissions and evictions as it relates to
those with criminal histories.”126

“[Landlords] need to be mindful
about what . . . information
they’re asking about; what are
they looking for, first, and
then not make some snap
judgment that anyone
with a felony, we don’t want to talk to.
That makes no sense given the number of
people who have had a conviction in the
United States. You’re cutting out a huge
part of your potential market who may be
very good, responsible tenants.”
Rebecca E. Kuehn, vice president and senior
regulatory counsel for Core Logic’s “SafeRent”
tenant screening company (SF Day 1 at 109)

In the area of private housing, there is much
work to be done. Rebecca E. Kuehn, vice president and senior regulatory counsel at Core
Logic, a large data company that performs
background checks, testified about her company’s nationwide “SafeRent” tenant screening
company. SafeRent clients “do criminal background checks to . . . look . . . for history of violent crimes, drug-related crimes, and
sex-offender status. . . . [T]hey are interested
in frequency, recency, and severity.”130 One important service that her company provides is to
“filter out anything except for what you’re
looking for. In other words, if we find a felony
that meets your criteria, we will report that. But
if it’s a misdemeanor or another type of charge
that doesn’t meet your criteria, that won’t get
conveyed to the local rental office so that you

Best Public Housing Practices in
New Orleans and New York City
Some local public housing authorities (PHAs) are recognizing the unfairness and damage done to families when policies are too restrictive towards individuals with convictions. They are finally starting to follow HUD’s repeated suggestions that they make
their local housing policies less restrictive. There are now 24 PHAs with programs that
serve individuals with convictions in different ways, including transitional living to reunite women with their children, policies that allow people with a conviction to live
with their families already in public housing, and a few places that set aside units for
new leases for individuals with convictions.127
A recent Housing Authority New Orleans (HANO) policy announced that “[o]ther than
the two federally required categories, no applicant [for housing] will be automatically barred from receiving housing assistance because of his or her criminal background . . . . We are taking the necessary steps to . . . make sure that those with
criminal activity in their past who now seek productive lifestyles have a shot at a new
beginning.” HANO also banned the box asking about criminal convictions on its own
employment applications and has opened up its procurement process in a similar
manner.128
In late 2013, the New York City Housing Authority (NYCHA), which houses more than
400,000 residents, announced a two-year pilot program to allow 150 people coming
out of prison to return to or enter public housing with their families. The program requires participants to work with social service providers to find jobs, get necessary
substance abuse counseling, and meet other needs.129 While this very small program
cannot fully address an enormous problem in New York City, it is a promising development on the public housing front.

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41

don’t have a risk, which is a legitimate concern,
that your local rental officer is engaging in
their own judgment based on what they see as
a criminal record.”131

To help open up private housing and protect
against unlawful discrimination, private landlords should follow the general standards for
discretionary decision-makers described above,
including the use of federally regulated Credit
Reporting Agencies for any background
checks. Although not currently required to do

42

so by law, landlords should notify applicants
before taking any adverse action based on a
criminal record, and should give the applicant
an opportunity to correct any errors and provide evidence of suitability despite the
record. 132 Further, housing advocates should
make people aware of the Consumer Financial
Protection Bureau’s list of screening companies
that provide free reports to consumers, so individuals can correct any errors on those reports
before applying for housing.133

Recommendation
IV.

Full restoration of rights and status should be available to
convicted individuals upon completion of sentence.
v After completion of their sentence, individuals should have access to an individualized
process to obtain full restoration of rights and status either from the executive or from a
court by demonstrating rehabilitation and good character.

v The relief process should be transparent and accountable, and accessible to those without means.
v Standards for relief should be clear and attainable, high enough to make relief meaningful but not so high as to discourage deserving individuals.

v A pardon or judicial certificate should relieve all mandatory collateral consequences, and
decision-makers should give full effect to a pardon or judicial certificate where a collateral
consequence is discretionary.
v A jurisdiction should give its residents with convictions from other jurisdictions access to
its relief procedures and recognize relief granted by other jurisdictions.

“[E]ven if we assume that legislators and judges and prosecutors are all acting in good faith, . . . we still are going to have a
need for the pardon power because there are still going to be
mistakes that are made. There are still going to be circumstances
where we look back in hindsight and say, well, maybe that made
sense when it was done, but with the passage of time, with the
change of circumstances, that’s something we ought revisit.”
Sam Morison, former staff attorney, Office
of the Pardon Attorney, U.S. Department of Justice134

Yet the pardon process has atrophied in many jurisdictions, and nowhere more lamentably than at
the presidential level. For jurisdictions with
meaningful certificate laws, individuals do not
seek them enough, judges do not grant them
enough, and decision-makers do not rely on them
enough to give opportunities to qualified individuals with convictions.

The Pardon Process Should
Be De-Politicized so
That Pardons Are Granted in
Appropriate Cases
“[Certificates of relief from disabilities]
should be presumptive at sentencing.
If the prosecutor wants to raise an
objection, they’re more than . . .
welcome to. I’m sure that that actually
would be very seriously taken into
consideration. . . . People would get
[certificates] by the boatloads if they
were presumptive, but right now,
because the burden is on the
defendant, they’re just not getting
them a lot at sentencing.”
New York City Probation
Commissioner Vincent Schiraldi135

Every jurisdiction allows individuals to seek
restoration through a pardon process. Some also
have certificates to relieve particular consequences
or to demonstrate good conduct. These case-specific restoration avenues vary greatly from jurisdiction to jurisdiction, and the Task Force heard
testimony about many different forms of such individual relief. As Sam Morison, former staff attorney in the Department of Justice’s Office of the
Pardon Attorney, testified, “There has to be some
practical mechanism somewhere for people to get
relief. We simply have . . . this growing body of
people, hundreds of thousands, maybe millions by
now, who are suffering under potentially lifetime
disabilities without any real practical mechanism
in many cases for getting relief from those disabilities. That’s not a sustainable situation.”136

Obama’s Unpardonable Neglect of Clemency.137
The Quality of Mercy Strained.138 Governor’s
Pardon Power Used Too Rarely.139 Arizona
Prisoners Rarely Granted Clemency.140 As these
recent media headlines suggest, most governors
have shown little interest in exercising their pardon power.141 At the federal level, the pardon
power has atrophied. Jorge Montes, former
chair of the Illinois Prisoner Review Board,
suggested that to encourage more chief executives to use their pardon power, “[l]et’s give them
more cover to go on, and then let’s encourage
them to be better leaders . . . by . . . highlighting
great cases of people who turned their lives
around and what they’re doing with their lives
today. . . . And I think society will begin to understand that people need a second chance or a
third chance.”142
For a restoration avenue with so little likelihood
of actual relief, the pardon application process
can be onerous and complicated. It took Johnnie
Jenkins, who now works as a township employment manager in Lake County, Illinois, seven
years to finally get a pardon from Illinois Gov.
Blagojevich, though she was one of the lucky
ones. 143 As current Gov. Pat Quinn’s general
counsel testified, former Gov. Blagojevich left a
backlog of 2,500 pardon applications.
Committed to eliminating the backlog, Gov.
Quinn had acted on over 1,500 petitions during
the first two years of his term.144

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43

NACDL recommends that the state and federal
pardon processes be made more transparent and
accountable, and that grants be made generously
pursuant to clear standards:

v The pardon process, at both the presidential
and gubernatorial levels, should be handled
by an independent executive office and
staffed by attorneys with diverse backgrounds
and professional experience.

44

“Begin a process, devote the resources,
educate the public, and do it.”
Former Maryland Governor Ehrlich’s
advice to executives dealing with
clemency petitions (DC Day 2 at 121)

v Pardons should be considered an integral part
of the criminal justice system, and should be
used to offer relief and restoration of rights to
individuals demonstrating need for such relief.

v In the many states and the federal system
where pardons are rarely if ever granted, the
pardoning authority should reinvigorate the
pardon process and grant pardons to deserving individuals.

Two Successful Approaches to the Pardon Process
Former Maryland Gov. Robert Ehrlich testified about his success in normalizing the pardon process in Maryland through ground rules and guidelines. “We only took referrals
from the Maryland Parole Commission,” explained Ehrlich. “I had five lawyers, direct reports to me, in the Office of Counsel, Governor’s Counsel. I fully had two and a half of
those folks on a daily basis devoted to this project, to clemency, to commutations
and pardons. . . . We established a process . . . of monthly meetings. I would be presented with 30 to 40 petitions a month.”145 Governor Ehrlich attributed his successful
use of the pardon power to a non-political commission for petition consideration, a
regular monthly review process, and open communication with the press. He observed
that “voluminous pardons with very little notice at the end of [the gubernatorial or
presidential] term typically end up in really bad [press] stories and tend to tarnish your
legacy as an executive as well.”146 Instead, Ehrlich was “able to de-politicize [pardons]
at the very beginning of the process by stating a policy which read ‘we will only take
referrals from the Parole Commission.’ So you had that first level and no bypass. So
everybody knew that’s where they had to begin.”147
Connecticut takes a different approach and vests the power to grant pardons in an administrative agency rather than the governor. In 2004, the state legislature delegated
this power to the Connecticut Board of Pardons and Paroles. Chairperson Erika Tindill
described the Board’s structure: “There are currently five pardons officers in the unit.
I have a manager in the unit . . . and they process, give or take, 1,000 applications a
year.” With “about a 50 percent grant rate,”148 Connecticut successfully uses an administrative agency to grant relief.

All Jurisdictions Should Offer
Certificates of Relief from
Collateral Consequences
Although the pardon power clearly needs reform
and reinvigoration, it is unrealistic to expect pardons to function as a primary avenue of relief from
a conviction. Several states have recently joined
New York in enacting certificates of relief administered through the courts or the correctional system, including Illinois, North Carolina and Ohio.149
The Uniform Collateral Consequences of
Conviction Act also provides a comprehensive
“Certificate of Restoration of Rights,” which lifts
most mandatory collateral consequences and also
serves to signify a person’s good conduct for a significant period of time after completion of sentence.150 All jurisdictions should offer this type of
comprehensive post-sentence relief from collateral
consequences, however it is denominated.
Certificates should be available for all convictions
and should have clear, objective eligibility standards. Jurisdictions establishing or reviewing a certificate law or program must consider such key
elements as: Who qualifies? What, if any, waiting
period is there after conviction or the completion
of sentence? In addition to lifting specific legal disabilities, what does this relief signify about the recipient’s character?

Which institution is best suited to grant certificates
— the judiciary, the correctional system, or both?
NACDL believes that certificates can best address
the problem of mandatory consequences and
stigmatization where relief comes from the courts,
as the case of Darrell Langdon (discussed above at
page 22) illustrates.151 During the Task Force hearings, judges from the state and federal bench testified that they believed restoration of rights was
an appropriate function for courts.152 The role of
the courts in granting relief from collateral consequences is highlighted in the recent revisions of
the sentencing articles of the Model Penal Code.153

Defense counsel in criminal cases should make
clients aware of any available certificate, and
should help clients seek them at sentencing or, if
possible, thereafter. The federal government,
states, and localities that fund indigent defense

should make funding available for representation
in connection with certificates. Judges at sentencing should make defendants aware of available
certificates and should grant them to eligible defendants unless the government objects and there
is good cause to deny the certificate. In addition,
prison officials should provide information on
restoration of rights mechanisms upon an inmate’s
release from prison, as should officials overseeing
parole, supervised release, and probation. Further,
there should be no fees for certificates. Employers
and other decision-makers should not be permitted
to ask about any conviction where a certificate has
been granted, and credit reporting companies
should not be permitted to report them.

“It would be appropriate for there to be
end of parole ceremonies, where you say
to the parolee congratulations, you
finished your term of parole. . . . Here is
your voting certificate, if you’re in a
jurisdiction where you can’t vote while
you’re on parole. Here is something.
Here’s your family. Here’s your applause.
You did it. You’re back. . . . There’s a
graduation. . . . [T]he restoration of status
as programmatic and policy and a sort of
symbolic activity . . . is very important.”
John Jay College President
Jeremy Travis (NY Day 1 at 79-81)

Jurisdictions should carefully consider the best
way to promote certificates, so that people know
about them, officials grant them, and decisionmakers take them into consideration when deciding whether to offer a person with a
conviction an opportunity or benefit. For example, Jorge Montes, former chair of the Illinois
Prisoner Review Board, testified that while there
have never been many certificates granted in
Illinois, the numbers dropped to only 10 in a period of two years once they were moved from
the Review Board to the courts. Montes believes
this drop took place in part because courts “are
not in the business of promoting these things,”
and will not “promote the certificates the way
the Prisoner Review Board used to promote

A Roadmap to Restore Rights and Status After Arrest or Conviction

45

them.”154 On the other hand, Montes pointed
out, “The court’s imprimatur on something is a
lot more powerful.”155

Several witnesses suggested that a ceremony to
mark the occasion of the end of a criminal case
might be appropriate. Jurisdictions might consider the granting of a certificate as a time to
hold such a ceremony. Glenn Martin, vice pres-

ident of the Fortune Society and a person with
a conviction, testified how sentencing serves to
remind us “that being found guilty of a crime in
the U.S. is met not only with direct punishment
meted out by the courts but also coupled with a
deliberate devaluation of one’s civil status.
Unfortunately, we have no similar ceremony
post-conviction to return people to their prior
role as full-fledged citizens.”156

Recommendation
46

V. Congress and federal agencies should provide individuals with
federal convictions with meaningful opportunities to regain rights
and status, and individuals with state convictions with mechanisms
to avoid collateral consequences imposed under federal law.
v Congress should expand diversion and deferred adjudication options that result in dismissal of federal charges after completion of all conditions, and federal prosecutors should
be encouraged to offer them wherever appropriate.
v Individuals convicted of federal crimes should have an accessible and reliable way of regaining rights and status through enactment of a federal judicial certificate that relieves consequences of a federal conviction and through reinvigoration of the federal pardon process.

v Congress should enact meaningful record-sealing laws, modeled after successful state
sealing and expungement laws.

v Congress should authorize federal courts to dispense with mandatory collateral consequences arising under federal law that apply to individuals with federal convictions.
Congress should authorize state courts to grant relief from mandatory federal collateral
consequences. By the same token, state legislatures should provide individuals with federal convictions a way to avoid consequences arising under state law.
v Federal courts and agencies should recognize and give the same effect to relief granted
by state courts and executive officials as state authorities give that relief.

v Federal agencies should provide incentives to encourage private employers and state agencies to offer equal opportunity to persons with a criminal record.
v The federal government should fund research into the ways that various avenues of relief are or are not working to help individuals reintegrate into society and lower recidivism rates.

This nation’s collateral consequences crisis is a civil rights problem in need of a coordinated national solution. Presidents Barack Obama and George W. Bush have spoken up in support of giving people a second chance.157 Attorney General Eric Holder has been consistent in his support for
reducing barriers to re-entry. In a 2014 speech, the attorney general emphasized how “we must
never hesitate . . . to enable those who have paid their debts to society to become productive cit-

izens; to make our criminal justice expenditures as smart and productive as possible; and
to ensure that 21st century challenges can be
met with 21st century solutions.”158

These officials must go beyond speeches and
act to help individuals avoid unnecessary convictions and collateral consequences and gain
the restoration of their rights and status. There
has been some recent positive movement, particularly at the federal agency level. For example, in 2011 the attorney general assembled a
Cabinet-level Interagency Re-entry Council to
promote a federal effort aimed at reintegration
of individuals returning from prison back into
their communities.159 Amy Solomon, who cochairs the Re-entry Council’s staff-level working group, testified at the Task Force’s District
of Columbia hearings, and described the
Council’s efforts “to remove the federal barriers to re-entry, barriers to employment and
housing and federal benefits such as food assistance, TANF [cash assistance], veterans benefits and Social Security.” 160 Some federal
agencies have encouraged employers and public housing officials to put less emphasis on an
individual’s criminal record.161 Yet there is still
much work to be done with respect to the hundreds of federal laws, regulations and policies
that set up harmful barriers for individuals with
criminal records.

In addition, federal officials must turn their attention to the federal criminal justice system,
which lacks viable avenues of relief from a federal conviction. Individuals with federal, military, and District of Columbia Code convictions
have even more limited access to relief from collateral consequences than individuals with state
convictions. Unlike many state systems, there is
no expungement, sealing, or certificate of relief
from disabilities for federal and military convictions, or even for non-conviction records.

Presidential pardons, the only avenue for relief
from federal convictions, are rarely granted.
President Obama has approved less than four
percent of pardon applications he has acted on.162
The current presidential pardon system must be
reformed so it sets a national example and offers

applicants a true chance at mitigation of our
harsh federal sentencing laws. Sam Morison, a
former staff attorney in the U.S. Department of
Justice’s Office of the Pardon Attorney, testified
that the real problem is not political, but inheres
in the culture of the Justice Department’s pardon
program. “It’s not that this [pardon] is too risky,
[that] it can’t be done. . . . It’s really a cultural
problem. If we tell ourselves we can’t do it, it becomes a self-fulfilling prophecy.”163 The inadequacies of the current system can be addressed
either by creating a new procedure within the
White House to review and process pardons or
by undertaking major reforms if the procedures
remain within the Department of Justice. As this
report went to press, the Obama administration
announced a clemency initiative that will provide
an opportunity for the commutation of sentences
for those whose sentences would be shorter
today, due to changes in statutory law, charging
policy or case law. Significantly, however,

“To be abundantly clear, the NAACP
supports federal and state initiatives to
re-enfranchise all ex-offenders once they
leave prison. At the heart of this
debate . . . is, of course, the [ideas of]
rehabilitation, democracy, and fairness.”
Hilary O. Shelton, Director of the NAACP’s
Washington Bureau, Senior Vice President for
Policy and Advocacy (DC Day 3 at 83)

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47

48

as worthy as this initiative
may be, it does not address restoration of rights.
As Deputy Attorney
General James Cole made
clear, sentencing commutations do not amount to
pardons or forgiveness.
Congress must expand opportunities for relief and
restoration by giving sentencing judges the power
to relieve collateral consequences at sentencing and
by creating a federal certificate of relief from disabilities.

Kemba Smith, whose sentence was commuted by
President Clinton in 2000,
has faced numerous barriers, including difficulty
finding housing. Asked
what she would say in a
face-to-face meeting with
President Obama or
Attorney General Holder
about the federal pardon
process, Smith told the
Task Force: “I would basically say how . . . we
want to feel whole.”
Further, “we should all
believe in redemption,
and once a person has
served their time, proved
themselves to society
above and beyond . . .
people [should] . . . be
able to move forward and
have a clean slate. I think
that people should be afforded that opportunity.”164

Legislating Forgetting and Encouraging
Forgiving in the Electronic Era
Many people who testified before the Task Force
grappled with the complexities and difficulties of
having so many people in the United States with
some type of criminal record in this electronic
age. Some preferred an approach that legislated
forgetting, such as sealing and expungement of
records and prohibitions on employer inquiry
about non-recent convictions. Others saw this as
a lost cause in an era where technology allows no
secrets, and urged an approach that encourages
individuals to acknowledge their past but move
beyond it, seeking forgiveness and demonstrating redemption.
“All the evidence points to the fact that time
matters. People age out of crime, and there’s a
certain point where a person is no longer a
threat. . . . And after a certain period of time,
the record shouldn’t exist. It just should not
exist. It’s the easiest solution. It doesn’t require
people to have compassion or forgive. . . . [I]t
requires them to not have the information, and
if they don’t have the information, they can’t
make decisions based on it. If the research
proves that that’s a safe thing to do, it’s the
easiest thing to do. I think expungement after a
period of time is the way to go.”
Vivian Nixon, executive director,
College & Community Fellowship165
“I’m firmly in the camp of forgiveness as opposed
to forgetfulness. I’m a technologically aware
person. Forgetfulness just can’t work. There are
too many holes in the dam. We can’t plug them
all. It just won’t work.”
Stephen Johnson Grove, deputy director of policy,
Ohio Justice and Policy Center166

“[T]here has to be sealing and expungement of convictions that are remote
in time. The research tells us that these convictions do not predict a
person’s likelihood to engage in crime. . . . [O]ur clients tell us . . . unless
people are told they have to forget, forgiveness is an illusion.”
Ann Jacobs, director of the prisoner reentry
institute, John Jay College of Criminal Justice167
“I always liked the idea of expungement after a certain period of time. I think
the forgetting is more important than the forgiving. Do you know what I
mean? I mean, nobody is asked to forgive anybody, but to forget so that the
person can get on with their life.”
Judge Matthew D’Emic, New York State Supreme Court168
“[Y]ou can’t legislate what’s in people’s hearts in the first instance, but when
you force people to deal with each other and accept people based on
reality instead of preconceived notions, over the course of generations, you
do, in fact, provide the mechanism to change hearts. So it’s a long process,
but if we legislate forgetting, we might get to a place where our
grandchildren can forgive.”
Judy Conti, federal advocacy coordinator,
National Employment Law Project169
“[T]he people that we’re talking about and trying to help, they’re sort of in
between forgetfulness and forgiveness as well. I think there are a lot of
people, if you sort of sit down and talk with them will say, you know, that
wasn’t me 15 years ago, here’s who I am now, judge me by this standard,
don’t judge me by that standard. . . . I think for some people, it’s not an
element of forgiveness. . . . [T]hey’re not that personal. They want to just
move forward from this point forward. So it’s a really interesting framework,
forgetfulness versus forgiveness, but it’s a very complicated question once
you get down to talking to people, and I think . . . there’s not a clear answer.”
Peter Willner, senior policy analyst,
Center for Court Excellence170
“I maintain that everything has a philosophical beginning. We practice many
forms of religion in our country, but to a large extent, we are a Christian
nation. . . . But at the base of Christianity is this concept of redemption. I
mean at the base of it is the idea that there can be redemption. . . . If we have
this redemptive notion, then it would say to me is that we believe that
people can be transformed.”
Congressman Danny K. Davis, Illinois171

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49

Recommendation
VI.

50

Individuals charged with a crime should have an opportunity to
avoid conviction and the collateral consequences that
accompany it.
v Diversion and deferred adjudication should be available for all but the most serious
crimes, and prosecutors and courts should be encouraged to use them.

v Successfully completed diversion and deferred adjudication conditions result in an eventual
non-conviction disposition, and non-conviction dispositions should never trigger any collateral consequences.
v Sealing or expungement should be available for all successfully diverted or deferred prosecutions, and decision-makers should be barred from asking about or using these non-convictions.
v Where avoidance of a conviction is not feasible, all parties should take collateral consequences into account at every stage of the case:

u Defense lawyers should advise clients charged with a crime about potentially applicable collateral consequences and assist them in exploring opportunities to
avoid them through creative plea bargaining and effective sentencing advocacy;
u Prosecutors should structure charges and negotiate pleas to allow defendants to
avoid severe collateral consequences that serve no public safety purpose; and
u Courts should ensure that defendants have been advised about applicable collateral consequences before any guilty plea or trial, and should take collateral consequences into account at sentencing.

The best way to relieve a person of the many harsh consequences of a criminal conviction is to avoid
the conviction in the first place. There are far too many charges brought in the nation’s criminal
courts, and far too many individuals with criminal records in this country. While there is great need
for reform at the policing level to stem this flood into courts at its inception, once a case is in court,
individuals should have the opportunity to avoid a conviction by satisfying appropriate conditions.

There are two general ways to avoid a conviction once charges are filed. Diversion or deferred prosecution is usually controlled by the prosecutor and involves a pre-plea agreement with conditions of fulfillment. A deferred adjudication may or may not require an up-front guilty plea, with the judgment or
execution of the judgment suspended to give the defendant an opportunity to complete terms of probation.172
Successful completion of either diversion or deferred adjudication conditions generally leads to dismissal

of the charges, and thus no conviction. Another approach is to “knock down” a felony conviction to a
misdemeanor upon successful completion of probation, as California has permitted for many years
with its so-called “wobbler” offenses (Cal. Penal §
17(b)(1) and (b)(3)), and as Colorado and Indiana
have recently made a part of their new relief
schemes (Colo. Rev. Stat. § 18-1.3-103.5 and Ind.
Stat. § 35-50-2-7(d)). However, dismissal does not
always mean the defendant can seal or expunge the
record, and even where sealing or expungement is
available, it is not generally automatic.

“[W]e shouldn’t discuss, think about,
imagine remedies for convictions
without first looking at,
acknowledging, asking how the
conviction came to be in the very first
place. . . . . If there were no
conviction in the first place, there
would be no problem with what to
do after the conviction.”
Professor Steve Zeidman,
CUNY Law School173

Although most states have some form of diversion or deferred adjudication (but not the federal
criminal justice system, other than for a first misdemeanor drug possession), many are limited in
the types of charges that qualify.174 Such mechanisms should be more broadly available to more
defendants. Further, prosecutors and judges must
make greater use of existing diversion and deferral mechanisms to give more individuals the opportunity to earn an eventual dismissal. It is
significant that in recent reforms addressing collateral consequences, many have expanded the
menu of non-conviction options.

Judge Paul Biebel, who presides over the
Criminal Division of the Cook County Circuit
Court in Illinois, explained why his jurisdiction’s
“delayed not guilty” approach actually offers
more structure than a conviction, and the benefit
of giving individuals relief from collateral consequences. Under this approach, a defendant is “on
supervision, maybe [with] some conditions for a
year, and at the end of the year, you’ve done what

they said, it’s a not guilty, the case is dropped, but
it’s expungeable, it’s not a conviction.” By contrast, Judge Biebel stated, “In that very same case,
if that magic word, supervision, wasn’t used and
you had a $20 fine, you had a straight conviction,
and I can’t give you the [expungement] relief.”175

Model Legislation: A new
Colorado law authorizes prosecutors to establish pretrial diversion for all but specified
serious sex offenses, where successful completion means dismissal and no conviction. The
law’s stated purpose is “to ensure defendant accountability
while allowing defendants to
avoid the collateral consequences associated with criminal charges and convictions.”176
Another Colorado law requires
judges to reduce low-level
felony drug convictions to a misdemeanor conviction if the defendant successfully completes
probation and meets other
statutory conditions.177 The legislature described the law as a
way “to reduce the significant
negative consequences of [a]
felony conviction” and to provide “an additional opportunity
for those drug offenders who
may not otherwise have been
eligible for or successful in other
statutorily created programs
that allow the drug offender to
avoid a felony conviction, such
as diversion or deferred judgment.”178 Of course, Colorado
prosecutors and judges have to
use these laws in order to fulfill
their intended purpose.

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A Cautionary Tale
About Diversion

52

Deferred or diverted charges or prosecutions may
still lead to certain consequences, even where
state law does not treat the deferred charge as a
conviction. For example, courts have found that
“a first-time simple drug possession offense expunged under a state rehabilitative statute is a
conviction” under federal immigration law,
meaning that it can still lead to mandatory deportation.179 Even some “youthful offender” adjudications have been deemed “convictions” for
immigration law purposes.180 In some states, convictions that are “set aside” may still be considered for such things as recidivist sentencing

statutes or driver’s license suspension.181 For example, under federal banking law, a misdemeanor
shoplifting charge that is dismissed under a diversionary statute without any admission of guilt
can result in a 10-year ban from any type of employment — from a teller to a janitor to a thirdparty vendor — at any bank or other
FDIC-insured employer.182 Such was the case of
Jennifer Smith, who sued the bank for rescinding
the employment offer. While her lawsuit was unsuccessful, Federal District Judge Jack Weinstein
criticized both her defense lawyer for failing to
warn about the consequence of accepting diversion and the option of applying for a waiver of
the employment bar, and the federal law that frustrated her “second chance for a lawful life.”183

Recommendation
VII. Employers, landlords and other decision-makers should be
encouraged to offer opportunities to individuals with criminal
records, and unwarranted discrimination based on a criminal
record should be prohibited.
v There should be meaningful tax credits for hiring or housing those with convictions.

v There should be free bonding to provide insurance covering employee dishonesty for those
who hire individuals with convictions.

v Decision-makers should be immune from negligent hiring liability relating to an opportunity or benefit given to an individual with a conviction if they are in compliance with
federal, state, and local laws and policies limiting the use of criminal records and with
standards governing the exercise of discretion in decision-making.
v Jurisdictions should enact clear laws prohibiting unwarranted discrimination based upon
an individual’s criminal record, and should provide for effective enforcement and meaningful review of discrimination claims.

Jim Andrews, who owns Felony Franks and other Chicago businesses, hires many people with criminal records because he sees the benefit of offering such opportunities. He testified about the work ethic
of individuals with criminal records and how they “work harder. They have to prove themselves to society. They come in. They work very hard to prove themselves.”184 Government at all levels must find
creative ways to give employers, landlords and other decision-makers affirmative incentives to offer
opportunities to those with convictions.

Decision-Makers That Make
Responsible Hiring Decisions
and Comply with Laws Limiting
Access to and Use of Criminal
Records Should Be Immune from
Negligent Hiring Liability
Luz Norwood was asked if giving employers immunity from negligent hiring liability would help
her re-entry program place people. “That is the
first issue that we get” from employers, she testified, stating that immunity “would be another
tool. Absolutely.”185

Some employers are concerned about being sued
for negligent hiring if they hire individuals with
criminal records. Landlords and other decisionmakers may have similar concerns. There is no evidence that such lawsuits are common, and indeed
they appear to be quite rare.186 However, to take
this obstacle off the table, decision-makers who
follow non-discrimination and any other applicable law, regulations or policies for the exercise of
discretion and limiting the access to and use of
criminal records should be immune from negligent hiring and other liability for offering an opportunity or benefit to an individual with a
criminal record. A number of states already offer
different versions of such immunity.187

Employers Who Hire or House
Individuals with Convictions
Should Get Meaningful Tax
Incentives and Bonding for
Insurance Purposes
The federal government currently offers the Work
Opportunity Tax Credit, up to $2,400 per employee, to employers hiring a person convicted of
a felony who is recently released from prison.188
There is also a federal bonding program providing insurance for employee dishonesty to similarly
encourage employers to offer opportunities.189

Several states and localities also offer tax incentives and bonding to employers hiring people
with criminal records. For example, Carol Morris

testified about the Re-entry Employment Service
Program she managed for the state of Illinois. It
offers tax incentives and bonding for insurance
for employers who hire individuals with convictions, and does outreach and education to employers and individuals with convictions.190
However, the Task Force heard testimony from
Everett Gillison, deputy mayor for public safety
and chief of staff for the mayor of Philadelphia,
that many employers do not take immediate advantage of tax and other hiring incentives.191 Tax
incentives must be meaningful to attract employers and data must be collected to see if they are
working to open up more opportunities for applicants with criminal histories. If so, federal, state,
and local governments should extend these incentives to private landlords who offer housing
to individuals with convictions. Any tax or bonding incentive should be available only to those in
full compliance with federal, state, and local laws
and policies limiting the use of criminal records
and with standards governing the exercise of discretion in discretionary decision-making.

Jurisdictions Should Prohibit
Discrimination Based on an
Individual’s Criminal History and
Effectively Enforce Such
Prohibitions
Only four states have comprehensive laws prohibiting discrimination against individuals with
criminal records in licensing and in public and
private employment. New York, Wisconsin and
Hawaii include these prohibitions in their fair employment law; Pennsylvania does not, however,
have any mechanism for administrative enforcement of its law, leaving enforcement to the courts
through any lawsuits filed.192

Patricia Warth, co-director of justice strategies at
the Center for Community Alternatives, testified
that “since the early 1970s, New York State has
led the nation in enacting and implementing legislation and polices that discourage employers
from discriminating against people with past
criminal justice involvement.”193 A variety of

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53

New York laws combine to:

v Prohibit employers and licensing agencies
from rejecting an applicant based on a conviction unless there is either a direct relationship between the conviction and the specific
job or license sought or granting the license or
employing the person would involve an unreasonable risk to property or the safety of individuals. The “direct relationship” test is set
out in eight factors related to the applicant, the
job duties and the conviction.194

54

v Allow a limited “safe harbor” against negligent hiring claims for employers who document their compliance with the law.195

v Prohibit employers from asking about or considering applicants’ sealed arrests or conditionally sealed convictions.196

v Offer Certificates of Relief from Disabilities
and Certificates of Good Conduct that relieve
mandatory barriers to employment and create
a presumption of rehabilitation under the state
fair employment practices law.197
v Offer state law protections that supplement
federal Fair Credit Reporting Act protection
for individuals when an employer relies on a
private background checking company to take
an adverse action.198

“So we’re fortunate to be in a state [New York]
that has these protections that most states do not
enjoy,” testified Sally Friedman, the legal director of the Legal Action Center. “The challenge,
of course, is in the enforcement, and I think that
employer awareness of the laws has improved
in the last few years, especially since a law was
created to require employers to give employees
copies of the law. But the law is routinely violated, and employers sometimes have explicit
policies about not hiring people with felony convictions or other types of convictions.”199
In addition to including provisions like those listed
above from New York, non-discrimination laws
should include civil penalties for any violation and
should be rigorously enforced by an appropriately
funded agency. For example, the EEOC recently
filed lawsuits against the automaker BMW for its
blanket exclusion of employees with criminal
records and against Dollar General for revoking a
job offer to a woman convicted of drug possession.
In both cases, the EEOC alleges that the companies improperly used criminal background checks
to bar potential employees, resulting in a disparate
impact on African-American applicants.200

Finally, non-discrimination laws should
clearly prohibit discretionary decision-makers
from inquiring about or considering a non-conviction record.

Recommendation
VIII. Jurisdictions should limit access to and use of records for nonlaw enforcement purposes and should ensure that records are
complete and accurate.
Accuracy of Records

v State repositories, court systems and other agencies that collect criminal records should
have in place mechanisms for ensuring that official records are complete and accurate,
and should facilitate opportunities for individuals to correct any inaccuracies or omissions in their own records.

v Records must be provided in a form that is easy to understand and that does not mislead.
v Records that indicate no final disposition one year after charges are filed should be purged
from all records systems.

v The FBI must ensure that information
relating to state relief, such as expunged and sealed records, is reflected
in its criminal record repository.

Access to Records

v State and federal authorities should
limit access to their central repositories
to those with a legitimate need to know.

v Court records should be available only
to those who inquire in person, in order
to balance public access to records with
privacy concerns for individuals with a
criminal record, and access to online
court system databases should be
strictly limited.
v Law enforcement records (non-judicial) should never be publicly disseminated.

v Criminal records that do not result in
a conviction should be automatically
sealed or expunged, at no cost to their
subject.
v Jurisdictions should prohibit non-law
enforcement access to conviction
records after the passage of a specified period of time, depending upon
the nature and seriousness of the offense, and should authorize courts to
prohibit access in cases where it is not
automatic. Any exceptions should be
justified in terms of public safety, and
persons who disclose records in violation of limitations on access should be
subject to substantial civil penalties.

Use of Records

v Employers and other decision-makers
should be prohibited from asking about
or considering a criminal record to
which access has been limited by law or
court order.
v Employers should be prohibited from
inquiring about an applicant’s criminal

record until after they make a contingent offer of employment.

v For accessible records, decision-makers
should follow applicable standards for
the exercise of discretion and non-discrimination laws in considering any
relevant and recent criminal records.

Data Company Regulation

v Jurisdictions should never sell criminal
records and should strictly regulate
private companies that collect and sell
records.
v Federal law should be amended to prohibit credit reporting agencies from reporting any record of a closed case that
did not result in conviction, or any
record of a conviction that is more than
seven years in the past.
v States should enact their own restrictions on credit reporting companies to
the extent permitted by federal preemption.
v Jurisdictions should provide for effective enforcement of laws governing
credit reporting agencies.

Criminal records are everywhere, and they are not
just used for law enforcement purposes or to
check someone’s prior criminal history for charging or sentencing decisions. Some state court systems put them online.201 Large private data
companies use them to do background checks for
employers and landlords.202 A variety of
“mugshot” websites post arrest photos and information and then charge individuals seeking to
take down erroneous records.203 With a few
clicks, people can view photos of those on the sex
offense registry in their zip code through a state
website204 or can get on a commercial site to run
a quick check on someone they want to date.205
Yet many of these sources have incorrect information about a person’s record, and they are also
sometimes used for unlawful purposes. To protect individuals from these problems, and to help

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55

people move beyond their convictions, in this
section NACDL offers a number of recommendations to promote accuracy in as well as limits
on accessing, using, and selling criminal records.

56

This country’s long tradition of constitutional protections surrounding full and open access to court
proceedings and records further complicates the
matter. But there is a balance that can and should
be struck between the public’s right to know about
an individual’s criminal record and society’s interest in allowing people to move on and protecting
those whose arrests never lead to a conviction.206
Jurisdictions should develop policies that limit access to and use of criminal history records for nonlaw enforcement purposes in a manner that
balances the public’s right of access to information
against the government’s interest in encouraging
successful reintegration of individuals with records
and individuals’ privacy interests.207

Official Records Must Be
Complete, Accurate and
Easy to Understand
With approximately one in four adults in the
United States having an arrest or conviction
record, the implications of the various uses of
these records are enormous. Yet the FBI’s criminal
record repository, which with 70 million unique
sets of fingerprint files is “the largest biometric
database in the world . . . and is the most comprehensive single source of criminal history data in
the United States,”208 is notoriously inaccurate and
incomplete. About half of the records in the FBI
database “are incomplete and fail to provide information on the final outcome of an arrest.”209
The FBI database was used for almost 17 million
background checks for employment and licensing
in 2012 and, with more than 1,600 state laws mandating FBI background checks, this number is sure
to remain high.210 State criminal record repositories, which the FBI uses to compile its data, are
only somewhat better, with state rates for reporting final dispositions on an arrest record ranging
from 60 percent to 80 percent.211
As an important new report noted, “The failure to
update records to reflect the outcome of a case fol-

lowing the report of an arrest is hardly inconsequential.” Approximately one in three felony arrests never lead to a conviction. For individuals
who are eventually convicted, “nearly 30 percent
were convicted of a different offense than the one
for which they were originally charged, often a
lesser misdemeanor conviction.” Finally, there are
cases that were “overturned on appeal, expunged,
or otherwise resolved in favor of the worker without ever being reflected on the FBI rap sheet.”212

Indeed, a number of witnesses described such
problems. NYC Probation Commissioner
Vincent Schiraldi testified about how cleaning
up rap sheets is important for individuals under
his department’s supervision: “Stuff is on there
that people didn’t get convicted of. They go to
court with four felonies. They get convicted of
one misdemeanor. All four felonies are still on
their rap sheet. . . . Either a clerk didn’t do what
they were supposed to do or DCJS didn’t do
what they were supposed to do. I don’t even care
who’s at fault, though. We’re just trying to come
out the other end with a clean, correct rap
sheet.”213 Ron Tonn, chief operating officer of
the North Lawndale Employment Network in
Illinois, when asked whether his organization’s
clients are ever victims of faulty background
checks, stated that it “happens all the time.” The
re-entry collaborative that he works with is thus
recommending “more strict enforcement of the
guidelines that govern those private organizations that conduct background checks and make
them accountable for false information or illegal or improperly disclosed information when
that handicaps somebody in their job search.”214
Rebecca E. Kuehn, vice president and senior regulatory counsel at Core Logic, testified about her
company’s nationwide “SafeRent” tenant screening company. While Kuehn’s company, unlike
some others, gets records directly from courthouses around the nation, she noted that “[t]he
real challenge for SafeRent [and] for anybody
who deals in criminal records is that there seems
to be an uneven availability of [expungement and
sealing] orders and an uneven updating of the
criminal records themselves where expungements
are affected.”215 In addition, the company will
pick up — and thus pass on to landlords — in-

formation about a pardon, a Certificate of Relief
from Disabilities, or another similar certificate
only if that “information is captured within the
criminal record system as associated with the
consumer and is available within the public
record,” meaning that it must be on the same
docket as the original charges and conviction.216

ground checks require more complete inquiry,
there is much to commend in this bill that would
bring more accuracy and efficiency into the FBI
records system. Also introduced in 2013, the
Accurate Background Check Act would require
the FBI to find missing information on past arrests for individuals applying to work in the federal government.219

Limiting Access: Sealing or
Expungement Should Be
Available for All Non-Conviction
and Some Conviction Records

“[T]here is a simple and effective solution
to the serious problems with the FBI
database: clean up the records
before they are sent to the agencies
that rely on them to make hiring and
licensing decisions.”
Wanted: Accurate FBI Background
Checks for Employment at 7
(National Employment Law Project 2013)

There is some movement towards change. Two
bills introduced in Congress in 2013 seek to reform how the FBI collects and shares criminal
record information, recognizing the major problems caused when employers doing background
checks get inaccurate or overbroad information.217 The Fairness and Accuracy in
Employment Background Checks Act aims to
clean up incomplete FBI background checks for
employment. For example, the FBI would have
to remove from its database any arrests that are
more than a year old that do not have a disposition reported, as well as “non-serious” juvenile
and adult offenses. Supporters of the Act note
how the FBI is able to quickly track down incomplete records when conducting background
checks for firearms purchases.218 Although
firearms checks end with the first disqualifying
conviction while mandatory employment back-

In the electronic era, it is difficult, if not impossible, to truly hide arrest and conviction records
from public view. Even if a person’s court record
is sealed, his mug shot may be on the Internet.
Even if an arrest was never prosecuted, the local
newspaper story of that arrest may come up in a
Google search. Still, limiting access to criminal
records through sealing or expungement rules can
be of great benefit to individuals seeking equal
opportunities in employment, housing, education,
and other core areas. For example, if an individual has a sealed misdemeanor conviction and is
in a jurisdiction that successfully regulates credit
reporting agencies (CRAs) so that they remove
sealed records from their databases, employers
will not see that sealed record when they run a
criminal background check through a CRA or
when they directly check court records. That individual will then have an equal opportunity to
compete for that job. This example illustrates how
several sources of regulation are needed to make
limited access to records meaningful.

Using a dictionary definition, when a record is
expunged, it is destroyed; when it is sealed, it is
not publicly accessible. However, in almost
every state “expunged” records are still on the
books and available at least to law enforcement
and sometimes even to the public.220 Since these
terms are variously defined in different states, it
is important to read the relevant statute closely
to determine whether and to what extent a particular record is truly withheld from public view
or destroyed. Beth Johnson, an attorney at
Cabrini-Green Legal Aid in Chicago, told the

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57

Task Force how Illinois’ sealing statute offers
limited relief to her clients: “Any agency that by
law has to conduct a background check has access to a sealed record. And even in Illinois, if
your conviction is pardoned, they say you can
expunge it, but it’s only sealed. It is still released
to anyone that does a fingerprint-based background check.”221

58

Despite these thorny issues relating to sealing and
expungement, several states have recently considered or passed laws that limit access to records,
including conviction records, through some type
of sealing or expungement. For example, the chief
justice of New York State’s high court, in his 2014
State of the Judiciary address, announced:
I will shortly be submitting legislation to
make New York’s criminal history record
policies fairer and more rational. First, the
proposed legislation will expunge, by operation of law, a misdemeanor conviction
of an individual who has not been re-arrested within 7 years from the date of such
conviction. Second, it will permit a court,

upon application and in the interest of justice, to expunge a non-violent felony conviction if the applicant has no previous
felony convictions and has not been re-arrested within 10 years of the date of the
felony conviction or release from incarceration, whichever is later. This expungement will result in the sealing of all court
and related law enforcement records.222

Many states limit access to conviction records.
Twenty-two state laws provide some way to expunge a variety of misdemeanor convictions and
a limited number of felonies — often non-violent,
non-serious, felonies.223 Eight other states allow
certain records to be sealed.224 Though any limit
on access to criminal records is significant to individuals with records, most current laws require
applicants to wait for years, often more than 10
years after completing a felony sentence without
obtaining any new charges, before the applicant
can apply to have the record expunged or
sealed.225 Four jurisdictions limit eligibility for
expungement based on the age of the applicant
when the offense was committed.226

Indiana’s Significant New Law Limiting Access to and
Use of Criminal Records, Including Conviction Records
In 2013, the Indiana Legislature enacted a comprehensive scheme offering significant
protections for individuals with criminal records.228 Under the new Indiana law, nonconvictions and most conviction records are eligible for expungement, which imposes
strict limits on the use to which the records can be put. In addition, once expunged,
non-conviction and misdemeanor records are sealed from public view. Eligibility waiting periods range from one year (for non-conviction records) to five years (for misdemeanors and less serious felonies) to eight or 10 years (for more serious felonies).229
The only felony convictions not eligible for expungement are those involving serious
violence, official misconduct, human or sex trafficking, or sex crimes. The term “expungement” is somewhat misleading, as felony records are marked “expunged” but
“remain public records.”230 But importantly, any expunged conviction — whether hidden from public view or not — is subject to a number of protections in Indiana, including prohibitions against discrimination based on the conviction, with criminal
penalties for such discrimination; prohibitions against asking a person about an expunged record, although it is permissible to ask about an arrest, which is highly problematic; full restoration of all civil rights, including firearm rights under state law;
protections from liability for decision-makers in lawsuits alleging negligence;231 and
prohibitions on credit reporting agencies publishing expunged records.232 The procedures for expungement are relatively straightforward, and the court system has posted
sample expungement petitions online.233

“In the last 10 years, I have
done approximately 40,000
expungements or sealings in
chambers. We hear them
every day in my court. We
have two afternoon calls on
Tuesdays and Thursdays every
week where other judges
hear these. . . . And I tell you
this: I am rigorous in my
examination of these people.”
Presiding Judge Paul Biebel,
Cook County Circuit Court,
Criminal Division.227

Congressman Danny Davis, who
represents Illinois’ 7th District, told
the Task Force that he has “testified
for a number of people who have
been trying to get their records expunged. And some of the things for
which they were tried, convicted,
and have a record are just unbelievable.” Davis told the story of a
“young woman who has a doctoral
degree from the University of
Illinois, and she had gotten into an
altercation on behalf of her boyfriend
at a football game, and she couldn’t
get a teaching certificate because she
had a conviction and she couldn’t do
a lot of things. And she was one of
the brightest people that I’ve known,
and rational, logical, but she and her
boyfriend had gotten into this altercation with the security guard at a
football game, and they were
charged with disturbing the
peace.”234 Ohio State Senator Shirley
Smith, explaining legislation she introduced that would allow expungement of multiple felonies, “[w]hen
they’ve paid that time, I expect that
they should come out and become a
citizen, a normal citizen, but that’s
not what happens.”235

Non-Conviction Records Should Be
Automatically Sealed or Expunged,
and Decision-Makers Should Be
Prohibited from Asking about Them
“When [employers] run the background check,
it’s the case numbers that come up, [and] . . .
they don’t really care what happened. All they
know [is] that you were arrested for this
offense. And they don’t look at the next line,
they just stop right there. . . . Why does it have
to be on the arrest record, why? If it was
thrown out, why are you saving it for later?
What are you saving it for? And that’s the
biggest issue that I run up against.”
Johnnie Jenkins, a township employment manager in
Lake County, Illinois, testifying about how an arrest
record can unfairly haunt a person.236

The presumption of innocence is a bedrock principle in the American criminal justice system. Without
a conviction, a judge cannot impose a sentence.
Similarly, a case that is closed without a conviction
should end the matter of any collateral consequence. There are no strong practical or political
objections to closing off non-conviction records
from public view.
Non-conviction records should be:
v Automatically sealed or expunged upon the conclusion of the matter, with no need to apply or
to pay a fee; and
v Inaccessible to non-law enforcement entities except with a court order, and not subject to inquiry for any purpose. Further, law enforcement
access to non-conviction records should be
strictly limited to instances where there is a substantial public safety need for the information.
Non-conviction records include: arrests that never
become criminal charges; charges that are dismissed
before or after a plea or trial; juvenile delinquency
adjudications;237 and convictions that are vacated or
reversed on appeal and not reprosecuted.238

A Roadmap to Restore Rights and Status After Arrest or Conviction

59

Although sealing and expungement may or may
not be sufficient to allow individuals effective relief from a conviction, they are an important part
of a necessarily multi-faceted approach.

There are also law enforcement records that are
not official court records, such as sheriff’s booking photos. These should never be made publicly
available through online databases.

60

Limiting Use: Use of
Criminal Records Should Be
Limited Whether or Not
Access Has Been Limited
If a criminal record is inaccessible under a jurisdiction’s law or a court order, then employers
and other decision-makers should be prohibited
from asking about it or considering it, unless
specifically authorized by law. For example,
under Illinois law expunged or sealed records
“may not be considered by any private or public
entity in employment matters, certification, licensing, revocation of certification or licensure,
or registration.” There are exceptions for public
school employment as well as employment for
which a background check is required by state
or federal law.239
Even when records are accessible under the relevant law, decision-makers should follow applica-

ble standards of relevance and the requirements
of non-discrimination laws in considering any
criminal records (standards of relevance for discretionary decision-makers are set out in detail in
Recommendation III).

Regulating Access: Jurisdictions
Should Never Sell Criminal
Records and Should Strictly
Regulate Private Companies That
Collect and Sell Records
There are essentially two types of private companies that collect and publish criminal records.
Large data collection companies generally run
background checks for employers, landlords and
other entities that are required or allowed to consider a criminal record. These companies are regulated by the Fair Credit Reporting Act (FCRA) as
Consumer Reporting Agencies. Many of these data
brokers have their own databases that they fail to
update by removing expunged or sealed cases.
These databases must be tightly regulated, with the
goals of accuracy, transparency and better enforcement of the law. The second type of company,
so-called “mug shot websites,” are operated by private entities that gather information from a variety
of publicly available sources, including law enforcement agency sales and Freedom of
Information Act requests. While restrictions on

Requiring Data Companies to Update Their Records Regularly
to Omit Those That Have Been Expunged
The Administrative Office for Pennsylvania Courts has a unique approach to pushing
data brokers to remove expunged cases from their databases. While Pennsylvania takes
the unfortunate step of selling its records to bulk data companies, it makes updating
a term of the contract. Pennsylvania also provides the industry with a list of expunged
cases. While some brokers have ignored these lists, Pennsylvania’s approach is a step
forward in the fight to keep records accurate and current.243 A pending bill in Texas
would create a list of database companies so that notices of expungements can be directed to them.244 Some of the more responsible data-resellers refresh their databases
periodically by downloading court data in full on a regular basis. This helps ensure
that expunged records don’t reappear. Courts should require anyone who gets bulk
data from them to follow this practice and should impose penalties against those that
fail to do so.

these types of websites raise some unresolved constitutional questions,240 there are nonetheless steps
that can be taken to limit their harmful effect.

“Florida law clearly states that most
juvenile records are confidential, including
juvenile arrest records. Unfortunately . . .
[the] Florida Department of Law
Enforcement has taken the wrong
position that the statute that applies to
them allows them . . . not only to release
the record, but to charge for the record. .
. . A misdemeanor charge, you could
actually, right now, purchase every
juvenile record for 24 bucks in the state
of Florida, even if it was a seven-year old,
even if it was dismissed. It doesn’t matter.
You can get the record.”
Carlos Martinez, Public Defender for Miami-Dade
County (Miami Day 1 at 150)

Courts, law enforcement, and central record
repositories should not sell any criminal records,
although they might collect administrative fees to
cover costs of maintaining records from those

who are allowed access based on a legitimate
need to know about a record. Jurisdictions should
ban the sale or dissemination of any arrest
records, except for law enforcement purposes,
and should strictly enforce such bans.242

“[I]t was only a matter of time before the
Internet found a way to monetize the
humiliation that came with an arrest.”
New York Times article discussing
“mugshot” websites241

The Fair Credit Reporting Act, which regulates
Consumer Reporting Agencies (CRAs) that sell
criminal records, should be amended to reinstate
a bar on reporting convictions that are more than
seven years old; delete the provision allowing
CRAs to report arrest records within seven years;
and prohibit CRAs from reporting any conviction
that lacks a final disposition. The Federal Trade
Commission and the Consumer Financial
Protection Bureau, which both enforce the
FCRA, should strengthen enforcement efforts.
States without a fair credit reporting law should
enact one and enforce it against companies providing criminal background information.

Recommendation
IX.

Defense lawyers should consider avoiding, mitigating and
relieving collateral consequences to be an integral part of their
representation of a client.
v Avoiding, mitigating and relieving collateral consequences at every stage of a criminal
case should be an integral part of a defense lawyer’s representation of a client.
v Defense lawyers should assist clients in obtaining relief from the court at sentencing
and during the period of the sentence.

v Defense counsel should advise clients about available post-sentence relief, and wherever
feasible they should assist clients in seeking such relief.
v If representation is not feasible, defense counsel should refer clients seeking post-sentence
relief to organizations or individuals that can provide such representation.
v Agencies that fund indigent defense services should make resources available for representation in connection with seeking restoration of rights and status.

A Roadmap to Restore Rights and Status After Arrest or Conviction

61

“I’ve had a lot of conversations with public
defenders and other criminal defense
attorneys who do not think re-entry is
their work and don’t see why it’s so
important. . . To be a really good criminal
defense attorney, you need to know what
the re-entry consequences are.”
Eliza Hersh, Director, Clean Slate Practice, East
Bay Community Law Center245

62

Defense counsel have both an opportunity and an
obligation to help clients avoid or mitigate collateral consequences at the front end of the criminal process and to relieve them at the end of the
process. In order to optimize defense counsel’s
role, NACDL recommends the following:

To Help Clients Avoid
and Mitigate Collateral
Consequences, Counsel Must
First Understand Which
Consequences Apply to
Which Convictions
Bar associations and defender organizations and
offices should sponsor, and counsel should participate in, trainings and continuing legal education
about collateral consequences.246 Counsel should
also make use of available resources that compile
information on potential collateral consequences.
For example, the American Bar Association maintains a National Inventory of Collateral
Consequences that can be accessed online,247 and
state websites list requirements for occupational
licenses.248 Counsel should use this data when advising about collateral consequences that may
matter to the client. Dennis Terez, the federal public defender for the Northern District of Ohio, testified to the importance of using his state’s
collateral consequences database when counseling clients: “That tool is huge, in that in a glance
you can see, at least on a state level, . . . what that
conviction will mean to that person’s life.”249

Defense Counsel Must Learn
about Which Consequences Are
Important to a Particular Client
Defense counsel should interview clients for detailed background information so that the effect
of particular collateral consequences can be fully
explained to and considered by the client before
any final disposition.

Defense Counsel Should Fully
Advise Clients about All
Potentially Applicable Collateral
Consequences Well in Advance
of Plea Negotiations, And
Should Discuss Available Relief
after Conviction
“[W]e would like those people who stand
behind us and argue for our liberties and
our rights to tell us as much of the truth . . .
they know. . . . [T]he decisions that we’re
making when we’re standing beside you
to take a bargain . . . not only impact the
amount of time that we serve, it impacts
the rest of our entire lives. It impacts our
children’s lives, and it impacts our
grandchildren’s lives.”
Dorsey Nunn, Executive Director,
Legal Services for Prisoners with Children
(SF Day 1 at 15-16)

Nellie King, president of the Florida Association
of Criminal Defense Lawyers, stressed the importance of discussing the consequences of a
plea, especially those related to immigration,
early: “I have asked the public defender in our
circuit on this issue of deportation, since they’re
the first people that come in contact with these
folks, to . . . [inform individuals that] you do have
rights and that your immigration consequences
can be affected by anything you say and do in this
building and after you walk out of it.”250
Counseling must also include the longer term

consequences of any conviction, particularly in
the area of employment where many clients may
not be aware of the myriad formal and informal
barriers based on a criminal record. This counseling process must include explaining to clients
that a time-served plea is not without consequence. Kionne McGhee, a defense attorney in
Florida, explained that “[i]f you get credit for
time served on a felony charge without even serving a day in jail, you’ve essentially lost your civil
rights here within the state of Florida because that
is a conviction without serving one day in jail. . .
. [I]ndividuals who simply, because [] they didn’t want to miss work, they decided to take a simple plea of credit time served, which in the end
has come back to haunt them tremendously.”251

Defense Counsel Should
Assist Clients in Obtaining Relief
from the Court at Sentencing
and During the Period of the
Sentence
Counsel should advise clients about available
post-sentence relief, including sealing, expungement, certificates of relief or good conduct, and
pardon. Whenever feasible they should assist
clients in seeking such relief. If representation is
not feasible, they should refer clients seeking
post-sentence relief to organizations or individuals that can provide such representation.

“I would like to . . . reinforce the notion
[that the] front-end players have to take
responsibility for what’s happening to
people on the back end, and we can’t
think that it’s just the responsibility of
probation and parole.”
April Frazier Camara, Director,
Community Re-entry Program,
D.C. Public Defender Service252

Defense Counsel Should
Assist Clients in Cleaning up
Erroneous Or Incomplete
Criminal Records and in Sealing
And Expunging Eligible Records
Carey Haughwout, the public defender for Palm
Beach County, recommended conducting a needs
analysis of convicted clients so that they can work
toward rehabilitative next steps while incarcerated. She also helped create a system “in each of
the public defender offices so [that] they can get
warrants withdrawn, clean up records, [and] figure out what needs to be done so that when [an
individual] walk[s] out of the doors, they really
can feel that they are free.”253

Jurisdictions Should Extend the
Right to Counsel to Indigent
Defendants Charged with Any
Crime, as All Levels of Conviction
Can Result in Serious Collateral
Consequences
Adam Monreal, chair of the Prisoner Review
Board for the state of Illinois, testified about the
far-reaching consequences of not having access
to counsel: “Many people who have never been
involved in the criminal justice system plead
guilty to minor misdemeanors without ever consulting an attorney and are unaware of the legal
consequences surrounding that conviction. Many
people believe that they can pay a fine or plead
guilty for the time served, believing that they are
done with the criminal justice system.
Unfortunately, they are awakened to the harsh realities concerning their conviction and their criminal record.”254 Similarly, Steve Zeidman, a
professor and director of the Criminal Defense
Clinic at CUNY School of Law, testified that serious collateral consequences can “flow from
misdemeanor convictions, even from convictions
on reduced charges, whether they’re called violations or offenses. . . . [It] seems to me [this] is
the greatest problem concerning post-conviction
rights and status. It’s true the majority of these

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63

cases do not involve jail or prison. So you’re not
talking about re-entry in that way, but they impact people’s lives. . . .”255

The Federal Government, States
and Localities That Fund
Indigent Defense Services
Should Make Resources
Available for Representation in
Connection with Restoration Of
Rights and Status

64

Vincent N. Schiraldi, New York City’s probation
commissioner, testified about the importance of
Certificates of Relief from Disabilities in allowing individuals to obtain jobs and become licensed: “This is completely roulette. If you’re
lucky enough to have a lawyer that pays attention
to this, you may get one. If you’re lucky enough to
have a judge that’s sort of on it, you get one. . . .
If you don’t get it out of the chute, you have to
go back to court. . . .”256 Cook County Circuit

Court Presiding Judge Paul Biebel testified: “I do
know the [public defender] is not involved in the
expungement process because it’s a civil entity,
and they can’t by statute in Illinois do that.”257
Other states, including California, permit public
defenders to assist with the restoration process.258
Aleem Raja, deputy public defender for the city
and county of San Francisco, testified that the city
funded his office’s “Clean Slate” program because it agreed that facilitating re-entry and employment for released prisoners would be a net
financial gain.259 If there is any law or policy disallowing defender office involvement in the
restoration process, or limiting funding for such
involvement, defenders should challenge it for violating the Sixth Amendment right to counsel and
the principles set out in Padilla v. Kentucky.

Defender offices also should collect data related to
avenues of relief from convictions, relief representation and client demand, and the effect of barriers
to relief and the restoration of rights and status.

Recommendation
X. NACDL will initiate public education programs and advocacy aimed
at curtailing collateral consequences and eliminating the social
stigma that accompanies conviction.
NACDL resolves to use all of its resources, particularly the dedication of its members who are on the
front lines fulfilling the mandates of the Sixth Amendment, to implement the preceding nine principles.
The nation’s criminal defense bar must be in the vanguard of the effort to make the full restoration of
rights and status after conviction a reality for all who successfully fulfill the terms of a sentence.
NACDL’s leadership on this issue will include engaging with the bar to ensure that all actors in the system, including defense counsel, prosecutors and judges, recognize that they have a duty to promote the
restoration of rights and status. This effort will also include proposing new, and refining existing, professional standards of practice and ethical rules.

After more than three decades of enormous growth in America’s highly punitive criminal justice system,
the nation is starting to appreciate the many short- and long-term problems produced by overcriminalization and mass incarceration. People from all walks of life and across the political spectrum — liberal,
conservative, activists, law enforcement, corrections officials, labor unions, and others — are coming
together to call for reform of the nation’s criminal justice system.260 Policy-makers at the state and federal levels are reconsidering current charging and sentencing practices in an attempt to be “right on crime”
or “smart on crime.”261 Slowly and through the misfortune of millions of individuals and families, the
United States is recognizing that “success” in the criminal justice system must be defined as “improving
public safety without needless social costs.”262

NACDL and the defense community will help
create and lead a national movement to be smart
and right about what happens after the criminal
case ends, working to repeal or modify collateral
consequences that serve no justifiable public
safety purpose and to ensure accessible, effective
avenues of relief from conviction-related legal
disabilities and stigma. The media has highlighted stories of people unfairly denied jobs because of a dated arrest record or faced with
deportation because of a decades-old misdemeanor conviction.263 Legislators have started to
act, passing the Second Chance Act in 2008 to

fund agencies and organizations that help people
returning home after incarceration.264 Two 2013
bills seek major reform in the way the FBI collects and shares criminal record information.265
States all over the nation — from Georgia to
Colorado to New York — have passed or are
considering legislation to deal with the crisis created by massive numbers of individuals whose
criminal records have made them second class
citizens.266 NACDL will work to see these and
other similar reform measures enacted throughout the country to realize America’s promise as
the land of second chances.

65

A Roadmap to Restore Rights and Status After Arrest or Conviction

CONCLUSION

66

Overcriminalization and overincarceration tell only part of the story of the “War on Crime.”
Through this destructive war, the nation has also systemically demonized individuals with convictions, branding them as “criminals” who must be relegated to second-class citizenship long after
their sentence ends. This troubling trend has resulted in thousands of laws, regulations and policies
at the federal, state and local levels that require or allow employers, licensing agencies, landlords,
and other decision-makers to discriminate against applicants with criminal records. In addition,
the thick web of barriers to work, housing, education, and other aspects of daily life falls particularly heavily upon, and unfairly discriminates against, people and communities of color.

The United States is not a nation of criminals, and most collateral consequences do not advance
public safety. Instead, they serve only to perpetuate a kind of societal alienation that undermines
public safety. The fact is that denying individuals with criminal records the opportunity to move
on and move up makes recidivism more likely, and so hurts the nation as a whole. It is also profoundly unfair. The United States must solve the collateral consequences crisis in order to compete
with other nations in the rapidly changing global workplace. It is the smart thing to do and it is the
right thing to do.

The United States is a nation of individuals subjected to the collateral consequences of the failed
“War on Crime,” but there is a way out of this quagmire. The best solution for this crisis is to stop
punishing people after they have fulfilled their sentence in the criminal case. Punishment should
end when the terms of a criminal sentence are fulfilled. Ideally, collateral consequences should be
repealed, but, until that happens, there must be a coherent national approach to the restoration of
rights and status after conviction. For individuals trying to live with a criminal record, and for society’s own good, there must be simple, widely available ways to get relief from the lingering effects of an adverse encounter with the justice system in order to fully and productively participate
in society. NACDL will help lead this reform effort by enthusiastic promotion of the recommendations in this report.

SUMMARY OF RECOMMENDATIONS

I. The United States should embark on a national effort to end the second-class legal sta-

tus and stigmatization of persons who have fulfilled the terms of a criminal sentence.

v The three branches of government, on the federal, state and local levels, should undertake a comprehensive effort to promote restoration of rights and status after conviction. This effort should
include enactment of laws to circumscribe or repeal existing collateral consequences and a resolve to stop enacting new ones.
v Government entities, the legal profession, the media, and the business community must promote a
change in the national mindset to embrace concepts of redemption and forgiveness, including a public education campaign to combat erroneous and harmful stereotypes and labels applied to individuals who have at one point or another committed a crime.

v The United States and its states and territories should establish a “National Restoration of Rights
Day” to recognize the need to give individuals who have successfully fulfilled the terms of a criminal sentence the opportunity to move on with their lives.

v Defender organizations and the legal profession as a whole should propose and support efforts to
repeal collateral consequences and to enact effective ways to relieve any remaining collateral consequences. They should participate in efforts to catalogue collateral consequences and make them
available in a form that is useful and educational to lawyers, courts, government agencies, researchers, and the public at large.
v The legal profession should work to change the way people with a criminal record are depicted in the
media and discourage the use of disparaging labels such as “felon” and “criminal” that reinforce fearinducing stereotypes and perpetuate discriminatory laws and policies.
v Members of the legal profession should participate in efforts to educate the public about the broad
range of conduct that can result in conviction and the harmful effects of permanently burdening
those who are convicted. Further, they should support efforts to provide equal opportunity to people with a criminal record, including in their own employment policies and practices.

II. All mandatory collateral consequences should be disfavored and are never appropriate unless substantially justified by the specific offense conduct.

v Legislatures should not impose a mandatory collateral consequence unless it has a proven, evidence-based public safety benefit that substantially outweighs any burden it places on an individual’s ability to reintegrate into the community.

v Most mandatory collateral consequences should be repealed, including the loss of voting and other
civil and judicial rights, which have no public safety purpose at all.

A Roadmap to Restore Rights and Status After Arrest or Conviction

67

v For those few mandatory consequences that
can be justified in terms of public safety, sentencing courts should be authorized to relieve
them on a case-by-case basis at sentencing
and while a person is under sentence.

v Any mandatory consequence that is not relieved should automatically terminate upon
completion of an individual’s court-imposed
sentence unless the government can prove a
public safety need for its continued application.

III. Discretionary
68

collateral consequences should be imposed only
when the offense conduct is recent
and directly related to a particular
benefit or opportunity.

v Where a decision-maker is authorized but not
required to deny or revoke a benefit or opportunity based upon a conviction, it should do so
only where it reaches an individualized determination that such action is warranted based
upon the facts and circumstances of the offense.

v States and the federal government should develop and enforce clear relevancy standards
for considering a criminal record by discretionary decision-makers, requiring them to
consider the nature and gravity of the conduct
underlying the conviction, the passage of time
since the conviction, and any evidence of
post-conviction rehabilitation.
v Administrative agencies should be required to
specify and justify the types of convictions
that may be relevant in their particular context, and to publish standards that they will
apply in determining whether to grant a benefit or opportunity.
v Benefits and opportunities should never be
denied based upon a criminal record that did
not result in conviction.

IV. Full restoration of rights and status

should be available to convicted individuals upon completion of sentence.

v After completion of their sentence, individuals should have access to an individualized
process to obtain full restoration of rights and
status, either from the executive or from a
court, by demonstrating rehabilitation and
good character.

v The relief process should be transparent and
accountable, and accessible to those without
means. Standards for relief should be clear
and attainable, high enough to make relief
meaningful but not so high as to discourage
deserving individuals.
v A pardon or judicial certificate should relieve
all mandatory collateral consequences, and
decision-makers should give full effect to a
pardon or judicial certificate where a collateral consequence is discretionary.

v Jurisdictions should give their residents with
convictions from other jurisdictions access to
their relief procedures, and should also give
effect to relief granted by other jurisdictions.

V. Congress and federal agencies should

provide individuals with federal convictions with meaningful opportunities to regain rights and status, and
individuals with state convictions with
mechanisms to avoid collateral consequences imposed by federal law.

v Congress should expand non-conviction dispositions for federal crimes, and federal prosecutors should be encouraged to offer them
wherever appropriate.
v Individuals convicted of federal crimes
should have an accessible and reliable way of
regaining rights and status, through the courts
or through reinvigoration of the federal pardon process.
v Congress should provide for limiting access
to and use of federal criminal records, through
judicial expungement, set-aside, or certificates of relief from disabilities.

v Congress should authorize state and federal

courts to dispense with mandatory collateral
consequences arising under federal law.

v State legislatures should provide individuals
with federal convictions a way to avoid consequences arising under state law.

v Federal courts and agencies should recognize
and give effect to state relief.
v Federal agencies should provide incentives to
public and private employers to offer equal opportunity to persons with a criminal record. The
federal government should fund research into
whether relief mechanisms help individuals
reintegrate into society and reduce recidivism.

VI. Individuals charged with a crime
should have an opportunity to avoid
conviction and the collateral consequences that accompany it.

v Diversion and deferred adjudication should be
available for all but the most serious crimes,
and prosecutors and courts should be encouraged to use them.
v Non-conviction dispositions should be sealed
or expunged and never trigger collateral consequences. Decision-makers should be barred
from asking about or considering them.

v Collateral consequences should be taken into
account at every stage of the case by all actors in the criminal justice system.

v Defense lawyers should advise clients about
collateral consequences and explore opportunities to avoid them through creative plea bargaining and effective sentencing advocacy.
v Prosecutors should structure charges and negotiate pleas to enable defendants to avoid collateral consequences that cannot be justified.

v Courts should ensure that defendants have
been advised about applicable collateral consequences before accepting a guilty plea, and
should take collateral consequences into account at sentencing.

VII. Employers, landlords and other
decision-makers should be encouraged to offer opportunities to individuals with criminal records, and
unwarranted discrimination based
on a criminal record should be
prohibited.

v Government at all levels should find creative
ways to give employers, landlords and other
decision-makers affirmative incentives to
offer opportunities to those with convictions.
There should be meaningful tax credits for
hiring or housing those with convictions and
free bonding to provide insurance for any employee dishonesty.
v Decision-makers should be immune from negligent hiring liability relating to an opportunity
or benefit given to an individual with a conviction if they are in compliance with federal, state,
and local laws and policies limiting the use of
criminal records and with standards governing
the exercise of discretion in decision-making.

v Jurisdictions should enact clear laws prohibiting unwarranted discrimination based
upon an individual’s criminal record, and
should provide for effective enforcement and
meaningful review of discrimination claims.

VIII. Jurisdictions should limit access to

and use of criminal records for
non-law enforcement purposes
and should ensure that records are
complete and accurate.

v State repositories, court systems and other
agencies that collect criminal records should
have in place mechanisms for ensuring that
official records are complete and accurate,
and should facilitate opportunities for individuals to correct any inaccuracies or omissions in their own records. Records must be
provided in a form that is easy to understand
and that does not mislead.
v Records that indicate no final disposition one
year after charges are filed should be purged

A Roadmap to Restore Rights and Status After Arrest or Conviction

69

from all records systems. The FBI must ensure that information relating to state relief,
such as expunged and sealed records, is reflected in its criminal record repository.

70

v State and federal authorities should limit access to their central repositories to those with
a legitimate need to know. Court records
should be available only to those who inquire
in person, in order to balance public access to
records with privacy concerns for individuals
with a criminal record, and access to online
court system databases should be strictly limited. Law enforcement records (non-judicial)
should never be publicly disseminated.
v Criminal records that do not result in a conviction should be automatically sealed or expunged, at no cost to their subject.

v Jurisdictions should prohibit non-law enforcement access to conviction records after the
passage of a specified period of time, depending upon the nature and seriousness of the offense, and should authorize courts to prohibit
access in cases where it is not automatic. Any
exceptions should be justified in terms of public safety, and persons who disclose records in
violation of limitations on access should be
subject to substantial civil penalties.
v Employers and other decision-makers should
be prohibited from asking about or considering a criminal record to which access has been
limited by law or court order. For accessible
records, decision-makers should comply with
applicable relevance and non-discrimination
standards.
v Employers should be prohibited from inquiring about an applicant’s criminal record until
after a contingent offer of employment has
been made.

v Jurisdictions should never sell criminal
records and should strictly regulate private
companies that collect and sell records.
v Federal law should prohibit credit reporting
agencies from disclosing records of closed
cases that did not result in conviction, and con-

victions that are more than seven years in the
past. States should enact their own restrictions
on credit reporting companies to the extent
permitted by federal preemption. Jurisdictions
should provide for effective enforcement of
laws governing credit reporting agencies.

IX. Defense

lawyers should consider
avoiding, mitigating and relieving collateral consequences to be an integral
part of their representation of a client.

v Defense counsel should consider avoiding and
mitigating collateral consequences as an integral part of their representation of a client,
both at and after sentencing. If post-sentence
representation is not feasible, defense counsel
should refer clients to organizations or individuals that can provide such representation.
v Agencies that fund indigent defense services
should fund representation in connection with
restoration of rights and status.

X. NACDL will initiate public education

programs and advocacy aimed at curtailing collateral consequences and
eliminating the social stigma that accompanies conviction.

v NACDL resolves to use all of its resources,
particularly the dedication of its members
who are on the front lines fulfilling the mandates of the Sixth Amendment, to implement
the preceding nine principles. The nation’s
criminal defense bar must be in the vanguard
of the effort to make the full restoration of
rights and status a reality for all who successfully fulfill the terms of a sentence.

v NACDL and the defense community will lead
efforts to repeal or modify existing collateral
consequences that cannot be justified in terms
of public safety, to avoid enacting any additional ones, and to implement meaningful
restoration procedures both during and after
the conclusion of the criminal case.

APPENDIX A — DEFINITIONS OF KEY TERMS

Background check: See Criminal background check.

Ban-the-box: A policy, generally of a state or a municipal government, calling for employers to
eliminate the “box” that asks applicants for employment to disclose a criminal record, postponing this
inquiry to a later stage in the hiring process.

Business necessity: The showing an employer must make in order to defeat a claim of unlawful

discrimination under Title VII of the Civil Rights Act of 1964. Under EEOC Enforcement Guidance,
an employer may show “business necessity” by using validated standards, a “targeted” screen, and an
individualized assessment of an applicant’s qualifications.

Certificate of good conduct or relief from disabilities: A form of relief from collateral

consequences generally issued by a court or corrections agency, which may result in general dispensation from all collateral consequences or may have a more limited purpose and effect. Certificates of
employability are targeted to employment consequences, while certificates of restoration of rights may
address only civil rights.

Clemency: See Executive clemency.

Collateral consequence: A penalty, disability or disadvantage that is authorized or required by
state or federal law or local ordinance as a direct result of an individual’s conviction but is not part of
the sentence ordered by the court.

Commutation of sentence: A form of executive clemency that reduces the sentence imposed by

the court. As distinguished from a pardon, it does not imply forgiveness or absolve the individual from
other consequences of the crime.

Credit reporting agency (or consumer reporting agency): Commercial vendors of crim-

inal history records and other information about individuals’ backgrounds, whose methods of collection and dissemination are regulated by federal and state law.

Criminal background check: The process of collecting and reporting some or all of an individual’s criminal history records from various sources, including courts and criminal record repositories.

Criminal history records: Law enforcement and court records of arrest and subsequent disposi-

tion of a criminal case can be made available to the public through a variety of sources, including individual court records, state-level criminal record repositories and private commercial vendors
(including credit reporting agencies), correctional agencies, and police blotters. Different laws and
policies for the collection, use and dissemination of criminal records may apply to each of these sources
and vary by jurisdiction.

A Roadmap to Restore Rights and Status After Arrest or Conviction

71

Criminal record repository: A central storage location of criminal history records, often main-

tained by the state police and often in electronic form. All states and the federal government, through
the FBI, have central criminal record repositories.

Deferred adjudication or deferred sentencing: An authorized disposition of criminal

charges intended to avoid conviction and collateral consequences, which may or may not require a
guilty plea. Upon successful completion of a court-imposed term of probation, the charges are dismissed and any plea is vacated. Like diversion or deferred prosecution, it is intended as a means of
avoiding conviction and collateral consequences.

Discretionary collateral consequence: A collateral consequence that a civil court, or ad-

ministrative agency or official is authorized, but not required, to impose on grounds related to an individual’s conviction.

72

Diversion or deferred prosecution: A pre-plea disposition of criminal charges that is gener-

ally controlled by the prosecutor, which results in dismissal of charges if an individual satisfies certain
agreed-upon conditions. Like deferred adjudication or deferred sentencing, it is intended as a means
of avoiding conviction and collateral consequences.

EEOC Enforcement Guidance: Issued in 2012, the Equal Employment Opportunity Commission

Guidance reaffirms that an employer’s use of an individual’s criminal record in making employment
decisions may violate Title VII, requires individualized determinations, and the guidance sets forth
“best practices” for making those determinations.

Executive clemency: The range of actions that may be taken by a chief executive or, in some ju-

risdictions, an administrative agency to reduce or eliminate the punishment imposed as a result of a
criminal conviction.

Expungement: Generally, a court-administered process for closing public access to criminal records

that ranges from limited shielding to actual destruction. It may involve an individualized determination or be automatic, and is frequently used interchangeably with the term “sealing.” Law enforcement agencies generally retain access to sealed records.

Fair Credit Reporting Act: A federal or state statute that regulates credit reporting agencies in the
collection and dissemination of criminal history records.

Informal collateral consequences: Policies and practices based on social custom and cultural

attitude, as opposed to law or formal policy. Although frequently unwritten, they can be just as harmful as restrictions that are formally adopted and enforced. The term actualizes the social stigmatization
visited upon those with a criminal record.

Mandatory collateral consequences: A collateral consequence that applies automatically by

operation of law or rule with no determination of its applicability and appropriateness in individual
cases.

Negligent hiring: A common law or statutory tort that involves employer liability for negligence

in hiring or retaining someone who injures a customer or co-worker.

Non-conviction record: Any court record that relates to an individual’s arrest and subsequent ex-

perience in the criminal justice system that did not result in a conviction. It may include dispositions
such as a dismissal of charges, reversal or acquittal, or set-side.

Pardon: A form of executive clemency that absolves the pardoned individual from some or all of the

consequences of a crime. A pardon may be full or conditional but generally implies forgiveness of the
crime. In some jurisdictions a pardon may lead to judicial expungement of the record.

Post-sentence relief: Any form of relief from the consequences of conviction during or after the
term of the court-imposed sentence.

Protected class: Under non-discrimination laws, any class of persons whose characteristics afford

them protection from unwarranted adverse treatment based upon their membership in the class, including racial and ethnic minorities and women. Persons with a criminal record are generally not recognized as a protected class.

Rap sheet: An official description of a person’s criminal record.

Recidivism: The repetition of criminal behavior after punishment, generally used to measure the rate

at which individuals are rearrested for crime after a prior conviction.

Re-entry: The return to society after a period of incarceration.

Relief mechanisms: Mechanisms for relief from collateral consequences discussed in this report

include dispositions that avoid a conviction such as deferred adjudication; legislative mechanisms that
provide for automatic termination of a collateral consequence after a specified period of time; individual
restoration mechanisms such as pardon or expungement that usually involve an individualized determination of rehabilitation or other basis for relief; and systemic relief mechanisms that place general
procedural or substantive limits on consideration of conviction in allocating benefits and opportunities.

Restoration of rights: A term that generally refers to a limited form of relief from collateral con-

sequences involving restoration of specified civil and judicial rights, which may or may not include the
right to bear arms. See also Restoration of rights and status.

Restoration of rights and status: As used throughout this report, this signifies a fuller form of

relief from collateral consequences that generally restores the convicted person to full legal rights and
removes the stigma of conviction. A full and unconditional pardon is typically the fullest form of relief available, though certain forms of judicial relief may also accomplish this return to the full rights
of citizenship.

Sealing: A court-administered process for closing public access to criminal records that differs from

jurisdiction to jurisdiction. It may be automatic or involve an individualized determination, and is frequently used interchangeably with the term “expungement.” Law enforcement agencies generally retain access to sealed records.

Set-aside: A form of judicial relief that, when entered post-conviction, has the effect of vacating the

record of conviction. A set-aside generally restores the person to full rights of citizenship lost as a result of conviction.

Stigmatization or Stigma: See Informal collateral consequences.

A Roadmap to Restore Rights and Status After Arrest or Conviction

73

APPENDIX B — WITNESS LIST BY CATEGORY

Affected Community

Ronald R. Acevedo, Of Counsel, Scoppetta
Seiff Kretz & Abercrombie
(New York, Day 2)

74

Jumaani Bates, Business Services Manager,
North Lawndale Employment Network
(Chicago, Day 2)

Cleveland Bell, Executive Director,
Riverside House
(Miami, Day 1)

Mr. C., Business Executive
(San Francisco, Day 2)

Lamont Carey, Spoken Word Artist,
Filmmaker, Author, and Speaker
(DC, Day 2)

Jessica Chiappone, Vice President, Florida
Rights Restoration Coalition
(Miami, Day 1)

Mansfield Frazier, Executive Director,
Neighborhood Solutions, Inc.
(Cleveland, Day 1)

Lamont Garrison, Personal Trainer, Radio
Co-Host (wrongfully convicted)
(DC, Day 2)

Marcia Grant, Assistant Project
Manager, Opa Locka Community
Development Corporation
(Miami, Day 2)

Charles Gunnell, Volunteer, What It Takes
(Cleveland, Day 1)

Kimberly Haven, Director of Public Policy
and Advocacy at Out for Justice, Founder
and Co-Director of the Maryland Justice
Reinvestment Initiative
(DC, Day 2)

Charles Ice, Solvent Recycler,
and featured in the documentary
“The Dhamma Brothers”
(Chicago, Day 2)

Johnnie Jenkins, Employment Manager,
Waukegan Illinois Township
(Chicago, Day 2)
Darrell K. Langdon, Sr., Engineer,
Chicago Public Schools
(Chicago, Day 1)
Glenn Martin, Vice President,
Fortune Society
(New York, Day 2)

Ralph Martin, President &
CEO, RKRM Consulting, Inc.
(Miami, Day 1)

Desmond Meade, President, Florida
Rights Restoration Coalition
(Miami, Day 1)

Dorsey Nunn, Executive Director, Legal
Services for Prisoners with Children
(San Francisco, Day 1)
Dr. Divine Pryor, Executive
Director, Center for NuLeadership
on Urban Solutions
(New York, Day 3)

Wayne Rawlins, Community Justice and
Economic Development Consultant
(Miami, Day 1)
Armani Smith, Kemba Smith’s
son, college student
(DC, Day 3)

Kemba Smith, Founder of the
Kemba Smith Foundation (granted
clemency by President Clinton)
(DC, Day 3)

Jose Torres, Judicial and Medical
Terminology Spanish Language Interpreter
(Cleveland, Day 1)

Brenda Valencia Aldana, Administrative
Assistant, Girls Advocacy Project
(Miami, Day 2)

Patricia Williams, Receptionist, St.
Leonard’s Ministries
(Chicago, Day 2)

Tyrone Werts, Consultant:
The Philadelphia Defenders Association,
The Inside-Out Prison Exchange Program;
Chairman and Co-Founder:
Public Safety Initiative (sentence commuted
by Former Pa. Gov. Ed Rendell)
(New York, Day 3)

Jesse Wiese, Criminal Justice Policy
Specialist, Prison Justice Fellowship
(New York, Day 2)

Ken Woods, Former Doctor and Registrant
(San Francisco, Day 2)

Background/Record
Check Organizations

Frank Campbell, CEO of
Highland Strategies, LLC
(DC, Day 3)

Rebecca E. Kuehn, Vice President and
Senior Regulatory Counsel, Core Logic
(San Francisco, Day 1)

Montserrat Miller, Partner, Arnall, Golden,
Gregory (Privacy and Consumer
Regulatory, Immigration, and
Government Affairs Practice Groups)
(DC, Day 3)

Legal Aid/Policy Advocacy

Janice Bellucci, State Organizer/President,
California Reform Sex Offender Laws
(San Francisco, Day 2)

Judi Conti, Federal Advocacy Coordinator,
National Employment Law Project
(DC, Day 1)

Edgardo Cortes, Director of the
Advancement Project
Voting Rights Campaign
(DC, Day 3)

Julie Ebenstein, Policy & Advocacy
Counsel, American Civil
Liberties Union of Florida
(Miami, Day 2)

Maurice Emsellem, Policy Co-Director,
National Employment Law Project
(San Francisco, Day 1)
Linda Evans, Organizer, Legal
Services for Prisoners with Children
(San Francisco, Day 1)

Richael Faithful, Equal Justice
Works Fellow at Advancement Project,
Senior Member of Virginia Rights
Restoration Program
(DC, Day 3)
Sally Friedman, Legal Director, Legal
Action Center
(New York, Day 1)
Elizabeth Gaynes, Executive
Director, Osborne Association
(New York, Day 3)

Molly Gill, Government Affairs
Counsel, Families Against
Mandatory Minimums (FAMM)
(DC, Day 3)

Janet Ginzberg, Senior Staff Attorney,
Community Legal Services in Philadelphia,
Employment Unit
(DC, Day 3)
Eliza Hersh, Director & Supervising
Attorney, Clean Slate Practice, East Bay
Community Law Center
(San Francisco, Day 1)

Nicole Austin-Hillery, Director and Counsel
of the Washington Office of the Brennan
Center for Justice
(DC, Day 3)
Ann Jacobs, Director, Prisoner Reentry
Institute, John Jay College
(New York, Day 2)

A Roadmap to Restore Rights and Status After Arrest or Conviction

75

Beth Johnson, Staff Attorney, Cabrini
Green Legal Aid
(Chicago, Day 1)
Roberta Meyers, Director, National
HIRE Network, Legal Action Center
(New York, Day 1)

Dorsey Nunn, Executive Director, Legal
Services for Prisoners with Children
(San Francisco, Day 1)

Hilary Shelton, Director of the NAACP’s
Washington Bureau, Senior Vice President
for Policy and Advocacy
(DC, Day 3)

76

Kimberly Thomas Rapp, Executive
Director, Lawyers’ Committee for Civil
Rights of the San Francisco Bay Area
(San Francisco, Day 1)

Dante Trevisani, Attorney and
Equal Justice Works Fellow
(Miami, Day 1)

Patricia Warth, Co-Director of Justice
Strategies, Center for Community
Alternatives
(New York, Day 2)

Judy Whiting, General Counsel,
Community Service Society
(New York, Day 2)

Mariko Yoshihara, Political Director,
California Employment Lawyers
Association
(San Francisco, Day 2)

Community-Based Service Provider
Joel Botner, Program Director,
Faith Works Reentry Program
(New York, Day 3)

Cecilia Denmark, Bridges of America
(Miami, Day 1)

Reverend Charles Dinkins, Hosanna
Community Church
(Miami, Day 1)

Bob Dougherty, Executive Director, St.
Leonard’s Ministries
(Chicago, Day 2)

Roger Ehmen, Director of Community
Reentry and Employment Center,
Westside Health Authority
(Chicago, Day 2)

William Evans, Facility Director, Turning
Point Bridge Work Release Facility
(Miami, Day 1)

Reverend Valerie Everett, Lutheran Social
Services
(Chicago, Day 2)

John Fallon, Senior Program Manager,
Corporation of Supportive Housing
(Chicago, Day 2)

Deacon Edgardo Farias, Archdiocese of
Miami Detention Ministry
(Miami, Day 1)
David Freedman, Executive Director,
Transition, Inc.
(Miami, Day 1)
Illya McGee, Vice President,
Oriana House, Inc.
(Cleveland, Day 2)

Luz Norwood, Workforce Program
Supervisor, Transition, Inc.
(Miami, Day 1)

Iana A. Patterson, Facility Director,
Broward County Bridge TC/
Work Release Center
(Miami, Day 1)

Wayne Rawlins, Community Justice and
Economic Development Consultant
(Miami, Day 1)
David Rosa, Administrator,
St. Leonard’s Ministries
(Chicago, Day 2)

Newton Sanon, President and CEO,
OIC of Broward County,
REXO-Project Second Chance
(Miami, Day 2)

Charles See, Executive Director,
Community Reentry Program, Cleveland
(Cleveland, Day 1)

Ellen Shores, Director,
Community Reentry Institute
(Cleveland, Day 1)

Patricia Williams, Receptionist, St.
Leonard’s Ministries
(Chicago, Day 2)

Defense

April Frazier Camara, Director of the
Community Reentry Program,
D.C. Public Defender Service
(DC, Day 3)

Carey Haughwout, Public Defender for
Palm Beach County
(Miami, Day 2)

Nellie King, President, Florida Association
of Criminal Defense Lawyers
(Miami, Day 1)

Carlos J. Martinez, Public Defender for
Miami Dade County
(Miami, Day 1)
Kionne McGhee, Defense Attorney
(Miami, Day 2)

Aleem Raja, San Francisco Public Defender
Office, Clean Slate Director
(San Francisco, Day 1)

G. Terez, Federal Public Defender, Northern
District of Ohio
(Cleveland, Day 2)

Tyrone Werts, Consultant:
The Philadelphia Defenders Association,
The Inside-Out Prison Exchange Program;
Chairman and Co-Founder: Public Safety
Initiative (sentence commuted by
Former Pa. Gov. Ed Rendell)
(New York, Day 3)

Employer/Employment

Jim Andrews, Owner, Felony Franks
(Chicago, Day 2)

Jumaani Bates, Business Services Manager,
North Lawndale Employment Network
(Chicago, Day 2)

Lonnie Coplen, Project Manager, Director
of Sustainability, McKissack & McKissack
(New York, Day 2)
Steven Hyman, Partner,
McLaughlin & Stern
(New York, Day 2)

Johnnie Jenkins, Employment Manager,
Waukegan Illinois Township
(Chicago, Day 2)

Gary R. Siniscalco, Partner, Employment
Law, Orrick, formerly employed by EEOC
(San Francisco, Day 2)
Ron Tonn, COO, North Lawndale
Employment Network
(Chicago, Day 2)

Doug Wigdor, Founding Partner,
Thompson Wigdor LLP
(New York, Day 3)

Legislative/Executive Agency

Todd A. Cox, Director of the Office of
Communications and
Legislative Affairs, EEOC
(DC, Day 2)
Congressman Danny K. Davis,
7th District of Illinois
(Chicago, Day 1)

Natalia Delgado, Associate General
Counsel, Office of the Governor of Illinois
(Chicago, Day 2)
Marty Gelfand, Senior Counsel, Office of
Congressman Dennis J. Kucinich
(Cleveland, Day 1)
Everett Gillison, Deputy Mayor for
Public Safety and Chief of Staff for the
Mayor of Philadelphia, Office of the
Mayor of Philadelphia
(New York, Day 2)

Blaine Griffin, Director of Community
Relations, Office of Cleveland
Mayor Frank Jackson
(Cleveland, Day 2)

A Roadmap to Restore Rights and Status After Arrest or Conviction

77

Pam Lawrence, Public Housing
Revitalization Specialist and Grant
Manager, HUD
(DC, Day 2)

Dr. Gabriela Lemus, Senior Advisor and
Director of the Office of Public
Engagement, Department of Labor
(DC, Day 2)

Vicki Lopez Lukis, Government
and Public Affairs Consultant, former
Chairman of Governor Jeb Bush’s ExOffender Task Force
(Miami, Day 2)

78

Philip Maier, NYC Regional Director,
Public Employment Relations Board
(New York, Day 3)

Mary McCarty, Former
Palm Beach Commissioner
(Miami, Day 2)

Carol Morris, Statewide Program Manager,
Illinois Department of Employment Security
(Chicago, Day 1)
Wendy Prudencio, Special Assistant for
Policy Development, NY State
Department of Labor
(New York, Day 3)

John Schomberg, General Counsel, Office
of the Governor of Illinois
(Chicago, Day 2)

Melanie Scotto, Assistant Special
Counsel, NY Department of Labor
(New York, Day 3)

Senator Shirley Smith, 21st
District, Ohio State Senate
(Cleveland, Day 2)

Amy Solomon, Senior Advisor to the
Assistant Attorney General, Office of
Justice Programs, U.S. Department of
Justice, Co-chair of the Federal Interagency
Reentry Council Working Group
(DC, Day 2)

Bobby Vassar, Chief Counsel for the
Minority, Subcommittee on Crime,
Terrorism and Homeland Security, House
Judiciary Committee
(DC, Day 2)

Pardons

The Honorable Robert L. Ehrlich, Jr., Senior
Counsel in the Government Advocacy and
Public Policy Practice Group, King &
Spalding, former Governor of Maryland
(DC, Day 2)
Greg Massoni, Consultant with the
Government Advocacy and Public Policy
Practice Group, King & Spalding, former
Press Secretary to Governor Ehrlich
(DC, Day 2)

Sam Morison, Appellate Defense Counsel,
Department of Defense, former Staff
Attorney in the Office of the Pardon
Attorney
(DC, Day 2)
Erika Tindill, Chair, Connecticut Board of
Pardons and Paroles
(New York, Day 2)

Judiciary

Judge Harold Baer, U.S. District Judge,
Southern District of New York
(New York, Day 2)

Judge Paul Biebel, Presiding Judge, Cook
County Circuit Court, Criminal Division
(Chicago, Day 1)
Judge Matthew J. D’Emic, 2nd Judicial
District (Criminal Term),
New York State Supreme Court
(New York, Day 3)
Judge Dan Polster, U.S. District Judge,
Northern District of Ohio
(Cleveland, Day 2)

Judge Nancy Margaret Russo, Cuyahoga
County Common Pleas Court (Ohio)
(Cleveland, Day 2)

Judge Joan Synenberg, Cuyahoga County
Common Pleas Court (Ohio)
(Cleveland, Day 2)

Law Enforcement/
Parole and Probation

Robert Ambroselli, Deputy Director,
Division of Adult Parole
Operations, California Department of
Corrections and Rehabilitation
(San Francisco, Day 2)

Kris Baumann, Head of the D.C. Police
Union, Police Officer with the Metropolitan
Police Department in Washington, D.C.
(DC, Day 2)

Ronald Davis, Police Chief and
Interim City Manager, East Palo Alto
(San Francisco, Day 1)

Cedric Hendricks, Associate Director, Court
Services and Offender Supervision Agency
(DC, Day 2)

Tamara Jackson, Coordinator; WayneHolmes Reentry Coalition, Your Human
Resource Center
(Cleveland, Day 1)

Angela Jimenez, Deputy Commissioner,
Department of Corrections and
Community Supervision
(New York, Day 3)

Steve Vukmer, Regional Administrator,
Cleveland Parole and Probation
(Cleveland, Day 1)

Prosecution

Nancy O’Malley, Alameda County District
Attorney and Chair, California Sex Offender
Management Board
(San Francisco, Day 1)

Lance Ogiste, Counsel to the District
Attorney of Kings County (Brooklyn),
New York
(New York, Day 3)

Diane Smilanick, Assistant Prosecuting
Attorney, Cuyahoga County (Ohio)
(Cleveland, Day 1)

Social Science/Academia

Esta Bigler, Director, Labor and
Employment Law Programs, Cornell School
of Industrial and Labor Relations
(New York, Day 2)
Al Blumstein, Professor of Criminology,
Carnegie-Mellon
(Cleveland, Day 2)

Alec P. Boros, Ph.D., Research Manager,
Oriana House, Inc.
(Cleveland, Day 2)

Terry Tribe-Johnson, Re-Entry Coordinator,
Summit County
(Cleveland, Day 1)

Ronnie Dunn, Associate Professor Urban
Studies, Maxine Goodman Levin College of
Urban Affairs, Cleveland State University
(Cleveland, Day 2)

Adam Monreal, Chair,
Prisoner Review Board
(Chicago, Day 2)

Stephen Johnson Grove, Deputy Director,
Ohio Justice Policy Center
(Cleveland, Day 1)

Gary Mohr, Director, Ohio Department of
Rehabilitation and Correction
(Cleveland, Day 2)

Jorge Montes, Attorney, Former Chair,
Illinois Prisoner Review Board
(Chicago, Day 1)

Vincent N. Schiraldi, Commissioner, NY
Department of Probation
(New York, Day 3)

Jim Jacobs, Warren E. Burger Professor of
Law, New York University Law School
(New York, Day 3)

June Kress, Executive Director, Council for
Court Excellence
(DC, Day 1)

Mark Myrent, Director of Research, Illinois
Criminal Justice Information Authority
(Chicago, Day 1)

A Roadmap to Restore Rights and Status After Arrest or Conviction

79

Charles Loeffler, Postdoctoral Scholar,
University of Chicago Crime Lab
(Chicago, Day 1)

John Maki, Executive Director, John
Howard Association of Illinois
(Chicago, Day 2)

Kiminori Nakamura, Assistant Professor,
Department of Criminology and Criminal
Justice, University of Maryland
(Cleveland, Day 2)

Vivian Nixon, Executive Director, College
& Community Fellowship
(New York, Day 3)

80

Dr. Divine Pryor, Executive
Director, Center for NuLeadership
on Urban Solutions
(New York, Day 3)

Mark Schlakman, Director of Florida State
University’s Center for the Advancement of
Human Rights and former Special Counsel
on Clemency to Governor Lawton Chiles, Jr.
(Miami, Day 1)

Amy Shlossberg, Researcher, Fairleigh
Dickinson University
(New York, Day 2)

Dr. Faye S. Taxman, University Professor,
Criminology, Law & Society Department of
George Mason University, Director of the
Center for Advancing Excellence
(DC, Day 2)

Jeremy Travis, President, John Jay College
of Criminal Justice
(New York, Day 1)

Peter Willner, Senior Policy Analyst,
Council for Court Excellence
(DC, Day 1)

Steve Zeidman, Professor of Law and
Director, Criminal Defense Clinic Director,
CUNY School of Law
(New York, Day 1)

APPENDIX C — SITE VISITS

81

The Task Force visited facilities in several cities to examine re-entry
programs and services. The Task Force would like to thank the following
individuals for facilitating these visits:
Chicago — Bob Dougherty, Executive Director of the St. Leonard Ministries, for providing the
Task Force with breakfast and a tour of the facility.

Ohio — The Honorable Nancy Margaret Russo, Cuyahoga County Common Pleas Court, for
opening her court to members of the Task Force; Maria Nemec, LICDC, Board Administrator of the

Cuyahoga Corrections Planning Board, for providing data on the Cuyahoga County Re-entry Court;
Illya McGhee, Vice President of Correctional Programs in Cuyahoga County, and Ms. Nicky
Roberts, Program Coordinator of North Star Neighborhood Reentry Resource Center, for coordinating a tour of the North Star Reentry Resource Center; and Mike Randle, Program Director for the
Judge Nancy R. McDonnell Community Based Correctional Facility (CBCF), for coordinating a tour
of the CBCF.

San Francisco — Carol Kizziah, Community Relations Manager of the Delancey Street Foundation,

for hosting the Task Force and providing a tour of the Delancey Street Foundation.

New York — Max Lindeman, Senior Director of the Academy at The Fortune Society, for escorting the Task Force members on a tour of The Castle at The Fortune Society (The Castle); John
Runowicz, Executive Assistant at The Fortune Society, for facilitating the appearance of Glenn
Martin at the Task Force’s New York hearings; and residents of The Castle Richard Cobbs, Ervin
Hunt, and William Olivo, for allowing the Task Force members full access to their apartments and
for leading a tour of the residential rooftop garden.

A Roadmap to Restore Rights and Status After Arrest or Conviction

APPENDIX D — TASK FORCE MEMBER BIOGRAPHIES

Rick Jones (Co-Chair) — Rick Jones is the executive director and a founding member of the

82

Neighborhood Defender Service of Harlem. He is a distinguished trial lawyer with more than 25 years’
experience in complex multi-forum litigation. Rick is a lecturer in law at Columbia Law School, where
he teaches the criminal defense externship and a trial practice course. He is also on the faculty of the
National Criminal Defense College in Macon, Ga., and is frequently invited to lecture on criminal justice issues throughout the country. Rick currently serves as secretary of the NACDL. He has previously
served NACDL as a two-term member of the board of directors, parliamentarian, and co-chair of both
the Indigent Defense Committee and the Special Task Force on Problem-Solving Courts. Rick is a
member of the New York State Bar Association Criminal Justice Section Executive Committee and the
inaugural steering committee of the National Association for Public Defense. He also sits on the boards
of the New York State Defenders Association and the Sirius Foundation and serves on the Editorial
Board of the Amsterdam News.

Vicki H. Young (Co-Chair) — Vicki H. Young, a criminal defense attorney throughout her career,

is Of Counsel to the Law Offices of Ephraim Margolin in San Francisco. She has a broad criminal defense practice in both federal and state courts, and also devotes significant time to the defense of the
indigent. Her practice experience runs the gamut from capital defense to post-conviction litigation to
attorney discipline matters. Vicki has served as a director of NACDL and has a long record of service
to many other bar groups, including the California Attorneys for Criminal Justice. Vicki is also the
2012 recipient of NACDL’s Robert C. Heeney Award.

Lawrence S. Goldman — Lawrence S. Goldman was the 44th president of the NACDL. Prior to

his appointment, he was Secretary, Treasurer, First and Second Vice President and President-Elect. A
Life Member of NACDL, he received the Robert C. Heeney Award in 1998. A veteran criminal defense
lawyer of 30-plus years, he is a past president of the New York State Association of Criminal Defense
Lawyers (NYSACDL) and the New York Criminal Bar Association.

Elissa B. Heinrichs — Elissa B. Heinrichs is a partner at Cevallos & Wong, LLP in Newtown, Pa.,
where she represents criminal defendants in state courts throughout Eastern Pennsylvania and parents
in juvenile court proceedings following the removal of their children arising from allegations of abuse
and neglect. Elissa’s legal career includes stints as legislative counsel to New York Assemblyman Vito
Lopez and counsel in the New York City Comptroller’s Office, as well as serving as an assistant district attorney in the Bucks County District Attorney’s Office. She also clerked for King’s County
Criminal Court Judge Wayne Saitta. Elissa is active in many bar associations, and has been recognized
by Thomson Reuters and Pennsylvania Magazine with the Pennsylvania Rising Star Award, and by the
Bucks County Bar Association with the Arthur B. Walsh, Jr. Pro Bon Publico Award.

Margaret Colgate Love — Margaret Love practices law in Washington, DC, specializing in exec-

utive clemency and restoration of rights, and sentencing and corrections policy. She has written and lectured widely on the collateral consequences of a criminal conviction, and is co-author of the treatise
Collateral Consequences of Criminal Convictions: Law, Policy and Practice (NACDL/West 2013). Ms.
Love chaired the drafting committee for the ABA Standards on Collateral Sanctions and Discretionary
Disqualification of Convicted Persons, served as ABA liaison to the Uniform Law Commission’s
Collateral Consequences project, and directed the NIJ-funded ABA collateral consequences compilation effort. Before establishing her private practice in 1998, Ms. Love served in the U.S. Justice
Department for 20 years, from 1978 to 1997, including as U.S. Pardon Attorney (1990-97).

Penelope S. Strong — Penelope Strong is a lifelong criminal and civil rights practitioner, based in

Billings, Mont., but with a Midwest upbringing and background. With over 31 years of criminal justice experience, she has represented in both criminal and civil courts the disenfranchised and downtrodden of our society. Currently, Native Americans represent a large sector of her clients. She is the
former chief public defender for Yellowstone County and was a first assistant public defender in
Wisconsin. She has also litigated with the Montana ACLU and the National Prison Project in achieving prison reform in Montana.

Geneva Vanderhorst — Geneva Vanderhorst has her own criminal defense practice in Washington,

DC. Primarily, she represents persons accused of criminal offenses on the Felony II, Accelerated Felony
Trial, Mental Health Court, Domestic Violence Court, Community Court, Drug Court, Traffic and general misdemeanor calendars. Prior to opening her practice, she was a Judicial Law Clerk in D.C.
Superior Court, a Dean Scholar Instructor at George Mason University School of Law (GMUSL) and
a Howard T. Brooke Fellow in the Office of the Public Defender in Alexandria, Va. Ms. Vanderhorst
is a graduate of Old Dominion University, where she was named among the “Who’s Who Among
American College Students.” She is the current Chair of NACDL’s Diversity Task Force. She also
serves as Vice President of the D.C. Association of Criminal Defense Lawyers and a board member of
the Superior Court Trial Lawyers Association. She is also a former president of the Charlotte E. Ray
American Inns of Court.

Christopher A. Wellborn — Christopher Wellborn, a longtime NACDL member, practices in Rock

Hill, S.C. He is a past president of the York County Bar Association and the South Carolina Association
of Criminal Defense Lawyers, an NACDL affiliate that he helped found. Chris has also served as chair
of the Criminal Law Section of the South Carolina Bar Association. M.

Jenny Roberts (Reporter) — Jenny Roberts is a professor of Law at American University,

Washington College of Law and co-director of the Criminal Justice Clinic. Her research focuses on the
regulation of actors in the criminal justice system through constitutional law, statute, rules of professional responsibility, professional standards, and culture. Her articles have been cited by the U.S.
Supreme Court, a number of state high courts and lower federal courts, and in numerous briefs to the
Supreme Court and other courts. She is co-author of the treatise Collateral Consequences of Criminal
Convictions: Law, Policy and Practice (NACDL/West 2013). Prof. Roberts is co-president of the
Clinical Legal Education Association, the nation’s largest association of law teachers, and sits on the
board of the Mid-Atlantic Innocence Project. She previously taught at Syracuse University and in
NYU’s Lawyering Program. Prior to teaching, Prof. Roberts was a senior research fellow at NYU Law
School’s Center for Research in Crime & Justice, a public defender in Manhattan, and a law clerk in
the Southern District of New York.

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83

ENDNOTES

84

1. All witnesses are identified by the title they held at the time they testified.
2. THE NAT’L EMP’T LAW PROJECT, 65 MILLION NEED NOT APPLY: THE CASE FOR REFORMING CRIMINAL BACKGROUND CHECKS FOR
EMPLOYMENT at 27 n.2 (March 2011), available at http://www.nelp.org/page/-/65_Million_Need_Not_Apply.pdf?nocdn=1. The 65 million
figure was derived from a 2008 Bureau of Justice Statistics survey showing “there were 92.3 million people with criminal records on file
with the states, including those individuals fingerprinted for serious misdemeanors and felony arrests.” Id. (citing U.S. BUREAU OF JUSTICE
STATISTICS, SURVEY OF STATE CRIMINAL HISTORY INFORMATION SYSTEMS, 2008 at Table 1 (Oct. 2009)). This number was then reduced by 30
percent to “account for individuals who may have records in multiple states and other factors.” Id. The estimate that one in four Americans
has a criminal record is “consistent with a Department of Justice finding that about ‘30 percent of the Nation’s adult population’ has a state
rap sheet.” Id. (citing U.S. DEPT. OF JUSTICE OFFICE OF THE ATTORNEY GENERAL, THE ATTORNEY GENERAL’S REPORT ON CRIMINAL HISTORY
BACKGROUND CHECKS 51 (June 2006)); see also Robert Brame, Michael G. Turner, Raymond Paternoster & Shawn D. Bushway, Cumulative
Prevalence of Arrest From Age 8 to 23 in a National Sample, PEDIATRICS, Jan. 2012, at 21-27 (reporting that almost one-third of American
adults by age 23 have been arrested for adult or juvenile offenses, not including minor traffic offenses).
3. Wayne A. Logan, Informal Collateral Consequences, 88 WASH. L. REV. 1103 (2013); Every Door Closed: Barriers Facing
Parents With Criminal Records, Center for Law and Social Policy & Community Legal Services (2002),
available at http://www.clasp.org/resources-and-publications/archive/0092.pdf; BARBARA MULÉ & MICHAEL YAVINSKY,
SAVING
ONE’S
HOME:
COLLATERAL
CONSEQUENCES
FOR
INNOCENT
FAMILY
MEMBERS,
available
at
http://www.nycourts.gov/ip/partnersinjustice/Saving-Home.pdf.
4. Constance L. Hays, Martha Stewart’s Sentence: The Overview, N.Y. TIMES (July 17, 2004), available at
http://www.nytimes.com/2004/07/17/business/martha-stewart-s-sentence-overview-5-months-jail-stewart-vows-ll-be-back.html;
Stewart
Begins
Serving
Jail
Term,
NBC
NEWS
(Oct.
8,
2004),
available
at
http://www.nbcnews.com/id/6205192/ns/business-corporate_scandals/t/stewart-begins-serving-jail-term/#.UwdgmIXVdqA.
5. Larry Kudlow, A Second Chance, N ATIONAL R EVIEW O NLINE (Dec. 10, 2004), available at
http://www.nationalreview.com/articles/213102/second-chance/larry-kudlow.
6 .Press Release, U.S. Securities and Exchange Commission, Martha Stewart and Peter Bacanovic Settle SEC’s Insider Trading Charges
(Aug. 7, 2006), available at http://www.sec.gov/news/press/2006/2006-134.htm.
7.
Martha
Stewart
Back
at
Work,
NBC
News
(March
5,
2005),
available
at
http://www.nbcnews.com/id/7078053/ns/business-us_business/t/martha-stewart-back-work/#.Uwdkx4XVdqA (“A beaming Martha Stewart
returned to work on Monday, blowing a kiss and waving as she arrived to speak to cheering employees.”).
8. Martha Stewart Profit Up, N.Y. TIMES (March 1, 2007), available at http://www.nytimes.com/2007/03/01/business/media/01martha.html.
9. Lauren Pollack, Martha Stewart Rejoins Board of Namesake Company, MARKETWATCH (Sept. 26, 2011), available at
http://www.marketwatch.com/story/martha-stewart-rejoins-board-of-namesake-company-2011-09-26-13480.
10. Kristin Jones, Martha Stewart Named Nonexecutive Chairman, WALL ST. J. (May 23, 2012), available at
http://online.wsj.com/news/articles/SB10001424052702304707604577422301821671144.
11. Chris Mortensen, Sal Paolantonio & Len Pasquarelli, Vick, Eagles Agree to 2-Year Deal, ESPN (Aug. 14, 2009), available at
http://sports.espn.go.com/nfl/news/story?id=4397938.
12. Peter King, Week 16 in the NFL Had a Little Bit of Everything, SPORTS ILLUSTRATED (Dec. 27, 2010), available at
http://sportsillustrated.cnn.com/2010/writers/peter_king/12/26/week-16/1.html (reporting Lurie’s description of his conversation
with President Obama).
13. Perry Bacon Jr., Obama Weighs In On Michael Vick, and Other Cultural Issues, WASH. POST (Dec. 28, 2010), available at
http://www.washingtonpost.com/wp-dyn/content/article/2010/12/27/AR2010122704579.html.
14. Miami Task Force Hearing Transcript Day 1 at 36, available at www.nacdl.org/restoration/roadmapreport [hereinafter Miami].
15. Chicago Task Force Hearing Transcript Day 1 at 144-61, available at www.nacdl.org/restoration/roadmapreport [hereinafter Chicago].
16. San Francisco Task Force Hearing Transcript Day 2 at 382, available at www.nacdl.org/restoration/roadmapreport
[hereinafter SF]. Although he can take a tour of the White House, Mr. C. cannot enter his own business’s hospitality units
because they are at an airport.

17. See Miami Day 2 at 488-90; Telephone conversation with Brenda Aldana (Feb. 21, 2014) for further details on Miami
hearing testimony (notes on file with NACDL). In 2011, Florida decoupled civil rights restoration from employment
restrictions in state jobs that require certification and state occupational and professional licenses. Before that, individuals
needed the governor to act to lift these restrictions. However, Florida remains at the bottom of the barrel in terms of voting
rights, with long waiting periods before a person can even apply for the pardon or restoration of rights to be granted to regain
civil rights lost as a result of a felony conviction. Floridians must also get such restoration to deal with barriers in many
non-state jobs and licensing, such as a law license. Margaret Love, NACDL Restoration of Rights Project, N AT’ L A SS ’N OF
CRIMINAL D EFENSE LAWYERS , Chart #5 (Consideration of Criminal Record in Licensing and Employment), available at
https://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/Consideration_of_Criminal_Record_in_
Licensing_And_Employment.pdf [hereinafter Love, NACDL Rights Restoration Project].
18. Testimony of Steve Zeidman, NYC Day 1 at 28; see also Smith v. Bank of Am. Corp., 865 F. Supp. 2d 298 (E.D.N.Y. 2012) (New
York adjournment in contemplation of dismissal in shoplifting case held disqualifying, notwithstanding state laws barring unreasonable discrimination based on criminal record) and note 182, infra.
19. NAT’L INVENTORY OF THE COLLATERAL CONSEQUENCES OF CONVICTION, available at http://www.abacollateralconsequences.org.
20. See note 2, supra.
21. Drug and Crime Facts, BUREAU OF JUSTICE STATISTICS, available at http://www.bjs.gov/content/dcf/enforce.cfm (“In 2007, according to the UCR, law enforcement agencies nationwide made an estimated 14 million arrests for all criminal infractions except traffic violations.”); Testimony of Al Blumstein, Cleveland Task Force Hearing Transcript Day 2 at 336, available at
www.nacdl.org/restoration/roadmapreport [hereinafter Cleveland].
22. SARAH SHANNON ET AL., GROWTH IN THE U.S. EX-FELON AND EX-PRISONER POPULATION, 1948-2010 at 12 and figure 4 (April 18,
2011), available at http://csgjusticecenter.org/nrrc/publications/growth-in-the-u-s-ex-felon-and-ex-prisoner-population-1948-to-2010-2/.
23. U.S. State and Federal Prison Population, 1925-2012, THE SENTENCING PROJECT, available at
http://www.sentencingproject.org/template/page.cfm?id=107. While rates of those in prison have fallen for three years beginning in
2009, those rates do not count incarceration in local jails. Further, 15,035 of the 27,770 drop in prisoners from 2011 to 2012 were in
California, where the Public Safety Realignment policy moved “nonserious, nonsex, nonviolent offenders” from state prisons to local
jails. U.S. Prison Population Declined for Third Consecutive Year During 2012, BUREAU OF JUSTICE STATISTICS (July 25, 2013), available at http://www.bjs.gov/content/pub/press/p12acpr.cfm.
24. ROY WALMSLEY, INT’L CTR. FOR PRISON STUDIES, WORLD PRISON POPULATION LIST (10th ed.), available at
http://www.prisonstudies.org/sites/prisonstudies.org/files/resources/downloads/wppl_10.pdf; see also JOHN SCHMITT, KRIS WARNER
& SARIKA GUPTA, CTR. FOR ECON. AND POLICY RESEARCH, THE HIGH BUDGETARY COST OF INCARCERATION (June 2010) (“The United
States has the highest incarceration rate in the world and also the highest rate in its history, with about 753 people per 100,000 in prison
or jail in 2008.”).
25. Genesis 4:14-16 (“‘Behold, You have driven me this day from the face of the ground; and from Your face I will be hidden,
and I will be a vagrant and a wanderer on the earth, and whoever finds me will kill me.’ And the Lord said unto him, ‘Therefore whosoever slayeth Cain, vengeance shall be taken on him sevenfold.’ And the Lord set a mark upon Cain, lest any finding him should kill
him. Then Cain went out from the presence of the Lord. . . .”).
26. See SOC’Y FOR HUMAN RES. MGMT., BACKGROUND CHECKING: CONDUCTING CRIMINAL BACKGROUND CHECKS 3 (Jan. 22, 2010),
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx; Stan Alcorn, ‘Check Yes or No’:
The Hurdles of Job Hunting with a Criminal Past, NATIONAL PUBLIC RADIO (Jan. 31, 2013), available at
http://www.npr.org/2013/01/31/170766202/-check-yes-or-no-the-hurdles-of-employment-with-criminal-past;
Stan
Alcorn,
Job Seekers with Criminal Record Face Higher Hurdles, WNYC NEWS (Jan. 17, 2013), available at
http://www.wnyc.org/story/262814-blog-job-seekers-with-criminal-record-face-higher-hurdles/.
27. AM. CIVIL LIBERTIES UNION, THE WAR ON MARIJUANA IN BLACK AND WHITE: BILLIONS OF DOLLARS WASTED ON RACIALLY BIASED
ARRESTS at 8-9 (2013), available at https://www.aclu.org/criminal-law-reform/war-marijuana-black-and-white-report [hereinafter ACLU
Marijuana Report]; see also ROBERT C. BORUCHOWITZ, MALIA N. BRINK & MAUREEN DIMINO, NAT’L ASSOC. CRIMINAL DEF. LAWYERS, MINOR
CRIMES, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA’S BROKEN MISDEMEANOR COURTS (2009).
28. See Recommendation VIII of this report, discussing criminal records reform.
29. ACLU Marijuana Report at 37 (of the 1,717,064 drug arrests in the United States in 2010, 889,133, or 52 percent were for
marijuana, and 784,021, or 46 percent were for marijuana possession).
30. ACLU Marijuana Report at 9.
31. TANYA COKE, CRIMINAL JUSTICE IN THE 21ST CENTURY: ELIMINATING RACIAL AND ETHNIC DISPARITIES IN THE CRIMINAL JUSTICE
SYSTEM 22 (2013 report co-sponsored by NACDL), available at https://www.nacdl.org/reports/eliminatedisparity/.
32. WE ARE ALL CRIMINALS, available at http://www.weareallcriminals.com/about/.
33. Devah Pager, Bruce Western & Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White
Men with Criminal Records, 623 ANNALS OF THE AMER. ACAD. 195, 199 (2009).
34. Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937, 960 (2003).

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85

86

35. Robert Brame, Shawn D. Bushway, Ray Paternoster & Michael G. Turner, Demographic Patterns of Cumulative Arrest Prevalence
by Ages 18 and 23, 1 CRIME & DELINQUENCY (Jan. 2014).
36. Testimony of Jeremy Travis, New York City Task Force Hearing Transcript Day 1 at 79, available at
www.nacdl.org/restoration/roadmapreport [hereinafter NYC].
37. Testimony of Vincent Schiraldi, NYC Day 3 at 28.
38. See Miranda Boone. Judicial Rehabilitation in the Netherlands: Balancing Between Safety and Privacy, 3 EUROPEAN J. PROBATION
63, 66-68 (2011) (describing how the Netherlands strictly limits access to criminal records and allows private employers only to review a
“Conduct Certificate,” which has limited information about a person’s criminal history); Martine Herzog-Evans, Judicial Rehabilitation in
France: Helping with the Desisting Process and Acknowledging Achieved Desistance, 3 EUROPEAN J. PROBATION 4, 7-8 (2011) (describing
how French criminal records are divided into three “bulletins,” with access to each bulletin strictly limited); Christine Morgenstern. Judicial
Rehabilitation in Germany — The Use of Criminal Records and the Removal of Recorded Convictions, 1 EUROPEAN J. PROBATION 1, 25-27
(2011) (describing how the German “registry,” which contains a person’s comprehensive criminal history, is not available to private individuals and how a “certificate of conduct” can be requested by employers but includes only limited criminal history information); James B.
Jacobs & Elena Larrauri, Are Criminal Convictions a Public Matter? The USA and Spain, 14 PUNISHMENT & SOCIETY 3, 11 (2012) (noting
how in Spain, “[t]he vast majority of penal judgments, unless they involve a notorious case widely reported in the media, never become
known”); see also Testimony of James Jacobs, NYC Day 3 at 160 (describing how in Spain, trials are open to the public but the judgment
itself is not announced in open court and published opinions are stripped of identifying information so that “they have no connection to the
defendant”).
39. NYC Day 3 at 161.
40. Suzanne Daley, On Its Own, Europe Backs Web Privacy Fights, N.Y. TIMES (August 9, 2011), available at
http://www.nytimes.com/2011/08/10/world/europe/10spain.html?pagewanted=all&_r=0.
41. Miami Day 1 at 62.
42. OFFICE OF THE DEPUTY MAYOR FOR PUB. SAFETY, CITY OF PHILADELPHIA, ECONOMIC BENEFITS OF EMPLOYING FORMERLY
INCARCERATED INDIVIDUALS IN PHILADELPHIA 5 (September 2011), available at http://economyleague.org/files/ExOffenders__Full_Report_FINAL_revised.pdf; see also John H. Laud & Robert J. Sampson, Understanding Desistance from Crime, 28 CRIME & JUST.
1, 17–24 (2001), available at http://www.ncjrs.gov/pdffiles1/Digitization/192542-192549NCJRS.pdf (finding correlation between factors
such as stable employment, family and community involvement, and substance abuse treatment, and a decreased risk of recidivism); cf.
WENDY ERISMAN & JEANNE BAYER CONTARDO, INST. FOR HIGHER EDUC. POLICY, LEARNING TO REDUCE RECIDIVISM:
A 50-STATE ANALYSIS OF POSTSECONDARY CORRECTIONAL EDUCATION 5 (November 2005), available at
http://www.ihep.org/assets/files/publications/g-l/LearningReduceRecidivism.pdf (finding “a correlation between educational attainment
and recidivism” and suggesting that correctional education programs provide individuals with more opportunities for employment
after release from prison).
43. SF Day 1 at 148.
44. Miami Day 1 at 28.
45. Miami Day 1 at 95-96.
46. OHIO CMTY. CORR. ASS’N, OHIO DEPARTMENT OF REHABILITATION AND CORRECTION FUNDED COMMUNITY CORRECTIONS FACT SHEET
(Feb. 6, 2013), available at http://www.occaonline.org/pdf/fact_sheet/Fiscal%20Year%202012%20Fact%20Sheet%20Combined%20.pdf.
47. CHRISTIAN HENRICHSON & RUTH DELANEY, CTR. ON SENTENCING AND CORR., THE PRICE OF
PRISONS:
WHAT
INCARCERATION
COSTS
TAXPAYERS
8,
figure
3
(July
20,
2012),
available
at
http://www.vera.org/sites/default/files/resources/downloads/Price_of_Prisons_updated_version_072512.pdf. This study included “prison
costs outside the corrections budget [that] fall under three categories: (1) costs that are centralized for administrative purposes, such as
employee benefits and capital costs; (2) inmate services funded through other agencies, such as education and training programs; and
(3) the cost of underfunded pension and retiree health care plans.” Id. at 3. The full price of prisons to taxpayers — including costs that
fell outside the corrections budgets — was $39 billion, $5.4 billion more than the states’ aggregate corrections department spending, which
still totaled a staggering $33.5 billion. Id. at 6.
48. Remarks as Prepared for Delivery by Deputy Attorney General James Cole at the New York State Bar Association Annual Meeting,
available at http://www.justice.gov/iso/opa/dag/speeches/2014/dag-speech-140130.html.
49. See OFFICE OF THE DEPUTY MAYOR FOR PUB. SAFETY, CITY OF PHILADELPHIA, ECONOMIC
BENEFITS OF EMPLOYING FORMERLY INCARCERATED INDIVIDUALS IN PHILADELPHIA (September 2011), available at
http://economyleague.org/files/ExOffenders_-_Full_Report_FINAL_revised.pdf; MAYORAL POLICY CAUCUS ON PRISONER REENTRY,
REBUILDING LIVES, RESTORING HOPE STRENGTHENING COMMUNITIES: BREAKING THE CYCLE OF INCARCERATION AND BUILDING BRIGHTER
FUTURES IN CHICAGO 4 (Jan. 2006), available at http://www.nelp.org/page/-/SCLP/2011/ChicagoReportofMayoralCaucusonReentry.pdf?nocdn=1.
50. SF Day 1 at 155. Mr. Davis was interim city manager and chief of police for the city of East Palo Alto when he testified at the Task
Force’s San Francisco hearings. In November 2013, Davis was appointed director of the Office of Community Oriented Policing Services
(COPS), part of the U.S. Department of Justice. See Meet the Director, COMMUNITY ORIENTED POLICING SERVICES, U.S. DEPARTMENT OF
JUSTICE, available at http://www.cops.usdoj.gov/default.asp?Item=2305.

51. SF Day 1 at 153-56. Davis did not claim that the re-entry center caused these results.
52. SF Day 1 at 155-56, 159.
53. NYC Day 3 at 19.
54. Cleveland Day 2 at 382.
55. Cleveland Day 2 at 388.
56. Cleveland Day 2 at 386-87; see also OHIO REV. CODE ANN. §§ 2961.21-.24 (Certificates are available to eligible individuals who
complete various programs and have good behavior while incarcerated or on supervision.). Importantly, issuance of a Certificate “constitutes a rebuttable presumption that the person’s criminal convictions are insufficient evidence that the person is unfit for the license or certification in question.” OHIO REV. CODE ANN. § 2961.23.
57. David Willoughby, ODRC Issues First ‘Certificates of Achievement and Employability’, THE EXAMINER (July 15, 2012), available at http://www.examiner.com/article/odrc-issues-first-certificates-of-achievement-and-employability.
58. See ILLINOIS PUBLIC ACT 96-0593, originally signed in 2009 and amended in 2012 (20 ILCS 5000).
59. ILL. CRIMINAL JUSTICE INFO. AUTH., INVENTORYING EMPLOYMENT RESTRICTIONS TASK FORCE FINAL REPORT 5-7 (June 28, 2013),
available at http://www.icjia.org/IERTF2013.
60. U.S. CENSUS, 2011 PUBLIC EMPLOYMENT AND PAYROLL DATA, ILLINOIS STATE GOVERNMENT, available at
http://www2.census.gov/govs/apes/11stil.txt.
61. See ILL. DEP’T OF EMP’T SEC., RE-ENTRY EMPLOYMENT SERVICES PROGRAM: REDUCING RECIDIVISM THROUGH EMPLOYMENT, available at http://www.ides.illinois.gov/page.aspx?item=965.
62. Chicago Day 1 at 96.
63. See, e.g., Letter from Attorney General Eric Holder to Vermont State Attorney General, April 18, 2011, available at
http://onlawyering.com/wp-content/uploads/2011/05/VT-Attorney-General-Sorrell.0001-1.pdf.
64. Attorney General Eric Holder Speaks at the National Second Chance Act Conference, U.S. DEP’T OF JUSTICE (May 22, 2012),
available at http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-120522.html.
65. Chicago Day 1 at 84-85 (“Does expungement allow individuals to gain employment, housing, child custody? It almost certainly
does, but how often does it, and how effectively does it allow that? We don’t know. We could look at something like criminal case sealing,
which is another important remedy here in Illinois as well as elsewhere, and say does it, you know, facilitate productive participation in society. Again, we’re not sure.”).
66. Cleveland Day 2 at 366. Mark Myrent, research director for the Illinois Criminal Justice Information Authority, similarly testified
that “the laws that are passed oftentimes are reactionary. Th[is] may be . . . the result of a particular incident where someone was harmed,
and then a law gets passed that these people need to be looked at more closely prior to hiring.” Chicago Day 1 at 114-15. There is, however,
hope for change. For example, under a Colorado law enacted in 2013, the General Assembly must determine “[w]hether the agency through
its licensing or certification process imposes any disqualifications on applicants based on past criminal history and, if so, whether the disqualifications serve public safety or commercial or consumer protection interests.” COLO. REV. STAT. § 24-34-104(9)(b)(VIII.5). To implement this program, the department of regulatory agencies must prepare an analysis including “data on the number of licenses or certifications
that were denied, revoked, or suspended based on a disqualification and the basis for the disqualification.” Id. Any proposal to regulate a
new profession or occupation must include “[a] description of any anticipated disqualifications on an applicant for licensure, certification,
relicensure, or recertification based on criminal history and how the disqualifications serve public safety or commercial or consumer protection interests.” COLO. REV. STAT. § 24-34-104.1(2)(f); see also id. at (4)(b)(IV) (factors to be considered in deciding whether regulation
is necessary include “Whether the imposition of any disqualifications . . . based on criminal history serves public safety or commercial or
consumer protection interests”).
67. SF Day 1 at 193, 210 (discussing individuals convicted of sex offenses in California and non-gradation of registry); see also
Testimony of Pamela Lawrence, public housing revitalization specialist and grant manager at the Department of Housing and Urban
Development, Washington, DC, Task Force Hearing Transcript Day 2 at 26, available at www.nacdl.org/restoration/roadmapreport [hereinafter DC] (“We’re challenged. . . by the lack of housing-specific data, trend analysis, and research, and we welcome any information
you can provide around housing barriers, recidivism, re-entry, and housing models that are working.”).
68. Cleveland Day 2 at 344; see also Alfred Blumstein & Kiminori Nakamura, ‘Redemption’ in an Era of Widespread Criminal
Background Checks, NAT’L INST. OF JUSTICE (June 1, 2010), available at http://www.nij.gov/journals/263/pages/redemption.aspx; Megan
C. Kurlychek, Robert Brame & Shawn D. Bushway, Enduring Risk? Old Criminal Records and Predictions of Future Criminal Involvement,
53 CRIME & DELINQUENCY 64 (2007) (analyzing juvenile and adult aggregate data for 670 males born in 1942 and finding that the risk of
these males recidivating approximates that of a person without a criminal record after seven years); Megan C. Kurlychek et al., Scarlet Letters
and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 CRIMINOLOGY & PUB. POL’Y 483 (2006) (studying Philadelphia
police records to conclude that six to seven years after an initial arrest, re-arrest risk of individuals studied was approximately the same as
that of someone who has never been arrested).
69. DC Day 2 at 7.

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70. See iCORI, MASSACHUSETTS DEPARTMENT OF CRIMINAL JUSTICE INFORMATION SERVICES, available at https://icori.chs.
state.ma.us/icori/ext/global/landing.action?page=1&bod=1394836595081&m=presentLanding.
71. Chicago Day 1 at 95.
72. NYC Day 3 at 29-30.
73. Miami Day 1 at 100.
74. Chicago Day 1 at 89.
75. Alfred Blumstein & Kiminori Nakamura, Paying a Price, Long After the Crime, N.Y. TIMES (Jan. 9, 2012), available at
http://www.nytimes.com/2012/01/10/opinion/paying-a-price-long-after-the-crime.html?_r=0.
76. Miami Day 1 at 72, 115. Norwood went on to describe how her organization had four job fairs last year. “Two, I call[ed] an ‘offender job fair’; not one employer showed up. The other two were community job fairs. I had more employers than I had chairs for.” Miami
Day 1 at 115.
77. “Language has been one of the first battlegrounds” among disabled people in objections to the way they are portrayed in media and
popular culture. “‘[P]erson with a disability’ (or ‘who is deaf,’ or ‘who has cognitive disabilities’)” is preferable “since it emphasizes the individual before the condition.” Joseph P. Shapiro, NO PITY: PEOPLE WITH DISABILITIES FORGING A NEW CIVIL RIGHTS MOVEMENT 32-33 (1993);
see also Paul Colford, ‘Illegal Immigrant’ No More, ASSOCIATED PRESS: THE DEFINITIVE SOURCE (April 2013), available at
http://blog.ap.org/2013/04/02/illegal-immigrant-no-more.
78. Margaret Colgate Love, What’s in a Name? A Lot, When the Name is “Felon,” THE CRIME REPORT (March 13, 2012), available
at http://www.thecrimereport.org/viewpoints/2012-03-whats-in-a-name-a-lot-when-the-name-is-felon; see also Testimony of Jeremy
Travis, NYC Day 1 at 94 (“We have language problems that get in the way a lot. We label people. . . . [T]he use of the words inmate or
offender. . . becomes problematic. I was very careful a moment ago to say incarcerated individual. I’m finding myself increasingly just to
make a point to use the words our fellow citizens who are in prison. So there are messaging issues that are really powerful. There are messaging opportunities that are really powerful.”). This report uses words like “offender” or “felon” only in quotes from witnesses or sources.
79. See VA. CODE ANN. § 18.2-471; § 47.1-4; see also NATIONAL INVENTORY OF COLLATERAL CONSEQUENCES, available at
http://www.abacollateralconsequences.org (showing 146 mandatory consequences relating to employment in search of Virginia database).
80. CIVIL IMPACTS OF CRIMINAL CONVICTIONS UNDER OHIO LAW, available at http://civiccohio.org/ (search of “mandatory” on Feb. 20,
2014, results in 533 consequences).
81. See, e.g., Letter from Attorney General Eric Holder to Vermont state Attorney General, April 18, 2011, available at
http://onlawyering.com/wp-content/uploads/2011/05/VT-Attorney-General-Sorrell.0001-1.pdf.
82. Chicago Day 1 at 142.
83.
UNIFORM
COLLATERAL
CONSEQUENCES
OF
CONVICTION
ACT
§
10
(2010),
available
at
http://www.uniformlaws.org/shared/docs/collateral_consequences/uccca_final_10.pdf [hereinafter UCCCA].
84. MODEL PENAL CODE: SENTENCING § 6x.04(b) (Council Draft No. 4, Sept. 25, 2013) (on file with NACDL) [hereinafter MPC Sept.
2013 Draft].
85. N.Y. Correct. Law § 702. See Love, NACDL Rights Restoration Project (New York profile) available at
https://nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/state_narr_ny.pdf.
86. The statute has a number of exceptions for jobs in education, law enforcement, and other sensitive
areas.
See
Love,
NACDL
Rights
Restoration
Project,
Colorado
profile,
available
at
https://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/state_narr_co.pdf.
87. Testimony of Patricia Warth, NYC Day 2 at 41-48; Testimony of Roberta Meyers, NYC Day 1 at 11; see also N.Y. CORRECTION
LAW §§ 701(1) and 703-a(1), which both state that a certificate may be granted to “relieve an eligible offender of any forfeiture or disability, or to remove any bar to employment, automatically imposed by law by reason of his conviction.”
88. Cleveland, Day 2 at 523-24.
89. Felony Disenfranchisement, THE SENTENCING PROJECT, available at http://www.sentencingproject.org/template/page.cfm?id=133.
90. Attorney General Eric Holder Delivers Remarks on Criminal Justice Reform at Georgetown University Law Center, U.S. DEP’T
OF
JUSTICE (Feb. 11, 2014), available at http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-140211.html;
see also CHRISTOPHER UGGEN, SARAH SHANNON & JEFF MANZA, THE SENTENCING PROJECT, STATE-LEVEL
ESTIMATES OF FELON DISENFRANCHISEMENT IN THE UNITED STATES, 2010 at 2 (2012), available at
http://www.sentencingproject.org/doc/publications/fd_State_Level_Estimates_of_Felon_Disen_2010.pdf.
91. SF Day 1 at 10-11; see also Testimony of Lamont Carey, spoken word artist, filmmaker, and author, DC Day 2 at 303 (“So for me,
once I realized that I had the power to vote, that immediately made me feel more powerful. I began to express myself verbally and when I
go into that booth.”); Testimony of Wayne Rawlins, community justice and economic development consultant, Miami Day 1 at 28-29 (“You
know what is a fundamental [right] to an American? Power of the vote. And when you take that away from a person, you’ve pretty much
left them hopeless.”).
92. Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV. 1789 (2012) (noting the decline of ‘civil death’ during the mid-twentieth century as policy makers began to recognize that “convicted persons eventually rejoin society”); ABA STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED

PERSONS, Standard 19-2.6(a) (3d ed., June 2004), available at (“Jurisdictions should not impose the following collateral sanctions: (a) deprivation of the right to vote, except during actual confinement”).
93. AM. CIVIL LIBERTIES UNION, OUT OF STEP WITH THE WORLD: AN ANALYSIS OF FELONY DISFRANCHISEMENT IN THE U.S. AND OTHER
DEMOCRACIES 1 (May 2006), available at http://www.procon.org/sourcefiles/aclu-felon-voting-report-2006.pdf; see also Testimony of Julie
Ebenstein, policy and advocacy counsel, ACLU of Florida, Miami Day 2 at 379; cf. Aleks Kajstura & Peter Wagner, Importing Constituents:
POLICY INITIATIVE
(March
2010),
available
at
Prisoners
and
Political
Clout
in
California,
PRISON
http://www.prisonersofthecensus.org/ca/report.html (noting that prisoners are counted for census purposes, regardless of their ability to vote).
94. See, e.g., 18 U.S.C. § 922(g); CAL. PENAL CODE § 29800. Some misdemeanor convictions, most notably those meeting the definition of a crime of domestic violence, also result in a loss of firearms rights. See, e.g., 18 U.S.C.A. § 921(a)(20)(A); 11 DEL. CODE §1448
(loss of rights for conviction for “crime of violence involving physical injury to another”).
95. 18 U.S.C. §§ 922(g), 924(a)(2).
96. See, e.g., Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. 2013) (remanding for consideration whether Georgia pardon
restoring firearms privileges to individual with drug conviction should be given full faith and credit in Tennessee, in light of new Tennessee
law authorizing expungement of pardoned drug convictions); see also Blackwell v. Haslam, 2012 Tenn. App. LEXIS 23 (Tenn. Ct. App.
2012).
97. Love, NACDL Restoration of Rights Project at Chart #2 (State Law Relief from Federal Firearms Act Disabilities), available at
https://www.nacdl.org/ResourceCenter.aspx?id=25277&libID=25246.
98. NYC Day 3 at 155. For a full explanation of the various issues relating to the loss of firearms rights and avenues for restoration of those rights, see MARGARET COLGATE LOVE, JENNY ROBERTS & CECELIA KLINGELE, COLLATERAL CONSEQUENCES OF CRIMINAL
CONVICTIONS: LAW, POLICY AND PRACTICE §§ 2:29-37 & Appendix A (NACDL/West 2013).
99. Cleveland Day 1 at 173-75.
100. Cleveland Day 1 at 208.
101. OFFICE OF THE DEPUTY MAYOR FOR PUB. SAFETY, CITY OF PHILADELPHIA, ECONOMIC BENEFITS OF
EMPLOYING
FORMERLY
INCARCERATED
INDIVIDUALS
IN
PHILADELPHIA
5
(Sept.
2011),
available
at
http://economyleague.org/files/ExOffenders_-_Full_Report_FINAL_revised.pdf (“Connecting the formerly incarcerated to employment
has been shown to reduce recidivism and results in three different types of positive economic impacts: (1) increased earnings, (2) increased tax revenues from employment, and (3) avoided costs in the form of avoided spending on criminal justice agencies, social services, and government cash transfers, as well as prevented victim costs.”).
102. NYC Day 2 at 263.
103. See SOC’Y FOR HUMAN RES. MGMT., BACKGROUND CHECKING: CONDUCTING CRIMINAL BACKGROUND CHECKS 3 (2010), available
at http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx. (describing survey where 92
percent of responding employers performed criminal background checks on some or all job candidates, and 73 percent performed checks
on all job candidates).
104. Gregory v. Litton Systems, 472 F. 2d 631, 632 (9th Cir. 1972); Green v. Missouri Pac. R. Co, 523 F 2d 1290 (8th Cir. 1975).
105. Love, NACDL Restoration of Rights Project at Chart #5 (Consideration of Criminal Record in Licensing and Employment), available at
https://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/Consideration_of_Criminal_Record_in_Licensing_And_Employment.pdf.
106. UCCCA, § 8.
107. Chicago Day 1 at 110-11.
108. EEOC ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS
UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. §§ 2000e et seq., No. 915.002 (April 25, 2012), available
at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm [hereinafter EEOC GUIDELINES]. The EEOC Guidance is discussed in
LOVE, ROBERTS & KLINGELE, COLLATERAL CONSEQUENCES § 6:5.
109. LAWYERS’ COMM. FOR CIVIL RIGHTS UNDER LAW, THE LEGAL ACTION CTR., & NAT’L WORKRIGHTS INST., BEST PRACTICE STANDARDS:
THE PROPER USE OF CRIMINAL RECORDS IN HIRING (2013), available at http://www.lawyerscommittee.org/newsroom/publications?id=0037.
110. N.Y. CORRECTION LAW § 753(2).
111. NAT’L EMP’T LAW PROJECT, STATEWIDE BAN THE BOX: REDUCING UNFAIR BARRIERS TO EMPLOYMENT OF PEOPLE WITH CRIMINAL
RECORDS (Feb. 2014), available at http://www.nelp.org/page/-/SCLP/ModelStateHiringInitiatives.pdf?nocdn=1; see also LOVE, ROBERTS
& KLINGELE, COLLATERAL CONSEQUENCES § 6:17.
112. EEOC GUIDELINES.
113. Letter from Ronald L. Davis, chief of police, city of East Palo Alto, California, to Roger Dickinson (March 23, 2012) (on
file with NACDL).
114. NYC Day 3 at 25-26.
115. Ban the Box: Some Companies Stop Asking Job Applicants About Criminal History, NPR (Nov. 5, 2013), available at
http://www.npr.org/templates/story/story.php?storyId=243213641.
116. See generally Corinne A. Carey, No Second Chance: People with Criminal Records Denied Access to Public Housing, 36 U. TOL.
L. REV. 545 (2005).

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89

90

117. Miami Day 1 at 232.
118. Chicago Day 2 at 330, 290.
119. 42 U.S.C. §§ 13663 & 1437n.
120. 24 C.F.R. § 960.204(a).
121. 24 C.F.R. § 982.553.
122. HUD v. Rucker, 535 U.S. 125 (2002) (upholding HUD’s “one strike policy”).
123. NYC Day 1 at 15.
124. FORMERLY INCARCERATED & CONVICTED PEOPLE’S MOVEMENT, COMMUNITIES, EVICTIONS, AND CRIMINAL CONVICTIONS (April 18, 2013),
available at http://ficpmovement.wordpress.com/2013/04/18/new-report-on-public-housing-communities-evictions-and-criminal-convictions/.
125. Letter from Shaun Donovan, Secretary of Housing and Urban Development, to Public Housing Authority executive directors
(June 17, 2011), available at http://nhlp.org/files/Rentry%20letter%20from%20Donovan%20to%20PHAs%206-17-11.pdf (reminding
public authorities of the broad discretion available when considering admissions); Letter from Shaun Donovan, Secretary of Housing
and Urban Development, to private owners of HUD-assisted properties (March 14, 2012), available at
http://nhlp.org/files/HUD%20Letter%203.14.12.pdf (calling on owners “to seek a balance between allowing ex-offenders to reunite
with families that live in HUD subsidized housing, and ensuring the safety of all residents”).
126. DC Day 2 at 19-20.
127. Testimony of Pamela Lawrence, public housing revitalization specialist and grant manager at the Department of Housing and
Urban Development, DC Day 2 at 22; see also Testimony of Linda Evans, staff attorney with Legal Services for Prisoners with Children,
SF Day 1 at 41-42 (describing “Moms Program” and “Pops Program” run by Oakland, public housing authority that gave public housing to men and women otherwise ineligible due to drug-related felony convictions).
128. David T. Baker, HANO Adopts New Criminal Background Policy, LA. WEEKLY (May 28, 2013), available at
http://www.louisianaweekly.com/hano-adopts-new-criminal-background-policy.
129. Mireya Navarro, Ban on Former Inmates in Public Housing is Eased, N.Y. TIMES (Nov. 14, 2013), available at
http://www.nytimes.com/2013/11/15/nyregion/ban-on-former-inmates-in-public-housing-is-eased.html?ref=todayspaper&_r=0.
130. SF Day 1 at 88-89.
131. SF Day 1 at 90-91.
132. SF Day 1 at 105.
133. SF Day 1 at 92.
134. DC Day 2 at 231-32.
135. NYC Day 3 at 26-27.
136. DC Day 2 at 228.
137 Robert L. Ehrlich, Jr., Obama’s Unpardonable Neglect of Clemency, THE BALTIMORE SUN (Jan. 13, 2013), available at
http://www.baltimoresun.com/news/opinion/bs-ed-ehrlich-pardons-20130113,0,5517792.column.
138 The Quality of Mercy, Strained, Editorial, N.Y. T IMES (Jan. 5, 2013), available at
http://www.nytimes.com/2013/01/06/opinion/sunday/the-quality-of-mercy-strained.html?ref=opinion&_r=0.
139. Margaret Colgate Love, Governor’s Pardon Power Used Too Rarely, S.F. GATE (Dec. 28, 2012),
available
at
http://www.sfgate.com/opinion/openforum/article/Governor-s-pardon-power-used-too-rarely-4153130.php
(criticizing California Gov. Jerry Brown).
140. Bob Ortega, Rarely Granted Clemency: Governor Seldom Uses Sentencing ‘Safety Valve’, THE ARIZONA REPUBLIC (May 12, 2012),
available at http://www.azcentral.com/arizonarepublic/news/articles/2012/04/12/20120412arizona-prison-clemency.html?nclick_check=1.
141. The Obama administration recently called upon the bar to help identify individuals with low level, non-violent convictions serving unduly harsh sentences who should be considered for clemency. While this is a positive development from a Justice Department that has
shown great reluctance to recommend any type of clemency, the commutation of a sentence will not ameliorate the collateral consequences
that individuals will face when released from prison. Further, the administration specifically distinguished this commutation initiative from
the granting of pardons or forgiveness, which is the type of federal action that would truly allow individuals with low-level convictions to move
on with their lives. See Remarks as Prepared for Delivery by Deputy Attorney General James Cole at the New York State Bar Association
Annual Meeting, U.S. DEP’T OF JUSTICE, available at http://www.justice.gov/iso/opa/dag/speeches/2014/dag-speech-140130.html.
142. Chicago Day 1 at 59.
143. Chicago Day 2 at 430-31.
144. Testimony of John Schomberg, Chicago Day 2 at 192-93.
145. DC Day 2 at 86.
146. DC Day 2 at 87.
147. DC Day 2 at 96-97.
148. NYC Day 2 at 163.
149. See also LOVE, ROBERTS & KLINGELE, COLLATERAL CONSEQUENCES § 7:23.
150. UCCCA § 11.

151. See testimony of Judge Paul Biebel, Beth Johnson, and Darrell Langdon at Chicago Day 1; see also Margaret Colgate Love,
Paying Their Debt to Society: Forgiveness, Redemption, and the Uniform Collateral Consequences of Conviction Act, 54 HOW. L. J. 753,
760-764 (2011).
152. See, e.g., testimony of Federal District Court Judge Dan Polster, Cleveland Day 2 at 501-07.
153. MPC, Sept. 2013 draft, § 6x.06.
154. Chicago Day 1 at 34-35.
155. Chicago Day 1 at 47.
156. NYC Day 2 at 63. Jesse Wiese, who has a criminal record and recently graduated from law school, spoke of the importance
of having a ceremony when individuals are beginning the re-entry process — as important to rehabilitation, as a recognition of violation of trust, serving penance, and welcoming back and restoring membership. NYC Day 2 at 157.
157. See U.S. DEP’T OF JUSTICE, SMART ON CRIME: REFORMING THE CRIMINAL JUSTICE SYSTEM FOR THE 21ST CENTURY 5 (Aug. 2013)
available at http://www.justice.gov/ag/smart-on-crime.pdf (stating how “the consequences of a criminal conviction can remain long
after someone has served his or her sentence . . . , making a proper transition into society difficult” and recommending that “[i]f the rules
imposing collateral consequences are found to be unduly burdensome and not serving a public safety purpose, they should be narrowly
tailored or eliminated.”).
158. Attorney General Eric Holder Delivers Remarks at the National Association of Women Judges Midyear Meeting and Leadership
Conference, U.S. DEP’T OF JUSTICE (March 14, 2014), available at http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-140314.html.
159. National Reentry Resource Center — Federal Interagency Reentry Council, JUSTICE CENTER,
http://www.nationalreentryresourcecenter.org/reentry-council.
160. DC Day 2 at 8.
161. See Letter from Shaun Donovan, secretary of Housing and Urban Development, to Public Housing Authority executive directors (June 17, 2011), available at http://nhlp.org/files/Rentry%20letter%20from%20Donovan%20to%20PHAs%206-17-11.pdf (reminding public authorities of the broad discretion available when considering admissions); Letter from Shaun Donovan, secretary of
Housing and Urban Development, to private owners of HUD-assisted properties (March 14, 2012), available at
http://nhlp.org/files/HUD%20Letter%203.14.12.pdf (calling on owners “to seek a balance between allowing ex-offenders to reunite with
families that live in HUD subsidized housing, and ensuring the safety of all residents”); EEOC GUIDANCE.
162. As of January 2014, President Obama had granted 52 pardons and denied 1,487 applications. See Clemency Statistics, U.S.
DEP’T. OF JUSTICE, http://www.justice.gov/pardon/statistics.htm.
163. DC Day 2 at 232.
164. DC Day 3 at 322-23.
165. NYC Day 3 at 46-7.
166. Cleveland Day 1 at 135.
167. NYC Day 2 at 47.
168. NYC Day 3 at 45-46.
169. DC Day 1 at 74-75.
170. DC Day 1 at 75-76.
171. Chicago Day 1 at 16-17.
172. LOVE, ROBERTS & KLINGELE, COLLATERAL CONSEQUENCES § 7:22.
173. NYC Day 1 at 24 (noting how “the crisis of the consequences of convictions on people’s lives rarely seems to lead to discussions
about the entry point of the problem, the underlying conviction itself, and that inquiry is the how and why of the underlying conviction.”).
174. Love, NACDL Restoration of Rights Project, Chart #4 (Judicial Expungement, Sealing, and Set Aside), available at
http://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/Judicial_Expungement_Sealing_and_Set-Aside.pdf.
175. Chicago Day 1 at 60.
176. COLO. REV. STAT. § 18-1.3-101; see also Love, NACDL Restoration of Rights Project, Colorado profile, available at
https://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/state_narr_co.pdf.
177. COLO. REV. STAT. § 18-1.3-103.5.
178. Id.
179. In re Salazar-Regino, 23 I. & N. Dec. 2223, 235 (B.I.A. 2002).
180. Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005).
181. See, e.g., MO. REV. STAT. § 610.140(7) (allowing expunged convictions to be used to enhance subsequent sentences, and to be
given predicate effect).
182. Testimony of Doug Wigdor, NYC Day 3 at 146-47; see also 12 U.S.C.A. § 1829.
183. Smith v. Bank of Am. Corp., 865 F. Supp. 2d 298 (E.D.N.Y. 2012) (New York ACD in shoplifting case held disqualifying,
notwithstanding state laws barring unreasonable discrimination based on criminal record). Commenting on “New York’s much-admired

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adjournment in contemplation of dismissal (“ACD”) program,” Judge Jack B. Weinstein noted that:
“The ACD [adjournment in contemplation of dismissal] process is designed to avoid persons charged with minor offenses
being permanently designated as criminals. It provides a second chance for a lawful life. The federal statute mandated the defendant bank’s refusal to hire plaintiff because of a shoplifting prosecution that was nullified by an ACD. Otherwise, it would
have employed her. The federal statute and its administration should be revised to bring them into line with the highly laudable state policy.”

92

865F. Supp. 2d at 300.
184. Chicago Day 2 at 533.
185. Miami Day 1 at 113-15.
186. See Testimony of Esta Bigler, NYC Day 2 at 182-83 (“Our results show . . . negligent hiring cases do not occur frequently
enough for any employer to be worried about them. So this is the big sell about negligent hiring, that they do not occur, and it is not a
reason to discriminate based on criminal records. It certainly should not be the primary reason to conduct background checks by 55 percent of the employers.”).
187. See, e.g., COLO. REV. STAT. § 8-2-201(b) (providing negligent hiring protection for convictions not “directly related” to employment or that have been sealed or pardoned); 730 ILL. COMP. STAT. 5/5-5.5-15(f) (issuing negligent hiring protection where employer
relied on certificate of relief from disabilities).
188.
Work
Opportunity
Tax
Credit
Amounts,
U.S.
D EP ’ T
OF
L ABOR ,
available
at
http://www.doleta.gov/business/incentives/opptax/benefits.cfm (listing maximum benefits); Work Opportunity Tax Credit, Eligible
New Hires, U.S. DEP’T OF LABOR, available at http://www.doleta.gov/business/incentives/opptax/eligible.cfm (listing “ex-felons”
among eligible new hires).
189. Highlights of the Federal Bonding Program, THE FED. BONDING PROGRAM: A U.S. DEP’T OF LABOR INITIATIVE, available at
http://www.bonds4jobs.com/highlights.html.
190. Chicago Day 1 at 96; ILL. DEP’T OF EMP’T SEC., RE-ENTRY EMPLOYMENT SERVICES PROGRAM: REDUCING RECIDIVISM THROUGH
EMPLOYMENT, available at http://www.ides.illinois.gov/page.aspx?item=965.
191. NYC Day 2 at 237, 251, 262.
192. Love, NACDL Restoration of Rights Project, Chart #5 (Consideration of Criminal Record in Licensing and Employment), available at
https://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/Consideration_of_Criminal_Record_in_Licensing_And_Employment.pdf.
193. See Patricia Warth written testimony submitted to Task Force, posted at www.nacdl.org/restoration/roadmapreport.
194. N.Y. CORRECTION LAW § 752. For other state laws with model multi-factor tests to determine if there is any direct relationship
between a conviction and the employment sought, see MINN. STAT. § 364.03 (governing public employment and occupational licensing);
VA. CODE ANN. § 54.1-204 (governing applications for “a license, certificate or registration to practice, pursue, or engage in any regulated occupation or profession”).
195. N.Y. EXECUTIVE LAW § 296(15) (“there shall be a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager, if after learning about an applicant or employee’s past criminal conviction history, such employer
has evaluated the factors set forth in section seven hundred fifty-two of the correction law, and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee.”).
196. N.Y. EXECUTIVE LAW § 296(16).
197. N.Y. CORRECTION LAW § 753.
198. Know the Law, Employers, N.Y. DEP’T OF LABOR, available at http://www.labor.ny.gov/careerservices/ace/employers.shtm
(“All types of criminal records and background checks may contain errors. When you are considering denying employment based on a
background check, you should, at a minimum: (1) provide the applicant with a copy of the background check received, and (2) give the
applicant an opportunity to identify and correct errors or otherwise explain what is listed on the background check.”). But cf. Testimony
of Judy Whiting, NYC Day 2 at 176 (“So not only are background check companies required to make sure their records are accurate and
up-to-date, but federal law requires that if an employer is going to use a background check, a commercial background check, in whole
or in part to make an employment decision or take an adverse employment action, they have to give the person the background check
in advance of doing the deed and give the person a chance to look at the thing . . . but employers almost never do that.”).
199. NYC Day 1 at 18.
200. EEOC v. BMW Manufacturing Co. Ltd, No. 13 Civ. 1583 (D. S.C.), docket no. 1 (Complaint); EEOC v. Dolgencorp LLC, No. 13
Civ. 4307 (N. D. Ill.), docket no. 1 (Complaint); see also Tess Stynes, EEOC Files Suits Against BMW Manufacturing, Dollar General, WALL
ST. J. (June 11, 2013), http://online.wsj.com/article/BT-CO-20130611-706879.html; Scott Thurm, Employment Checks Fuel Race Complaints,
WALL ST. J. (June 12, 2013), available at http://online.wsj.com/news/articles/SB10001424127887323495604578539283518855020.

201. See, e.g., D.C. COURTS, available at http://www.dccourts.gov/internet/CCO.jsf.
202. See, e.g., CORE LOGIC, available at http://www.corelogic.com/.
203. David Segal, Mugged by a Mug Shot Online, N.Y. TIMES (Oct. 5, 2013), available at
http://www.nytimes.com/2013/10/06/business/mugged-by-a-mug-shot-online.html?pagewanted=all&_r=0
204. Maryland Sex Offender Registry Search, MD. DEP’T OF PUB. SAFETY & CORR. SERV., available at
http://www.dpscs.state.md.us/sorSearch/.
205. INSTANT CHECKMATE, available at http://www.instantcheckmate.com/?src=GLE&mdm=search&cmp=TAKBS&cnt=
SPI&s4=check+criminal+background.
206. There is a presumed right of access to criminal and civil court records. See, e.g., Nixon v. Warner Communications, Inc., 435
U.S. 589, 597-98 (1978) (“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.”). However, “the right to inspect and copy judicial records is not absolute. Every court
has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes” and can “weigh[ ] the interests advanced by the parties in light of the public interest and the duty of the courts in exercising that power. Id. at 598, 602; see also United States v. Rosenthal, 763 F.2d 1291 (11th Cir. 1985) (“[W]hile the presumption in
favor of common-law right of access must always be kept in mind, trial court may properly balance this right against important competing interests, including whether records are sought for such illegitimate purposes as to promote public scandal or gain unfair commercial advantage.”) (emphasis added).
207. LOVE, ROBERTS & KLINGELE, COLLATERAL CONSEQUENCES § 5:5.
208. Testimony of Frank Campbell, DC Day 3 at 222.
209. MADELINE NEIGHLY & MAURICE EMSELLEM, THE NAT’L EMP’T LAW PROJECT, WANTED: ACCURATE
FBI BACKGROUND CHECKS FOR EMPLOYMENT 6 (July 2013) [hereinafter Wanted report], available at
http://www.nelp.org/page/-/SCLP/2013/Report-Wanted-Accurate-FBI-Background-Checks-Employment.pdf?nocdn=1.
210. Wanted report at 5-7.
211. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SURVEY OF STATE CRIMINAL HISTORY INFORMATION SYSTEMS, 2010 at 3
(Nov. 2011), available at https://www.ncjrs.gov/pdffiles1/bjs/grants/237253.pdf.
212. Wanted report at 12.
213. NYC Day 3 at 22-23.
214. Chicago Day 2 at 426-27.
215. SF Day 1 at 96.
216. SF Day 1 at 98.
217. Representative Bobby Scott (D-VA) introduced the Fairness and Accuracy in Employment Background Checks Act, which aims
to clean up incomplete FBI background checks for employment. Fairness and Accuracy in Employment Background Checks Act of
2013, HR 2865, 113th Cong. (2013), available at https://www.govtrack.us/congress/bills/113/hr2865/text.
218. NAT’L EMP’T LAW PROJECT, SUPPORT THE FAIRNESS & ACCURACY IN EMPLOYMENT BACKGROUND CHECKS ACT, available at
http://www.nelp.org/page/-/SCLP/2010/FBIBillFactSheet.pdf?nocdn=1.
219. ABC Act of 2013, HR 2999, 113th Cong., 2013, available at https://www.govtrack.us/congress/bills/113/hr2999/text.
220. See, e.g., IND. CODE § 35-38-9-7(b) (records of more serious felonies “remain public records” after expungement, although they
must be “clearly and visibly marked or identified as being expunged”).
221. Chicago Day 1 at 142-43.
222. Chief Judge Jonathan Lippman, New York State Court of Appeals, 2014 State of the State of the Judiciary Address (Feb. 11,
2014), transcript available at https://www.nycourts.gov/ctapps/soj.htm (noting that “[s]ex offenses, public corruption cases, and DWI
related offenses will not be eligible for expungement.”).
223. Love, NACDL Restoration of Rights Project, Chart #4 (Judicial Expungement, Sealing, and Set-Aside), available at
http://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/Judicial_Expungement_Sealing_and_Set-Aside.pdf;
LOVE, ROBERTS & KLINGELE, COLLATERAL CONSEQUENCES § 7:17.
224. Love, NACDL Restoration of Rights Project, Chart #4 (Judicial Expungement, Sealing, and Set-Aside), available at
http://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/Judicial_Expungement_Sealing_and_Set-Aside.pdf.
225. Id.
226. See N.M. STAT. ANN. § 30-31-28(D); N.C. GEN. STAT. §§ 15A-145 et seq.; W. VA. CODE § 61-11-26; WIS. STAT. § 973.015.
227. Chicago Day 1 at 24-27.
228. See IND. CODE 35-38-9-1 et seq. The new Indiana expungement scheme is discussed in detail at Love, NACDL Restoration of Rights
Resource, Indiana profile, available at https://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/state_narr_in.pdf.
229. Id.
230. Id. at § 35-38-9-7(b).
231. Id. at § 35-38-9-10(a) through (g).

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232. IND. CODE § 24-4-18-6(a).
233. Civil Forms, JUDICIAL BRANCH OF INDIANA, http://www.in.gov/judiciary/2706.htm.
234. Chicago Day 1 at 19-20.
235. Cleveland Day 2 at 379.
236. Chicago Day 2 at 438.
237. The Department of Labor, in offering $26 million in grant funds to improve long-term labor market prospects of youth in the
juvenile justice system, required that grants must include a diversion and/or expungement component. Press Release, U.S. Dep’t of
Labor, U.S. Department of Labor Announces Availability of Nearly $26 Million in Grants to Help Juvenile Offenders Gain the Skills
Necessary to Enter the Workplace (April 1, 2013), available at http://www.dol.gov/opa/media/press/opa/OPA20130591.htm .
238. Jack Healy, Wrongfully Convicted Often Find Their Record, Unexpunged, Haunts Them, N.Y. TIMES (May 5, 2013), available
at http://www.nytimes.com/2013/05/06/us/wrongfully-convicted-find-their-record-haunts-them.html.
239. 20 ILL. COMP. STAT. 2630/12(a).
240. Compare Gene Policinski, ‘Mug shot’ Sites Pose First Amendment Dilemma, FIRST AMENDMENT CTR., available at
http://www.firstamendmentcenter.org/mug-shot-sites-pose-first-amendment-dilemma (“There’s the rub: Those public-spirited companies like Mugshots.com suddenly turn self-serving in demanding from $99 to $399 to take down a photo. Critics call the practice ‘unfair’ or ‘extortion.’ But given that the postings are done by private companies, not public officials, legal cures proposed thus far seem
as bad as the ailment.”) with Jillian Stonecipher, Florida Bill Targets “Mugshot Websites,” Hits Crime Reporting, DIGITAL MEDIA LAW
PROJECT (Feb. 21, 2013), available at http://www.dmlp.org/blog/2013/florida-bill-targets-%E2%80%9Cmugshotwebsites%E2%80%9D-hits-crime-reporting (“Unlike many organizations that file [Freedom of Information Act] requests and provide
the open records to the public, mugshot websites do not seek to provide a public service. Instead, these sites exploit laws created to
protect open government and free speech for the same reason they exploit people trying to get their mugshots removed- to make a profit.
Even staunch free speech advocates recognize that these mugshot companies are, at the very least, distasteful.”). Although Freedom
of Information Act litigation involves statutory rather than constitutional principle, there are also different approaches to the release
of mugshots on this basis. Compare Karantsalis v. Dept. of Justice, 635 F.3d 497 (2011) (affirming U.S. Marshall Service’s determination that it must withhold mugshot to protect individual from unwarranted invasion on his privacy interests, where there was no
overriding public interest in accessing the shot) with Detroit Free Press v. Dept. of Justice, 73 F.3d 93, 97 (6th Cir. 1996) (holding that,
in some circumstance, booking photographs must be disclosed to the media upon FOIA request even if doing so does not serve a law
enforcement purpose).
241. David Segal, Mugged by a Mug Shot Online, N.Y. TIMES, Oct. 5, 2013, available at
http://www.nytimes.com/2013/10/06/business/mugged-by-a-mug-shot-online.html?pagewanted=all&vsmaid=20&_r=0.
242. See, e.g., UTAH CODE ANN. 1953 § 17-22-30 (Utah law stating that “A sheriff may not provide a copy of a booking photograph
in any format to a person requesting a copy of the booking photograph if: (a) the booking photograph will be placed in a publication or
posted to a website; and (b) removal of the booking photograph from the publication or website requires the payment of a fee or other
consideration.”).
243. Email from Sharon Dietrich, National Employment Law Project (July 23, 2013) (on file with NACDL).
244. S.B. 990, 2007 Leg., 80R (Tex. 2007) available at http://www.legis.state.tx.us/billlookup/text.aspx?LegSess=80R&Bill=SB990.
245. SF Day 1 at 230-32.
246. For example, the National Association of Criminal Defense Lawyers hosted a “Collateral Consequences Conference &
Midwinter Meeting” in March 2014. See https://www.youtube.com/watch?v=rsS3r9P9DPw (video presentation).
247. NAT’L INVENTORY OF THE COLLATERAL CONSEQUENCES OF CONVICTION, available at http://www.abacollateralconsequences.org/;
see also CIVIL IMPACTS OF CRIMINAL CONVICTIONS UNDER OHIO LAW, available at http://civiccohio.org/.
248. See, e.g., Boards, VA. DEP’T OF PROF’L & OCCUPATIONAL REGULATION, available at http://www.dpor.virginia.gov/Boards
(listing Virginia regulatory boards for long list of professions).
249 Cleveland Day 2 at 521.
250. Miami Day 1 at 216-17.
251. Miami Day 2 at 355-56.
252. DC Day 3 at 141.
253. Miami Day 2 at 328.
254. Chicago Day 2 at 196.
255. NYC Day 1 at 26-27.
256. NYC Day 3 at 20-21.
257. Chicago Day 1 at 46.
258. CAL. PENAL § 4852.08.
259. SF Day 1 at 29.
260. See, e.g., Wesley Lowery, Conservatives Try to Make Criminal Justice Reform a Signature Issue, WASH. POST (March 7, 2014), available at
http://www.washingtonpost.com/politics/conservatives-try-to-make-criminal-justice-reform-a-signature-issue/2014/03/07/4b006368-

a626-11e3-84d4-e59b1709222c_story.html; Testimony of NYC Probation Commissioner Vincent Schiraldi, NYC Day 3 at 17-30;
Missouri: Implementation of HB 1647 in Jeopardy!, Nat’l Rifle Ass’n Inst. of Legislative Action
(June 26, 2012), available at http://www.nraila.org/legislation/state-legislation/2012/6/missouri-implementation-of-hb-1647-in-jeopardy!
.aspx?s=&st=10489&ps (encouraging individuals to contact Gov. Jay Nixon and “urge him to sign [Missouri House Bill 1647 —
Public Safety, http://www.house.mo.gov/billtracking/bills121/sumpdf/HB1647T.pdf ] into law”); Attorney General Eric Holder Delivers
Remarks at the Annual Meeting of the American Bar Association’s House of Delegates, U.S. Dep’t of Justice (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html (“calling on every member of our profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo; and to take bold steps to reform
and strengthen America’s criminal justice system — in concrete and fundamental ways”); Josh Eidelson, AFL-CIO Pledges Prison
Reform, Partnerships, and Accountable Organizing Plans, THE NATION (Sept. 10, 2013), available at
http://www.thenation.com/blog/176093/afl-cio-pledges-prison-reform-partnerships-and-accountable-organizing-plans (“‘Mass incarceration is a betrayal of the American promise,’ [AFL-CIO President Richard] Trumka told the crowd before taking comments from
the floor. ‘The practice hurts our people and our communities, it keeps wages low, it suppresses democracy, and we can’t afford to imprison so many people. Nor can our families, our communities or our country afford the loss of productivity of these people.’”); see
also AFL-CIO, 2013 Convention Resolution and Amendments, Res. 17: Prison and Profits — The Big Business Behind Mass
Incarceration, available at http://www.aflcio.org/About/Exec-Council/Conventions/2013/Resolutions-and-Amendments/Resolution17-Prisons-and-Profits-The-Big-Business-Behind-Mass-Incarceration.
261. See Reform Offenders, RIGHT ON CRIME, available at http://www.rightoncrime.com/the-conservative-case-for-reform/reform-offenders/
(“Breaking the cycle of crime and turning lawbreakers into law-abiding citizens is a conservative priority because it advances public
safety, the rule of law, and minimizes the number of future victims.”); AFL-CIO, 2013 CONVENTION RESOLUTION AND AMENDMENTS,
RES. 17: PRISON AND PROFITS — THE BIG BUSINESS BEHIND MASS INCARCERATION, available at http://www.aflcio.org/About/ExecCouncil/Conventions/2013/Resolutions-and-Amendments/Resolution-17-Prisons-and-Profits-The-Big-Business-Behind-MassIncarceration; THE SMART ON CRIME COAL., RECOMMENDATIONS FOR THE NEXT ADMINISTRATION AND CONGRESS, 247-249 (2011),
available at http://www.besmartoncrime.org/pdf/Complete.pdf (recommending various executive and legislative changes to deal with
bars to employment for individuals with criminal records).
262. INIMAI M. CHETTIAR, LAUREN-BROOKE EISEN, NICOLE FORTIER & TIMOTHY ROSS, BRENNAN CENTER FOR
JUSTICE,
REFORMING
FUNDING
TO
REDUCE
MASS
INCARCERATION,
(Nov.
22,
2013),
available
at
http://www.brennancenter.org/publication/reforming-funding-reduce-mass-incarceration.
263. See, e.g., Jack Healy, Wrongfully Convicted Often Find Their Record, Unexpunged, Haunts Them, N.Y. TIMES (May 5, 2013),
available at http://www.nytimes.com/2013/05/06/us/wrongfully-convicted-find-their-record-haunts-them.html?_r=0; Alfred Blumstein
& Kiminori Nakamura, Editorial, Paying a Price, Long After the Crime, N.Y. TIMES (Jan. 9, 2012), available
at http://www.nytimes.com/2012/01/10/opinion/paying-a-price-long-after-the-crime.html?_r=1&ref=opinion; see also Daniel Kanstroom,
Editorial, Deportation Nation, N.Y. TIMES (Aug. 30, 2012), available at http://www.nytimes.com/2012/08/31/opinion/deportation-nation.html;
David Zucchino, Immigrants’ Minor Offenses Can Ruin Hope for Deportation Waiver, L.A. TIMES (Aug. 19, 2012), available at
http://articles.latimes.com/2012/aug/19/nation/la-na-immigrant-20120819; Nina Bernstein, How One Marijuana Cigarette May Lead
to Deportation, N.Y. TIMES (March 30, 2010), available at http://www.nytimes.com/2010/03/31/nyregion/31drug.html?pagewanted=all.
264. Second Chance Act of 2007, Pub. L. No. 110-199.
265. Representative Bobby Scott (D-VA) introduced the Fairness and Accuracy in Employment Background Checks Act, which aims
to clean up incomplete FBI background checks for employment. Fairness and Accuracy in Employment Background Checks Act of
2013, HR 2865, 113th Cong. (2013), available at https://www.govtrack.us/congress/bills/113/hr2865. Representative Keith Ellison (DMN) introduced the Accurate Background Check (ABC) Act, which would require the FBI to do everything within its power to find any
missing information on past arrests for Americans applying to work in the federal government. ABC Act of 2013, HR 2999, 113th Cong.,
available at https://www.govtrack.us/congress/bills/113/hr2999.
266. See, e.g., GA. CODE ANN. § 35-3-37; COLO. REV. STAT. § 18-1.3-103.5; Chief Judge Jonathan Lippman, New York State Court
of Appeals, 2014 State of the State of the Judiciary Address (Feb. 11, 2014), transcript available at
https://www.nycourts.gov/ctapps/soj.htm.

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