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States Rethink Collateral Consequences, Vera Institute of Justice, 2014

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CENTER ON SENTENCING AND CORRECTIONS

Relief in Sight?
States Rethink the Collateral
Consequences of Criminal
Conviction, 2009-2014
DECEMBER 2014
Ram Subramanian, Rebecka Moreno, and Sophia Gebreselassie

FROM THE CENTER DIRECTOR
As this report makes clear, the legal and life-restricting consequences of having a criminal
conviction are many, varied, and often bewildering. They can impact the most fundamental
necessities of life—like a job, a place to live, and education—and affect not just the individuals with convictions but also their families. In some jurisdictions, they are onerous and
numerous; you have to wonder what their creators thought they would accomplish in terms
of enhancing public safety.
The breadth and reach of collateral consequences are indeed wide when one considers the
range of behaviors that are considered felonies in most states: from possession of drugs found
to indicate an “intent to distribute” or stealing $500 worth of goods from a garage to more
clearly serious offenses, such as stalking, armed robbery, and home invasion. Yet they are all
treated the same in terms of consequences long after sentence completion. No one would
argue against banning those convicted of identity theft or fraud from working in a bank, but
there are many other kinds of employment opportunities for which they may be suited and
should be permitted to pursue.
This report documents the efforts in many states to revaluate some of these consequences,
while making clear that many of the recently enacted reforms are easily undermined, worked
around, or ignored. Even more frequently, the fixes are relatively insignificant or apply to such
small group that they don’t begin to address the problem.
Collateral consequences are, of course, just one piece of the problem. The existing system
of proliferating criminal penalties and attendant collateral consequences not only remains in
place, it continues to grow—for example, with hundreds of new federal offenses created over
the last several years. Too often we criminalize behavior that decades ago would not have been.
We add on specific category or penalty enhancements for everything from where a crime was
committed to the status of the victim or intended victim. Intent is equated with commission.
Too many of our criminal laws are written to respond to behavior that should be dealt with (and
would more effectively be dealt with) outside the criminal justice system. And evidence on the
impact of public safety is mixed or limited at best.
Other laws are written in ways that do not distinguish between truly harmful acts and those that
only approximate those acts as exemplified by the overly broad definition of “violent”, ensnaring people who may only possess a weapon in commission of an offense, even when it was not
used, or never intended to be used. And finally, too often we respond to many members of our
communities who are primarily sick, poor, homeless, or unable to care for themselves or their
families with the hammer of the criminal justice system. And then we continue to hammer them
long after they have satisfied our need for retribution.

Peggy McGarry
Director, Center on Sentencing and Corrections

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

Contents
4	Introduction
4	

About this report

6	Background
11	 New approaches to collateral consequences
13	 Expungement and sealing remedies
18	 Certificates of recovery
20	 Offense downgrades
21	 Building relief into the criminal justice process
23	Ameliorating employment-related
collateral consequences
29	 Addressing discrete collateral consequences
30	 Limitations of reform
36	Recommendations
43	Conclusion
44	Appendices

VERA INSTITUTE OF JUSTICE

3

About this report
From 2009 through 2014, forty-one states and the District of Columbia enacted 155 pieces of legislation to mitigate the burden of collateral consequences for
people with certain criminal convictions. In reviewing this legislative activity,
the Vera Institute of Justice’s Center on Sentencing and Corrections found that
states have pursed one or a combination of seven broad approaches to reform.
They created or expanded expungement and sealing remedies; issued certificates of recovery; allowed for defense downgrades; built relief into the criminal
justice process; ameliorated employment-related collateral consequences; improved access to information; and addressed discrete collateral consequences.
By providing (1) concise summaries of representative legislation in each area, (2)
an analysis of the their limitations, and (3) recommendations for making future
efforts sustainable and comprehensive, this report aims to be a practical guide
for states and localities looking to enact similar reforms.

Introduction
Most people believe conviction and sentencing are the culmination of the
criminal justice process. When convicted of a criminal offense, an individual
will be made to pay their debt to society through a court-ordered sentence,
whether by paying a fine, complying with a community service order or conditions of probation, or serving a custodial sentence either in jail or prison. However, unbeknownst to most—including those convicted—a court-sanctioned
sentence does not define the whole punishment that convicted individuals
must submit to in practice.1 Due to a vast array of post-sentence civil penalties,
disqualifications, or disabilities that flow from state or federal convictions—
termed “collateral consequences of criminal convictions” or simply “collateral
consequences”—punishment does not necessarily end with the expiration of a
prison, jail, or community sentence. It can continue well beyond sentence completion, sometimes with lifetime impact, and often has adverse effects that can
be transmitted to the individual’s family and community.2
Consider a low-income person with a felony drug conviction in New York as
a case in point.3 That person will be presumptively ineligible for public housing,
with obvious impacts on his or her family and household, for two to six years
after sentence completion depending on the offense and type of conviction.4
That same person—possibly with limited education and access to career opportunities—will also be barred from employment or licensing in a wide variety of
occupations—including, dockworker, real estate agent, and even bingo operator—and could be disqualified from receiving much-needed educational assistance.5 New York is one of a number of states that have opted out of a federal
rule banning drug felons from receiving federal cash assistance or food stamps
for life.6 Thus, unlike drug felons in other states—whose families can receive
only a reduced amount of assistance or who face a temporary or conditional

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

ban on receiving any assistance—this person’s family will at least be able to
provide for some basic needs. However, the many adverse housing and employment consequences of conviction put into real question where this person will
live and how this person will be able to support his or her family.
Despite the profound impact collateral consequences can have on individuals
and families, these consequences—legally considered civil penalties—remain
formally excluded from the criminal justice process, with no mechanism to address them.7 For example, a formal discussion of collateral consequences does not
typically occur during plea negotiation because as “indirect” ramifications of a
guilty plea, neither the trial judge nor defense counsel is affirmatively required to
inform defendants of the collateral consequences attached to a particular offense.
As a result, they are largely invisible to convicted individuals and criminal justice
practitioners alike.8 Since collateral consequences are scattered throughout different statutes, cut across distinctive areas of law, and operate through diverse actors across several systems, it can be challenging for criminal attorneys, prosecu-

ARREST RECORDS
Arrests—including those that do not result in a conviction or a formal charge—can still trigger devastating collateral consequences. Records of an arrest that result in a not-guilty adjudication, dismissal, or no charge often remain in publically
accessible criminal record databases.a Additionally, commercial “data harvesters” collect records immediately or shortly
after an arrest is made, undermining state efforts to make inaccessible arrest records that did not result in a conviction.b
Moreover, these arrest records often do not include information on how the case was ultimately adjudicated—that is,
whether a case was ultimately dismissed, or that the individual was never charged.c Arrest records are used in employment, housing, credit, and other important decisions with very damaging consequences.d African Americans, with much
higher arrest rates, are particularly affected by the collateral consequences of an arrest record.e
In October 2014, the New York Times presented the story of Anthony Welfare, whose case exemplifies the consequences
that may arise from an arrest. f Welfare was arrested after a pipe containing marijuana residue was found in the console of
the car in which he was a passenger. Welfare, who had no knowledge of the paraphernalia in the car, was not a marijuana
user, and had no prior criminal record, was issued a desk appearance ticket and charged with a misdemeanor. Welfare
worked for seven years as a school bus driver, but upon being notified of the arrest, his employer fired him. He was told he
could be reinstated after he proved his innocence. Welfare waited two months for his first court date, losing nearly $7,000
in wages, and was granted a dismissal after an additional 90 days of staying out of trouble—resulting in an additional 90
days out of work. In a follow-up in November, the Times reported that while Welfare’s charges have since been dismissed,
he has still not been reinstated at his former job.g
For information regarding the collateral effects of arrest records, see
Shawn D. Stuckey, “Collateral Effects of Arrests in Minnesota,” University
of St. Thomas Law Journal 5, no. 1 (2008): 335; H. Lane Dennard, Jr. and
Patrick C. DiCarlo, Collateral Consequences of Arrests and Convictions: Policy and Law in Georgia (Macon, GA: Mercer Law School, 2009); and Gary
Fields and John R. Emshwiller, “As Arrest Records Rise, Americans Find
Consequences Can Last a Lifetime,” Wall Street Journal, August 18, 2014.
b
Stuckey, 2008, pp. 343-344.
c
For example, the Georgia Crime Information Center, which is responsible for a statewide centralized database of criminal history records, has
reported that 25 percent of felony arrest records reported during a five-year
period did not also report corresponding final dispositions. See H. Lane
Dennard, Jr. and Patrick C. DiCarlo, Collateral Consequences of Arrests and
a

Convictions: Policy and Law in Georgia (Macon, GA: Mercer Law School,
2009), 16. The report also notes the significant time lapse—152 days on
average—between when a disposition decision is rendered and when the
database is updated to reflect the disposition. The national average is
reported to be 50.2 days.
d
Gary Fields and John R. Emshwiller, “As Arrest Records Rise, Americans Find
Consequences Can Last a Lifetime,” Wall Street Journal, August 18, 2014.
e
Stuckey, (2008), pp. 338-340.
f
Jim Dwyer, “Despite Blasio’s Promise, Marijuana Arrests Persist in New
York,” The New York Times, October 21, 2014.
g
Jim Dwyer, “Shift on Marijuana Policy Was a Long Time Coming, and Too
Late for One Man,” The New York Times, November 13, 2014

VERA INSTITUTE OF JUSTICE

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tors, or judges to know and understand how and when they apply, or be familiar
with how other actors in different systems will employ them.9 Accordingly, many
criminal justice actors remain unfamiliar with the full gamut of collateral consequences triggered by a specific offense.10 Apart from immigration consequences,
neither the trial judge, nor the prosecutor, nor the defense attorney is required to
be aware that any exist.11 Thus, in many cases, individuals complete their sentences and then find themselves burdened with unanticipated, long-lasting, and
onerous post-punishment restrictions and penalties that can affect nearly every
aspect of their lives and from which they may have little prospect of relief.
In recent years, however, the veil of invisibility has slowly lifted.12 With rising
awareness of the increasing number of people under correctional supervision
and, therefore, an ever-increasing number reentering society, state policymakers, legal practitioners, advocates and the American public have become more
concerned about the issue of offender reentry and more supportive of rehabilitative and reentry services, particularly those which prevent recidivism.13 This

concern has brought into sharp focus the impact of collateral consequences on
the employment, education, health, and housing outcomes for people already
disadvantaged in these areas , along with the harmful public safety repercussions
that these can engender.14 Reflecting this concern, Attorney General Eric Holder,
for example, directed the U.S. Department of Justice in 2011 to consider whether
any proposed rule, regulation, or guidance may present unnecessary barriers
to successful reentry. In a speech in February 2014, Holder specifically called on
states to mitigate or eliminate “unwise collateral consequences” that prevent
individuals with past convictions from fully reintegrating into society.15 Holder
has also made a strong case against felon disenfranchisement laws, in particular,
by characterizing them as “unnecessary,” “unjust,” and “counterproductive,” and
which “perpetuat[e] the stigma and isolation imposed on formerly incarcerated
individuals, [and] increase the likelihood they will commit future crimes.”16
As jurisdictions direct attention to the significant barriers that collateral consequences impose on successful reentry, they have enacted measures that allow
certain individuals to move beyond their convictions in order to help increase their
chances for successful lives in the community. This report summarizes the approaches states have taken since 2009. It also discusses the limitations of these approaches and offers recommendations to jurisdictions considering similar efforts.

Background
As the 1970’s ended, with crime rates on the rise, the American public became
more concerned about public disorder and public safety, and as a result politicians of all stripes responded by jettisoning the rehabilitative principals that
had, until then, characterized much of the criminal justice system’s approach
towards law-breakers.17 Narrowing the system’s focus to retribution and deterrence, policymakers adopted harsher policies, including the dramatic expansion
of the penal code, in which state legislatures and Congress expanded existing

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

VOTING RIGHTS
Disenfranchisement—revocation of the right to vote—for criminal offenders in the United States dates back more than two
hundred years.a Premised on a principle that individuals who violate social norms by committing criminal offenses are not fit
to participate in the democratic political process, disenfranchisement is a tool used to marginalize law-breakers in America.b
Disenfranchisement of convicted individuals as practiced in the United States is quite rare among democracies elsewhere
in the world.c Besides running afoul of Article 25 of the International Covenant on Civil and Political Rights, disenfranchisement laws have been struck down in countries such as South Africa, Austria, the United Kingdom, and Canada.d
One particularly troubling aspect of this marginalization in the United States is its disparate racial impact.e In the late
nineteenth century, disenfranchisement was broadened and focused on crimes disproportionately committed by African
Americans, in an attempt to bypass the new voting rights granted by the Fifteenth Amendment.f Today, one out of every 13
African Americans (7.7 percent) is disenfranchised, compared to 1.8 percent of non-African Americans. At least 20 percent
of African Americans have lost the right to vote in three separate states (Florida, Kentucky, Virginia).g
Today, disenfranchisement laws differ significantly state to state. Three states permanently disenfranchise all people with
a felony conviction; seven states permanently disenfranchise some felony offenders; 21 states reinstate voting rights upon
sentence completion; four states disenfranchise those in prison or on parole, but allow those on probation to vote; thirteen
states disenfranchise those in prison but allow individuals or probation or parole to vote; and finally, just two states—Maine
and Vermont—grant everyone the right to vote, even those who are incarcerated, or on community supervision.h
Although, the rate of voting rights loss has increased approximately 400 percent since 1980, in recent years, there has been
a relaxation of voting bans in part due to research that suggests that the engagement of individuals with a criminal record
in the political process leads to a decrease in subsequent criminal activity.i At least 23 states have expanded voter eligibility
since 1997.j Most recently, Delaware HB 10 (2013) eliminated the five-year waiting period after sentence completion before voting rights restoration for most offenders. New York SB 3553 (2014) provided for absentee voting for incarcerated
non-felons. Virginia issued a directive to automatically restore voting rights to nonviolent felons after sentence completion.k In 2010, South Dakota restored some voting rights as a result of a settlement in a court case brought by the ACLU.l
See The Sentencing Project, Felony Disenfranchisement: A Primer (Washington, DC: The Sentencing Project, 2013), 2-3.
b
For an overview of the premises that undergird arguments for felony disenfranchisement, see Roger Clegg, George T. Conway III, and Kenneth K.
Lee, “The Case Against Felon Voting,” University of St. Thomas Journal of
Law & Public Policy 2, No.1 (2008): 17-19. Also see Matthew E. Feinberg,
Esq., “Suffering Without Suffrage: Why Felon Disenfranchisement Constitutes Vote Denial Under Section Two for the Voting Rights Act,” Hastings
Race and Poverty Law Journal 8 no. 61 (2011); 65-66. For a discussion of
the marginalizing effects of criminal disenfranchisement, see Ann Cammett,
“Shadow Citizens: Felony Disenfranchisement and the Criminalization of
Debt,” Penn State Law Review 117, no. 349 (2012): 370-72.
c
See ACLU et al., Democracy Imprisoned: A Review of the Prevalence and
Impact of Felony Disenfranchisement Laws in the United States (Shadow Report Submitted to the United Nations Human Rights Committee, 2013) 3-4,
http://sentencingproject.org/doc/publications/fd_ICCPR%20Felony%20Disenfranchisement%20Shadow%20Report.pdf
d
UN General Assembly, International Covenant on Civil and Political Rights,
16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available
at: http://www.refworld.org/docid/3ae6b3aa0.html. See note c for more information on other nations’ rejections of criminal disenfranchisement laws.
e
See United States Constitution, Amendment 15, Section 1 (“The right of
citizens of the United States to vote shall not be denied or abridged by
the United States or by any state on account of race, color, or previous
condition of servitude”). For a comprehensive overview of the historical
and present disparate impact of felony disenfranchisement laws, see Daniel
a

S. Goldman, “The Modern-Day Literacy Test?: Felon Disenfranchisement
and Race Discrimination,” Stanford Law Review 57, no. 611 (2004); 625-40.
f
Ibid., p. 625-27.
g
See note c, at p. 2.
h
ACLU, “Map of State Criminal Disenfranchisement Laws,” available at
https://www.aclu.org/maps/map-state-criminal-disfranchisement-laws
i
For information regarding the change in the disenfranchisement rate,
see Christopher Uggen, Sarah Shannon, and Jeff Manza, State-Level Estimates of Felon Disenfranchisement in the United States, 2010 (Washington,
DC: The Sentencing Project, 2012), 9. For information regarding research
on criminal activity and engagement in the political process, see Reuven
Ziegler, “Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives,” Boston University International Law
Journal 29 (2011): 208.
j
For a list of states that have expanded voter eligibility and descriptions
of these reforms, see Nicole D. Porter, Expanding the Vote: State Felony
Disenfranchisement Reform, 1997-2010 (Washington, DC: The Sentencing
Project, 2010).
k
See Letter from Governor Robert F. McDonnell to Secretary of
the Commonwealth Janet V. Kelly, May 29, 2013, available at
https://commonwealth.virginia.gov/media/2107/20130529124204967.pdf.
l
See Settlement Agreement, Janis v. Nelson, Civ. 09-5019 (D.S.D. 2010) available at:
https://www.aclu.org/files/assets/2010-5-25-JanisvNelson-SettlementAgmt.pdf.
See also Nicole D. Porter, Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2010 (Washington, DC: The Sentencing Project,
2010), 23.

VERA INSTITUTE OF JUSTICE

7

criminal statutes or churned out new ones; the adoption of zero-tolerance
policing tactics—focusing on the zealous enforcement of minor street-level
drug and quality-of-life offenses—and the roll out of stiffer penalties, exemplified by the proliferation of new statutes aimed at keeping people sentenced to
prison in there for longer periods of time (e.g., mandatory minimum sentences,
truth-in-sentencing statutes, and habitual offender laws).18 With more conduct
subject to criminal regulation, coupled with increased enforcement measures,
ever-more people found themselves ensnared in the criminal justice system.
In 2012, an estimated 70.3 million adults in the U.S. had a criminal record. The
number of individuals under correctional supervision rose from 2,869,836 in
1985 to nearly 7 million people in 2012, 2.2 million of whom were incarcerated in
jail or prison .19 A recent study indicates that approximately one in three adults
have been arrested by age 23; and the Federal Bureau of Investigation estimates
that law enforcement has made more than one-quarter billion arrests in the
past twenty years.20
During this same time, policymakers also sought to widen the system’s
punitive reach beyond the boundaries of formal criminal sanctions.21 Coinciding with the growing severity of criminal penalties was the expansion, both
in number and scope, of a vast network of post-punishment penalties and
restrictions (or “collateral consequences”) aimed at excluding individuals with
criminal histories from many aspects of mainstream life.22 While many of these
consequences were rationalized as steps to protect the public, they also aimed
to attach further opprobrium by enacting a system that would continue to
stigmatize and marginalize individuals—with a criminal record well beyond
their sentences.23 What has resulted is a system to delineate a person’s status as
either a law-abiding member of the community at large or as one of those who
must forever sit outside it.24

THE SCOPE OF COLLATERAL CONSEQUENCES
The collateral consequences enacted over recent decades are wide-reaching,
long-lasting, and encompass two distinct types of sanctions: legal penalties that
are imposed automatically by operation of law upon conviction and disqualifications that an administrative agency, civil court, or official are authorized but not
required to impose on a convicted person.25 These include temporary or permanent loss of certain civil rights (such as the right to vote, serve on a jury, or hold
public office); temporary or permanent ineligibility for social benefits, such as
public housing, food stamps, or rights to pensions, disability, veteran’s benefits or
federally-funded student aid; employment or occupational licensing restrictions;
restrictions on certain aspects of family life (such as the ability to adopt or retain
custody of one’s own children); and for non-citizens, deportation.26
All of this does not account for the many difficult-to-regulate informal disqualifications imposed by private actors (i.e., landlords, employers, university
admission officers) which stem not from the express operation of the law, but
from the social stigma suffered by individuals with a criminal record.27 Indeed,

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

a criminal record—even a mere arrest record— can cast a long shadow on
individuals and their families and still serve as a de facto basis for job, credit, or
housing denial even absent formal disqualification —a situation made particularly worse by the fact that public access to criminal records are now more
readily available in the internet era.28

RESPONDING TO THE PRISONER REENTRY CRISIS
With services like in-custody therapeutic, vocational, and educational programs
removed from corrections budgets and community supervision more focused
on surveillance than rehabilitation, few of the more than 637,000 men and
women released from state and federal prisons, the nearly 2.6 million released
from community supervision, and the more than 11 million released from jail in
2012 were left with any assistance to deal with the problems that got them involved in the criminal justice system in the first place—such as mental illness,

substance abuse, or lack of vocational skills or education.29 These issues, when
left unaddressed, increase the risk of recidivism, and many of these people are
returning to communities lacking the resources or services necessary to cope
with these pressing needs.30 Indeed, these communities are often poor, urban,
minority neighborhoods marked by endemic poverty and unemployment, family dislocation, high residential turnover, and a breakdown of community social
processes and controls.31
In response to stubbornly high recidivism rates and with a growing acknowledgment that certain collateral consequences (particularly those impacting
employment, housing, and health) prevent people with criminal records from
appropriately addressing proven risk factors for reoffending, government agencies and community-based service providers are directing more resources and
efforts towards assisting individuals and their families in navigating the reentry process.32 Public defender organizations are adopting integrated criminal
and civil defense strategies designed, in the words of the Bronx Defender’s Civil
Practice mission statement to “minimize the severe and often unforeseen fallout
from criminal proceedings and [to] facilitate the reentry of [clients] into the
community.”33 Corrections departments, too, are making changes—implementing
programs and practices that tie programming to post-release risks and needs, including services that help prisoners nearing release to connect with much-needed housing, treatment, or other services and resources in the community.34
Policymakers are also addressing the impact and scope of post-punishment
penalties. For one, to better understand their reach, educate defendants and
system actors, and identify ways to narrow their range, many states and the
American Bar Association have begun to inventory the vast array of collateral
consequences at the federal, state, and local level.35 There are approximately
45,000 laws and rules that restrict the opportunities and benefits available to
individuals with criminal histories.36 As these sanctions and disabilities have
come to light, in part through this process, states are passing legislation aimed
at easing their burden for individuals, their families, and communities.

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CLEMENCY
Though a person’s conviction and sentence are final, the president, a state governor, or a special state board can
grant clemency to ameliorate the harsh effects of a criminal conviction.a There are two forms of clemency—pardon
and commutation—which operate in distinct ways. A commutation is a reduction in the length of a sentence and is
used to correct an overly harsh sentencing decision. A pardon, on the other hand, relieves the offender of the collateral consequences of a conviction and may, in some states, forgive the conviction altogether. b
In the federal system, presidential pardon power is granted by the Constitution, and presidents are free to determine
the parameters of how to exercise it. According to rules set by the current Office of the Pardon Attorney at the U.S.
Department of Justice, the president may issue a commutation to shorten a person’s sentence at any time after conviction.c President Obama has recently announced his intention to commute the sentences of hundreds of nonviolent
drug offenders who were sentenced under federal mandatory minimums. The current policies of the Obama administration dictate that a pardon can only be granted five years after sentence completion. A federal pardon relieves
collateral consequences but does not erase or expunge the conviction.
On the state level, governors or pardon boards may grant clemency to persons convicted under the laws of their respective states.d State offenders may also have their sentences reduced or their convictions nullified. State rules and
definitions vary from the federal system and from one another.
On the federal and state levels, grants of clemency have declined dramatically in recent decades.e Originally intended as
an important check on injustice and a safety valve for individuals subjected to unduly harsh sentences, today the pardon
power has largely fallen victim to political expediency.f
Some states, however, are issuing an increasing number of pardons and commutations. Illinois’ former Governor Pat
Quinn granted more than 1,100 clemency petitions since taking office, and outgoing Texas Governor Rick Perry has
granted hundreds of commutations and pardons.
In the last five years, four states have passed laws strengthening the pardon relief available to convicted individuals.
Colorado SB 123 (2013) clarifies that a pardon from the governor waives all collateral consequences of the conviction.
Utah HB 33 (2013) expands the impact of a pardon so that it exempts the person from punishment as well as restores
any rights or privileges that were forfeited due to the criminal conviction. Louisiana HB 8 (2014) reduces the length of
time that certain applicants who have been denied pardon are required to wait before filing a subsequent application
with the Board of Pardons. Washington HB 1793 (2011) provides that the criminal records of juveniles who have been
pardoned shall be sealed and the proceedings will be treated as having never occurred.
Clemency is justified on the grounds that it is important for merciful or humanitarian grounds, that is can ensure justice in instances where the system
cannot ensure a just result (such as cases of doubts of guilt), or when it is seen as serving public welfare aims. See Molly Clayton, “Forgiving the Unforgivable: Reinvigorating the Use of Executive Clemency in Capital Cases,” 54 B.C. L. Rev. 751, 756-759 (2013).
b
For example, in Minnesota, the Board of Pardons can grant a “pardon extraordinary,” which nullifies the conviction and cleanses the associated criminal
record. See M.S.A. § 638.02 (2).
c
Code of Federal Regulations, Title 21, Chapter 1, Part 1, Section 1.3. President Clinton exercised these powers differently and pardoned wealthy fugitives Marc Rich and Pincus Green after their indictments but before their trials began.
d
Nine states have Boards of Pardons and Paroles that exclusively grant all pardons and commutations.
e
Margaret Colgate Love, “The Twilight of the Pardon Power,” Journal of Criminal Law & Criminology 100, no. 3 (2010): 1170-1, 1193-1204.
f
For a discus­sion on the pardon power’s original functions and how the pardon power has fallen victim to political pressure, see Paul Rosenzweig, “Reflections on the Atrophying of the Pardon Power,” The Journal of Criminal Law and Criminology 102(3): 595-602, 607-8 (2012).
a

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

New approaches to collateral
consequences
All told, 41 states and the District of Columbia enacted 155 pieces of legislation between
2009 and 2014 to mitigate the burden of collateral consequences for individuals with
certain criminal convictions. (Comprehensive listings of the state-level legislation passed
since 2009 can be found in the appendices.) States have pursued seven broad approaches
to achieve this goal. They have:
>>Created or expanded expungement and sealing remedies. To shield eligible
individuals from the adverse impact of a criminal conviction record, many states
created new or expanded existing remedies aimed at sealing or expunging criminal records.
>>Issued certificates of recovery. To assist qualified individuals in moving beyond

their criminal records, some states issue certificates of recovery to people who have
met certain rehabilitative standards. These certificates are meant to help third
parties, such as employers and landlords, make better-informed decisions about
individuals with criminal records.

>>Allowed for offense downgrades. States have also adopted laws that offer an
offense downgrade (for example, from a felony to a misdemeanor conviction) to
eligible individuals who comply with conditions of supervision. These laws ensure
that compliant individuals avoid certain collateral consequences that attach to
felony convictions.
>>Built relief into the criminal justice process. To minimize certain individuals’
contact with the criminal justice system, some states sought to build a relief mechanism—such as deferred prosecution or adjudication programs—into the front end
of the criminal justice system instead of trying to control collateral consequences
later in the process.
>>Ameliorated employment-related collateral consequences. Many states enacted
laws to ease specific collateral consequences pertaining to employment, by, for
example, instituting “ban the box” policies—which prohibit inquiries into a
prospective employee’s criminal history upon initial application—or removing
licensing restrictions.
>>Improved access to information. States also enacted laws that aim to provide
convicted individuals—many of whom remain ignorant of both the impacts of
their criminal record and relief for which they may be eligible—better access to
pertinent information related to collateral consequences. Some of these laws also
sought to better regulate how third parties use criminal history information by
requiring them to institute more transparent policies and procedures in order to
increase procedural fairness.
>>Mitigated specific collateral consequences. Many states passed laws that address
specific collateral consequences, such as restrictions on housing or public benefits, or
those that related to certain family matters, such as adoption or child support.
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11

12

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

California
Colorado
Idaho

Alabama
Arkansas
California
Colorado
Delaware
District of
Columbia
Georgia
Hawaii
Illinois
Indiana

Indiana
New York

Offense
Downgrades

Iowa
Louisiana
Maryland
Massachussetts
Minnesota
Mississippi
Missouri
Nevada
New Hampshire
New Jersey
New York

North Carolina
Ohio
Oklahoma
Oregon
South Carolina
South Dakota
Tennessee
Texas
Utah
Washington
Wyoming

Expungement or
Sealing Remedies

Arkansas
California
Colorado
District of Columbia
Florida
Georgia
Hawaii
Illinois

Access to
Information

Illinois
Indiana
Louisiana
Maryland
Massachussetts
Minnesota
Nebraska
New Hampshire

Indiana
Louisiana
Massachussetts
Minnesota
Missouri
Nevada
New Jersey
New York

California
Colorado
Connecticut
Delaware
District of
Columbia
Florida
Georgia

Ohio
South Carolina
Texas
Utah
Vermont
Washington
Wyoming

New Jersey
New Mexico
New York
North Carolina
Ohio
Rhode Island
Tennessee
Texas

Ameliorating
Employment-Related
Collateral Consequences
Arkansas
Connecticut
District of
Columbia
Georgia
Illinois

Arkansas
California
Colorado
Delaware
Georgia
Illinois
Indiana
Louisiana
Missouri
Nevada

New Hampshire
New Jersey
New York
North Carolina
Ohio
South Dakota
Utah
Washington
West Virginia

Discrete Collateral
Consequences

Louisiana
Michigan
Minnesota
Missouri
New Jersey
New York
Oregon
Rhode Island

Building Relief
into the Criminal
Justice Process
Alabama
Arkansas
California
Colorado
Delaware
Georgia
Illinois
Kentuky

North Carolina
Ohio
Rhode island
Tennessee
Vermont

Certificates
of Recovery

MAPPING RELIEF: COLLATERAL CONSEQUENCES REFORM, 2009-2014

EXPUNGEMENT AND SEALING REMEDIES
Recent advances in information technology—together with the growth in the
number of criminal records databases at the federal, state, and local levels—has
made it increasingly easy to find a person’s criminal history online.37 Moreover, the pervasiveness of criminal background checks mean that past criminal history, including youthful indiscretions, can have negative consequences
throughout a person’s life.38 Indeed, with thousands of state and federal laws
mandating FBI background checks for a broad spectrum of occupations, many
individuals with a criminal history can be excluded from a number of professions simply because they possess a conviction record. In 2012, approximately 17
million background checks using the FBI database were conducted for employment or licensing purposes.39
Cleansing a criminal record can be a useful tool to shield individuals from the
continuing negative effects of a conviction. Typically, the criminal record is de-

stroyed or made inaccessible to the public. From 2009 to 2014, at least 31 states
and the District of Columbia have taken steps to broaden the scope and impact
of expungement and sealing remedies. These states have primarily focused on
(1) extending eligibility for expungement or sealing mechanisms to additional classes of offenses or offenders; (2) reducing the requisite waiting periods
before an offender may apply for expungement or sealing , as well as making
sealing or expungement automatic or presumptive following successful completion of sentence or other programs; (3) clarifying the effect of expungement
or sealing; (4) providing remedies for sealing or expunging juvenile records; and
(5) making it easier for individuals to prevail on an expungement request by
altering the burden of proof.

Extending eligibility for expungement and sealing
At least 23 states and the District of Columbia have enacted 37 laws that increase the scope of expungement and sealing remedies. Some accomplished
this by extending these remedies to those with prior convictions (as distinct
from first-time offenders) or who received certain types of sentences. Other
states kept their expungement and sealing remedies available only to those
with limited criminal histories, but changed the way “limited criminal history”
is calculated. Additionally, some states extended expungement and sealing
remedies of arrest or trial records to individuals whose charges were dropped,
who were found innocent, or who otherwise avoided conviction.40 In some
states, mechanisms were added which made expungement or sealing remedies
automatically or presumptively available. Five of those states are:
>>Mississippi HB 160 (2010) expands expungement eligibility to certain firsttime felony offenders, such as those convicted of drug possession, shoplifting, writing bad checks, and certain larceny, false pretenses, and malicious
mischief offenses. After a waiting period of five years, a judge has discretion to grant a petition for expungement based on whether the individual
is rehabilitated. If granted, the conviction is removed from all public records.

VERA INSTITUTE OF JUSTICE

13

Previously, expungement was only available for first-time misdemeanor
offenders.
>>California AB 1384 (2011) expands eligibility for expungement to those
convicted of a misdemeanor and sentenced to incarceration. These individuals are now treated the same as those sentenced to probation for a
misdemeanor conviction and are immediately eligible for expungement at
the court’s discretion. Previously, individuals incarcerated for misdemeanor
convictions could seek expungement only after completing their sentence
and remaining crime-free for one year.
>>Wyoming SF 88 (2011) expands eligibility for expungement to those convicted of certain first-time nonviolent felonies. Previously, expungement
was available only for certain first-time misdemeanor convictions.
>>Ohio SB 337 (2012) expands eligibility for record sealing to those with certain prior convictions. Previously, only first-time offenders could petition to

have their records sealed. Now, individuals with the following types of prior
convictions may petition for record sealing: (1) one felony conviction, (2) two
misdemeanor convictions if they are not for the same offense, or (3) one
felony conviction and one misdemeanor conviction. Convictions for offenses involving child victims remain ineligible, except those for failure to pay
child support.

>>Illinois HB 3061 (2013) expands eligibility for record sealing to 10 additional
Class 3 and 4 felonies. Previously, the only felony offenses eligible for record
sealing were Class 4 felony drug possession and Class 4 felony prostitution.
In deciding whether to seal records, judges may consider specific collateral
consequences the individual is facing, the person’s age and employment
history, and the strength of the evidence supporting the conviction.

Reducing waiting periods
States typically institute a waiting period following the completion of the
individual’s sentence (including any time spent on probation or parole) before
an individual may apply to seal or expunge his or her criminal record. The
rationale for the waiting period is to allow those with a criminal conviction to
demonstrate that it was an aberration in an otherwise law-abiding life. When
individuals remain crime-free during the specified period, they are then rewarded with the opportunity to seal or expunge their criminal records. If not
crime-free, sealing or expungement remedies will be unavailable, as a matter of
public safety.
Many states have recognized that overly long waiting periods place a burden
on those simply trying to move on with their lives.41 From 2009-2014, eight
states and the District of Columbia enacted at least 11 laws that eliminated, lowered, or changed the calculation for the waiting period before certain offenders
are eligible for expungement or sealing, including:

14

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

>>Delaware HB 169 (2010) eliminates the waiting period before certain firsttime offenders are eligible to obtain expungement of arrest and conviction records. The waiting period was previously five years for those who
completed a deferred judgment program, and two years for those who
completed a drug court diversion program. Now, individuals who complete
either of these programs are eligible for expungement immediately upon
completion.
>>Colorado HB 1167 (2011) reduces the waiting period for infractions, misdemeanors, and low-level felonies involving drug use or possession from
10 years from the conviction date or completion of sentence, whichever
occurred later, to three to seven years. Additionally, the law places increasing limits on the influence of district attorneys in the expungement process
as the seriousness of the offense drops. For example, petty offenses must be
expunged with no notice given to the district attorney; for low-level felonies, district attorneys must be given notice and the opportunity to object.
>>Indiana HB 1155 (2014) changes the way that waiting periods for most
felonies are calculated. Previously, the waiting period began at completion
of sentence, and was eight years for nonviolent felonies and 10 years for
felonies involving bodily injury. Now, the waiting period is eight or 10 years
from the date of conviction or three or five years from completion of sentence, respectively, whichever occurs later. For example, under the previous
law an individual convicted of a violent injury and sentenced to 10 years
of incarceration would complete his or her waiting period ten years after
release, which is 20 years from the date of conviction. Under the new law,
this individual’s waiting period would instead finish five years after release
from incarceration, which is 15 years from conviction.

Clarifying the effect of expungement and sealing
Even when a state has an expungement or sealing remedy in place, its legal
effect can remain unclear or ambiguous to individuals with criminal histories.
For example, individuals may be unaware of a right to deny the existence of
a sealed or expunged record on a job application; others who are aware of the
right may not exercise it out of fear of discriminatory treatment by employers
who may later learn of their sealed or expunged criminal record.42
From 2009 to 2014, eight states enacted at least 13 laws to clarify and make
explicit the effects that sealing or expunging a criminal record has, particularly
with regard to specific collateral consequences and available relief mechanisms.
Some of these laws resolve ambiguity about the status of arrest and trial
records after a conviction or acquittal record is sealed or expunged. Others
specify that a person whose records are sealed or expunged may state without
committing perjury that the records do not exist and the activity in the records
never occurred. Still other laws clarify the restoration of certain civil rights
that accompany the sealing or expungement of records, while others impose
liability for unlawful discrimination on those who make adverse employment

VERA INSTITUTE OF JUSTICE

15

or licensing decisions on the basis of sealed or expunged criminal records. Three
of those states are:
>>South Dakota HB 1105 (2010) clarifies an already existing expungement
remedy for individuals who were arrested, but not found guilty. If the
petition to expunge is granted, all official records shall be sealed, including
those related to arrest, detention, indictment, trial, and disposition. Following expungement, individuals do not have to acknowledge or provide
information contained in the records for any reason.
>>California AB 2371 (2012) clarifies that a dismissal in a specialized veterans court program releases the defendant of the penalties and disabilities
which usually result from the underlying offense. For example, a person
whose records are sealed as a result of involvement in a veterans court
program may indicate that the records do not exist and is not required to
acknowledge the proceeding, even under oath, except on an application for
a law enforcement position.

>>Indiana HB 1482 (2013) makes it unlawful to expel, suspend, or refuse to employ or grant a license on the basis of an expunged conviction or arrest record.
The law specifies that an employer may only ask if an applicant has any convictions or arrests that have not been expunged. Finally, the new law makes
clear that a person’s civil rights are restored after expungement, including the
rights to vote, hold public office, serve as a juror, and own a firearm.

Expanding access to expungement and sealing
of juvenile records
Prompted by research indicating that juvenile brain chemistry is distinct
from that of adults, criminal justice actors and policymakers are beginning to
acknowledge that juveniles may be less culpable than adults and that it may
be inappropriate for long-lasting collateral consequences to attach to crimes
committed by juveniles.43 Accordingly, states are introducing procedures to
seal or expunge juvenile convictions, often making these remedies available to
individuals well into adulthood.
All told, 11 states have enacted at least 14 laws that increase access or eliminate barriers to expungement or sealing of juvenile records, including:
>>North Carolina SB 397 (2011) introduces expungement of juvenile records
for nonviolent felonies committed by first-time offenders under age 18. The
ex-offender must wait four years, have no other felony or misdemeanor
convictions (except for traffic violations), perform a minimum of 100 hours
of community service and complete high school or earn a GED. The petition
for expungement must also include affidavits of good moral character. If
the court grants the expungement petition, the individual is not required
to acknowledge the criminal records on any application, except for certain
state certifications.44
>>Maryland HB 708 (2012) expands eligibility for mandatory expungement

16

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

of juvenile records. Previously, the court was required to grant only those
petitions that were handled exclusively in the juvenile court. Now, records
of cases that were handled in adult court but transferred to juvenile court
for sentencing are also eligible for mandatory expungement upon petition.
>>Ohio SB 337 (2012) provides that juvenile records for sexual battery and
gross sexual imposition may be expunged. Ineligible offenses are now
limited to aggravated murder, murder, and rape. The law also specifies that
a fee is no longer required to file a juvenile expungement petition, and
reduces the waiting period from two years to six months. Additionally, SB
337 now excludes most juvenile records from criminal records background
checks. Exceptions are records involving aggravated murder, murder, or a
serious sex offense requiring registration

Altering the burden of proof
When a state allows for expungement or sealing of certain criminal records, an

individual is generally required to file a petition in court requesting expungement or sealing. The petition must typically demonstrate that any applicable
requirements have been met, including a requisite degree of rehabilitation. For
example, an ex-offender may be required to establish that he or she is leading
a law-abiding life, has no subsequent arrests or convictions, is not abusing any
substances, and is gainfully employed. However, given the vast array of employment-related collateral consequences, for example, simply possessing a criminal record may prevent many individuals from achieving certain milestones
necessary to succeed in their petition.
To counteract this, at least three states have altered the burden of proof
required to seal or expunge criminal records, either by lowering the burden of
proof or reversing it altogether. For instance, instead of requiring individuals to
show that they are fit for expungement or sealing, states are passing laws that
make expungement or sealing automatic unless the prosecutor shows that an
offender is not fit for expungement or sealing. Alternatively, states are lowering
the level of proof required from “clear and convincing evidence” to “a balance
of probabilities” to demonstrate fitness for sealing or expungement.45 Two of
those states are:
>>Arkansas HB 1608 (2011) introduces presumptive expunction of misdemeanor offenses for eligible individuals. The law calls for all misdemeanor
expungement petitions to be approved unless the court is presented with
clear and convincing evidence that a misdemeanor conviction should
not be expunged. Misdemeanor convictions for some offenses—such as
third-degree battery, fourth-degree sexual assault, and indecent exposure—
are subject to a five-year waiting period.
>>Indiana HB 1155 (2014) lowers the burden of proof required in petitions
to expunge all levels of offenses from “clear and convincing evidence” to
a “preponderance of the evidence.” Accordingly, a person now only has to
show that it is more likely than not that he or she has no pending charges,

VERA INSTITUTE OF JUSTICE

17

no subsequent convictions within the relevant time frame, let the requisite waiting period pass, paid all fees and restitution, and, in some cases,
obtained the prosecutor’s consent.

CLEANSING A CRIMINAL RECORD
Terminology can be confusing when discussing state remedies to “cleanse”
an individual of a criminal record. Some states, such as New York, have remedies which authorize certain adult criminal records to be “sealed” from the
public record, while others, such as Utah, use the term “expunge.” Some
states, such as Indiana, use the terms “expunge” and “seal” interchangeably, and others use slightly different terms such as “expunction.” This leads
to confusion, since for instance “sealing” and “expunging” a criminal record
often have distinct meanings.a
The effect of an expungement or sealing order varies widely from state to
state. Generally, when a criminal record is sealed, the public cannot access
the record and individuals with a sealed record are usually permitted to
deny the record’s existence or the events that led to the criminal record.
For example, potential employers conducting a background check will not
be able to “see” a sealed criminal record and a person may be able to
legally answer “no” if asked on a job application whether he or she was
ever arrested, charged, or convicted of a criminal offense. Still, a sealed
criminal record will physically exist and some entities—such as law enforcement agencies or courts—may be able to uncover its contents, particularly
in a subsequent criminal proceeding; however this is usually only possible
through a court order made for the public interest. In addition, some states
require that sealed convictions be reported in connection with certain job
or license applications (for example, a job application as a weapons-carrying law enforcement officer). On the other hand, the expungement of a
criminal record, while similar to sealing, goes further in that it wipes the
slate clean: a criminal record is typically removed or destroyed, and is not
available for anyone to access, even by court order.
In fact, other jurisdictions may also use entirely different terms, such as “annulling” or “vacating”
a conviction which may or may not have a similar legal effect as expungement or sealing.
a

CERTIFICATES OF RECOVERY
Certificates of recovery—sometimes called certificates of reentry, relief, achievement or employability—are awarded to individuals who meet certain criteria or
otherwise show that they can be productive members of society. These certificates help third parties, such as prospective landlords and employers, make
more informed decisions about applicants with criminal records. While the cer-

18

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

tificates do not expunge or clear a person’s record, they do act as evidence that
the individual is rehabilitated and can shield against the imposition of some
collateral consequences. Often, holding a certificate means that an employer must assume the certificate holder is suitable for employment and, in the
absence of countervailing evidence, may not choose to withhold employment
solely on the basis of a conviction. From 2009 through 2014, at least 9 states and
the District of Columbia began issuing such certificates including:
>>North Carolina HB 641 (2011) allows persons with no prior record who are
convicted of up to two low-level felonies or misdemeanors in the same
court session to petition the court for a Certificate of Relief. The certificate
relieves the individual from most collateral sanctions (penalties affirmatively imposed) flowing from the state but excludes those such as prohibitions on firearm possession, driver’s license revocations and suspensions,
and sex offender registration. The certificate does not automatically relieve
the individual of collateral disqualifications (i.e., the denial of access on
the basis of a criminal conviction to certain activities or privileges, such as
public employment or a professional license), but an administrative agency may view the certificate favorably when deciding on a disqualification
due to conviction. A judge may grant a certificate if an eligible individual
has complied with the terms of the sentence and at least 12 months have
passed since completing the sentence, has no pending criminal charges, is
employed, or is undertaking efforts to become employed, such as participating in an educational program, and granting the certificate would not
pose an unreasonable risk to public safety. If a judge denies the Certificate
of Relief, the individual may reapply after 12 months. The certificate may
be revoked upon any subsequent felony or misdemeanor conviction, other
than a traffic violation.

>>Ohio HB 86 (2011) creates a Certificate of Achievement and Employability
aimed at relieving collateral consequences that effect job eligibility in a
field for which the offender trained while incarcerated. An offender can apply to the Department of Rehabilitation and Correction for the certificate up
to one year prior to release rather than applying to the court post-release.
To obtain a certificate, an offender must complete at least one vocational
program, at least one cognitive or behavioral program, and community
service hours. The certificate testifies that the individual is fit and directs
an employer or licensing authority to give individualized consideration
to the certificate holder unless the employer or licensing authority has
information that proves otherwise. The certificate will be revoked upon any
subsequent conviction other than for a minor misdemeanor, but cannot be
revoked for a violation of a condition of release unless the violation is itself
a criminal offense.
>>Illinois HB 5771 (2012) expands eligibility to receive a Certificate for Relief
from Disabilities. This law lifts the limit on felony convictions so that individuals with more than two prior felonies are now eligible. Individuals are

VERA INSTITUTE OF JUSTICE

19

ineligible for the certificate if any of their convictions require registration
as a sex offender, arsonist, or a murderer or violent offender against youth.
Those convicted of a Class X felony, any forcible felony, or driving under the
influence of alcohol or drugs are also ineligible.
>>Ohio SB 337 (2012) creates a Certificate of Qualification for Employment
(CQE). Whereas the certificate created by a previous law, HB 86 (2011),
relieved employment and licensing-related collateral consequences for
vocational training completed in prison, the CQE applies to a much broader
array of employment and licensing sanctions. Granted by the court, the CQE
relieves the certificate holder from the automatic ban on certain employment and licensing opportunities, such as construction and security guard
licenses, and entitles him or her to individualized consideration.
>>Rhode Island SB 358 (2013) empowers the parole board to grant Certificates
of Recovery and Reentry to individuals who have met specified standards (to

be determined by the parole board). An individual convicted of a crime of violence or who has a prior felony conviction is not eligible to receive a certificate.

OFFENSE DOWNGRADES
As the advantages of a clean or diminished criminal record become clear,
some states are introducing mechanisms through which felony records may
be reduced to misdemeanor records. This will minimize exposure to collateral
consequences that specifically attach to felonies and provide eligible individuals with an opportunity to escape the stigma of a felony conviction.46 At least
five states have enacted laws of this type to encourage individuals with felony
convictions to comply with conditions of supervision and lead law-abiding lives
after serving their sentences.47 In at least some of these states, the resulting
misdemeanor records would be eligible for sealing or expungement. Three of
those states are:
>>Indiana HB 1033 (2012) allows a sentencing court to convert a Class D
felony to Class A misdemeanor. The court must notify the prosecutor and
hold a hearing finding that the individual is a nonviolent, non-sex offender
convicted of an offense that did not result in bodily injury. Additionally,
the person must wait three years from sentence completion and have no
subsequent convictions or pending charges. Individuals whose convictions
involved perjury or official misconduct are not eligible. In the event an individual is convicted of another felony within five years of the conversion, the
prosecutor may file a motion to convert the misdemeanor back to a felony.
>>Colorado SB 250 (2013) requires that a felony conviction for certain
low-level drug offenses (particularly possession) be vacated in favor of a
misdemeanor conviction if an offender successfully completes probation or
another community-based sentence. The measure is designed as an incentive for individuals to remain compliant and to reduce the negative consequences of a felony conviction. The provision does not apply to persons who

20

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

have previously been convicted of two or more felony drug crimes or any
crime of violence.
>>Idaho S 1151 (2013) provides a mechanism by which a felony conviction may
be downgraded to a misdemeanor after successful completion of probation. A
prosecutor’s consent is required if fewer than five years have passed after sentence completion and is always required if the felony was a serious offense,
such as robbery, kidnapping, and certain offenses involving assault. A petition
to downgrade may be granted if the individual has no intervening felony convictions, no pending charges, and the downgrade is in the public interest.

BUILDING RELIEF INTO THE CRIMINAL JUSTICE PROCESS
Rather than passing laws to minimize exposure to collateral consequences after
conviction and sentence, at least 16 states have built relief mechanisms into
the criminal justice process , often at the front-end, to minimize the extent of
an individual’s contact with the criminal justice system.48 Some states accomplished this by creating or expanding deferred prosecution programs through
which a defendant is charged with a crime but not prosecuted. If the defendant
successfully completes a treatment or other program, or stays out of trouble for
a specified period of time, the charges are dismissed and in certain instances,
arrest and charging records are sealed as well. Other states created or expanded
deferred adjudication programs in which a defendant is charged, prosecuted,
and found guilty, but a conviction (sometimes called an order of judgment) is
never entered. Similar to deferred prosecution, eligible defendants are given an
opportunity to complete a treatment or other program, and stay out of trouble
for a specified probationary period. If successful, the guilty verdict is vacated
and the case dismissed; upon failure, the order of judgment is entered and
the individual proceeds to formal sentencing. Many of the relief mechanisms
enacted include provisions which make sealing or expungement automatic or
presumptive following the completion of the program, eliminating the need for
individuals to submit a future petition after an applicable waiting period has
passed. Additionally, at least one state has instituted mechanisms which allow
a judge to order relief from collateral consequences during sentencing. Five of
those states are:
>>Arkansas HB 1608 (2011) makes mandatory a previously discretionary
deferred judgment program for first-time felony and misdemeanor drug
offenders of non-schedule I substances. Now all eligible defendants must
have their judgments deferred and be placed on probation for at least one
year. Upon completion of probation, the charges are dismissed and misdemeanor records are mandatorily sealed.
>>Illinois SB 3349 (2012) creates a deferred prosecution program for firsttime nonviolent felony property or drug possession defendants whose
offenses do not require a mandatory sentence of incarceration. Known as
the Offender Initiative Program, prosecution of eligible defendants is suspended for at least 12 months, during which time defendants must remain

VERA INSTITUTE OF JUSTICE

21

crime-free, avoid all firearms, make full restitution to any victim, obtain
employment or perform 30 hours of community service, and work towards
obtaining a GED. The court also has the discretion to impose additional
terms, including medical or psychiatric treatment or periodic drug testing.
After fulfilling program terms, the charges and proceedings against the
defendant are dismissed.
>>Michigan HB 5162 (2012) establishes a deferred judgment veterans treatment court program, in which defendants are required to plead guilty and
enter a probation program. Upon successful completion, charges are dismissed and the individual is discharged. Although records are closed from
public inspection and disclosure, they remain available to courts and law
enforcement agencies.
>>Colorado HB 1156 (2013) standardizes the state’s locally-run diversion programs and conditions state funding on each program’s compliance with

certain enumerated criteria. According to the new standards, a district
attorney maintains broad discretion in determining eligibility and terms of
a diversion program. In general, he or she may suspend prosecution for up
to two years while a defendant completes a probation or treatment program. Upon completion, charges are dismissed and defendants are restored
to their pre-arrest status, permitting them to deny the charges or proceedings against them. After completing diversion, defendants may ask for their
records to be sealed and, in most cases, judges must do so upon request.

>>Colorado SB 123 (2013) creates a procedure in which a judge may issue an order of collateral relief at the time a person is sentenced to community-based
supervision, which can relieve the individual of certain collateral consequences, such as barriers to housing and employment. An individual may not
obtain this order if the offense was a crime of violence, led to the permanent
disability of the victim, or requires registration as a sex offender.
>>Minnesota HF 2576 (2014) provides that individuals who have completed
a deferred adjudication or other diversion program may have the related
arrest, indictment, trial, or other records sealed after remaining crime-free
for a one year waiting period. Previously, records of arrest and prosecution
could only be sealed if the case ended in an acquittal.

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

AMELIORATING EMPLOYMENT-RELATED
COLLATERAL CONSEQUENCES
Employment is critical to reducing recidivism and ensuring successful reentry for individuals with criminal convictions.49 However, criminal records can
function as a “negative curriculum vitae.” 50 Because criminal records are readily
available online, they can serve as a basis for employment discrimination by
potential employers. This burden is exponentially exacerbated by the complex web of formal employment-related barriers triggered by operation of the
law and which flow from a criminal conviction.51 For example, laws mandate
that background checks be conducted on the following classes of prospective
employees: those who will have responsibility for the safety and well-being of
children, the elderly, or individuals with disabilities; port workers; people who
volunteer with certain youth-focused organizations; people who work in public
or private schools; those who will work in the financial industry, including

mortgage processing; people in nursing or caregiving positions; and workers
licensed to handle hazardous materials, among others.52
From 2009 to 2014, at least 22 states and the District of Columbia enacted
laws aimed at improving the employment prospects for individuals with a
conviction record. A number of laws instituted “ban the box” policies, which
prevent prospective employers from requiring the disclosure of criminal history
information at the initial stages of the application process. Other states enacted
laws to remove or mitigate obstacles individuals with criminal histories face
when seeking to be licensed in certain professions. Meanwhile, other laws focused on offering positive incentives, such as tax credits, to employers who hire
ex-offenders or on removing or minimizing potential legal liability associated
with hiring people with criminal records.

Ban the box
“Ban the box” initiatives—which take their name from the question on job
applications that asks the applicant to “check this box if you have ever been
convicted of a crime”—are designed to facilitate the transition of ex-offenders
into the workplace by delaying an inquiry into an individual’s criminal history
until the employer can get some sense of the prospective employee as a person,
and not simply as an ex-offender. In particular, these initiatives urge employers
to screen candidates based on job skills and individual qualifications before
looking into an applicant’s criminal history. However, these laws vary both in
strategy and impact. For example, some laws apply only to public employers,
while others include private employers. Some policies specify a point in the
hiring process when an employer is permitted to obtain criminal history information (e.g., at the interview stage or after a conditional offer is made) while
others institute time limitations after which criminal convictions may no longer be considered at all. Finally, some ban the box laws not only delay a criminal
history inquiry, but also outline requirements for responsible consideration in
the event a background check returns information regarding a conviction, such

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23

as requiring that arrest records and certain misdemeanor records be disregarded or requiring the employer to consider the nature of the offense and the time
elapsed since the conviction.
Ban the box laws have steadily gained momentum since 1998, when Hawaii was
the first state to adopt the initiative. Since then, at least fourteen states, the District
of Columbia, and seventy localities have adopted ban the box policies, a majority of
which were enacted from 2009 through 2014.53 Four of those states are:
>>Minnesota HF 1301 (2009) institutes a ban the box policy for prospective
state employees. Public employers may not inquire about an individual’s
criminal record until after the applicant has been selected for an interview.
Minnesota SF 523 (2013) extended that protection to prospective private
employees. Private employers may not consider, inquire about, or require
disclosure of criminal records until after an applicant is selected for an
interview, or if no interview is offered, until after a conditional offer of
employment is made.
>>New Mexico SB 254 (2010) mandates that criminal conviction history may
not operate as an automatic bar to state employment or licensing, and only
in certain circumstances can it be considered. An employer or licensing
agency may not inquire about a criminal record on an initial application
and may only consider a person’s record once the applicant has been selected as a finalist. Notably, arrest records not leading to conviction, and misdemeanor records not involving moral turpitude, cannot be considered at all.
>>Indiana HB 1033 (2012) prohibits an employer from asking an applicant
whether he or she has had a criminal record sealed or restricted. An employer’s non-compliance is now a class B infraction, which carries a maximum penalty of $1,000.54
>>Delaware HB 167 (2014) prohibits public employers from inquiring about or
considering criminal history, credit history, or credit score until after the first
interview. Although employers may inquire into these things later in the application process, they may not consider felony or misdemeanor convictions
if more than ten or five years, respectively, have elapsed since release from
custody (or from the sentencing date if there was no incarceration). If these
time periods have not yet elapsed, employers must still consider the nature of
the crime and its relationship to the job, any rehabilitation or good conduct
demonstrated by the applicant, the time elapsed since the conviction, and the
likelihood that the circumstances leading to the offense will recur.

Reducing restrictions on licensing
Based on the presumption that individuals with a criminal record are less
trustworthy or more crime-prone than others, criminal records often render
individuals with criminal histories ineligible to enter entire professions, such
as those such as plumbing, teaching, and nursing, which require practitioners
to be licensed, and for which licensing regulations can disqualify those with
conviction histories.

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

From 2009 to 2014, eight states enacted 11 laws to remove or relax disqualifications to certain licensed professions applicable to those with criminal records.
Some of these laws reduced or eliminated waiting periods before an offender
may apply for a license. Others instituted a “ban the box” in the licensing context—these laws prohibit licensing agencies from obtaining criminal history
information at the initial application stage, and often require agencies to consider factors such as the time elapsed since the conviction and the relationship
between the license and the conviction offense. Some laws adopted an intermediate approach, allowing for conditional licenses, which become permanent
after one year without incident. Finally, other laws go even further and prohibit
outright disqualification from a license solely on the basis of a criminal record.
Five of those states are:
>>Delaware SB 59 (2011) reduces the waiting periods across all state occupational and licensing codes before an ex-offender may receive a waiver of his
or her conviction. The felony waiting period is changed from five years after
completion of sentence to five years from conviction, as long as the individual is not serving any part of his or her sentence at the time of application.
Waiting periods for misdemeanors are eliminated.

>>Florida SB 146 (2011) prevents state agencies from denying applications for
licenses, permits, employment, or certificates solely on the basis of an applicant’s criminal history. Applications for firearm or concealed carry licenses
are excluded.
>>Louisiana HB 295 (2012) prohibits disqualification or ineligibility to practice
a licensed trade or profession solely because of the existence of a criminal
record, unless the conviction directly relates to the position sought.
>>Ohio SB 337 (2012) prohibits specific agencies from denying licenses on the
basis of criminal history after a one-year misdemeanor waiting period and
a three-year felony waiting period, so long as the conviction offense is not
related to the license, is not a first- or second-degree crime of violence, and
is not a sex offense. Even before the one- and three-year waiting periods
have elapsed, the licensing board or agency may issue licenses on a discretionary basis. Additionally, SB 337 authorizes conditional licenses to be
issued, which become permanent after one year.
>>Texas HB 798 (2013) amends the occupational licensing law so that those
convicted of certain misdemeanors remain eligible to obtain licenses, unless the license authorizes the possession of a firearm and the misdemeanor conviction was a crime of domestic violence.

Reducing risk to employers
In today’s litigious environment, employers can be hesitant to hire individuals with criminal records because of heightened exposure to negligent hiring
or negligent retention lawsuits in the event an ex-offender commits a crime
or causes harm to another person (for example, a customer, client, or another

VERA INSTITUTE OF JUSTICE

25

employee) while carrying out his or her work duties .55 Broadly speaking, these
lawsuits are designed to allow an individual who is harmed by the work-related
conduct of an employee with a criminal history to sue the employer for negligently hiring or retaining someone who is not fit to be an employee.
From 2009 to 2014, at least 10 states and the District of Columbia enacted laws
removing this hurdle by shielding employers from liability in these lawsuits,
including:
>>Colorado HB 1023 (2010) precludes the use of an employee’s criminal history in a civil action against an employer if the employee’s record was sealed,
the record of arrest or charge did not result in a conviction, the employee
received a deferred judgment, or if the criminal history was not related to
the facts giving rise to the lawsuit.
>>Massachusetts SB 2583 (2010) shields employers from liability if they used
the state’s background check system (CORI) to conduct the initial background check on the employee. Conversely, the employer is not shielded
from liability if it used a commercial background check provider, because
CORI provides safeguards and includes limitations that commercial systems do not.

>>District of Columbia B19-889 (2012) provides that criminal history information may not be used as evidence in a civil suit if an employer made a reasonable hiring decision in light of specified considerations, such as the relationship of the conviction offense to the employee’s job duties, the time elapsed
since the conviction, and demonstrated rehabilitation or good conduct.
>>Minnesota HF 2576 (2014) makes an employee’s expunged criminal history
inadmissible as evidence in a civil case against an employer or landlord.

Incentivizing employers
From 2009 to 2014, five states enacted laws aimed at facilitating the employment of individuals with criminal histories by offering positive incentives
to prospective employers. For example, some laws raised the amount of tax
credit available to businesses that hire ex-felons; others required the removal
of employers’ names and contact information from sex offender registries, or
repealed a restriction that prevents individuals with criminal records from
working around alcohol. Three of those states are:
>>New York AB 9706 (2010) allows individuals with a felony conviction to
work at a restaurant, catering facility, hotel, club, or recreational facility
which serves alcohol. Previously, no holder of an alcoholic beverage license
could employ a person with a felony conviction other than a retail store
with off-premises consumption.
>> Illinois SB 1659 (2013) increases the tax credit for wages paid to ex-felons
from $600 to $1500. The law also increases from one year to three years the
time period after release in which an employer must hire an ex-offender to
qualify for the credit. Employers are not eligible to claim the tax credit for

26

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

hiring individuals with a conviction for a sexual offense.
>>Texas SB 369 (2013) incentivizes employers to hire people with a sex offense conviction, by clarifying that information regarding a sex offender’s
employer’s name and address may no longer be listed publicly on the sex
offender registry.
>>Delaware HB 167 (2014) introduces a state policy to consider the fairness of
employers’ background check policies when evaluating contracts for state
business and only do business with contractors that have written policies
and standards that comply with the state’s ban the box provisions

ACCESS TO INFORMATION
The impact of collateral consequences has grown exponentially as legislators
have added more consequences to state codes and technology has increased
public access to criminal records.56 Because defendants are not constitutionally

entitled to notice of these consequences before being convicted (apart from immigration consequences), many are imposed without warning.57 Not only are
individuals unaware of the restrictions they will face after sentence completion,
they are also uninformed about remedies to which they may be entitled. At the
same time, with easy access to criminal record repositories, employers, landlords, or admissions committees can easily discover criminal history records,
even those that are outdated or incorrect. The stigma resulting from the knowledge of a person’s criminal history can act as a de facto bar to housing and other
forms of social acceptance, even where no legal bar exists.58
Since 2009, at least 17 states and the District of Columbia have taken steps
to inform people of their rights, clarify remedies concerning criminal record
information, or delineate how individuals or corporations can responsibly
use criminal history information to ensure procedural fairness. Some of these
laws require that individuals leaving prison be given information on how their
convictions may impact their civil rights and on expungement and sealing
remedies available to them. Other laws require employers who reject a candidate because of an individual’s criminal history to institute an appeals process
through which a candidate can challenge inaccurate criminal history data or
present evidence why his or her criminal history should be overlooked. Other
laws require employers to standardize and publish their criminal background
policies, and some limit the information that third-party background check providers may disclose. Finally, other laws provide for enforcement mechanisms
to ensure against the misuse of a person’s criminal history information by, for
example, making it a crime to harass a person about his or her criminal history.
Seven of those states are:
>>New Jersey A 4201 (2009) requires state correctional facilities to provide individuals leaving prison with written information concerning voting rights,
expungement options, programs to help with employment, housing, and
education needs, and generalized information about child support require-

VERA INSTITUTE OF JUSTICE

27

ments. The state is also required to provide notification of any fines due,
outstanding warrants, a criminal history report, and a full medical record.
>>California SB 1055 (2010) requires that a person, who is rejected as a result
of a criminal background check by a state agency for employment, contract, or volunteer work involving confidential or sensitive information, be
provided with a copy of his or her criminal record. Additionally, this law
requires the state to institute a written appeals process for rejected individuals to challenge ineligibility determinations based on the individual’s
criminal record.
>>Massachusetts SB 2583 (2010) makes it a crime to use criminal records to
harass someone, and also makes it a separate offense to commit a crime
against a person based on their criminal record, both punishable by up to one
year incarceration and/or a maximum fine of $5,000.59 The law also requires
any employer who conducts at least five background checks in a year to have
a standardized, published policy for doing so, including provisions regarding
notifying the applicant of a potential adverse decision, supplying the applicant with copy of the background check, and informing the applicant of
the appeals process for correcting an incorrect record. Non-compliance may
result in a fine. Additionally, the law allows free, periodical self-audits of all
requests for criminal records received by the state and, so long as funding
allows, requires the state to notify a person when an inquiry is made into his
or her criminal record.

>>Indiana HB 1033 (2012) specifies that a criminal history provider may only
provide information that relates to a conviction. The provider may not provide
any information related to an infraction, an arrest, a charge that did not lead
to a conviction, an expunged or restricted conviction, or any conviction of a
Class D felony that has been downgraded to a misdemeanor (which may only
be shown as a misdemeanor conviction). The provider is also prohibited from
providing outdated information and information it knows to be inaccurate.
Notably, the law introduces civil penalties for non-compliance. Now the attorney general may recover a civil penalty from the provider and the individual
who is the subject of the criminal history report may sue for damages.
>>Colorado SB 123 (2013) requires probation and parole officers to give notice at the final supervision meeting with individuals convicted of certain
crimes that they have the right to have their criminal record sealed and
that doing so can alleviate certain collateral consequences. Officers must
provide their supervisees with a list of eligible offenses and the associated
waiting periods.
>>Hawaii HB 1059 (2013) requires judges to advise criminal defendants of potential immigration consequences before he or she enters a plea or begins trial.

28

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

ADDRESSING DISCRETE COLLATERAL
CONSEQUENCES
From 2009 to 2014, 19 states passed laws addressing specific
collateral consequences or areas of concern, including those
with respect to housing, immigration, health care, family
issues, financial health, education, public assistance, enfranchisement, sex offender registries, and driving privileges,
including: 60
>>South Dakota HB 1123 (2009) removes the prohibition on
welfare eligibility for felony drug offenders.
>>New York AB 5462 (2010) provides an exception to the
requirement that the state file for termination of parental
rights when a child is in foster care for a certain length
of time. The parent may avoid having his or her parental

rights terminated if the child is in foster care due to the
parent’s incarceration or participation in a residential
substance abuse treatment program and the parent maintains a meaningful role in the child’s life.

>>Arkansas SB 806 (2011) mandates that a criminal conviction cannot be used to disqualify a person from eligibility
for a state-subsidized benefit unless there is a specific
statutory bar. Benefits include scholarships, grants, and
loan forgiveness programs.

STATE TASK FORCES
The information vacuum surrounding collateral
consequences is often so vast that even policymakers struggle to stay abreast of the array of
provisions that impose collateral consequences
on individuals with a criminal record. These provisions are rarely codified in one place, but are instead often spread across multiple statutes, regulations, or policies on the federal, state, and local
levels. As a result, at least eight states passed
bills establishing task forces or commissions to
catalogue collateral consequences and consolidate expungement procedures. These states are:
>>Arkansas SB 806 (2011)
>>Florida SB 146 (2011)
>>Illinois HB 297 (2011)
>>Massachusetts SB 2583 (2010)
>>Nevada SB 395 (2013)
>>New Hampshire HB 1533 (2010)
and HB 1144 (2014)

>>South Carolina SB 900 (2014)
>>Delaware SB 12 (2011) repeals the lifetime ban on receiv>>Vermont HB 413 (2014)
ing certain federal benefits for those with a felony drug
conviction. Although under federal law anyone who is
convicted of a drug-related felony cannot receive SNAP
(Supplemental Nutrition Assistance Program, formerly food stamps) and
TANF (Temporary Assistance to Needy Families) benefits, states are free to
pass legislation that limits the ban or eliminates it entirely.
>>Washington SB 5168 (2011) reduces the maximum sentence for gross misdemeanors from 365 days to 364 days in order to avoid federal immigration
consequences that are triggered by conviction of an offense carrying a
possible one-year sentence of imprisonment.
>>Washington SB 5423 (2011) creates a mechanism for courts to eliminate
interest accrued on non-restitution debt during incarceration. This applies
to all legal financial obligations levied as a result of a criminal conviction,
except for restitution.
>>Ohio SB 337 (2012) allows for modification of child support orders, which are
based on a person’s income, when a parent suffers a reduction in income
due to incarceration. Previously, incarceration was deemed voluntary
unemployment and potential income was imputed to the parent for the

VERA INSTITUTE OF JUSTICE

29

purposes of calculating how much child support was owed. Under this law,
for those incarcerated at least one year, in most situations, incarceration is
no longer considered voluntary unemployment and no potential income is
imputed to calculate child support obligations. Notably, when calculating
potential income after release, this law considers the parent’s decreased
earning capacity due to a felony conviction.
>>California AB 720 (2013) provides than an inmate of a county jail may not
be terminated from state Medicaid (Medi-Cal) solely because of incarceration. Instead, the inmate’s Medi-Cal enrollment will be suspended until
release. Additionally, the law allows county jails to enroll eligible inmates
who previously were not enrolled, with coverage taking effect upon release.
>>Colorado SB 229 (2013) allows for removal from the sex offender registry if
the individual was under 18 years of age at the time of the commission of
the offense. Previously, removal was only permitted when the offender was
under 18 at the time of conviction.

>>Delaware HB 10 (2013) amends the state constitution by eliminating the
five-year waiting period for voting rights to be restored to eligible felons
after sentence completion. Those convicted of murder, manslaughter, corruption, or a sex crime are ineligible and remain disenfranchised.
>>Georgia HB 349 (2013) gives judges in drug and mental health courts the
discretion to fully restore driving privileges or issue limited driving permits.
Previously, a person had to wait at least one year from the date of his or her
conviction or plea to apply for early reinstatement and the application was
made to the Department of Driver Services, not to the court. Georgia HB
365 (2014) extends HB 349 so that judges of any court may restore driving
privileges, not just judges in drug and mental health courts.
>>Louisiana HB 219 (2013) mandates that the mere existence of a criminal
record cannot disqualify someone from adopting a child. When considering
whether to approve a prospective adoption placement, a family court must
evaluate the number and type of offenses and the length of time that has
passed since the most recent offense.

Limitations of reform
The volume of bills passed that mitigate the impact of collateral consequences
over the last six years —at least 155 bills in 41 states and the District of Columbia,
93 of which were enacted in 2013 and 2014 alone—indicates that state legislatures now acknowledge that to improve public safety, tangible steps are needed
to support the successful reintegration of convicted individuals after sentence
completion. Research has shown that employment, stable housing, educational
opportunities, and civic engagement are all critical to reducing the risk of reoffending. Yet the barriers erected by collateral consequences impede the ability of
individuals with criminal histories to achieve these important goals.61

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

FAMILY STABILITY
Involvement in the criminal justice system often has a destabilizing effect on families. Over half of state inmates and
nearly two-thirds of federal inmates are parents of children under age 18.a As of 2007, 2.3 percent of individuals under
age 18 had at least one incarcerated parent, an increase of 80 percent since 1991.b Most of these parents—even those
who did not live with their children—contributed income, child care, and social support before imprisonment.c However, during incarceration, fathers in particular lose contact with their children. Only 40 percent have weekly contact
of any kind with their child, but contact declines as the sentence continues; over half of fathers in prison never have
an in-person visit with their child.d
Strong and secure family structures increase an individual’s incentives to conform with social and legal rules and
norms—individuals with fewer attachments have less to lose.e Not surprisingly, children with at least one incarcerated
parent suffer higher rates of low self-esteem, depression, emotional withdrawal, and disruptive behavior, and have an
increased likelihood of future delinquency and criminal offending.f
Even though the parent-child relationship often deteriorates during incarceration, many fathers view prison as an
opportunity to reflect on their relationships with their children, improve as parents, and prepare to start over upon
release.g Fathers who successfully do so tend to have lower recidivism rates, as family ties act as rehabilitative assets.h
It is in the interests of public safety, therefore, that public policy focus on helping incarcerated parents maintain and
strengthen family bonds, and assisting these parents in providing support for their children after release—for example, by increasing employment opportunities or opting out of bans on public assistance for certain ex-offenders.i
In the last several years, several states have taken steps to strengthen family relationships for incarcerated offenders or
improve their capacity to provide support upon release. For example, Nebraska LB 483 (2013) creates a family-based
reentry program for incarcerated parents with young children that incorporates parental education, relationship skills
development, and reentry planning in conjunction with an individual’s family; and Hawaii SB 2308 (2014) assists children
with incarcerated parents by facilitating visitation and by providing social welfare benefits, programming, and reentry
support.
Washington HB 1284 (2013) and New York AB 5462 (2010) make it harder for an incarcerated parent’s parental rights
to be terminated because of an extended absence from the child’s life due to imprisonment. New York AB 8178
(2009), Ohio SB 337 (2012), and West Virginia HB 4521 (2012) allow child support obligations to be recalculated during
or after incarceration so that the formerly incarcerated can provide the support they are able to, and are not burdened
by outstanding payments they have no reasonable ability to make.
Lauren E. Glaze and Laura Maruschak, (Washington, DC: BJS, 2008, revised 2010), 1.
Ibid.
c
Jeremy Travis, Amy L. Solomon, and Michelle Waul, (Washington, DC: The Urban Institute, 2001), 38.
d
See ibid. There are many factors that make in-person visits difficult for children. For instance, long distances between the prison and the community
where the child lives, little food, limited activities, time limitations, and non-accommodating physical facilities. For more information, see Council on
Crime and Justice, (Minneapolis, MN: Council on Crime and Justice, 2006). Over 60 percent of parents serving state sentences and over 80 percent of
parents serving federal sentences are housed more than 100 hundred miles away from their homes. Over 40 percent of parents in the federal system are
more than 500 miles from home. See Philip M. Genty, “Damage to Family Relationships as a Collateral Consequence of Parental Incarceration,” 30(5)
(2002), 1673.
e
Jeffrey Fagan and Tracey L. Meares, “Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities,” 6 (2008).
f
Jeremy Travis, Amy L. Solomon, and Michelle Waul, (Washington, DC: The Urban Institute, 2001), 39.
g
J.A. Arditti, S.A. Smock, and T.S. Parkman, “It’s Hard to Be a Father: A Qualitative Exploration of Incarcerated Fatherhood,” 3 (2005); and K. Healy, D.
Foley, and K. Walsh, “Parents in prison and their families: Everyone’s business and no-one’s concern,” (Queensland, Australia: Catholic Prison Ministry 2000).
h
J. Petersilia, (New York: Oxford University Press, 2003), 42; J. Creasie Finney Hairston, Prisoners and Families: Parenting Issues During Incarceration,”
Paper presented for U.S. Department of Health and Human Services and Urban Institute funded conference (National Institutes of Health January 30-31,
2002); and Sue Howard, Paper presented at the 7th Australian Institute of Family Studies Conference, Sydney, Australia.
i
Jeremy Travis, Amy L. Solomon, and Michelle Waul, (Washington, DC: The Urban Institute, 2001), 40.
a

b

VERA INSTITUTE OF JUSTICE

31

IMMIGRATION CONSEQUENCES
Even if individuals are reasonably shielded from state-imposed collateral
consequences, they are still exposed to collateral consequences imposed
on the federal level, particularly immigration consequences.
As a matter of law, immigrants—even permanent residents—will be deported upon conviction of any state crime punishable by at least one year
of incarceration, regardless of whether the state classifies the offense as a
misdemeanor or felony.a Some states, such as Nevada with SB 169 (2013),
and Washington with SB 5168 (2011), have responded by reducing the
maximum incarceration for a misdemeanor from 365 days to 364 days, to
explicitly avoid triggering federal immigration consequences.
In 2010 the Supreme Court recognized in Padilla v. Kentucky that there are
constitutional limits on the immigration-related consequences persons will
suffer when they do not receive sufficient notice of potential deportation
as a result of a criminal conviction.b In Padilla, the defendant was a permanent resident and Vietnam War veteran who had been living lawfully in
the United States for decades before his arrest for transporting marijuana.
His attorney advised him that he need not worry about any immigration
consequences of a guilty plea due to his status as a permanent resident.
However, the attorney was incorrect and the federal government instituted deportation proceedings. When Mr. Padilla sued, the Supreme Court,
emphasizing the severity and certainty of deportation, held that a defense
attorney must advise a non-citizen defendant about immigration-related
collateral consequences of conviction before accepting a plea.c
Two states have recently passed laws to ensure that criminal defendants
are aware of the possible immigration-related ramifications of a guilty
plea. Through HB 1059 (2013), Hawaii now requires all judges to inform
defendants of possible immigration-related consequences before the entry of plea or at the start of trial. Likewise, Vermont recently passed HB 413
(2014), which requires all defendants to be given information regarding
all possible collateral consequences, including immigration-related consequences, both at the time they are charged and before entering a plea.
Padilla v. Kentucky, 559 U.S. 356 (2010). For information regarding the import of the decision,
see Margaret Colgate Love, “The Collateral Consequences of Padilla v. Kentucky: Is Forgiveness
Now Constitutionally Required?” University Of Pennsylvania Law Review PENNumbra 160 (2011)
(deportation is “virtually inevitable” because “Congress has eliminated judicial and administrative
mechanisms for discretionary relief”); and Gabriel J. Chin, “Making Padilla Practical: Defense
Counsel and Collateral Consequences at Guilty Plea,” Howard Law Journal 54 (2011).
b
See ibid.
c
For more information about the Padilla case generally and possible future implications for other
collateral consequences, see Margaret Colgate Love, “Collateral Consequences After Padilla v.
Kentucky: From Punishment to Regulation,” Saint Louis University Public Law Review 31 (2011).
a

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

Some legislative efforts to ameliorate collateral consequences and support
reentry come from the recognition that individuals with criminal histories deserve a second chance at full citizenship and eschew the sharp moral distinctions
between law-abiding and law-breaking individuals that had been the hallmark
of the tough-on-crime era. Significantly, this recognition has been bipartisan in
nature, with members of the two major parties supporting this idea. However,
while recent policy shifts to remove or alleviate the impact of these consequences may indicate a broader shift in how the criminal justice system views
law-breakers, the vast number of collateral consequences largely remains in place
and a closer look at recent legislation suggests that efforts to date do not go far
enough to achieve the critical public safety outcomes that are also sought.

REFORMS ARE NARROW IN SCOPE
Much of recent legislation is narrowly tailored in terms of which offenders and

offenses it impacts, limiting its potential. For instance, recent legislation that
creates or expands expungement or sealing mechanisms typically does not go
beyond first- or second-time low-level offenders (most often misdemeanor or
low-level felony offenders), and only applies to certain types of offenses, typically drug or property offenses. Offenders who are most often disqualified are
those with lengthy criminal histories or who are considered habitual offenders;
and whole categories of offenses are frequently excluded from the purview of
new or existing relief mechanisms—typically, all violent or sexual offenses.
While many of these exclusions on their face may make sense, a lengthy
criminal history may nonetheless be made up entirely of property, drug, or
fraud-related charges. For instance, the label of violent or nonviolent as a
demarcation for eligibility can be a blunt tool that excludes some non-serious offenders since violent offenses are typically broadly defined. Often, to be
considered “violent” the law only requires that an individual possess a weapon
while committing an offense, even when not used, or never intended to be
used. Additionally, some offenses, such as burglary and drug trafficking, that
often do not involve force or violence are nevertheless classified as violent.62
These categories are fundamentally too broad. Relief should be made available
on a case-by-case basis and use risk assessments from corrections officials
and others.

RELIEF MECHANISMS ARE NOT EASILY ACCESSIBLE
While narrow criteria for eligibility may limit the pool of individuals impacted,
other factors such as distance, prohibitive economic costs, and unfamiliarity
with formal court procedures can make access to relief mechanisms difficult
even for those who are eligible. For example, some relief mechanisms (e.g.,
expungement or sealing remedies, certificates of recovery or rehabilitation,
offense downgrades) require a formal petition be submitted to a court, often
requiring a public hearing with payment of an applicable filing fee—a process
that can be time-consuming, confusing, and costly. 63 Cost alone can deter oth-

VERA INSTITUTE OF JUSTICE

33

erwise eligible individuals—for example, in Louisiana, the nonrefundable filing
fee for expungement is $350.64 Even so, individuals may not have the necessary
time because of work, school, or because they are a primary caregiver with
little ability to take the necessary time off. If cost and time are not problems,
the filing process itself can be extremely onerous.65 For example, individuals
often have to gather documentation of their criminal histories from multiple
state agencies and bodies, commonly in-person and for a fee. If and when these
records conflict with one another, or when records are missing, the individual
shoulders the burden of reconciling any discrepancy or deficiency.66 Additionally, in many states, petitioners must give notice of their intention to file and any
ultimately issued relief certificates must be sent to all state agencies whose records stand to be affected by the order.67 Since public defenders are typically not
available at this point in the criminal justice process, and given the potential
complexity of such petitions, individuals may need to hire independent counsel
to assist in navigating the process.

WAITING PERIODS ARE LONG IN MANY CASES
Although some states have reduced waiting periods after which individuals can
access relief, many remain excessively long. For example, under Massachusetts
SB 2583 (2010)— a law that shrinks the applicable waiting period for expungement—individuals with a misdemeanor conviction must still wait five years,
and with a felony conviction 10 years, before they can petition a court. Under
North Carolina HB 1023 (2012), first-time nonviolent felony or misdemeanor offenders must wait 15 years from completion of sentence; and although Oregon’s
HB 3376 (2011) applies to higher-level felony offenders, the applicable waiting
period remains a very long time indeed, at 20 years. While waiting periods are
typically justified on public safety grounds, long waiting periods run the risk
of increasing the likelihood of recidivism since without relief many are denied
jobs, housing, public services, educational opportunities, civic engagement (including voting), and custody of children. Moreover, research demonstrates that
long waiting periods have only a marginal impact on public safety.68
Even when applicable waiting periods have passed, individuals face other obstacles, including proving certain factual circumstances, such as gainful
employment or a requisite level of rehabilitation—milestones made difficult
to achieve by the substantial barriers many of the education, employment, and
licensing-related collateral consequences themselves create. Moreover, due to the
discretionary nature of many recent reforms, a petition’s success still depends on
the determination by a judge or the agreement of the prosecutor (or both), and it
is by no means certain that judges or prosecutors will participate in a new policy,
even when all eligibility requirements are objectively satisfied.69

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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

NEW RULES RESTRICTING THIRD-PARTY USE OF CRIMINAL
HISTORY ARE DIFFICULT TO ENFORCE
Although some new laws aim to circumscribe third-party use of criminal history (e.g., “ban the box” initiatives regarding employment or licensing), they offer
no guarantee that third parties will not use criminal history to discriminate
against individuals with a past criminal conviction, absent strong enforcement
mechanisms. For example, while many of these laws prohibit the denial of an
employment applicant “solely on the basis of an applicant’s criminal history,”
there is no prohibition against the would-be employer considering criminal
history among a variety of other factors, and therefore no guarantee that an applicant’s criminal history will not serve as the primary basis for job or licensing
denial. To activate their right against discrimination, rejected applicants would
have to know that a rejection was exclusively based on their criminal history,
information not regularly provided to applicants. Since many states do not

require a formal report of an adverse employment decision, applicants would
have to sue the prospective employer in order to gain access to their application
file; or more unlikely, the employer would have to admit to denying an application on an illegal basis.70 Clearly, for many jobs a certain kind of criminal record
is a legitimate reason to deny employment, but a blanket refusal to hire anyone
with a record is discriminatory.
In addition, as state agencies and court systems routinely make criminal
records and dockets available online, records are easily duplicated by, or sold
directly to, a growing sector of private companies who perform “background
search” services, often pulling from their own independently created databases.71 However, unlike state record repositories, these private companies have
little incentive to remove or remedy inaccurate data, nor are they required to
remove sealed or expunged records—fundamentally undermining the effectiveness of relief mechanisms.72 Because these companies are not substantially
regulated by federal or state law, efforts to enforce fair reporting practices are
difficult.73 Without limiting online access to criminal records—or at minimum,
ensuring that third-party commercial databases are strictly regulated to ensure
accuracy in reporting and compliance with relief orders—unfairly and incorrectly reported criminal histories will continue to hinder the efforts of people
with a record to engage productively in society.
Colleges and universities also routinely collect criminal histories through
their admissions processes—despite the lack of empirical evidence that shows
students with criminal records pose a risk to on-campus safety.74 A lack of transparency exacerbates the issue, as these institutions often do not have written
policies regarding how to treat candidates with criminal records.75 Without
clear information on how educational institutions utilize criminal histories in
their decision making, rules that restrict the use of criminal records in admissions decisions are hard to formulate and difficult to enforce.

VERA INSTITUTE OF JUSTICE

35

Recommendations
Policymakers interested in promoting safer communities and better outcomes
for justice-involved people and their families would do well to consider instituting reforms to ameliorate the impact of collateral consequences for individuals
after sentence completion. To ensure future reform efforts fulfill their promise
and are sustainable and comprehensive, policymakers should consider the
following recommendations:

PROMOTE THE FULL RESTORATION OF RIGHTS AND
STATUS
Full rights and status should be restored to individuals as close to the completion of their sentences as possible. An individual’s criminal history status often
impedes that person’s ability to achieve critical milestones shown to lower rates

of reoffending, including employment, housing, and education. Research demonstrates that the public safety benefits of restricting and monitoring the activities
of these people is, as years go by, increasingly outweighed by the negative public
safety consequences of long-term barriers to reentry and rehabilitation.76 Policymakers should weigh this risk and promote the restoration of rights and status
for individuals as close as possible to the completion of their sentence.

APPLY REMEDIES TO MORE PEOPLE
Criminal records cast a long shadow over an individual’s life—even if the individual was convicted of a minor crime—or, due to the widespread availability of arrest records, not convicted at all. By making sealing and expungement remedies
more broadly available, policymakers can support increased access to educational, employment, and financial progress by individuals whose continued stigmatization in no way serves the public interest. Broadening eligibility for relief can
be achieved through a variety of means: expanding the classes of eligible crimes;
instituting automatic expungement of arrests that did not lead to conviction,
or of certain types of convictions directly after sentence completion; or making
it easier for individuals to demonstrate that they are fit for sealing or expungement by either easing the elements of rehabilitation individuals must prove, or
by presuming individuals have fulfilled those requirements unless a prosecutor
shows otherwise. Similarly, mechanisms which allow individuals to reduce felony
records to misdemeanor records (where these records could also be eligible for
sealing or expungement) would both reduce the number of individuals impaired
by the collateral consequences particular to felonies and further expand the pool
of individuals eligible to achieve a clean or diminished criminal record.
Where expungement or sealing is unavailable, increasing the availability
of and broadening the criteria for certificates of recovery or rehabilitation can
provide relief to a greater number of individuals facing debilitating barriers to
education, employment, licensing opportunities, and housing.

36

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

MAKE REMEDIES EASIER TO ACCESS
While increasing the availability and scope of relief is critical, the potential impact of these remedies is significantly undermined if eligible individuals cannot
access them due to lack of awareness, prohibitively high costs, an impenetrable
process, or excessively long waiting periods. To raise awareness, laws are necessary that require convicted individuals be fully apprised of the impacts of their
criminal records and the relief for which they may be entitled. For instance,
requiring departments of correction or community corrections agencies to provide this information upon sentence completion can help affected individuals
understand their rights and navigate these processes.
Decreasing the procedural hurdles and streamlining processes—such as
mitigating the costs and time associated with various forms of relief—are also
necessary to improve the ability of unrepresented individuals unfamiliar with
court procedures to access the relief. For example, allowing for presumptive or
automatic expungement or sealing of certain records can reduce transaction
costs for individuals as well as for the court system. Furthermore, excessively
long waiting periods and unrealistic criteria which can present significant
obstacles to relief should be reduced. Finally, courts should make pro se instructions and forms readily available and user-friendly, perhaps also supplying
knowledgeable clerks available to assist one or two days a week, or even during
an occasional evening or Saturday.

ESTABLISH CLEAR STANDARDS FOR AND OFFER
INCENTIVES TO THIRD-PARTY DECISION MAKERS
Because employers, housing bodies, and educational institutions often make
decisions every day based on an individual’s criminal history without necessarily
knowing the full meaning of that history and its safety implications, clear standards of how criminal histories should be considered are necessary to help ensure
that collateral consequences are only imposed when they further public safety,
are used as fairly as possible, and actually serve the public’s interest. There is also
a great need for increased transparency on how decisions are made in all areas.
Governing bodies, associations, and others must promote full understanding of
how and when collateral consequences can permissibly impact decision making
and implementing mechanisms to appeal adverse decisions based on criminal
history further ensures fairness, safeguards individuals’ due process rights, and
provides an additional opportunity to monitor compliance.
The housing, employment, and educational contexts are critical areas in
which clear and enforceable standards for decision makers are badly needed. As
such, recommendations specific to these contexts are discussed below.
>>Employment. Despite what is known about the benefit of employment in
reducing an individual’s likelihood of reoffending, biases against individuals with criminal records, fear of liability, ignorance about the meaning or
implications of those records, and inadequate guidance for when and how

VERA INSTITUTE OF JUSTICE

37

records should be used in decision making all contribute to preventingmany employers from hiring qualified and worthy individuals. Employers
need clear guidance about how to use criminal history information, about
their liability and measures to protect themselves, and both incentives and
enforceable guidelines for using an individual’s criminal history in their
decision making.77
>>Housing. While it is understandable that landlords and other housing providers want to keep their premises safe, properly used, and paid for, a lack
of relevant guidelines creates the risk of housing denials based solely on the
blanket use of criminal records. Housing regulations that clarify when use
of an individual’s criminal history is permissible and reversing policies that
make individuals with criminal records presumptively ineligible for public
housing (in addition to other social benefits) ensures that individuals are
able to access an important safety net when they need it most.
>>Education. Federal policies on campus crime reporting and a recent spotlight on sexual assault on campuses have doubtless made educational institutions wary and careful in their admissions policies. This persists despite
an absence of empirical evidence supporting the notion that individuals
with criminal histories pose greater risks to on-campus safety.78 Policymakers can assist these institutions by creating well-informed guidelines regarding when and how educational institutions can use criminal history in
admissions determinations, and require that these institutions document
their compliance with them. Such guidance would also offer protection to
institutions that can demonstrate that they complied. For example, in the
fall of 2014 New York State Attorney General Eric T. Schneiderman reached
an agreement with three New York colleges that prohibits inquiries on
arrest history or convictions that were sealed or expunged. Moreover, use
of criminal convictions to disqualify candidates is only permitted where
the conviction indicates a public safety threat or implicates the student’s
academic program and responsibilities.79

38

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

PUBLIC HOUSING
One of the most challenging tasks for a person with a criminal record to
accomplish can be finding a place to live. In recent years, at least four
states have passed legislation aimed at making it easier for individuals
with criminal convictions to obtain housing. Vermont SB 291 (2014) establishes transitional housing for prisoners reentering the community.
Connecticut SB 364 (2014) requires state agencies to establish housing
initiatives to provide affordable housing to vulnerable groups, including
community-supervised offenders with mental health needs. California SB
1021 (2012) requires the Department of Corrections to create a supportive housing program that provides wraparound services, including housing location services and rental subsidies, to mentally ill parolees at risk
of homelessness. Finally, Kentucky HB 463 (2011) ensures that a variety
of housing arrangements shall be approved for parolees. Under current
law, parolees in Kentucky being released to a nonresidential facility must
obtain “appropriate” housing. This law specifies that the Department
of Corrections must approve any form of acceptable housing, including
apartments, homeless shelters, halfway houses, and, if the parolee is a
student, college dormitories.
Most individuals with criminal histories, however, do not have access to
transitional housing programs like those mentioned above, and many
simply want to return home to their families, some of whom reside in public housing developments. Public housing developments operate under
a complex set of rules, including requirements by the U.S. Department of
Housing and Urban Development (HUD) and policies of the local public housing authority as well as third-party management companies with
whom housing authorities contract. In some cities, local ordinances are
also in play. Despite public perception to the contrary, HUD only prohibits
access to public housing for people with two types of convictions: those
convicted for production of methamphetamine on federally-assisted
housing and lifetime sex offender registrants. Although HUD also prohibits access to people who have been evicted for drug-related criminal
activity in the previous three years, this is not an absolute ban and can be
waived with proof of completed drug treatment. Beyond these specific
requirements, it is up to each public housing authority to determine how
criminal convictions can be dealt with when screening housing applicants.
With people leaving prisons in ever-growing numbers, efforts are being
made to expand access to public housing. In 2011, HUD explicitly encouraged housing authorities to utilize their discretion around tenant selection criteria to better serve people returning to public housing after a
period of incarceration.a HUD is currently planning to issue further guid-

VERA INSTITUTE OF JUSTICE

39

ance on how public housing authorities consider criminal convictions in
tenant selection. HUD is also expected to encourage housing authorities to consider conviction but not arrest records when screening applicants and to examine serious parole violations but not technical parole
violations. HUD is also expected to direct housing authorities to move
away from blanket bans on certain types of convictions and to conduct,
instead, individual assessments of applicants with convictions. Those assessments may include looking at a person’s track record while incarcerated and after release, employment history, completion of treatment
programs, and other factors known to help promote successful reentry.b
In the meantime, a number of housing authorities have decided not to
wait for additional guidance from HUD, and, if successful, their efforts have
the potential to inform how housing authorities across the country treat
people with criminal convictions. Some are running new programs to help
people with criminal histories access public housing (e.g., Baltimore, Chicago, and New York City), while others have well-established programs
with successful track records (e.g., Oakland, CA and Burlington, VT).c
>>Chicago Housing Authority launched a pilot program for 30
people who have completed a year of case management at one of
three participating service providers. Providers issue a certificate to
participants, which they can use as proof of mitigation of circumstances, and continue to work with them for an additional year. The
pilot will serve people with families in public housing developments
as well as in Section 8 housing, as well as people who wish to move
into their own subsidized unit.d A similar pilot is underway with the
Cook County Housing Authority.e
>>New York City Housing Authority (NYCHA) launched a pilot program managed by the Vera Institute of Justice in 2013 for 150 people, ages 16 and over, who have been released from a correctional
setting within the last three years and want to move in with family
members currently residing in NYCHA apartments.f If approved,
participants move in under temporary permission for two years and
any income they generate does not impact the family’s rent. They
must also participate in case management services for a minimum
of six months. After two years, families can apply to have them added to the lease or participants can apply for their own units without
their criminal conviction record being considered.
>>Oakland Housing Authority’s (OHA) Maximizing Opportunities
for Mothers to Succeed (MOMS) Program, in operation now for 13
years, connects mothers in medium or minimum security at the Santa
Rita jail to housing provided by OHA. To be eligible, mothers must

40

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

complete a program in the jail and continue with case management
services once they return to the community. The housing authority has
11 units set aside for program participants. At the conclusion of the
approximately 12-month program, women who successfully meet their
programmatic goals and lease requirements can apply for permanent
housing and their prior conviction will not be held against them. The
program is planning to expand to 30 units and will include some units
for fathers leaving jail.g
Still other housing authorities are reviewing their broader tenant selection
criteria. For example, in July 2014, the San Francisco Housing Authority
(SFHA) modified its Admission and Continued Occupancy Policy to limit
criminal record reviews to those within the past five years of an application and will only screen for drug-related convictions and violent criminal
activity.h In addition, cities are passing ordinances following the “ban the
box” approach in which criminal background checks can only be run once
a person is deemed qualified for housing. For example, the San Francisco
Fair Chance Ordinance, in effect since August 2014, prohibits the examination of criminal conviction records that are more than seven years old and
requires the individual assessment of only those recent convictions that
are directly related to the safety of persons or property in public housing.i
Similar ordinances have been passed in other cities, including Newark, NJ.j
Letter dated June 17, 2011 from Shaun Donovan to Public Housing Authorities. Available at
http://nhlp.org/files/Rentry%20letter%20from%20Donovan%20to%20PHAs%206-17-11.pdf.
b
Some of these programs are limited to traditional public housing, others include the Housing
Choice Voucher Program, commonly referred to as Section 8.
See http://www.vera.org/blog/ron-ashford-department-housing-urban-development-hud.
c
For more on the Burlington Housing Authority program, see
http://burlingtonhousing.org/index.asp?SEC=6739A171-53A1-4137-92E8-60EC67AD46C8&Type=B_BASIC.
d
The Chicago Tribune, “Proposal would ease CHA ban on ex-offenders,” March 28, 2014, http://
articles.chicagotribune.com/2014-03-28/news/ct-cha-ex-offender-housing-met-20140328_1_
ex-offenders-charles-woodyard-cha-properties
e
Chicago Coalition for the Homeless, “Chicago Housing Authority Board To Pilot Select Ex-offender Access Housing,” November, 18, 2014,
http://www.chicagohomeless.org/chicago-housing-authority-adopts-cch-pilot-allowingselect-ex-offenders-access-housing/
f
The Vera Institute of Justice, “NYCHA Family Reentry Pilot: Reuniting Families in New York City
Public Housing,”
http://www.vera.org/project/nycha-family-reentry-pilot-reuniting-families-new-york-city-public-housing
g
Centerforce, “MOMS Program: Maximizing Opportunities for Mothers to Succeed,”
http://www.centerforce.org/programs/moms-maximizing-opportunities-for-mothers-to-succeed/
h
The San Francisco Housing Authority, “Proposed Admissions and Continued Occupancy Policy,”
Revised July 2014, http://sfha.org/ca001a01.pdf, 54.
i
The language in the ordinance defines “directly-related” as: “whether the conduct has a direct
and specific negative bearing on the safety of persons or property, given the nature of the housing,
whether the housing offers the opportunity for the same/similar offense to occur, whether circumstances leading to the conduct will recur in the housing, and whether supportive services that might
reduce the likelihood of a recurrence are available on-site.” San Francisco Fair Chance Ordinance,
http://sf-hrc.org/article-49-san-francisco-police-codefair-chance-ordinance.
j
For information about the ordinance in Newark, NJ, see
https://newark.legistar.com/LegislationDetail.aspx?ID=1159554&GUID=6E9D1D83-C8D7-4671-931F-EE7C8B2F33FD
a

VERA INSTITUTE OF JUSTICE

41

RESTRICT ACCESS TO AND USE OF CRIMINAL HISTORY
INFORMATION
To combat the over-accessibility of criminal history information and inaccurate reporting, companies that publish criminal history information must be
required to implement mechanisms that ensure the accuracy of their records
and respond to complaints.80 Commercial services should also be prohibited
from reporting criminal history unrelated to convictions. In order to encourage
appropriate use of criminal records by decision makers, particularly employers, several mechanisms can be considered. Employers can be prohibited from
checking criminal history until after a conditional offer has been made. Alternatively, employers can be prohibited from considering criminal history information that did not lead to a conviction.81 Transparency can also be ensured—for
example, Massachusetts SB 2583 (2010) requires employers that regularly conduct background checks to maintain a written policy about their use of criminal
records.82 Decision makers should also be encouraged to use state background
check systems over commercial databases. Incentives can be used to help ensure compliance—for example, state agencies can consider background check
policies when making contracting decisions.83

EXPAND THE USE OF FRONT-END RELIEF MECHANISMS
Front-end relief mechanisms can minimize an individual’s exposure to certain
collateral consequences by limiting the extent of an individual’s contact with the
criminal justice system. Remedies can include deferred adjudication schemes or
diversion programs, where the court process is halted and adjudication or sentencing is withheld until after a certain amount of time has passed and/or certain
requirements (such as completion of a program and good behavior) have been met,
ultimately resulting in a dismissal or a vacated conviction or guilty plea. Automatic
expungement or sealing mechanisms following a convicted individuals’ completion of certain requirements are also mechanisms for providing front-end relief
to collateral consequences. As these mechanisms are often more accessible and
efficient than their back-end counterparts, these remedies should be extended to
include broader categories of offenders and implemented more widely.

INVOLVE PROSECUTORS AND JUDGES IN REFORM EFFORTS
Policymakers must ensure that judicial and prosecutorial discretion does not
undercut the impact of their reforms. For example, a locality may create or
expand deferred adjudication or diversion programs to reduce the number of
individuals subject to collateral consequences. However, unless prosecutors and
judges elect to utilize the schemes, these reforms would ultimately be ineffectual. To encourage these critical decision makers to support reforms on the
ground, it is important that policymakers involve district attorneys and judges
from the outset in reform planning and later in the implementation and evaluation of new policies and practices.

42

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

Conclusion
Collateral consequences of criminal convictions are legion and present significant and often insurmountable barriers for people with criminal histories to
housing, public benefits, employment, and even certain civil rights well after
sentence completion. The breadth of legislative reforms over the last six years
to mitigate their impact suggests that policymakers have begun to recognize
that many post-punishment penalties are too broadly applied and have questionable public safety benefits. Indeed, the reform efforts discussed in this
report seem to reflect a growing acceptance among leaders across the political
spectrum—and with the public at large—that rehabilitation, treatment, and
education should be important goals of the criminal justice system. Research
shows that recidivism is reduced and communities are made safer not by rendering the millions of people with criminal records second class citizens, but by

supporting their transition and reintegration into the community.
While some recent reforms of collateral consequences are narrow in scope,
difficult to access or enforce, and easily thwarted, the recognition that people
who are caught up in the criminal justice system need assistance is a significant shift in perspective from the tough-on-crime policies of the past forty
years. But when viewed collectively, these reforms indicate a criminal justice
system on the cusp of embracing reentry and reintegration as guiding principles, and a society which accepts people with criminal records as full members
capable of contributing to their families and communities.

VERA INSTITUTE OF JUSTICE

43

Appendix A
COLLATERAL CONSEQUENCES REFORM LEGISLATION BY YEAR, 2009-2014
STATE

2009

2010

2011

ALABAMA
ARKANSAS

2

CALIFORNIA

1

1

COLORADO

1

1

CONNECTICUT

1

DELAWARE

1

3

DISTRICT OF COLUMBIA
FLORIDA

1

GEORGIA
HAWAII
IDAHO
ILLINOIS

3

INDIANA

1
1

IOWA
KENTUCKY

1

LOUISIANA

2

MARYLAND
MASSACHUSETTS

1

MICHIGAN
MINNESOTA

1

MISSISSIPPI

1

MISSOURI
NEBRASKA
NEVADA
NEW HAMPSHIRE
NEW JERSEY

1
1

NEW MEXICO
NEW YORK

1
2

2

NORTH CAROLINA

2

OHIO

1

OKLAHOMA
OREGON

1

RHODE ISLAND

1

SOUTH CAROLINA
SOUTH DAKOTA

1

1

TENNESSEE
TEXAS

1

UTAH

1

VERMONT
WASHINGTON

3

WEST VIRGINIA
WYOMING
TOTAL
44

1
5

18

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

20

2012

2013

2014

TOTAL

1

1

2

2

4

1

2

6

11

1

5

3

11

1

2

3

9

1

2

1

1

1

1
1

1

1

1

2

4
2

1

1

3

4

4

15

1

1

3

6

1

1
1

2

2

4

10

1

1

1

3
1

1

1
1

1

3
1

1

2

3

1

1

2
1

2
4

5

3

5
1

1
1

2

5
5

1

2
1

1

1

2

2

3

1

1

2
2

1

2
6

1

1
1

7
3

6

1

1

1

5

1
19

3

1
41

1

2

52

155
VERA INSTITUTE OF JUSTICE

45

Appendix B
COLLATERAL CONSEQUENCES REFORM LEGISLATION BY STATE, 2009–2014
Alabama

Arkansas

California

Colorado

Connecticut

46

HB 494

2013

SB 108

2014

Delaware

HB 169

2010

HB 177

2011

SB 12

2011

HB 1608

2011

SB 59

2011

SB 806

2011

HB 285

2012

HB 1470

2013

HB 10

2013

HB 1638

2013

HB 134

2014

HB 167

2014

SB 217

2014

B19- 889

2012

B20-642

2014

Florida

SB 146

2011

Georgia

HB 1176

2012

SB 1055

2010

AB 1384

2011

AB 2371

2012

AB 218

2013

AB 720

2013

AB 1468

2014

AB 1650

2014

AB 2234

2014

AB 2396

2014

HB 349

2013

SB 1027

2014

SB 365

2014

SB 1384

2014

SB 845

2014

HB 1023

2010

HB 2515

2012

HB 1167

2011

HB 1059

2013

HB 1263

2012

HB 1082

2013

Idaho

S 1151

2013

HB 1156

2013

SB 123

2013

Illinois

HB 5214

2010

SB 229

2013

SB 760

2010

SB 250

2013

SB 3295

2010

HB 1047

2014

HB 297

2011

SB 129

2014

HB 5771

2012

SB 206

2014

SB 3349

2012

SB 3458

2012

District Of Columbia

Hawaii

HB 5207

2010

HB 1548

2013

SB 153

2014

HB 3010

2013

HB 3061

2013

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

Illinois

Indiana

HF 1301

2009

2014

SF 523

2013

HB 5701

2014

HF 2576

2014

HB 5815

2014

SB 978

2014

Mississippi

HB 160

2010

HB 1211

2011

Missouri

SB 118

2013

HB 1033

2012

HB 1665

2014

HB 1482

2013

SB 680

2014

HB 1268

2014

HB 1155

2014

Nebraska

LB 907

2014

SB 236

2014
Nevada

SB 169

2013

SB 395

2013

HB 1533

2010

HB 496

2014

SB 1659

2013

HB 4304

Iowa

SF 383

2014

Kentucky

HB 463

2011

Louisiana

Maryland

Massachusetts

Michigan

Minnesota

New Hampshire

HB 102

2010

HB 1137

2014

SB 927

2010

HB 1144

2014

HB 295

2012

HB 1368

2014

SB 403

2012

HB 219

2013

A 4201

2009

SB 71

2013

A 3598

2013

HB 8

2014

AB 1999

2014

HB 55

2014

AB 2295

2014

HB 505

2014

AB 8071

2014

HB 1273

2014
New Mexico

SB 254

2010

New York

AB 8178

2009

S 56-B

2009

AB 5462

2010

AB 9706

2010

SB 3553

2014

HB 708

2012

SB 4

2013

HB 79

2014

SB 2583

HB 5162

2010

New Jersey

2012

VERA INSTITUTE OF JUSTICE

47

North Carolina

Ohio

Oklahoma

Oregon

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

48

HB 641

2011

SB 397

HB 21

2010

2011

SB 201

2012

HB 1023

2012

HB 33

2013

SB 33

2013

HB 15

2014

SB 91

2013

HB 137

2014

HB 145

2014

Utah

HB 86

2011

SB 337

2012

Vermont

HB 413

2014

SB 1914

2014

Washington

HB 1793

2011

SB 5168

2011

HB 3376

2011

SB 5423

2011

HB 2627

2013

HB 1284

2013

HB 1651

2014

West Virginia

HB 4521

2012

Wyoming

SF 88

2011

SF 53

2014

HB 7923

2010

SB 357

2013

SB 358

2013

HB 3184

2013

SB 900

2014

HB 1123

2009

HB 1105

2010

HB 2865

2012

HB 1742

2014

SB 276

2014

HB 351

2011

HB 798

2013

HB 1188

2013

HB 1659

2013

SB 107

2013

SB 369

2013

SB 1289

2013

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

Appendix C
DISCRETE COLLATERAL CONSEQUENCES REFORM LEGISLATION, 2009-2014

LA HB 219 (2013)

Restores Adoption Rights

CO SB 229 (2013)

Removes from Sex Offender Registry

IN HB 1155 (2014)

Protects Expungement Rights in Plea Deals

DE HB 10 (2013)
NY SB 3553 (2014)

Safeguards the Right to Vote

WA SB 5168 (2011)
NV SB 169 (2013)

Mitigates Immigration Consequences

NY AB 5462 (2010)
WA HB 1284 (2013)

Restores Parental Rights

CA AB 720 (2013)
IL SB 760 (2010)

Ensures Access to Health Care

AR SB 806 (2011)
NC SB 91 (2013)

Ensures Access to Education

LA HB 102 (2010)
WA SB 5423 (2011)
IN HB 1155 (2014)

Provides Financial Relief

NY AB 8178 (2009)
OH SB 337 (2012)
WV HB 4521 (2012)

Provides Child Support Relief

WA HB 1793 (2011)
CO SB 123 (2013)
UT HB 33 (2013)
LA HB 8 (2014)

Expand the Effect of Pardon

SD HB 1123 (2009)
DE SB 12 (2011)
CA AB 1468 (2014)

IN HB 1268 (2014)
MO SB 680 (2014)
NJ AB 2295 (2014)

OH SB 337 (2012)
GA HB 349 (2013)
DE SB 217 (2014)

GA SB 365 (2014)
IL HB 4304 (2014)
IN SB 236 (2014)

Removes Ineligibility from
Public Assistance Programs
NH HB 496 (2014)
UT HB 15 (2014)
UT HB 137 (2014)

Reinstates
Driving Privileges
VERA INSTITUTE OF JUSTICE

49

Appendix D

COLLATERAL CONSEQUENCES REFORM LEGISLATION BY REFORM TYPE,

EXPUNGEMENT OR SEALING REMEDIES
STATE
EXTENDS
ELIGIBILITY

REDUCES
WAITING
PERIODS

EXTENDS TO
CLARIFIES THE
JUVENILE
EFFECT
RECORDS

ALTERS THE
BURDEN OF
PROOF

CERTIFICATES OF
RECOVERY

OFFENSE
DOWNGRADES

SB 108 (2014)

HB 494 (2013)
SB 108 (2014)

ALABAMA

ARKANSAS

CALIFORNIA

COLORADO

HB 1608 (2011)
HB 1638 (2013)

HB 1638 (2013)

AB 1384 (2011)

AB 2371 (2012)

SB 123 (2013)
SB 129 (2014)
SB 206 (2014)

HB 1167 (2011)
HB 1082 (2013)

HB 1167 (2011)
HB 1156 (2013)
SB 123 (2013)
SB 206 (2014)

HB 1608 (2011)
HB 1638 (2013)

HB 1082 (2013)

SB 806 (2011)

HB 1167 (2011)
SB 229 (2013)

HB 1608 (2011)
HB 1470 (2013)
AB 2371 (2012)

AB 2371 (2012)

SB 250 (2013)

HB 1082 (2013)
HB 1156 (2013)
SB 123 (2013)
SB 206 (2014)

SB 153 (2014)

CONNECTICUT
HB 169 (2010)
SB 59 (2011)

DELAWARE
DISTRICT OF
COLUMBIA

BUILDS
RELIEF INTO
THE PROCESS

B19-889 (2012)

HB 169 (2010)

HB 177 (2011)
HB 285 (2012)

HB 134 (2014)

B19-889 (2012)

B19-889 (2012)

FLORIDA

GEORGIA

HAWAII

HB 1176 (2012)

HB 365 (2014)

HB 2515 (2012)

S 1151 (2013)

IDAHO

ILLINOIS

INDIANA

SB 3295 (2010)
SB 3458 (2012)
HB 1548 (2013)
HB 3061 (2013)
HB 5815 (2014)
HB 1211 (2011)
HB 1482 (2013)

SB 978 (2014)

HB 1155 (2014)

HB 1033 (2012)
HB 1482 (2013)

HB 1155 (2014)

SB 927 (2010)
SB 403 (2012)
HB 55 (2014)

HB 55 (2014)

HB 1033 (2012)

SB 71 (2013)

HB 708 (2012)
HB 79 (2014)

MARYLAND
SB 2583 (2010)

MASSACHUSETTS

HB 5162 (2012)

MICHIGAN

MISSISSIPPI

HB 5214 (2010)
SB 3349 (2012)
HB 3010 (2013)

HB 463 (2011)

KENTUCKY

MINNESOTA

HB 5771 (2012)

SF 383 (2014)

IOWA

LOUISIANA

HB 1176 (2012)

HF 2576 (2014)

HB 160 (2010)

HF 2576 (2014)

HF 2576 (2014)

2009-2014
AMELIORATES EMPLOYMENT-RELATED COLLATERAL CONSEQUENCES

BAN THE BOX

REDUCES
LICENSING
RESTRICTIONS

REDUCES
EMPLOYERS' RISK

INCENTIVIZES
EMPLOYERS

ACCESS TO INFORMATION
PROVIDES
INCREASED
INFORMATION TO
OFFENDERS

RESTRICTS
INFORMATION
AVAILABLE TO
THIRD PARTIES

STATE TASK
FORCES

SB 806 (2011)

AB 1650 (2014)
AB 218 (2013)

AB 2396 (2014)
SB 1384 (2014)

HB 1263 (2012)
SB 206 (2014)

AB 1650 (2014)

HB 1023 (2010)

DISCRETE
COLLATERAL
CONSEQUENCES

SB 806 (2011)

SB 1055 (2010)
AB 2243 (2014)

SB 1027 (2014)

AB 720 (2013)
AB 1468 (2014)

SB 123 (2013)
SB 206 (2014)

HB 1047 (2014)

SB 123 (2013)
SB 229 (2013)

HB 5207 (2010)

HB 167 (2014)

SB 59 (2011)

B20-642 (2014)

HB 167 (2014)

B19-889 (2012)

SB 12 (2011)
HB 10 (2013)
SB 217 (2014)
B20-642 (2014)

SB 146 (2011)

SB 146 (2011)

HB 365 (2014)

HB 1176 (2012)

SB 845 (2014)

HB 349 (2013)
SB 365 (2014)

HB 1059 (2013)

HB 5701 (2014)

SB 1659 (2013)

HB 1033 (2012)
HB 1482 (2013)

HB 295 (2012)
HB 1273 (2014)

HB 297 (2011)

SB 760 (2010)
HB 4304 (2014)

HB 1482 (2013)

HB 1033 (2012)

HB 1155 (2014)
HB 1268 (2014)
SB 236 (2014)

HB 505 (2014)

HB 55 (2014)

HB 102 (2010)
HB 219 (2013)
HB 8 (2014)

SB 4 (2013)

SB 2583 (2010)

SB 2583 (2010)

HF 1301 (2009) SF
523 (2013)

HF 2576 (2014)

SB 2583 (2010)

SB 2583 (2010)

HF 2576 (2014)

SB 2583 (2010)

Appendix D

COLLATERAL CONSEQUENCES REFORM LEGISLATION BY REFORM TYPE,

EXPUNGEMENT OR SEALING REMEDIES
STATE

MISSOURI

EXTENDS
ELIGIBILITY

REDUCES
WAITING
PERIODS

CLARIFIES THE
EFFECT

EXTENDS TO
JUVENILE
RECORDS

ALTERS THE
BURDEN OF
PROOF

CERTIFICATES OF
RECOVERY

OFFENSE
DOWNGRADES

HB 1665 (2014)

BUILDING RELIEF
INTO
THE PROCESS
SB 118 (2013)

NEBRASKA
SB 169 (2013)

NEVADA

NEW HAMPSHIRE

HB 1137 (2014)

AB 8071 (2014)

NEW JERSEY

A 3598 (2013)

NEW MEXICO
S 56-B (2009)

S 56-B (2009)

S 56-B (2009)

NEW YORK

NORTH CAROLINA

OHIO

HB 1023 (2012)

SB 337 (2012)

SB 397 (2011)
SB 91 (2013)
SB 337 (2012)

HB 641 (2011)

SB 337 (2012)

HB 86 (2011)
SB 337 (2012)

SB 1914 (2014)

OKLAHOMA

OREGON

SB 397 (2011)

HB 3376 (2011)

HB 2627 (2013)

SB 358 (2013)

RHODE ISLAND

SOUTH CAROLINA

SOUTH DAKOTA

TENNESSEE

TEXAS

UTAH

HB 3184 (2013)

HB 1105 (2010)

HB 1105 (2010)

HB 2685 (2012)
HB 1742 (2014)

SB 276 (2014)

HB 351 (2011)

HB 351 (2011)

HB 21 (2010)
SB 201 (2012)
HB 33 (2013)

HB 21 (2010)

HB 413 (2014)

VERMONT
HB 1793 (2011)
HB 1651 (2014)

WASHINGTON

WEST VIRGINIA

WYOMING

SF 88 (2011)

HB 7923 (2010)

2009-2014
AMELIORATING EMPLOYMENT-RELATED COLLATERAL CONSEQUENCES
BAN THE BOX

REDUCES
LICENSING
RESTRICTIONS

REDUCES
EMPLOYERS' RISK

INCENTIVIZES
EMPLOYERS

ACCESS TO INFORMATION
PROVIDES
INCREASED
INFORMATION TO
OFFENDERS

RESTRICTS
INFORMATION
AVAILABLE TO
THIRD PARTIES
HB 1665 (2014)

STATE TASK
FORCES

DISCRETE
COLLATERAL
CONSEQUENCES
SB 680 (2014)

LB 907 (2014)

HB 1368 (2014)

AB 1999 (2014)

SB 395 (2013)

SB 169 (2013)

HB 1533 (2010)
HB 1144 (2014)

HB 496 (2014)

A 4201 (2009)

AB 2295 (2014)

SB 254 (2010)

AB 9706 (2010)

SB 91 (2013)

SB 33 (2013)

HB 641 (2011)

SB 337 (2012)

HB 86 (2011)
SB 337 (2012)

AB 9706 (2010)

AB 9706 (2010)

AB 8178 (2009)
AB 5462 (2010)
SB 3553 (2014)
SB 91 (2013)

SB 337 (2012)

SB 337 (2012)

SB 357 (2013)

SB 900 (2014)

HB 1123 (2009)

SB 276 (2014)

HB 798 (2013) HB
1659 (2013)

HB 1188 (2013)

SB 369 (2013)

SB 107 (2013)
SB 1289 (2013)
HB 145 (2014)

HB 413 (2014)

HB 33 (2013)
HB 15 (2014)
HB 137 (2014)
HB 413 (2014)

HB 1793 (2011)

HB 1793 (2011)
SB 5168 (2011)
SB 5243 (2011)
HB 1284 (2013)
HB 4521 (2012)

SF 53 (2014)

ENDNOTES
1	 Indeed, in describing the stigma caused by a criminal conviction, Chief
Justice Earl Warren once observed that a felony conviction “imposes
a status upon a person which not only makes him vulnerable to future
sanctions through new civil disability statutes, but which also seriously
affects his reputation and economic opportunities.” See Parker v. Ellis,
362 U.S. 574, 593-94 (1960) (Warren, CJ, Black, Douglas & Brennan, JJ,
dissenting).

6	 The Sentencing Project, A Lifetime of Punishment: The Impact of the
Felony Drug Ban on Welfare Benefits (Washington, DC: 2013), 2, Table 1.
The programs involved are the Temporary Assistance to Needy Families
(TANF) program and the Supplemental Nutrition Assistance Program
(SNAP)—more commonly referred to as “food stamps.” As of 2014, 13
states have fully opted out of such a ban regarding TANF benefits and 16
states have fully opted out of the ban regarding SNAP benefits.

2	 Collateral consequences are civil consequences that arise from criminal
convictions. For a definition, see ABA Standards for Criminal Justice:
Collateral Sanctions and Discretionary Disqualification of Convicted
Persons, 3rd ed. (2004) Standard 19-1.1. For information regarding
the severity and reach of collateral consequences, see Wayne Logan,
“Informal Collateral Consequences,” Washington Law Review 88 (2013):
1104, noting that the effect of the collateral consequences can amount
to a greater punishment than the original sentence. For information
on how collateral consequences extend to an individual’s family, see
Donald Braman and Jenifer Wood, “From One Generation to the Next:
How Criminal Sanctions Are Reshaping Family Life in Urban America,”
in Travis and Michelle Waul, eds., Prisoners Once Removed: The Impact
of Incarceration and Reentry on Children, Families, and Communities
(Washington, DC: Urban Institute Press, 2003), 171-188; Barbara Mulé
and Michael Yavinsky, “Saving One’s Home: Collateral Consequences
for Innocent Family Members,” New York University Review of Law
and Social Change 30 (2006): 689-699; Creasie Finney Hairston,
Ph.D., “Families, Prisoners, and Community Reentry: A Look at Issues
and Programs,” in Vivian L. Gadsden, ed., Heading Home: Offender
Reintegration into the Family 20-24 (Lanham, Maryland: American
Correctional Association, 2003). Regarding collateral consequences
impact on the community, see Shelli Balter Rossman, “Building
Partnerships to Stengthen Offenders, Families, and Communities,” in
Travis and Waul, 2003, pp. 322-342. For collateral consequences’ impact
on African American communities in particular, see Dorothy E. Roberts,
“The Social and Moral Cost of Mass Incarceration in African American
Communities,” Stanford Law Review 56 (2004): 1291-1305. See also
Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes
Disadvantaged Neighborhoods Worse (Buckingham, England: Open
University Press, 2009). Regarding the impact of criminal conviction on
an individual’s economic prospects, see Collateral Costs: Incarceration’s
Effect on Economic Mobility, (Washington, DC: The Pew Charitable
Trusts, 2010).

7	 See note 9 for case law to this effect. Regarding the determination that
collateral consequences are “civil,” the Supreme Court has laid out
several tests to determine when a penalty is criminal or civil. See for
example, Trop v. Dulles, 356 U.S. 86, 96 (1958) or Kennedy v. MendozaMartinez, 372 U.S. 144, 168-69 (1963). The controlling test is a twopronged inquiry set forth in U.S. v. Ward, 448 U.S. 242, 248-250 (1980),
which instructs courts to first determine legislative intent as to whether
a sanction is to be classified as civil or criminal; and second, if civil, to
employ a seven-factor analysis articulated in Kennedy to determine
whether the purpose or effect of the sanction is so punitive as to be
considered criminal. Note that only the “clearest proof” on the second
inquiry can override legislative intent. See Hudson v. U.S., 522 U.S. 93,
100 (1997). Other dispositive factors that courts have considered to
determine whether a consequence is criminal or collateral (and therefore
civil) include whether the court has the power to impose or limit the
collateral consequence at issue, or, conversely, if it is beyond the control
and responsibility of the court. See for example, El-Nobani v. United
States, 287 F.3d 417, 421 (6th Cir. 2007). For further discussion of the
jurisprudence that has developed around collateral consequences
generally see, Margaret Colgate Love, “Collateral Consequences After
Padilla v. Kentucky: From Punishment to Regulation,” St. Louis Public Law
Review 31, no. 1 (2011): 87, 96-101; and Michael Pinard, “An Integrated
Perspective on the Collateral Consequences of Criminal Convictions
and Reentry Issues Faced by Formerly Incarcerated Individuals,” Boston
University Law Review 86 (2006): 639-647.

3	 Collateral consequences are not limited to felony convictions. For a
comprehensive discussion of the negative consequences of misdemeanor
convictions, see Jenny Roberts, “Crashing the Misdemeanor System,”
Washington and Lee Law Review 70 (2013): 1090–1131. Also see Jenny
Roberts, “Why Misdemeanors Matter: Defining Effective Advocacy in
Lower Criminal Courts,” U.C. Davis Law Review 45 (2011): 277–372; and
Gabriel J. Chin, “The New Civil Death: Rethinking Punishment in the Era
of Mass Conviction,” University of Pennsylvania Law Review 160 (2012):
1789, 1803-1815.
4	 Depending on the nature of the felony, an individual with a felony conviction
could face up to a six-year ban from New York public housing programs after
serving their sentence. All convicted felons face at least a three-year ban
from public housing. See the New York City Housing Authority’s Department
of Housing Applications Manual Exhibit F (October 15, 2013) at
reentry.net/ny/library/folder.132960-NYCHA_Public_Housing_Regulations.
For example, if an individual was convicted of a Class D felony in 1998,
was released from prison in 2000, and released from parole on October
1, 2004, he or she would not be eligible for public housing until October
1, 2009—five years after completing the full sentence (i.e., upon
termination of parole supervision).
5	 For rules regarding stevedores, see N.Y. Unconsolidated Laws §9821; For rules
regarding real estate agents, see N.Y. Real Prop § 440-a; For rules regarding
bingo operators, see N.Y. Exec. Law, section 435 (2)(c)(l). This bar extends
to bingo callers, see NYCRR § 4820.35. Regarding educational assistance,
individuals convicted of drug offenses are ineligible for further federal student
aid if the offense was committed while the individual was receiving aid. See
https://studentaid.ed.gov/eligibility/criminal-convictions#drug-convictions.

54

8	 See Jeremy Travis, “Invisible Punishment: An Instrument of Social
Exclusion,” in Invisible Punishment: The Collateral Consequences of Mass
Imprisonment, edited by Marc Mauer and Meda Chesney-Lind (New York,
NY: The New Press, 2002), 15-17.
9	 See for example, Fruchtman v. Kenton, 531 F.2d 946, 949 (9th. Cir.
1976) in which the U.S. Court of Appeals for the Ninth Circuit held that
“collateral consequences flowing from a guilty plea are so manifold
that any rule requiring a district judge to advise a defendant…would
impose an unmanageable burden on the trial judge.” In United States
v. Yearwood, 863 F.2d 6, 8 (4th Cir. 1988), the U.S. Court of Appeals
for the Fourth Circuit decided that requiring defense counsel to advise
defendants on collateral consequences would be similarly burdensome.
Also see ABA Standards for Criminal Justice: Collateral Sanctions
and Discretionary Disqualification of Convicted Persons 3rd ed. (2004)
Standard 19-2.1 Commentary for a discussion on the difficulty of
determining the collateral consequences for a particular offense.
10	 Anthony Thompson, “Navigating the Hidden Obstacles to Ex-Offender
Reentry,” Boston College Law Review 45 (2004): 255, 273.
11	In Padilla v. Kentucky, 559 U.S. 356, 359 (2010), the Supreme Court
held that a criminal defense lawyer is constitutionally required to advise
a noncitizen client considering a guilty plea that deportation will be
an almost certain result of a guilty plea and conviction. Lower courts
have since considered applying Padilla to other “status-generated
consequences,” such as sex offender registration. For a discussion on this
see Margaret Colgate Love, “Collateral Consequences After Padilla v.
Kentucky: From Punishment to Regulation,” St. Louis Public Law Review
31(1) (2011) 87, 105-111. Also see, Anthony Thompson, “Navigating the
Hidden Obstacles to Ex-Offender Reentry,” Boston College Law Review
45 (2004): 255, 273.
12	 For a discussion on the “invisibility” of collateral consequences,
see Jeremy Travis, “Invisible Punishment: An Instrument of Social
Exclusion” in Invisible Punishment: The Collateral Consequences of Mass
Imprisonment, edited by Marc Mauer and Meda Chesney-Lind (New York,
NY: The New Press, 2002) 15-17.

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

13	 For a discussion about the growth in concern about prisoner reentry and
attendant initiatives, see Michael Pinard, “An Integrated Perspective on
the Collateral Consequences of Criminal Convictions and Reentry Issues
Faced by Formerly Incarcerated Individuals,” Boston University Law Review
86 (2006): 623, 649-658; Michael Pinard, “Reflections and Perspectives
on Reentry and Collateral Consequences,” Journal of Criminal Law
& Criminology 100, no.3 (2010): 1213, 1219-22; Amy L. Solomon, “In
Search of a Job: Criminal Records as Barriers to Employment,” National
Institute of Justice Journal No. 270 (2012): 46, 48. For recent opinion polls
on criminal justice issues see Jill Mizell, An Overview of Public Opinion
and Discourse on Criminal Justice Issues (New York: The Opportunity
Agenda, 2014), 19-23. For example, The Opportunity Agenda found that
69 percent of Americans felt that the criminal justice system “needed
major improvements” or “a complete redesign,” and that nearly half
of Americans believe society is better served by a greater effort to
rehabilitate people convicted of crimes. See Mizell, 20, 23. The report also
cites a Hindelang Criminal Justice Research Center Study finding that, in
2010, 64 percent of respondents reported that their preferred approach to
lowering crime was by adding “more money and effort” to “attacking the
social and economic problems that lead to crime through better education
and job training,” compared to only 32 percent who preferred “more
money and effort” to “deterring crime by improving law enforcement with
more prisons, police, and judges.” In 1990, only 51 percent of respondents
favored the former approach. Ibid. at 24.
14	 For research that discusses how employment, education, health, and
housing are critical risk factors of reoffending, see M. Makarios et.
al., “Examining the Predictors of Recidivism Among Men and Women
Released From Prison In Ohio,” Criminal Justice and Behavior 37, no.12
(2010).
15	 For remarks in 2011, see Attorney General Eric Holder Letter to State
Attorneys General, April 18, 2011, available at
csgjusticecenter.org/wp-content/uploads/2014/02/Reentry_Council_AG_Letter.pdf.
For remarks in 2014, see Attorney General Eric Holder remarks at the
National Association of Attorneys General Winter Meeting, February 25,
2014, available at
http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-1402251.html.
16	 See Attorney General Eric Holder remarks on Criminal Justice Reform at
Georgetown University Law Center, February 11, 2014, available at
http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-140211.html.
17	 For a contemporaneous example of scholarship underpinning this shift,
see Robert Martinson, “What Works? Questions and Answers About
Prison Reform” The Public Interest 35 (1974): 22, 22-23. For more
background, see Kevin R. Reitz, “The Disassembly and Reassembly of
U.S. Sentencing Practices,” in Sentencing and Sanctions in Western
Countries (Michael Tonry & Richard S. Frase, eds., Oxford University
Press, 2001), 238-244; Bureau of Justice Assistance, National Assessment
of Structured Sentencing (Washington DC: BJA, 1996), 5-18.
18	 Kevin R. Reitz, “The Disassembly and Reassembly of U.S. Sentencing
Practices,” 238-244. For an overview of the expanding penal code, see
Douglas Husak, Overcriminalization: The Limits of The Criminal Law
(Oxford, UK: Oxford University Press, 2009); also see Stephen F. Smith,
“Overcoming Overcriminalization,” Journal Of Criminal Law & Criminology
102, no.3 (2012): 537, 538-543 and Paul J. Larkin, “Public Choice Theory and
Overcriminalization,” Harvard Journal of Law & Public Policy 36, no.2 (2013):
715, 723-735. For example, on the federal level, the Congressional Research
Service reported that between 2008 and 2013, Congress added 439
offenses to the federal criminal code. See Memorandum to Crime, Terrorism,
Homeland Security & Investigations Subcommittee (June 23, 2014) at
http://freebeacon.com/wp-content/uploads/2014/08/CRS-Report-UpDated-New-Crimesfinal-1.pdf. For a description of zero-tolerance policing
practices in New York City, see Jeffrey Fagan and Garth Davies, “Street
Stops and Broken Windows: Terry, Race, and Disorder in New York City,”
Fordham Urban Law Journal 28, no.2 (2000): 457, 470-2 and 475-8; Also see
Jeffrey Fagan, Valerie West and Jan Holland, “Reciprocal Effects of Crime
and Incarceration in New York City Neighborhoods,” Fordham Urban Law
Journal 30, no.5 (2003): 1551, 1563-1566 and K. Babe Howell “Broken Lives
from Broken Windows: The Hidden Costs of Aggressive Order-Maintenance
Policing,” New York University Review of Law & Social Change 33 (2009):
271, 276. For information on the introduction of stiffer penalties, see Ram
Subramanian and Ruth Delaney, Playbook for Change? States Reconsider

Mandatory Sentences (New York: Vera Institute of Justice, 2014), 6.
19	 The number of individuals with state criminal history records was 100.5
million. This number was then reduced by 30 percent to account for
individuals who have records in multiple states. The resulting 70.2 million
figure is likely an underestimation due to some states’ policies that do
not require fingerprinting for low-level offenders or that do not include
records of juvenile offenders, and due to the exclusion of individuals
with only federal criminal records. The methodology was replicated
from the one used by Michelle Rodriguez and Maurice Emsellem, 65
Million Need Not Apply: The Case For Reforming Criminal Background
Checks For Employment (New York, NY: The National Employment
Law Project, 2011), endnote 2. For the number of individuals under
correctional supervision in 1985, see Bureau of Justice Statistics, Survey
of State Criminal History Information Systems, 1985 (Washington,
DC: BJA, 1987). For figures reporting on 2012, see Bureau of Justice
Statistics, Survey of State Criminal History Information Systems, 2012
(Washington, DC: BJA, 2014), Table 1. See also Lauren E. Glaze and
Erinn J. Herberman, Correctional Populations in the United States, 2012
(Washington, DC: Bureau of Justice Statistics, 2013) Table 2. For data
on how the prisoner reentry population has increased in recent years,
see Christy A. Visher and Jeremy Travis, “Life on the Outside: Returning
Home after Incarceration,” The Prison Journal 91 (2011): 102S.
20	 For the prevalence of arrest histories, see Robert Brame et al.,
“Cumulative Prevalence of Arrest From Ages 8 to 23 in a National
Sample,” Pediatrics 129(1) (2011): 21-27. For the total number of arrests
estimated by the FBI, see John R. Emshwiller, “As Arrest Records Rise,
Americans Find Consequences Can Last a Lifetime,” Wall Street Journal,
August 18, 2014.
21	 Margaret Colgate Love, “Starting Over With A Clean Slate: In Praise of
A Forgotten Section Of The Model Penal Code,” Fordham Urban Law
Journal 30, no.5 (2003): 1705, 1716-7.
22	 Ben Geiger, “The Case for Treating Ex-Offenders As A Suspect Class,”
California Law Review 94, no.4 (2006): 1191, 1194-1206. Also see
Margaret Colgate Love, “Starting Over With A Clean Slate: In Praise of
A Forgotton Section Of The Model Penal Code,” Fordham Urban Law
Journal 30, no.5 (2003): 1705, 1716-7 and Kathleen M. Olivares et al.,
“The Collateral Consequences of a Felony Conviction: A National Study
of State Legal Codes 10 Years Later,” Federal Probation 60 (1996): 10,
which documents the increase in state disabilities over a ten-year period
between 1986 and 1996.
23	 For a discussion of the penological explanations for collateral
consequences see Nora V. Demleitner, “Preventing Internal Exile: The
Need for Restrcitions on Collateral Sentencing Consequences,” Stanford
Law & Policy Review 11 (1999): 153, 159-60.
24	 Gabriel J. Chin, “The New Civil Death: Rethinking Punishment in the Era of
Mass Conviction,” University of Pennsylvania Law Review 160 (2012): 1789.
25	 See note 2.
26	 Michael Pinard, “An Integrated Perspective On The Collateral
Consequences Of Criminal Convictions And Reentry Issues Faced By
Formerly Incarcerated Individuals,” Boston University Law Review
86 (2006): 623, 634-6; Also see Gabriel Chin, “The New Civil Death:
Rethinking Punishment in the Era of Mass Conviction,” University of
Pennsylvania Law Review 160 (2012): 1789, 1799-1802.
27	 Wayne A. Logan, “Informal Collateral Consequences,” Washington Law
Review 88 (2013).
28	 Regarding the long shadow of a criminal record, see ibid. at 1104-5 and
1107-1109. Regarding technologies impact on the accessibility of criminal
history information, see note 37.
29	 For a discussion of how conditions of confinement and community
supervision became more punitive, see Anthony Thompson, “Navigating
the Hidden Obstacles to Ex-Offender Reentry,” Boston College Law
Review 45 (2004): 255, 268-72. For information regarding the number of
releases from state and federal prison, see E. Ann Carson and Daniela

VERA INSTITUTE OF JUSTICE

55

Golinelli, Prisoners in 2012: Trends in Admissions and Releases, 19912012 (Washington, DC: Bureau of Justice Statistics, 2013), 4, Table 2.
For information regarding the number of releases from community
supervision, see Laura M. Maruschak and Thomas P. Bonczar, Probation
and Parole in the United States, 2012 (Washington, DC: Bureau of Justice
Statistics, 2013) 6, Table 4 and 9, Table 6. For information regarding the
methodology with which the 2012 jail release number was calculated,
see Todd D. Minton, Jail Inmates at Midyear 2012 – Statistical Tables
(Washington DC: BJS, 2013) 4, 8, 13. In the methodology section, Minton
outlines that jail turnover rates were calculated by adding admissions and
releases and then dividing this number by the average daily population
(ADP). The weekly turnover rate and ADP were obtained from Table 7.
The admissions figure was ascertained by dividing the yearly admissions
total given on page 4 by fifty-two to arrive at a weekly admissions total.
The number of weekly releases was calculated using the aforementioned
formula and by multiplying this number by fifty-two to give the number
of yearly releases. For information regarding prisoner reentry needs and
challenges, see for example, Jeremy Travis, Amy Solomon and Michelle
Waul, From Prison to Home: The Dimensions and Consequences of
Prisoner Reentry (Washington DC: The Urban Institute, 2001) at http://
www.urban.org/UploadedPDF/from_prison_to_home.pdf. For the barriers
facing individuals upon reentry, see note 29; Devah Pager, Marked:
Race, Crime and Finding Work in an Era of Mass Incarceration (Chicago,
IL: University of Chicago Press, 2007), 59; and Talia Sandwick et al.,
Making the Transition: Rethinking Jail Reentry in Los Angeles County
(New York: Vera Institute of Justice, 2013). For information regarding jail
reentry needs and challenges, see Jim Parsons, “Addressing the Unique
Challenges of Jail Reentry,” in Offender Reentry: Rethinking Criminology
and Criminal Justice, edited by Matthew S. Crow and John Ortiz Smykla
(Burlington, MA: Jones & Bartlett Learning, 2014) and Talia Sandwick et
al., Making the Transition: Rethinking Jail Reentry in Los Angeles County
(New York: Vera Institute of Justice, 2013).
30	 For research that discusses specific risk factors for reoffending, see for
example, M. Makarios et. al., “Examining the Predictors of Recidivism
Among Men and Women Released From Prison In Ohio,” Criminal Justice
and Behavior 37, no.12 (2010) 1377-1391. Regarding reentry challenges
and needs, see note 29.
31	 See Jeffrey Fagan, Valerie West and Jan Holland, “Reciprocal Effects
Effects of Crime and Incarceration in New York City Neighborhoods,”
Fordham Urban Law Journal 30, no.5 (2002): 1551, 1552-1553. Also see
Jeffrey Fagan and Garth Davies, “Street Stops and Broken Windows:
Terry, Race, and Disorder in New York City,” Fordham Urban Law Journal
28, no.2 (2000): 457, 473-4.
32	 Regarding recidivism rates, 67.8 percent and 76.6 percent of state
prisoners released in 2005 in 30 states reoffended within three or five years
of release, respectively. See Bureau of Justice Statistics (BJS), Recidivism
of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010
(Washington, DC: BJS, 2014). Between the 2003 Serious and Violent
Offender Reentry Initiative (SVORI) and the 2009 Second Chance Act,
$350 million of federal funding has been allocated to support state and
local programming aimed at improving the reentry outcomes for released
prisoners and other ex-offenders in a variety of different areas— i.e.,
criminal justice, employment, education, health, and housing. As of April
2013, BJA and OJJDP had awarded nearly 500 Second Chance Act grants
to state, local, and tribal government agencies and nonprofit organizations
across 48 states and the District of Columbia, totaling nearly $250 million.
The grantees served more than 11,000 participants in pre-release programs
and nearly 9,500 participants in post-release programs from July 2011 to
June 2012. See National Reentry Resource Center, “The Second Chance
Act: The First Five Years,” April 23, 2013, http://csgjusticecenter.org/nrrc/
posts/the-second-chance-act-the-first-five-years/; and RTI International
and the Urban Institute, The Multi-site Evaluation of SVORI: Summary and
Synthesis (Washington, DC: The Urban Institute, 2009), http://www.urban.org/
uploadedpdf/412075_evaluation_svori.pdf.
33	 See for example, Bronx Defenders, Civil Action Practice at http://
www.bronxdefenders.org/our-work/civil-action-practice/. Also see the
organizational and practice description of The Neighborhood Defender
Service of Harlem at http://www.ndsny.org/, and the description of the
civil legal services division of The Public Defender Service of the District of
Columbia at http://www.pdsdc.org/PDS/CivilLegalServices.aspx. Regarding

56

the incorporation of civil defense strategies into criminal defense
services generally, see Michael Pinard, “Broadening the Holistic Mindset:
Incorporating Collateral Consequences and Reentry into Criminal Defense
Lawyering,” Fordham Urban Law Journal 31, (2004): 1067.
34	 Regarding corrections department’s implementation of programming that
relates to post-release risks and needs, see for example Florida Department
of Corrections’ Bureau of Transition and Substance Abuse Treatment
Services, http://www.dc.state.fl.us/orginfo/SubAbuse/index.html; Georgia
Department of Corrections’ Re-Entry Partnership Housing program,
http://www.dca.state.ga.us/housing/specialneeds/programs/rph.asp; and
Indiana Department of Corrections’ Reentry Programs page,
http://www.in.gov/idoc/2799.htm.
35	 In recent years, for example, states such as New York, North Carolina,
Maryland, and Ohio have begun to compile and inventory collateral
consequences Also, the American Bar Association—through a contract
with the National Institute of Justice and authorized by the federal 2007
Court Security Improvement Act—is currently undertaking the herculean
task of putting together a comprehensive compendium of all collateral
consequences for both state and federal offenses in each of the 50 states,
the U.S. territories and the District of Columbia. And in 2009, the National
Conference of Commissioners on Uniform State Laws authorized the
Uniform Collateral Consequences of Conviction Act (UCCCA), urging states
to engage in their own efforts to compile collateral consequences into a
single document, undertake steps to ensure defendants are appropriately
notified of relevant collateral consequences at all stages of the criminal
process (i.e., at pretrial, sentencing, and release/discharge), and to adopt
mechanisms to mitigate those consequences that impact areas known
to be critical to successful reentry such as those related to employment,
education, housing, public benefits, and occupational licensing.
36	 National Association of Criminal Defense Lawyers, Collateral Damage:
America’s Failure to Forgive or Forget in the War on Crime: A Roadmap
to Restore Rights and Status After Arrest or Conviction (Washington, DC:
NACDL, 2014), 22.
37	 For an overview of this phenomenon, see James Jacobs and Tamara
Crepet, “The Expanding Scope, Use, and Availability of Criminal
Records,” NYU Journal of Legislation & Public Policy 11 (2008): 177. For
an overview of commercial criminal record databases, see SEARCH, The
National Consortium for Justice Information and Statistics, Report of the
National Task Force on the Commercial Sale of Criminal Justice Record
Information (Sacramento, CA: SEARCH Group).
38	 A. Blumstein and K. Nakamura, “Redemption in the Presence of
Widespread Criminal Background Checks,” Criminology 47, no. 2 (2009):
328-331.
39	 National Association of Criminal Defense Lawyers, Collateral Damage:
America’s Failure to Forgive or Forget in the War on Crime: A Roadmap
to Restore Rights and Status After Arrest or Conviction (Washington, DC:
NACDL, 2014), 56.
40	 Particularly for those who were exonerated of the underlying crime,
expungement plays a large role in preventing future offending. For
these individuals, not having their record cleared after exoneration is a
significant predictor of criminal activity post-release, and the effect is
strongest among those who had no prior record before being wrongfully
convicted. This is consistent with labeling theory, which posits that a
person’s status as a former criminal has a stigmatizing effect, regardless
of whether that status was wrongfully attached. One study followed
118 exonerated individuals in four states—Florida, Illinois, New York,
and Texas. The study’s authors described expungement as “extremely
difficult” to obtain in Florida, Illinois, and Texas, but “substantially better”
in New York. Unsurprisingly, post-exoneration offending in New York is
“substantially lower” than in the other three states. See Amy Shlosberg
et al., “Expungement and Post-exoneration Offending,” Journal of
Criminal Law & Criminology 104, no. 2 (2014). For further information
on labeling theory and its effect, see J. Bernburg, M. Krohn and C.
Rivera, “Official Labeling, Criminal Embeddedness, and Subsequent
Delinquency: A Longitudinal Test of Labeling Theory,” Journal of
Research in Crime and Delinquency 43 (2006).

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

41	 Empirical research demonstrates that after approximately seven years
there is little or no difference in the risk of future offending between those
with a criminal record and those without. However, mitigating factors, like
age of offense, can yield reduced risk of reoffending after much shorter
time lapses in many instances. For more information, see A. Blumstein
and K. Nakamura, “Redemption in the Presence of Widespread Criminal
Background Checks,” Criminology 47, no. 2 (2009); M.C. Kurlychek, R.
Brame, and S.D. Bushway, “Enduring Risk? Old Criminal Records and
Predictions of Future Criminal Involvement,” Crime & Delinquency 53, no.
1 (2007): 64-83; and M.C. Kurlychek, R. Brame, and S.D. Bushway, “Scarlet
Letters and Recidivism: Does an Old Criminal Record Predict Future
Offending?” Criminology & Public Policy 5, no. 3 (2006).
42	 A 2013 article detailed the experiences of several individuals with
criminal histories, offering insight into how these people navigated their
status. For instance, one individual reported fearing that he would “look
like a liar” if he failed to disclose his sealed records to an employer,
while another individual was unsure exactly which employers counted
as “governmental” for the purposes of securing access to her sealed
records, thus feeling compelled to disclose. According to the author, their
criminal histories “created multiple selves, but offered no way to manage
them in practical terms.” See Amy Myrick, “Facing Your Criminal Record:
Expungement and the Collateral Problem of Wrongfully Represented
Self,” Law & Society Review 47 (2013): 73, 92. See also Megan C.
Kurlychek, Robert Brame, and Shawn D. Bushway, “Enduring Risk? Old
Criminal Records and Short-Term Predictions of Criminal Involvement,”
Crime & Delinquency 53(1) (2007).
43	 For information regarding juvenile brain chemistry, see Laurence
Steinberg, “Should the science of adolescent brain development inform
public policy?,” American Psychologist 64, no. 8 (2009): 742 (“There is
incontrovertible evidence of significant changes in brain structure and
function during adolescence.”); Elizabeth R. Sowell et al., “In vivo evidence
for post-adolescent brain maturation in frontal and striatal regions,” Nature
Neuroscience 2 (1999): 860. As an example of formal criminal justice
acknowledgment of reduced juvenile culpability, see Graham v. Florida,
130 S. Ct. 2011, 2026 (2010) (“[D]evelopments in psychology and brain
science continue to show fundamental differences between juvenile and
adult minds. For example, parts of the brain involved in behavior control
continue to mature through late adolescence.”). For information regarding
juveniles’ reduced culpability, see Laurence Steinberg and Elizabeth S.
Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity,
Diminished Responsibility, and the Juvenile Death Penalty,” American
Psychologist 58, no. 12 (2003): 1011-4.
44	 The court and all law enforcement agencies must expunge the conviction
records, and all state agencies must remove entries made as a result of
the conviction and reverse administrative actions taken against a person
as a result of the conviction. Access is only granted to state and local law
enforcement agencies, for employment purposes only. See G.S. § 15A-151(a)
(6). However, the person’s DNA will remain in the state DNA databank.
45	 Legal cases frequently involve a “burden of proof”—the level of proof
necessary for one side to prevail in a particular proceeding. The burden
of proof can vary as to how much proof is required and also as to which
party is tasked with doing the proving, or “bearing” the burden of proof.
In civil cases, the burden of proof is a “preponderance of the evidence”
(also referred to as a “balance of the probabilities”), in which the winning
side must show that his or her claims are more likely true than not true—a
standard often characterized as proving something more than 50 percent
likely. For criminal cases the standard is much higher. To succeed in a
criminal case, the prosecutor must prove a defendant’s guilt “beyond a
reasonable doubt.” A third standard—“clear and convincing evidence”—
is an intermediate standard of proof higher between the civil and
criminal standards, and is often required in quasi-criminal cases or when
a person’s civil rights are in jeopardy, such as cases seeking to terminate
parental rights or have someone committed to a mental institution. See
Ronald J. Allen and Alex Stein, “Evidence, Probability and the Burden
of Proof,” Arizona Law Review 55 (2013) and Alex Stein, “Constitutional
Evidence Law,” Vanderbilt Law Review 61 (2008).
46	 For an analysis of the myriad challenges facing convicted felons, see
Christopher Uggen, Jeff Manza, and Angela Behrens, “’Less than the
average citizen’: stigma, role transition and the civic reintegration of

convicted felons,” in Shadd Maruna and Russ Immarigeon, eds., After
Crime and Punishment : Pathways to Offender Reintegration (Portland:
Willan Publishing, 2004), 258-290. Also see Jeremy Fagan and Tracey
L. Myers, “Punishment, Deterrence and Social Control: The Paradox of
Punishment in Minority Communities,” Ohio State Journal of Criminal
Law 6 (2008): 210 for insights into how the stigma of felony conviction
reduces individuals’ incentives to invest in their own human capital.
47	 This is consistent with research that has demonstrated that positive
reinforcement and the use of incentives are components of effective
behavior modification. See Vera Institute of Justice, The Potential of
Community Corrections to Improve Safety and Reduce Incarceration
(New York: Vera Institute of Justice, 2013), 19.
48	 Besides helping individuals avoid criminal convictions and the attendant
collateral consequences, this strategy also reduces the future burden
on those communities to which these individuals return. For information
regarding how sentencing changes today can reduce the number of
individuals with criminal records in the future, see John Schmitt and Kris
Warner, Ex-offenders and the Labor Market (Washington, DC: Center for
Economic and Policy Research, 2010), 3.
49	 Marlaina Freisthler and Mark Godsey, “Going Home To Stay: A Review of
Collateral Consequences, Post Incarceration Employment, and Recidivism
in Ohio,” University of Toledo Law Review 36 (2005): 525, 529 (“So strong
is the inverse correlation between employment and recidivism that
employment is considered a rehabilitative necessity.”). Also see Jeffrey D.
Morenoff and David J. Harding, Final Technical Report: Neighborhoods,
Recidivism, and Employment Among Returning Prisoners (Ann Arbor:
University of Michigan, October 2011, prepared under grant number
2008-IJ-CX-0018); and M.C. Kurlychek, R. Brame, and S.D. Bushway,
“Enduring Risk? Old Criminal Records and Predictions of Future Criminal
Involvement,” Crime & Delinquency 53, no. 1 (2007): 66 (“an abundance
of criminological research suggests that one of the key social bonds that
help past offenders lead law abiding lives in the attainment of stable
employment”).
50	 James Jacobs and Tamara Crepet, “The Expanding Scope, Use, and
Availability of Criminal Records,” New York University Journal of
Legislation and Public Policy 11 (2008).
51	 As examples of formal barriers to employment, New York bars those with
certain misdemeanor convictions from working as a home health aide,
and Texas prohibits someone with any of a number of criminal convictions
from working in a facility serving the elderly, terminally ill, or people with
disabilities. See N.Y. Public Health Law § 2899(6) and 2899–a(1), N.Y.
Executive Law §§ 845–b(2) and 845-b(5)(b); Tex. Health & Safety Code
Ann. § 250.006. On the disinclination of employers to hire individuals with
criminal records more generally, see Harry J. Holzer et al., Will Employers
Hire Former Offenders?: Employer Preferences, Background Checks, and
Their Determinants, in IMPRISONING AMERICA: THE SOCIAL EFFECTS
OF MASS INCARCERATION 205, 208–10 (Mary Pattillo et al. eds., 2004).
Research also makes clear that even employers reluctant to acknowledge
a policy of not hiring individuals with a criminal record show a marked
disinclination in practice to actually hire such a person. See Devah Pager
& Lincoln Quillian, “Walking the Talk?: What Employers Say Versus What
They Do,” American Sociological Review 70, no.3 (2005).
52	 Madeline Neighly and Maurice Emsellem, WANTED: Accurate FBI
Background Checks for Employment (New York: National Employment
Law Project, 2013).
53	 See Ram Subramanian, Rebecka Moreno, and Sharyn Broomhead,
Recalibrating Justice: A Review of 2013 State Sentencing and Corrections
Trends (New York: Vera Institute of Justice, 2014). Also see National
Employment Law Project, Ban the Box: U.S. Cities, Counties, and States
Adopt Fair Hiring Policies to Reduce Unfair Barriers to Employment of
People with Criminal Records (New York: NELP, 2014).
54	 This is a significant provision to the law because, even as ban the box
laws proliferate, the efficacy of such laws is open to question. Most rely
on private enforcement through individual complaints.
55	 According to the Society for Human Resource Management, the two most

VERA INSTITUTE OF JUSTICE

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common reasons for not hiring ex-offenders are the risk of a crime being
committed at work and the fear of a negligent hiring lawsuit. See Background
Checking—The Use of Criminal Background Checks in Hiring Decisions, Jul.
19, 2012, available at http://www.shrm.org/research/surveyfindings/articles/
pages/criminalbackgroundcheck.aspx#sthash.skBL4NA0.dpuf.
56	 See note 37.
57	 See note 9.
58	 Jenny Roberts, “Why Misdemeanors Matter: Defining Effective Advocacy
in the Lower Criminal Courts,” UC Davis Law Review 45 (2011): 277.
59	 In the second scenario, the person would be charged with the underlying
offense, and then also with the offense of using criminal records to
commit a crime against someone.
60	 For background information on immigration-related collateral
consequences, see Yolanda Vásquez, “Realizing Padilla’s Promise: Ensuring
Noncitizen Defendants are Advised of the Immigration Consequences
of a Criminal Conviction,” Fordham Urban Law Journal 39 (2011). For
background information on Medicaid eligibility for individuals who have
been incarcerated, see Bazelon Center for Mental Health Law, The Effect
of Incarceration on Medicaid Benefits for People with Mental Illnesses
(Washington, DC: Bazelon Center for Mental Health, 2009). Social security
income benefits are terminated when an individual has been incarcerated
for at least twelve months. Once SSI benefits are lost, Medicaid eligibility
will often also be lost and the individual will be required to apply again
as a new applicant. For background information on family-related issues,
see Philip M. Genty, “Damage to Family Relationships as a Collateral
Consequence of Parental Incarceration,” Fordham Urban Law Journal
30 (2003). For information regarding financial health and economic
mobility, see Collateral Costs: Incarceration’s Effect on Economic Mobility,
(Washington, DC: The Pew Charitable Trusts, 2010); Taja-Nia Y. Henderson,
“New Frontiers in Fair Lending: Confronting Lending Discrimination
Against Ex-Offenders,” New York University Law Review 80 (2005): 1237.
61	 For research that addresses the affects of employment, housing and
educational opportunities on recidivism, see M. Makarios et. al.,
“Examining the Predictors of Recidivism Among Men and Women
Released From Prison In Ohio,” Criminal Justice and Behavior 37, no.12
(2010): 1377-1391. See also A. Blumstein and K. Nakamura, “Redemption
in the Presence of Widespread Criminal Background Checks,”
Criminology 47, no. 2 (2009): 331 (noting that it is “well established”
employment is powerful predictor desistance). For information regarding
research on criminal activity and engagement in the political process, see
Reuven Ziegler, “Legal Outlier, Again? U.S. Felon Suffrage: Comparative
and International Human Rights Perspectives,” Boston University
International Law Journal 29 (2011): 208.
62	 In many states, violent offenses are those that have at least one element
involving force or the threat of force, or those that, even though no
violence was used or threatened, involve a substantial risk that force or
the threat of force could be used in the course of committing the offense.
See Alice Ristroph, “Criminal Law In the Shadow of Violence,” Alabama
Law Review 62 (2011), noting that violence is often defined in the law in
terms of risk or danger instead of in terms of threatened or actual injury.

67	 For example, in New Jersey, individuals must send—via certified mail
and return receipt requested—their filing documents to upwards of
nine different government bodies. See New Jersey State Courts,
How to Expunge Your Criminal Record and/or Juvenile Record,
http://www.judiciary.state.nj.us/prose/10557_expunge_kit.pdf.
68	 See note 41, discussing empirically justified waiting period lengths and
the nuanced nature of these studies. Additionally, risk of recidivism
research is often based on data collected less than two years after the
offense or conclusion of sentence, and thus do not necessarily speak to
the imposition of 15 or 20 year waiting periods. See M.C. Kurlychek, R.
Brame, and S.D. Bushway, “Scarlet Letters and Recidivism: Does an Old
Criminal Record Predict Future Offending?” Criminology & Public Policy
5, no. 3 (2006): 4.
69	 See for example Kentucky HB 463 (2011) or Illinois SB 3458 (2012).
70	 Under the Fair Credit Reporting Act (FCRA), if adverse action is taken on
the basis of a credit report, employer has to give person a “pre-adverse
action disclosure” that includes a copy of the report. The same is not
required of criminal background checks because it’s not under the FCRA,
but it is a best practice and many employers still give notice.
71	 See Michael H. Jagunic, “The Unified, Sealed, Theory: Updating Ohio’s
Record-Sealing Statute for the Twenty-First Century,” Cleveland State
Law Review, 59 (2011):, 163. Indeed, video tutorials can be found
online that detail how to search for and access an individual’s criminal
record. See Judge Eugene M. Hyman (ret.), “The Scarlet eLetter and
Other Roadblocks to Redemption for Female Offenders,” Santa Clara
Law Review 54 (2014): 119, 149. For more information on commercial
databases, see James Jacobs & Tamara Crepet, “The Expanding Scope,
Use, and Availability of Criminal Records,” NYU Journal of Legislation &
Public Policy 11 (2008): 177, 185-86; and Jagunic (2011), pp. 161, 162-3.
72	 Joy Radice, “Administering Justice: Removing Statutory Barriers to
Reentry,” University of Colorado Law Review 83 (2012): 715, 750. See
also Michael H. Jagunic, “The Unified “Sealed” Theory: Updating Ohio’s
Record-Sealing Statute for the Twenty-First Century,” Cleveland State
Law Review, 59 (2011): 161, 170-72. This is particularly problematic in the
context of juvenile records, where, in many jurisdictions, certain offenses
are automatically sealed after the child turns eighteen. Private criminal
records companies that copy juvenile records often do not have incentive
to wipe these records one they are sealed. See Sarah Montana Hart,
“The Collateral Consequences of Juvenile Publicity What the Montana
Legislature Has Overlooked in the Youth Court Act,” Montana Lawyer 36,
no. 4 (2011): 7, 25.
73	 For more information on the minimal regulations placed on private
criminal record reporting companies, see James Jacobs & Tamara Crepet,
“The Expanding Scope, Use, and Availability of Criminal Records,” NYU
Journal of Legislation & Public Policy 11 (2008): 177, 186-87.
74	 Marsha Weissman, et al., The Use of Criminal History Records in College
Admissions Reconsidered (New York: Center for Community Alternatives,
2013), 8-12.
75	 Ibid., p. 15.

63	 For example, Indiana requires a hearing before sealing a record, and
notice of the hearing must be publically posted in the courthouse. See
Ind. Code Ann. § 5-14-3-5.5(c) (West).

76	 See note 49 for information on the unsound rationale for overly long
waiting periods and note 16 for information how collateral consequences
can increase risk of reoffending.

64	 See Louisiana Code of Criminal Procedure Art. 983.

77	 While the EEOC promulgates guidelines regarding employer use of criminal
records that prohibits categorical exclusion of applicants with any criminal
histories and encourages employers to look at all the circumstances
surrounding a conviction (for example, its relevance to the job sought),
liability under Title VII still requires an individual to prove that an employer’s
criminal records policy caused a disparate impact occurred based on race,
color, religion, sex or national origin. See EEOC, “Enforcement Guidance
on the Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964 (April 24, 2012),
available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

65	 This is a commonly accepted reality. For example, Minnesota Court’s
website warns: “expungement involves a lot of work with forms and
attention to detail, and it takes at least four months to complete the
process” http://www.mncourts.gov/selfhelp/?page=328.
66	 See Amy Myrick, “Facing Your Criminal Record: Expungement and the
Collateral Problem of Wrongfully Represented Self,” Law & Society
Review 47 (2013): 73–104 for narratives of several expungement seekers
struggles with inaccurate, incomplete, missing records.

58

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

78	 Marsha Weissman, et al.. The Use of Criminal History Records in College
Admissions Reconsidered (New York: Center for Community Alternatives,
2013), 5-12.
79	 Ariel Kramer, “3 New York Colleges to Drop Crime Queries for
Applicants,” The New York Times, October 26, 2014.
80	 For example Missouri HB 1665 (2014) requires anyone who publishes or
disseminates criminal history information online to remove the record
upon the request of the subject of the record, and prohibits distributors
from charging fees to remove or correct information. Also see Texas
SB 1289 (2013), which requires companies that publish criminal history
information to investigate complaints and remove erroneous entries.
81	 For example, Connecticut HB 5207 (2010) prohibits state employers and
licensing agencies from considering arrests not leading to conviction or
“erased” conviction records.
82	 See, for example, California AB 1650 (2014).
83	 See The Opportunity Agenda, An Overview of Public Opinion and
Discourse on Criminal Justice Issues (Washington, DC: The Opportunity
Agenda, 2014), 7.

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60

RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014

Acknowledgments
The authors would like to thank Margaret diZerega for her help with information
about convictions and public housing. We would especially like to thank Patricia
Connelly for her hard work in the editing process, and Peggy McGarry for her
insight and guidance throughout the drafting process.

© Vera Institute of Justice 2014. All rights reserved. An electronic version of this report is posted on Vera’s website at
www.vera.org/states-rethink-collateral-consequences.

For more information about this or other publications from Vera’s Center on Sentencing and Corrections, contact Ram Subramanian
at rsubramanian@vera.org.

The Vera Institute of Justice is an independent nonprofit organization that combines expertise in research, demonstration projects,
and technical assistance to help leaders in government and civil society improve the systems people rely on for justice and safety.

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This year marks the 20th anniversary of the 1994 Crime Bill. To examine the
legacy of this landmark legislation, the lessons learned, and the path ahead,
Vera launched Justice in Focus: Crime Bill @ 20, a multimedia initiative
featuring interviews with and statements from architects of the bill, criminal
justice experts, policymakers, law enforcement officials, and community
leaders, which can be found at www.vera.org/crimebill20. In conjunction
with the Crime Bill initiative and to assess current legislative trends, Vera
has issued a series of reports on where the states stand on mandatory
minimums, drug law reform, and other sentencing and corrections policies
and practices. This report is the final in that series.

Suggested Citation
Ram Subramanian, Rebecka Moreno, and Sophia Gebreselassie.
Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction,
2009-2014. New York, NY: Vera Institute of Justice, 2014.

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