Margaret Love is a big believer in second chances.
Since leaving her post as a pardon attorney for the Department of Justice, where she worked from 1990 to 1997, Love has been the executive director at the Collateral Consequences Resource Center, a non-profit with a focus on sentencing reform. (She also runs her own private practice.) At CCRC, Love has turned her attention to raising awareness around state-level forms of relief.
“Nobody knew what was going on,” she says, explaining the need for the reform and the general lack of knowledge by state lawmakers on other places’ policies. Lawmakers and advocates were working in siloed systems, she explains; the national picture was largely uncharted territory.
If you’re a first-time offender convicted of a non-violent drug felony in Connecticut, for example, you can apply to have that record destroyed after five years. But if you were caught in neighboring state Rhode Island, you have to wait 10 years to apply. And if you were caught in Pennsylvania, you’re out of luck.
The CCRC has demystified this patchwork with frequently updated summaries of each state’s so-called second-chance mechanisms. The most recent report, published last month, showed a significant uptick in legislation passed: Since 2013, 40 states and Washington, D.C., have enacted new or expanded second-chance legislation. What’s propelling this movement, Love says, is a growing “feeling that we’ve gone too far in imposing additional penalties and restrictions that don’t seem to have any end.”
In the shadow of increased agreement from both sides of the political aisle that long sentences for certain offenses aren’t productive, more lawmakers are tuning into the idea that neither are prolonged restrictions based on a criminal record. “You can’t do your time and go home,” Love says. “You are permanently marked by this criminal record. In so many jurisdictions it’s for life.”
Today, over 70 million Americans have some type of criminal record — the same number as have college diplomas. The scarlet letter of a criminal conviction, even a very minor one, can create lifelong barriers to employment, housing, public benefits, bank loans, and education — the key ingredients to a stable life or upward mobility. Authorities have made more than a quarter of a billion arrests over the past two decades, the Federal Bureau of Investigation estimates. And modern technology makes these records more accessible than ever, in effect exacerbating the lifelong toll of even a minor conviction.
“You can’t do your time and go home. You are permanently marked by this criminal record.”
“In that past decade the landscape has changed because everything is digitized, now a criminal record follows someone around far more pervasively,” says Brock Hunter, a criminal defense lawyer in Minneapolis. “Today for $20 you can do background check more extensive than FBI 15 years ago.”
The second-chance legislation enacted over the past four years has taken a variety of forms. Twenty-one states “banned the box” for public employment, restricting questions about criminal histories to the final stages of the hiring process, and eight states did so in the private sector as well. Another 21 states expanded or introduced mechanisms to clear a criminal record of certain convictions, or hide them from public view, through what is known as “expungement” or “sealing.” And eight states introduced “certificates of relief,” which are proof of rehabilitation to be presented to employers, landlords, and so on.
While some of the largest reforms took place in states with progressive leadership, such as California, where a series of new laws eased restrictions and allowed some former convictions to be downgraded, the most wide-reaching reforms were not limited to blue states. Indiana’s “Second Chance Law,” is the most expansive mechanisms for expunging records. It was signed into law by then-Governor (and current Vice President) Mike Pence.
“Indiana should be the worst place in America to commit a serious crime and the best place, once you’ve done your time, to get a second chance,” Pence said in a 2013 statement when the law was enacted.
Under the Indiana law, five to 10 years after someone completes their sentences for all but the most serious violent or sexual felony offenses, he or she can apply for expungement. Most states that have expungement mechanisms are limited to misdemeanors or very minor felonies. In Marion County, which includes the state capital, Indianapolis, over 8,000 expungement petitions have been filed since the law was enacted in 2013.
Not all legislators are as pro-second chance as Pence. Hunter, the defense lawyer in Minneapolis, spent years pleading with lawmakers to reform the state’s expungement statute in his former position as chair of the Minnesota Association of Criminal Defense Lawyers. When an expanded statute finally did pass in 2015, he was surprised. “I didn’t think it was something that would have been possible politically,” Hunter says, “It was definitely a really big step forward.”
“I don’t think there is a single state out there that has an ideal system for dealing with the collateral consequences of a criminal conviction.”
Minnesota’s expanded expungement statute, which applies to people convicted of misdemeanors and some minor, non-violent felonies, closed what advocates saw as a loophole in the previous statute: Court records were marked as expunged in the courthouse, but the record lived on in other government databases, and so came up in background searches. In effect, the expungement did nothing to remove impediments to finding a job, housing, and so on.
One vocal opponent to the expungement bill, Jim Franklin, the executive director of the Minnesota Sheriff’s Association, said in a 2013 interview that the expungement bill amounted to “legal lying.” “If an employer asks you if you have been convicted or arrested for a crime and you say, ‘No, I’ve been expunged,’ or, ‘No, not legally,’ is that person going to get hired?” Franklin said.
The expanded expungement came on the heels of a new ban the box law in Minnesota, which prohibits private-sector employers from inquiring about criminal history until the interview stage of the hiring process.
Hunter attributes the bill’s eventual success to the work of criminal justice reform advocates in the state who managed to gather support from Democrats and Republicans alike. Moving forward, he says, he’d like to see the statute expanded to some more serious felony convictions, to have the wait time, which is currently one to five years after sentence completion, lessened, and to streamline the process. As it stands now, the system is difficult (if not impossible) to navigate without a lawyer.
A new bill in Pennsylvania would address that last issue. Under the proposed Clean Slate Act, eligible misdemeanor records would be automatically sealed after the allotted waiting period. If passed, this would be the first of its kind to not require applicants to go through the lengthy and resource-heavy process of applying for an expungement. After filing an application, which is difficult to do for someone without a law degree, there is an average wait time of four months before a court hearing, says Sharon Dietrich, litigation director of Community Legal Services, a legal aid organization in Philadelphia. “Technology can help us with us with this,” says Dietrich, who is lobbying for this bill. Automatizing the system, she says, “will save resources and get relief to a whole lot more people who need it.”
Another issue Dietrich would like to see addressed in Pennsylvania is the cost of filing for an expungement, which is currently $132. Including the fee in the statute was a key concession to getting it passed last year, she says. “I think a number of governmental stakeholders felt like they got something out of the bill with that, that it was a revenue-generating device,” she says. It’s currently being debated whether or not indigent applicants can file for a fee waiver in Pennsylvania. In some states, the fee is as high as $500, which advocates say doesn’t actually generate much revenue but does put the relief out of reach for most people who need it. “In my experience,” Dietrich says, “people who need expungements are the last ones to be able to pony up that kind of money.”
“I don’t think there is a single state out there that has an ideal system for dealing with the collateral consequences of a criminal conviction,” Love says, but reform “sure is going strong.”