States are Reducing the Collateral Consequences of Criminal Records

National advocates like CCRC and the Council on State Governments Justice Center, in partnership with local organizations and coalitions, have guided states in advancing reforms on this issue. ​“The movement toward automatic record relief has been a big deal in the last couple of years,” said Margaret Love, executive director of CCRC. ​“It’s tremendously promising.”

Insurmountable Challenges

Virginia exemplifies both the problems of reintegration and progress being made in states across the nation on record relief. About 1.6 million people in Virginia have a criminal record. But, for decades the state was one of just a handful in the U.S. that prohibited record sealing or expungement for a criminal conviction of any kind — it considered those forms of relief only for prosecutions that did not result in conviction. Several attempts to pass record relief legislation failed over the past decade. 

“This is really about people continuing to be punished and not being able to access the basic human necessities of life, even after their involvement with the criminal legal system is over,” said Robert Poggenklass, an attorney at the Legal Aid Justice Center (LAJC), a Virginia-based organization that supported a new record relief bill last year. Poggenklass noted that this problem disproportionately affects Black people, who are overrepresented in both Virginia’s and the nation’s criminal legal systems.

Even when people can petition for their records to be sealed, the process often includes insurmountable challenges. Research has shown that people with criminal convictions face major barriers when record clearance requires petitioning the courts. Because of the expenses of an attorney and court filing fees, only 6.5 percent of those eligible availed themselves of relief. ​“Our specific goal was to have free, automatic, and far-reaching expungement,” Williams said. 

This past March, that goal became closer to reality when the Virginia General Assembly passed landmark legislation to expand the process of sealing criminal records. It includes provisions to seal low-level felonies and a process to establish automatic sealing of police and court records for many offenses, including non-convictions and nine types of misdemeanors.

Many states have paid special attention to removing structural barriers to employment for people with criminal records. The need for reform is unquestionable. The unemployment rate for formerly incarcerated people stands at around 27 percent, and individuals with a conviction are subject to roughly 13,000 laws and regulations across the country that restrict their ability to procure an occupational license, a professional credential that is now required by over one in five jobs

“When a person is incarcerated, the goal should be to create pathways for rehabilitation to make sure they don’t come back to prison,” said Michelle Feldman, program director at the Council on State Governments Justice Center, a national organization that advocates for occupational licensing reform and advises policymakers on how to craft reforms. ​“Without employment opportunities for when people leave prison, that’s almost impossible. When people don’t have access to ways to support themselves, that is a threat to public safety.”

‘Fair Chance’ Licensing

Over the past couple years, nine state legislatures and the District of Columbia passed legislation to enact ​“fair chance” licensing, reforms that reduce licensing barriers for people with past convictions. In 2020, Vermont enacted bills that require licensing boards to add better standards for how they assess criminal records and to provide information to people about how their criminal records will be weighed when seeking licensure. ​“We’re just seeing tremendous national momentum around this issue,” Feldman said.

The Collateral Consequences Resource Center is focused on cataloguing these and other shifts across the country. Its Reintegration Report Card helped Virginia advocates like LAJC, which pointed to the state’s low scores as they demanded the new record sealing law.

CCRC points to a range of other influential recent laws that provide further evidence of the shift from perpetual punishment to urgently-needed, evidence-based reforms. Alabama, Arizona, and Virginia passed bills that allow sealing or expungement of some misdemeanor and felony convictions. Arizona also authorized its courts to issue judicial certificates of relief. New Jersey, New Mexico, and New York adopted automatic expungement of marijuana offenses, while Colorado, Connecticut, Maryland, and Vermont enacted automatic relief for a range of non-conviction and conviction records. The organization’s Restoration of Rights Project website tracks these and many other promising new changes.

Increasingly, these policies receive bipartisan support — and support from the business community, as well. They benefit not just the people with convictions who are directly impacted, said Margaret Love, executive director of CCRC. Policies that allow more people to access employment decrease the cost of public benefit programs, increase tax bases, and broaden the labor pool for employers.

“There have been a lot of productive reforms, many aimed at helping people get back to work,” Love said. ​“We have a real bipartisan consensus, and the current atmosphere is very conducive to change.”

‘They Can’t Wait’

The pace of change is rapid, and advocates are seizing on the present momentum to implement record relief measures in state legislatures across the country. CSG Justice Center has worked with several states — including Nebraska, Oregon, and Wyoming — to pass study resolutions that they hope will lead to new legislation to make occupational licensing less restrictive for people with past convictions. ​“We’re in full gear getting ready for the 2022 legislative session,” Feldman said. ​“We’ll be working with state legislators, coalition partners, and other stakeholders in states across the country to help them pass legislation that continues opening the door to licensing for people with records.”

In Virginia, change has been welcome, and its proponents want it to go farther — and take effect soon. ​“When we talk to directly impacted folks, they need housing, employment, and education now,” Poggenklass said. ​“They can’t wait for four years. Our No. 1 priority for the next legislative session is to make this law take effect as soon as possible.” 

Williams said the key has been highlighting the lived experiences of those like her who have suffered the long-term barriers of a criminal conviction. ​“It’s a fight for people’s basic human decency,” she said. ​“The goal is to give everybody a fair shot.”