For a former criminal, the journey to getting their life back on track is one that is full of hurdles — hurdles most commonly created by the legal system itself. These barriers run the gamut from the loss of civil rights, damaging criminal records, and a loss of opportunities that can cost them their livelihood.
Now, these reentry barriers are being looked at through a new lens.
Earlier this week, the Collateral Consequences Resource Center (CCRC) published its new 50-state comprehensive analysis of the laws surrounding these barriers to see what is limiting or propelling former criminals from achieving reintegration.
According to the report, the states are still fragmented, compared to the CCRC’s previous national survey from 2018. While notable progress has been made over the last few years to “neutralize” the damaging effects that a criminal past can have on one’s future, there is still work to be done, the CCRC authors, Margaret Love and David Schlussel, explain.
The report’s introduction, written by legal scholar Gabriel J. Chin, outlines that a desirable criminal relief and reentry system in the United States should be: “accessible, effective, coordinated, fair, and administrable.”
With these pillars in mind, the authors argue that the current situation surrounding the loss of civil rights for formerly incarcerated or justice-involved individuals, dissemination of damaging record information, and loss of opportunities does always not follow these values.
Most disturbing — there is nothing coordinated about the current system.
The researchers completed a national survey of the laws and reforms in each state surrounding voting, criminal record relief, employment, and licensing opportunities.
After each state’s methodology was analyzed, the researchers created report cards with letter grades to give more context on how beneficial or detrimental each individual state’s laws can be for former criminals.
On a more macro level, the researchers collated the grades and produced a ranking of the 50 states and Washington D.C. However, before diving into the national rankings, the CCRC determined, it’s important to look at the relief categories for context.
The researchers note that in recent years, there has been a trend toward addressing and restoring formerly incarcerated individuals’ right to vote. Some of these reforms have accelerated, possibly inspired by the high-profile ligation over Florida’s “pay-to-vote” system, “which shines a national spotlight on financial barriers” for everyone.
Eight states recently revised their voting restoration laws to remove barriers related to supervision: Colorado, Maryland, Nevada and New Jersey limited disenfranchisement to a period of actual incarceration, meaning once someone is released, they can begin voting again.
In Vermont and Maine, criminal conviction never results in loss of the right to vote, and in 22 states, someone’s right to vote is lost only if a conviction (usually a felony) results in incarceration.
With that being said, the Supreme Court has ruled that the Fourteenth Amendment to the Constitution permits states to permanently deny the vote based on a felony conviction — even though most states do not go that far, the authors note.
In Florida, Alabama, and Arkansas, certain former criminals can only get their right to vote back after paying all court debts.
Criminal Record Relief
If an individual carries the weight of a criminal record, future opportunities can be easily snuffed out following legal consequences. Employment and housing becomes a luxury because of the frequent background checks that “operate as a form of ‘digital punishment.’ ”
Because of this, the researchers analyzed the laws surrounding expungement, sealing, and set-aside of conviction records, and found that not everyone who commits the same crime has their record handled the same way.
In other words, shedding the weight of a criminal past can truly boil down to the state where the crime was committed.
For example, Illinois’ sealing laws are the most expansive in the country, in which “It extends eligibility to all but a few very serious felonies without regard to an applicant’s prior record, after a uniformly brief three-year waiting period,” the authors found.
Maine, on the other hand, has “no general record-revision authority” and criminal record relief is only given to those convicted of “minor marijuana convictions” or “to victims of human trafficking.”
See Also: Our Nation is Fragmented Over Criminal Record Relief: Report, Sept. 2, 2020 on the CCRC report.
Employment & Licensing
For a former criminal, employment may be considered one of the largest barriers for reentry considering this relates to someone’s ability to generate a lawful income. Thankfully, the authors note that employment reform is where the “most dramatic progress has been made since 2018.”
“In fact, until this century, only three states had incorporated provisions relating to a record of arrest or conviction into their general FEP law: New York (1976), Wisconsin (1981), and Hawaii (1998),” the researchers point out.
Most of these reforms relate to how criminal records can be considered by public employers and occupational licensing agencies, prohibiting discrimination against anyone with a record.
Hawaii, for example, began the “ban-the-box” campaign which spearheaded the idea that the checkbox on job applications that asks about criminal records should be removed. The campaign was then picked up by California before it became a national dialogue.
Illinois prohibits employer inquiries about non-conviction records, juvenile records, or expunged or sealed records; and Massachusetts prohibits employment consideration based on non-convictions and some misdemeanors.
However, other states like Texas, Montana, New Hampshire, and Alabama don’t have any laws or regulations on the consideration of a criminal record for employment or occupational licensing applications.
In terms of gun licensing, “in every state except Vermont, the right to possess at least some firearms is lost after conviction of at least some felonies,” the researchers found.
After looking at each state’s relief laws, the researchers created a list based solely on the text of each state’s laws in regards to how they outline hurdles or pathways.
The nine categories each state was graded upon are: “loss and restoration of the vote, pardon, conviction relief (felony and misdemeanor graded separately), judicial certificates, deferred adjudication, non-conviction records, employment, and occupational licensing.”
Not surprising based on Illinois’ handling of the reentry barriers, the Prairie State is #1 on the national ranking list, followed by California, Utah, Minnesota and Connecticut for the top five states for restoration laws.
On the flip side, the five states ranked as needing to improve the most are Wyoming, Texas, Alabama, and Alaska, with Florida following as the lowest ranking state.
Many of these low-ranking states appear in the report frequently as being states that have no or little regulation or laws surrounding reentry aid.
“Hopefully, these grades will challenge, encourage, and inspire additional reforms in the months and years ahead,” the authors conclude.
Margaret Love, Executive Director and Editor of the CCRC, is a former U.S. Pardon Attorney where she represents applicants for executive clemency in her current private practice in Washington D.C.
David Schlussel is the Deputy Director of the CCRC, where he began as a fellow in 2018. Before that, he served as a law clerk for the Honorable David O. Carter at the U.S. District Court for the Central District of California.
The full report can be accessed here.
Andrea Cipriano is a TCR staff writer