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2018 State Legislative Victories Summary
Each year, NACDL affiliates, members of the State Criminal Justice Network (SCJN) and other advocates work diligently at the state level to bring about reform of key criminal justice issues. At the end of each year, the goal is to highlight the various legislative victories in numerous jurisdictions. In addition, during the 2018 legislative session, NACDL tracked over 28 criminal justice issues ranging from asset forfeiture reform to surveillance reform. Many of the issues NACDL tracked around the country had successful outcomes.
Included in the victories adopted and reflected below is the first in the nation independent Commission on Prosecutorial Misconduct in New York. The New York State Association of Criminal Defense Lawyers (NYSACDL) joined grassroots organizations (It Could Happen To You), Exonerees, the Innocence Project and Human Rights Watch among others in a seven-year effort to address egregious prosecutorial acts, particularly the withholding of Brady material. New York has consistently ranked among the top three states for wrongful convictions. The law passed despite massive opposition from New York’s District Attorneys.
Though not legislative victories, there are two notable state Supreme Court actions. In September 2018, the Supreme Court of Virginia issued amended criminal discovery rules that will take effect July 1, 2019, marking the first such overhaul in decades. The amended rules provide far greater pretrial disclosure by prosecutors, including the inspection and review of police reports and statements of co-defendants and alleged co-conspirators that are sought to be introduced at trial. The amended rules also create mutual obligations on the defense and prosecution relating to the exchange of witness lists and expert witness information. Since 2015, NACDL has worked with its state affiliate, the Virginia Association of Criminal Defense Lawyers (VACDL), and other groups and individuals seeking discovery reform in Virginia, including Justice Forward Virginia, the Charles Koch Institute, the Innocence Project, the Mid-Atlantic Innocence Project, New Virginia Majority, legislators on both sides of the aisle, including Senate sponsor Bill Stanley, and numerous attorneys across the Commonwealth. These efforts included public education and community events, legislative lobbying, and grassroots campaigns.
In October 2018, the Washington state Supreme Court unanimously struck down the death penalty, declaring it unconstitutional and racially biased, and stating that the death penalty was applied unequally across the state depending on where the crime took place, the race of the defendant, and the financial status of the prosecutor’s office. The state Supreme Court also declared that juvenile life without parole sentences are unconstitutional, making Washington the 21st state, plus Washington D.C., to ban the sentence.
As reflected in the section on public defense victories, the Tennessee General Assembly increased spending for indigent defense services by $9 million. As a result, in July 2018, the state Supreme Court implemented an amendment to Court Rule 13, which sets the compensation rates and fee caps for assigned counsel in the state. The amendment raised the rate for out-of-court work from $40 per hour to $50 per hour. Though the court sought to improve resources for attorneys handling appointed cases with the funding that was made available, the rates remain woefully inadequate and defense attorneys remain underpaid for services performed.
Also, of note is California’s passage of SB 10, ending the use of cash bail in the state. Though initially widely supported, many reform groups believe that the version that passed gives judges too much power to keep people incarcerated pretrial.
In addition to the progressive reforms addressed below, state affiliates were successful in pushing back against regressive criminal justice legislation. The New Hampshire Association of Criminal Defense Lawyers (NHACDL) and the Idaho Association of Criminal Defense Lawyers (IACDL) were successful in defeating Marsy’s Law in their state legislatures. Also, Marsy’s Law legislation in Iowa and Maine did not advance this year. Marsy’s Law is a national campaign that seeks to amend state constitutions to provide certain enumerated rights to “victims.” However, these rights often conflict with the constitutional rights of defendants. Ten states have adopted Marsy’s Law, with the legislation moving through several state legislatures.
Visit www.nacdl.org for updates on legislation.
Asset Forfeiture
Idaho
H. 447 institutes new reporting requirements, including the value and ultimate disposition for seized property and the criminal charges filed, if any, against the property owner; bans vehicle forfeitures based on mere possession of a controlled substance; and stops law enforcement from forfeiting property just because it was “merely in proximity” to drugs.
Indiana
SB 99 requires the prosecuting attorney to file an affidavit of probable cause with a court no later than seven days after property is seized and provides for the return of the property to the owner if the court does not find probable cause.
Kansas
HB 2459 implements new reporting requirements, recording the location and time of a seizure, the value of the property, the amount of proceeds collected from a property’s forfeiture, and whether any criminal charges accompanied the seizure. Agencies must also provide an itemized list of deposits into their forfeiture fund accounts, and expenditures made therein.
New Hampshire
SB 498 requires the attorney general to post a report on the NH Justice Department website that details the type, value and disposition of seized property, and the amount of forfeiture proceeds received and spent, with the forfeiture expenditures broken down by category.
Tennessee
HB 2021 adds that after the seizure of any personal property subject to forfeiture when the owner of the property is not present at the time of the seizure, regardless of whether an arrest has been made, the seizing officer must, within five business days of the date of seizure, mail to the owner by return receipt requested mail, at the owner’s last known address as determined from public records of titles, registrations, or other recorded documents or information provided by the person in possession, a notice entitled “Notice of Forfeiture Warrant Hearing.”
SB 1877 requires the comptroller to audit use of civil asset forfeiture proceeds by local law enforcement agencies and judicial district drug task forces during regular audit to local government, and requires the department of safety to publish uses of forfeiture proceeds by department and the results of the comptroller’s audit on the department’s website.
Virginia
SB 813 provides that a state or local agency that receives a forfeited asset or an equitable share of the net proceeds of a forfeited asset from the Department of Criminal Justice Services (Department) or from a federal asset forfeiture proceeding shall inform the Department of (1) the offense on which the forfeiture is based, (2) any criminal charge brought against the owner of the forfeited asset, and (3) if a criminal charge was brought, the status of the criminal charge. The bill also provides that the Department shall include such information in the annual report that it provides to the governor and the General Assembly concerning the sharing of forfeited assets.
Wisconsin
AB 122/SB 61 requires a criminal conviction for forfeiture, though courts may waive that requirement if the defendant died, was deported, fled the jurisdiction, or was granted immunity, or if the property has been unclaimed for at least nine months. It also raises the standard of proof to clear and convincing evidence and shifts the burden of proof for innocent owner claims from the owner onto the state.
Wyoming
HB 61 bans roadside waivers of a person’s interest in seized property.
Bail and Pretrial Reform
Georgia
SB 407 reforms misdemeanor bail practices. It provides judges with more opportunities to utilize community service and educational advancement as alternatives to fines or as a condition of probation. This legislation was based on recommendations from the Georgia Council on Criminal Justice Reform.
New Hampshire
SB 556 requires judges to consider a person’s financial means when setting bail and prohibits the detention of people pretrial simply because they cannot afford bail.
Vermont
H. 728 caps bail for low-level, nonviolent crimes at $200. Also, instead of allowing bail for the possibility of non-appearance, it now states that the person must be a flight risk.
Discovery Reform
California
AB 1987 expands the right of access to discovery materials to any case in which a defendant is convicted of a serious or violent felony resulting in a sentence of 15 years or more. Existing law requires, in a case in which a sentence of death or life in prison without the possibility of parole has been imposed, a court to order that a defendant be provided reasonable access to discovery materials upon prosecution of a postconviction writ of habeas corpus or a motion to vacate judgment, and a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful.
AB 2952 authorizes a prosecuting attorney to access, inspect, or utilize a juvenile record that has been sealed under these provisions in order to meet a statutory or constitutional obligation to disclose favorable or exculpatory evidence to a defendant in a criminal case in which the prosecuting attorney has reason to believe that access to the record is necessary to meet the disclosure obligation, subject to approval by the court. The bill would establish procedural requirements that would apply to the court and the prosecuting attorney under these provisions.
Rhode Island
S. 2984 creates a special 12-member Senate task force to investigate and make recommendations for any changes to the law, court rules, or policies and procedures currently in place to enhance the timely and complete disclosure of discoverable material in criminal cases.
Eyewitness ID Reform
California
SB 923 provides that beginning Jan. 1, 2020, all law enforcement agencies and prosecutorial entities will be required to adopt regulations for conducting photo lineups and live lineups with eyewitnesses to ensure reliable and accurate suspect identifications.
New Hampshire
HB 1329 requires law enforcement agencies to adopt a written policy regarding eyewitness identification procedures.
Louisiana
SB 38 requires all police agencies to adopt the Louisiana Sheriff’s Executive Management Institute model policy on eyewitness identification procedures or write their own policy based on specified scientifically supported best practices. Among the procedures that the model policy necessitates are blind administration of photo lineups, proper instructions to eyewitnesses, proper composition of lineups such that all lineup members match the description of the perpetrator provided by the eyewitness, obtaining statements of confidence from the eyewitness at the time of the identification, and video or audio recordings of identification processes.
Forensic Science Reform
Massachusetts
SB 2371, an omnibus criminal justice reform measure, includes the establishment of an independent forensic science commission.
Juvenile Justice
California
AB 1584 prohibits, except as otherwise expressly authorized by law, a minor’s voluntarily given DNA from being searched, analyzed, or compared to DNA or profiles related to crimes other than the one for which it was taken.
SB 1391 eliminates the transfer of all children under the age of 16 to the adult court.
Delaware
HB 306 allows judicial discretion to send a youth back to Family Court in some cases in which a juvenile 16 and over was charged with possession of a firearm during commission of a felony.
HB 307 addresses minimum mandatory sentencing schemes for juveniles.
- In instances when a child has been adjudicated of Possession of a Firearm During Commission of a Felony or Robbery 1st, there is now a minimum sentence of six months of Level V incarceration or institutional confinement for a first offense, and one year of Level V incarceration or institutional confinement for a second and each subsequent offense, which shall not be subject to suspension. Previously, it was a 12-month min/man of institutional confinement.
- Youths 15 and over who are adjudicated of Possession of a Firearm by a Person Prohibited and considered to need “mandated institutional treatment” are now eligible for institutional confinement, which is considered a Level IV placement. Previously, the minimum age was 14 and they were subject to six months of Level V incarceration for the first offense and a year for the second and subsequent offense.
- Eliminated the portion of 10 Del C. Section 1009(e)(1) which required a 6 month minimum mandatory commitment for a child who was adjudicated of a second felony offense within one year of his first adjudication for a felony offense. This minimum sentence is no longer required and judge/commissioner has discretion on how to sentence.
HB 308 removes the sunset provision from the juvenile civil citation statute.
HB 339/HB 470 eliminates the mandatory transfer of youth under the age of 18 to an adult facility upon a finding of non-amenability, except in limited circumstances.
HB 402 eliminates the ability of the Delaware Department of Motor Vehicles to suspend a student’s driver’s license who has been expelled from a public school. Previously, a school superintendent was required to notify the DMV any time a student was expelled from a public school, at which time the DMV was permitted to suspend or refuse to issue or renew the expelled student’s driver’s license.
HB 442 expands the Juvenile Civil Citation Program to provide law enforcement officers with the discretion to refer any first-time juvenile offender engaged in any misdemeanor-level behavior to the civil citation program, where the juvenile can be required to participate in counseling, treatment, community service, or any other appropriate intervention. A juvenile who successfully completes the requirements of the civil citation program will not have an arrest or prosecution indicated on his record. Under the current law, officers may make referrals to the civil citation program for only very limited types of misdemeanor offenses.
SB 146 streamlines Delaware’s juvenile expungement code by providing the Delaware Family Court the option to immediately order an expungement if a felony case was terminated in favor of the juvenile (i.e., a juvenile was found not guilty or the charges were dropped). Delaware law currently allows the court to do this for misdemeanor and violation cases.
District of Columbia
B22-0451, the Youth Rehabilitation Amendment (YRA) Act of 2017, requires the Mayor to develop and submit a strategic plan to the DC Council regarding the treatment and services to be offered to youth offenders as well as to at-risk youth offenders. It creates a list of guiding factors that must be considered by judges when determining sentences for youth offenders and requires judges to produce written statements explaining the youth offender’s sentencing and set aside decisions for increased transparency. The Act calls for enhanced predictive evaluations of the youth offender’s potential for rehabilitation and provides grants to victims as well as committed youth offenders to develop a better understanding of sentencing contingencies. This bill is now under congressional review and its projected law date is October 27, 2018.
Massachusetts
S. 2371 is an omnibus criminal justice reform measure that includes critical juvenile justice-related provisions including the following:
- sets 12 as the lower age of jurisdiction;
- creates limited opportunities for expungement of misdemeanors and most felony offenses committee before age 21;
- creates parent-child privilege in which conversations between parents and their minor children are protected, where neither can choose to or be legally compelled to testify against each other in court;
- establishes a statutory framework for diversion;
- decriminalizes school-based public order offenses;
- creates a juvenile justice policy and data board; and
- bans indiscriminate shackling of children in court.
Missouri
SB 793 and SB 800 increase the age for automatically trying youth as adults from 17 to 18.
New Jersey
SJR 18 establishes the Commission to Review Constructive Sentences of Life Imprisonment on Juvenile Offenders. The Commission shall examine issues concerning sentencing and parole of juvenile offenders who are tried as adults for serious, violent crimes which may result in a constructive life term of imprisonment without a reasonable opportunity for parole, and make recommendations on how the law governing the criminal justice and legal systems may be changed to afford these juveniles a reasonable opportunity for release when appropriate.
Washington
SB 6160 allows youth convicted in adult court to stay in the state juvenile corrections system until they turn 25, rather than being transferred to a prison when they turn 21.
SB 6550 expands the types of cases for which youth are eligible for diversion from the justice system, while at the same time broadening community-based options and facilitating record sealing for youth whose cases have been diverted.
Marijuana
Vermont
H. 511 eliminates all penalties for possession of one ounce or less of marijuana and two mature and four immature marijuana plants for a person who is 21 years of age or older (retains criminal penalties for possession, dispensing, and sale of larger amounts of marijuana).
Policing
California
SB 978, beginning Jan. 1, 2020, will require the Commission on Peace Officer Standards and Training and each local law enforcement agency to post on their websites all current standards, policies, practices, operating procedures, and education and training materials that would otherwise be available to the public if a request was made pursuant to the California Public Records Act.
SB 1421 permits the inspection of specified peace and custodial officer records pursuant to the California Public Records Act (CPRA). This bill provides that records related to reports, investigations, or findings may be subject to disclosure if they involve the following: (1) incidents involving the discharge of a firearm or electronic control weapons by an officer; (2) incidents involving strikes of impact weapons or projectiles to the head or neck area; (3) incidents of deadly force or serious bodily injury by an officer; (4) incidents of sustained sexual assault by an officer; or (5) incidents relating to sustained findings of dishonesty by a peace officer.
Postconviction Relief
Connecticut
SB 509 permits newly discovered scientific evidence to be considered in the same manner as DNA evidence for the purpose of a petition for a new trial.
Maryland
SB 423 expands eligibility to file a petition for postconviction DNA testing or a database/log search to include a person convicted as a result of a plea of guilty, an Alford plea, or a plea of nolo contendere. The bill also establishes procedures for petitions under these circumstances. The bill makes similar changes to eligibility to file a petition for writ of actual innocence and procedures for those petitions.
Wyoming
HB 26, the Post-Conviction Determination of Factual Innocence Act, allows a petition for exoneration for persons convicted of a felony based upon newly discovered evidence of factual innocence; specifying requirements, procedures and conditions; providing for appointment of counsel as specified; amending postconviction relief statutes; and providing for an effective date.
Public Defense
Tennessee
In 2018, the General Assembly approved a fiscal-year increase of approximately $9 million for indigent defense services in Tennessee.
Prosecutorial Accountability
New York
S.2412/A.5285 creates a first in the nation independent Commission on Prosecutorial Conduct. The Commission will have the authority to conduct investigations, issue subpoenas, call witnesses and issue public findings including admonition, censure and recommendation to remove an offending District Attorney from office.
Occupational Licensing Reform
Arizona
SB 1436 allows a person with a criminal record to petition a licensing agency, including before obtaining any requirements for licensure, for a determination of whether the person’s criminal record will disqualify the person from obtaining a license. Licensing boards can only disqualify ex-offender applicants if the offense is “substantially related” to the state’s interest in public safety and if the person is more likely to reoffend with the credential. Agencies will report each year the number of applicants that had a criminal history petition, the number of petitions that were granted, denied, and rescinded, and their associated offenses.
California
AB 2138 will prohibit licensing boards from denying, revoking or suspending an applicant’s license if a conviction of a crime did not occur in the preceding seven years from the date of application that is substantially related to the qualifications, functions or duties of the business or profession.
Colorado
Currently, a state or local agency must consider an individual’s criminal record when deciding whether to issue a license or permit. HB18-1418 changes the determination to consider whether the person is qualified. Also, an agency cannot consider arrests when not charged and the law allows DORA to issue conditional licenses.
Delaware
HB 97 modifies the impact of criminal history on an applicant’s eligibility for licensure. It gives the Board discretion to grant waivers for a felony conviction for crimes committed against a person when more than three years have elapsed, and more than two years have elapsed for other felonies. The Board is precluded from considering a conviction when more than 10 years have elapsed since the date of conviction.
Illinois
SB 2853 requires the Department of Financial and Professional Regulation to make available on its website general information on how the Department uses criminal history information in its decision on licensure applications, including a list of enumerated offenses that bar licensure.
Indiana
HB 1245 requires that any disqualifying offenses be “directly related” to the occupation and that licensing boards take into account evidence of rehabilitation but not most offenses dating back more than five years. The applicant is entitled to written findings explaining a board’s decision, and individuals may petition the board for a background check decision before satisfying all the other licensing requirements.
Kansas
HB 2386 requires any disqualifying offenses to be directly related to each occupation, and it precludes the licensing boards from adopting broad moral turpitude disqualifications. In addition, the boards may not take into account arrests or many offenses date back more than five years since the sentence was served (not including felonies and Class A misdemeanors).
Maryland
HB 1597 requires certain Executive Branch Departments to report to the governor and the General Assembly by Oct. 1, 2018, regarding how many applications for occupational licenses and certificates were received during the preceding five years, how many of these applicants had a certain criminal record, how much time had passed since the criminal conviction, how many applications were denied based on the applicant’s criminal record, and under which provision of law the license was denied.
Massachusetts
SB 2371 is an omnibus criminal justice reform bill, which included a provision allowing people with sealed records to deny that they have a record for licensing and housing purposes.
Michigan
Michigan Gov. Rick Snyder announced that the Department of Licensing and Regulatory Affairs had removed all criminal history questions from licensing applications, unless required by federal or state law. He also signed an executive directive that prevents state departments from asking job seekers about their criminal history on their initial applications.
Nebraska
LB 299 is a general deregulation of licensing that includes a provision whereby individuals with a criminal record may obtain a preliminary determination on their eligibility from the relevant licensing board, which must issue a written determination within 90 days giving its “findings of fact and conclusions of law.”
New Hampshire
SB 589 now allows ex-offenders to petition a licensing board at any time to see if their criminal record would be disqualifying and can include the time since the offense and any evidence of rehabilitation in their petition. Licensing boards can only disqualify applicants if the criminal record is a felony or violent misdemeanor and if the board can show with clear and convincing evidence that an individual is more likely to reoffend with the license. The office of professional licensure and certification will annually report on a searchable public website the number of petitions, approvals and denials, the associated offenses, and any other data.
Tennessee
SB 2465 provides for a preliminary determination of eligibility by a licensing board and written reasons for denial. However, it also contains a more detailed set of standards and procedures that apply to a board’s consideration whether a conviction is “directly related” to the license, and also contains a presumption in favor of issuing a license (with certain exceptions). Among other things, the licensing authority “must demonstrate by a preponderance of the evidence that [the applicant’s conviction] is related to the applicable occupation, profession, business, or trade.” The boards must provide the applicant with a written notice explaining the justification for the denial and an opportunity to present mitigating evidence before the boards issue a final determination.
Wisconsin
AB 829 - Effective Aug. 1, 2018, licensing boards in Wisconsin will be prohibited in most cases from denying or revoking a license based on arrests or pending charges and will be required to justify in writing any adverse action based on conviction. Boards will also be required to give applicants a preliminary determination as to whether a particular conviction will be disqualifying.
Racial Disparities
Connecticut
SB 256 permits any member of the General Assembly to request the preparation of a racial and ethnic impact statement with respect to certain bills and amendments.
Restoration of Rights
California
AB 1793, introduced in response to the 2016 passage of Proposition 64 that legalized recreational marijuana, puts in place a process for the resentencing and sealing of prior marijuana convictions. The state’s Department of Justice has until July 1, 2019, to identify past convictions that are eligible and notify the prosecutors. Prosecutors will have until July 1, 2020, to review all cases and determine whether to challenge the resentencing.
AB 2599 amends existing law that authorizes a person who has suffered an arrest that did not result in conviction to petition the court to have his or her arrest and related records sealed. Existing law requires the Judicial Council to furnish forms to be utilized by a person applying to have his or her arrest sealed. This new law will now require a facility at which an arrestee is detained to, at the request of the arrestee upon release, provide the forms described above to the arrestee. The bill would additionally require a facility at which an arrestee is detained to post a sign that contains a specified notice regarding the sealing of arrests.
Colorado
HB18-1344 authorizes a court to enter an order for collateral relief at time of conviction or thereafter. It also adds the authority for a juvenile court to enter an order for collateral relief using the same process as criminal courts.
Delaware
SB 197 provides mandatory expungement eligibility to individuals who were convicted of the possession, use, or consumption of marijuana prior to Delaware’s decriminalization of these offenses. To be eligible for the mandatory expungement, the marijuana conviction must be the applicant’s only criminal conviction.
District of Columbia
B22-0452, the Clemency Board Establishment Act of 2017, creates a Clemency Board to grant local control over the process of reviewing applications for pardons and commutations of D.C. Code offenders. The Clemency Board is tasked with selecting cases for recommendation to the president of the United States for clemency. The bill establishes the board’s composition and the eligibility criteria for offenders. This bill was enacted on July 30, 2018, as part of D.C. Act 22-434, the Fiscal Year 2019 Budget Support Emergency Act of 2018.
B22-0268, the Returning Citizens Opportunity to Succeed Amendment Act of 2017, requires the creation of a database containing the names, location, and contact information of all D.C. residents held by the Federal Bureau of Prisons outside of the District of Columbia expected to return within the following year. The bill allows the Mayor’s Office of Returning Citizens Affairs (MORCA) to request data from the Federal Bureau of Prisons and to send information to offenders six months prior to their release. The bill creates a pilot program for FY19 that establishes a $60,000 fund for a public transportation subsidy program for people being released from prison, as well as a second pilot program for the same fiscal year aimed at waiving fees for driver’s licenses and nondriver’s identification for the same population. This bill was enacted on July 30, 2018, as part of D.C. Act 22-434, the Fiscal Year 2019 Budget Support Emergency Act of 2018.
Florida
HB 1065 expands expungement eligibility for court-ordered expungement to include a person who received a judgement of acquittal by a judge or a not guilty verdict, whether by judge or jury. A person seeking expungement of acquittal or not guilty verdict is no longer required to first seal the record for 10 years.
Louisiana
HB 265 restores voting rights to people on probation and parole after a five-year waiting period. Currently, the state restores voting rights once individuals have completed their probation and parole sentence.
Maryland
HB 382 clarifies that a person may petition for expungement of any civil offense or infraction, except a juvenile offense.
SB 101 repeals the three-year waiting period generally applicable to filing a petition for expungement based on an acquittal, a nolle prosequi, or a dismissal, and generally authorizes a petition for expungement based on these dispositions to be filed at any time.
Massachusetts
SB 2371 is an omnibus criminal justice reform measure. It would make eligible for expungement from criminal records some crimes committed by offenders up to age 21, while adults would be able to apply to have their records expunged of crimes that are no longer considered illegal in Massachusetts, such as possession of marijuana.
Missouri
SB 954 allows individuals found guilty of the offense of unlawful use of a weapon by the carrying of a concealed weapon prior to Jan. 1, 2017, to apply for an order to expunge records relating to such offense.
Nebraska
LB 1132 allows victims of human trafficking to ask a judge to set aside convictions of prostitution-related offenses and other offenses and seal their criminal record.
North Carolina
H. 774 will expand certificate of relief eligibility to people with multiple misdemeanor and low-level felony convictions. Current eligibility is one incident of up to two convictions of a Class G, H, or I felony or misdemeanor. H774 expands eligibility to people with up to three incidents of Class H and I felony convictions and an unlimited number of misdemeanor convictions. All H or I felony convictions disposed in the same session of court count as one conviction for purposes of COR eligibility. Class G felonies were removed from eligibility.
Oklahoma
SB 650 would let offenders request their criminal record be expunged after five years, with certain requirements.
Pennsylvania
HB 1419, the Clean Slate Bill, automatically seals arrests records not ending in a conviction immediately, summary offense convictions after 10 years, and some misdemeanor convictions after 10 years. It also expands Pennsylvania’s sealing law to include some first-degree misdemeanors.
Rhode Island
S. 2447 provides for immediate eligibility for expungement consideration of those offenses that have been de-criminalized.
South Carolina
H. 3209 expands the types of nonviolent crimes eligible for expungement. Under the new law any first offense conviction for drug possession can be expunged after three years, first offense conviction for unlawful possession of a prescription drug can be expunged after three years, and first offense conviction for possession with intent to distribute can be expunged after 20 years. The new law also allows persons to expunge multiple convictions out of the same sentencing hearing if they are closely related.
Tennessee
SB 2505 authorizes any person who is tried and adjudicated delinquent or unruly by a juvenile court for an offense that, if tried as an adult, would be considered prostitution or aggravated prostitution to subsequently file a motion for expunction of all court files and juvenile records. The court may order all or any portion of the requested expunction if, by clear and convincing evidence, the court finds that conduct upon which the adjudication is based was found to have occurred as a result of the person being a victim of human trafficking.
Utah
SB 62 amends the state’s expungement law to no longer disqualify someone, otherwise eligible for expungement, with outstanding court debt from having their record expunged. A person would be disqualified for expungement due to debt only if that debt was related to the crime. Unrelated debts can no longer prevent expungement.
Vermont
S. 173 seals criminal history records when there is no conviction.
S. 234 expunges, within 30 days after the date of successfully completing the terms and conditions of the sentence, the criminal history records of an individual who was 18-21 years of age at the time the individual committed a qualifying crime.
Washington
HB 1298 prohibits employers from asking about arrests or convictions before an applicant is determined otherwise qualified for a position.
Sentencing Reform
Arizona
SB 1211 creates parole eligibility for a person convicted of first degree murder who had entered into plea agreements that expressly stipulated parole options.
California
SB 1437 will limit murder convictions to those who actually commit the crime, changing current law that holds accomplices to the same standard as those who actually committed the crime under the felony murder rule.
Colorado
HB18-1029 reduces the five-year mandatory period of parole to three years for Class 3 felonies and for two felonies that are not crimes of violence.
SB18-249 establishes pilot programs intended to redirect individuals with mental health concerns out of the criminal justice system and into treatment.
SB18-250 expands the use of the Jail-Based Behavioral Health Services (JBBS) program currently administered by CDHS to include those persons who suffer from mental health disorders, providing screening, treatment and medication and plans for continuity of care.
SB18-251 creates a statewide liaison program in each judicial district to keep judges, prosecutors, and defense attorneys informed about community-based behavioral health services for defendants, including those who are ordered to have competency evaluations or restoration treatment.
Florida
SB 1392 creates a model of uniform criminal justice data collection, making Florida the first state in the country to require all its counties to collect data pertaining to courts, jails, policing and prisons in a statewide system that will be publicly available. This includes race, gender, pleas, sentences, pretrial diversion, and bail.
Massachusetts
SB 2371 is an omnibus criminal justice reform measure. It eliminates some mandatory minimum sentences for “low-level drug offenses,” including first and second offenses for cocaine possession, and requires district attorneys to create pre-arraignment diversion programs for veterans and those suffering from mental health and substance abuse disorders. The legislation also makes reforms to the bail system and court fees and fines, lifts the threshold for felony larceny from $250 to $1,200 and creates new penalties for repeat offenders who are charged with their sixth, seventh, eighth or ninth “operating under the influence” violation.
Michigan
HB 5377, the Objective Parole Bill, reforms Michigan’s parole system in three important ways:
- It creates a presumption of parole for low-risk prisoners. More specifically, for prisoners that score “high probability of parole” on the parole guidelines (the lowest risk classification), the parole board can only deny parole if it has objective evidence that the prisoner will present a risk to public safety if released. The bill details 11 specific reasons that can meet this standard. This standard applies to all prisoners serving a term of years, regardless of the seriousness of the offense (lifers go through a separate process).
- It requires annual parole reviews for all low- and medium-risk prisoners. Currently, prisoners serving a term of years are reviewed for parole every two years once they have served their minimum sentence. This bill will require annual reviews for all prisoners except those that score low probability of parole (high risk).
- Within five years, this law is projected to reduce Michigan’s prison population by 1,800-2,400 beds and save Michigan $40 million annually.
Michigan’s successful passage of the Objective Parole Bill, HB 5377, was the culmination of a six-year effort by Safe & Just Michigan and its partner organizations, including the Alliance for Safety and Justice.
Mississippi
HB 387 reduces barriers to driver’s licenses, including mandatory suspension of driving privileges and imposition of jail time for unpaid fines. Under the new law, judges now must assess offenders individually by considering prior arrests, potential need for treatment, and financial state before incarcerating someone over court debt.
Oklahoma
HB 2281 would create a new, tiered structure for property crimes based on the value of the goods, with crimes involving things valued at less than $1,000 becoming misdemeanors.
SB 649 targets “sentence enhancements,” which can quickly result in extra prison time for repeat offenders. It would keep prosecutors from seeking harsher sentences if the suspect was previously convicted of a drug-related or property crime.
SB 689 modifies the long sentences given out for drug trafficking. It would let courts reduce life-without-parole sentences if the convicted has served at least 10 years, and other sentences to at least 25 percent of the original term length.
SB 786 would define a new crime, burglary in the third degree, which would apply to vehicle theft. It would also remove the mandatory minimum sentence for second-degree burglary. Under current law, a person breaking into a vehicle could serve two to seven years in state custody. The proposal requires no prison time and limits sentences to five years.
SB 793 eliminates the life without parole option for drug possession with intent to distribute, distribution, manufacturing and trafficking, and eliminates most of the law’s mandatory minimum sentences.
Vermont
H. 660 creates the Commission on Sentencing Disparities and criminal code reclassification.
H. 718 creates the Restorative Justice Study Committee.
Virginia
HB 1550/SB 105 increases from $200 to $500 the threshold amount of money taken, or value of goods or chattel taken, at which the crime rises from petit larceny to grand larceny. The bill increases the threshold by the same amount for the classification of certain property crimes.
Wrongful Convictions
Kansas
HB 2579 provides compensation for a person who was wrongfully convicted and imprisoned. It is one of the strongest exoneree compensation laws in the county, providing significant financial compensation, a certificate of innocence and expungement to clear records, and social services to assist with short-term and long-term needs, including housing and tuition assistance, counseling, participation in the state health care program, and financial literacy training.
Conclusion
With efforts for criminal justice reform on the federal level uncertain in Congress, state legislative victories in 2018 provide encouragement. The commitment of the advocacy community will ensure continued progress towards a fairer and more equitable system that also ensures public safety.
Contact NACDL’s Director of Advocacy at mreid@nacdl.org for assistance with state legislative needs.
About the Author
Monica L. Reid is NACDL’s Director of Advocacy.
Monica L. Reid
NACDL
Washington, DC
202-465-7660
mreid@nacdl.org
www.nacdl.org
@NACDL