Introduction and summary
Following America’s failed experiment with mass incarceration and overcriminalization, an estimated 70 million to 100 million Americans now have some type of criminal record.1 While felony records carry the greatest stigma, in the digital era, any record—no matter how old or minor—can stand in the way of reentry, economic stability, and full participation in society.
The proliferation of criminal background checks alongside the sharp rise in the share of the population saddled with the stigma of a record—which has reached 1 in 3 U.S. adults2—have become major drivers of poverty and racial inequality in the United States. Nine in 10 employers, 4 in 5 landlords, and 3 in 5 colleges and universities now use background checks to screen out applicants with criminal records.3 Often called “collateral consequences,” the resulting barriers to employment, housing, education, and other basics put economic stability, let alone upward mobility, out of reach for tens of millions of individuals and families—disproportionately from communities of color—who have been affected by the U.S. criminal legal system.
Black, Indigenous, and Latino communities have been particularly harmed by the dramatic increase in the number of people with records. Decades of biased policing and charging have resulted in people of color disproportionately bearing the brunt of mass incarceration and overcriminalization in the United States, and likewise, the criminal records crisis has also exacerbated stark levels of racial inequality. A recent study by the Brennan Center found that people who have been incarcerated see their subsequent earnings reduced by an average of 52 percent, with an average lifetime earnings loss of nearly half a million dollars; in the aggregate, people with criminal convictions face lost wages in excess of $372 billion every year.4 As Michelle Alexander argued in her watershed tome The New Jim Crow, mass incarceration and its often lifelong collateral consequences serve as core underpinnings of the fabric of structural racism that defines much of 21st century American society. Black, Indigenous, and Latino people are disproportionately criminalized and more likely to have a record and be treated unfairly across society because of it.
The consequences ripple forward generationally, with a host of far-reaching negative impacts on families and children. A prior analysis by the Center for American Progress found that nearly half of U.S. children now have at least one parent with a record.5 The economic barriers associated with a parent’s record function as what child development experts call an “adverse childhood experience,” jeopardizing children’s cognitive development, school performance, educational attainment, and even their earnings and employment in adulthood. The legacy of incarceration is also distributed unevenly among white, Black, and Latino children: Approximately 1 in 9 Black children and 1 in 28 Latino children have an incarcerated parent, compared with roughly 1 in 57 white children.6
Prior to the COVID-19 pandemic and the resulting economic downturn, workers with criminal records were already facing a permanent recession of their own. According to the Prison Policy Initiative, the prepandemic U.S. unemployment rate for people with records was in the double digits, while the overall unemployment rate was 3 to 4 percent.7 Shutting people with records out of jobs comes at great cost not only to individuals and families, who face entrenched poverty and often a cycle of recidivism when good jobs are out of reach, but also to the U.S. economy as a whole. Prior to the pandemic, estimates put the cost of employment losses among workers with records at $87 billion annually in lost gross domestic product, on top of the nation’s expenditures on mass incarceration of $80 billion to $182 billion each year.8
Critically, the lifelong consequences of a record stand in sharp contrast with the realities of redemption and recidivism. Empirical research confirms that once an individual with a prior conviction remains crime-free for four to seven years, their risk of recidivism is no greater than the risk of arrest among the general population. People with records are thus treated as “criminals” long after they present any significant risk of committing a future crime—relegated to the ranks of a permanent underclass for no reason with any sound basis in public safety. Again, the stigma of a record creates greater hurdles for people of color; for example, a seminal study by Devah Pager found that white men who indicated a conviction record on their job applications received more job callbacks than Black men without records, with Black men’s callbacks dropping by an additional two-thirds when they indicated a record.9
In order to address the life sentences to poverty that tens of millions of Americans are currently serving—and which no judge ever handed down—CAP teamed up with Community Legal Services (CLS) in Philadelphia in 201410 to propose a new idea called “clean slate”: making criminal record clearance both automatic and automated, so that everyone eligible to have their record sealed or expunged can access the benefits of record-clearing, regardless of whether or not they are able to afford a lawyer to help them navigate the often byzantine petition process. Research has documented that fewer than 10 percent of Americans who are eligible to have their records cleared are successfully able to do so, due to the immense cost and complexity of petition-based court systems.11
Meanwhile, the National Employment Law Project (NELP) has supported state leaders in adopting another new idea called fair chance licensing, which reforms state occupational licensing laws that impose unfair and unnecessary barriers to employment for people with records, restricting access to jobs in fast-growing industries such as health care, education, and transportation. Today, nearly one-quarter of U.S. workers need a government license or certificate to work in their chosen fields, and applicants for those credentials are typically required to clear strict background checks with broad exclusions that do not advance community health and safety or broader economic stability and growth.12
In 2016, with support from the W.K. Kellogg Foundation, CAP, CLS, and NELP teamed up to launch a three-year initiative focused on supporting state leaders in advancing clean slate and fair chance licensing policies in the states. In the years since, bipartisan momentum for both clean slate and fair chance licensing has exploded, with dozens of states advancing these policy reforms to remove barriers to economic security for their justice-impacted residents. Meanwhile, bipartisan momentum has begun trickling up to the federal level as well, with Congress taking steps on both the record-clearing and licensing front and President Joe Biden pledging to adopt these and other second chance policies during the 2020 presidential campaign. This report highlights the transformational progress a diverse array of red, blue, and purple states made on these issues from 2017 to 2020 and offers case studies spotlighting some of the state leaders driving momentous change, including CLS in Philadelphia, which has played dual roles as a state leader advancing model reforms in Pennsylvania and a national expert providing technical assistance and support to community-based organizations in other states. This report also offers best practices and lessons learned from many of those successes for the benefit of state and federal advocates and policymakers.
As leaders at all levels of government work to “build back better” and address the nation’s legacy of racial injustice and persistent racial inequality, removing barriers to employment for workers with records is needed more than ever. In the midst of the devastating impacts of the COVID-19 pandemic and economic downturn, clean slate and fair chance licensing policies are critical steps to ensure a full and equitable recovery that does not leave tens of millions of system-impacted individuals and families behind.
Clean slate in the states
While most states have laws on the books that allow people to petition to have certain records sealed or expunged, only a tiny fraction of individuals who are eligible for record-clearing ultimately do so due to the cost and complexity of petition-based systems. Research from the University of Michigan finds that just 6.5 percent of people with qualifying records get them cleared within five years of becoming eligible.13 And research from the Paper Prisons Project at Santa Clara University estimates that tens of millions of Americans who are currently eligible for record-clearing are falling into what is now known as the “second chance gap”—the ranks of people eligible for record-clearing who have not had their records cleared.14 As public awareness of the limitations of petition-based record-clearing systems grows, states are increasingly taking up clean slate automatic record clearance, using automation to clear eligible records without the bureaucratic hassle.
What is clean slate?
Clean slate is a policy model that uses technology to automatically clear a person’s criminal record after they have been crime-free for a set period, enabling all eligible individuals to benefit from record-clearing—regardless of whether they are able to afford a lawyer to help them navigate what are generally incredibly complex court processes. Individuals eligible for record-clearing in their state typically face myriad barriers in petition-based systems, including costly filing fees, inability to take time off work to appear in court, complex court processes that can require a law degree to navigate, court processing backlogs, or lack of awareness that their record is eligible for sealing or expungement. Due to these and other barriers, research estimates that fewer than 10 percent of people who are eligible to clear their records are successful in doing so.15 Clean slate is a strategy to bring the benefits of record-clearing to scale and address the large backlogs of eligible cases.
Because states’ record clearance systems and laws vary significantly, states’ approaches to clean slate vary as well. While best practices exist, states’ clean slate laws vary in the types of records covered for automatic record clearance, the length of waiting periods, whether fines and fees must be paid in order to qualify, and the precise nature of the record-clearing remedy—for example, sealing versus expungement. Notably, some clean slate approaches have also been paired with expansions of eligibility for record-clearing. The through line across states’ clean slate policies is the harnessing of existing court data to clear eligible records through automation after a period of time without a subsequent conviction, without requiring individuals to file a court petition.
Clean slate in Pennsylvania
Pennsylvania became the first state to enact a clean slate law in 2018, following a three-year public education and legislative campaign led by CLS in partnership with CAP. Pennsylvania’s Clean Slate Act—which served as the pilot for the new clean slate policy model, first proposed in a 2014 report jointly published by CAP and CLS16—established the first automated record clearance program in the United States, providing for automatic sealing of qualifying misdemeanors after 10 years without a subsequent conviction.
Throughout the campaign, the coalition supporting clean slate in Pennsylvania grew to include a diverse array of advocacy groups and stakeholders across the political spectrum—justice-impacted communities; chambers of commerce across the state; law enforcement officials; faith groups; and even NFL players, including Malcolm Jenkins and the entire Philadelphia Eagles franchise.17 The Eagles brought significant national attention to the campaign, lobbying the Pennsylvania Legislature,18 holding an event with the Philadelphia mayor, producing a video,19 and placing op-eds and articles in Sports Illustrated in support of the bill.20 The Justice Action Network (JAN) served as a key partner as well, bringing in stakeholders across the political spectrum who helped to build support from conservative champions in the Legislature and provided critical lobbying support in Harrisburg.
Early versions of the legislation were introduced in 2015, 2016, and 2017, as awareness and support grew within the Legislature. Critically, early work with the implementing agencies—the Administrative Office of Pennsylvania Courts and the Pennsylvania State Police—allayed those entities’ concerns about potential hurdles to implementation. By 2018, the bill had been thoroughly vetted by all key stakeholder agencies and had cemented buy-in from those charged with implementing the bill once it became law. The support of the business community and NFL players helped make the bill a priority for House and Senate leadership, with the Pennsylvania District Attorneys Association joining the legislation’s long list of supporters by the end of the campaign. Following overwhelming bipartisan votes in both the House and Senate, Pennsylvania’s Clean Slate Act—the first of its kind in any state—was signed into law by Gov. Tom Wolf (D) on June 28, 2018.
Following the bill’s passage, a provision in the law requiring payment of fines and fees as a condition of clean slate eligibility emerged as a significant barrier to the automated sealing of convictions. Analysis by the Philadelphia District Attorney’s Office revealed that this debt would disqualify half of otherwise eligible misdemeanor convictions statewide and 75 percent of otherwise eligible misdemeanor convictions in Philadelphia. The median balance was relatively small—$275 in municipal court and $551 in common pleas court cases—yet these amounts can be unaffordable for the bulk of the population in need of record clearance.
Throughout 2019 and much of 2020, CLS and JAN led a follow-up public education and legislative campaign to fix this provision in the law and ensure that fines and fees would not serve as an obstacle to full implementation—combining CLS’ policy and legal expertise with the voices and experiences of people whose record-sealing was barred by court debt they could not afford to pay. Ultimately, language eliminating the fines and fees requirement was introduced in the Pennsylvania House Judiciary Committee in 2019 and passed unanimously out of the House in December 2019.21
The COVID-19 pandemic significantly delayed the bill’s advancement in the Pennsylvania Senate. Following multiple public education events, op-eds, and other media coverage on the negative consequences of fines and fees as a barrier to record-clearing, the fix bill unanimously passed in the General Assembly and was signed into law by Gov. Wolf in October 2020. Act 83 eliminates the barrier of unpaid fines and costs—though not restitution—from preventing sealing of criminal cases, under clean slate as well as by petition. The fines and fees fix bill carries immense statewide significance by dramatically expanding the population of Pennsylvanians with records who are eligible for relief under the law and will now be able to have their records cleared. This important expansion also carries tremendous national significance, given Pennsylvania’s prominence as the state with the first-in-the-nation clean slate law.
Pennsylvania’s clean slate law, as amended, seals by automation: (1) nonconvictions almost immediately after case disposition; (2) summary offense convictions after 10 years; and (3) eligible misdemeanors after 10 years. Otherwise eligible convictions are precluded from sealing only for unpaid restitution but not for other court financial obligations. Act 83 also builds on the original clean slate law by providing automatic expungement for full acquittals and automatic sealing of pardoned cases.
Pennsylvania’s Clean Slate Act began automatically sealing eligible records in June 2019, and as of March 2021, more than 36.7 million cases had been sealed by automation—helping more than 1 million Pennsylvanians move on with their lives. CLS set up MyCleanSlatePA.com as a hub for education and resources, helping connect eligible Pennsylvanians with information and assistance as needed to benefit from the new law. As support for Pennsylvania’s Clean Slate Act has only grown since the law took effect, Pennsylvania lawmakers are already discussing expanding the law to include drug felonies.22
A diverse array of states has adopted clean slate policies since the 2018 passage of Pennsylvania’s first-in-the-nation clean slate law. Between 2019 and 2020, clean slate policies were enacted on a bipartisan basis in Utah and Michigan, and a prospective-only automatic record clearance law was enacted in California.23 Virginia became the fourth state to enact a clean slate law in February 2021, leapfrogging from having one of the leanest record-clearing policies in the country to crafting one of the most expansive and accessible such laws to date.24 Virginia’s new law significantly expands eligibility for record-clearing by petition and establishes automatic sealing for nonconviction records25 as well as a set of nine misdemeanor offenses, including marijuana possession, after seven years without a subsequent conviction.
While each state’s clean slate law is different and layers over varied existing state record-clearing eligibility schemes, each establishes an automated system for sealing or expunging certain records after a set period of time without a subsequent offense. While both Pennsylvania and Utah’s clean slate laws automatically seal misdemeanor records, Michigan boasts the first clean slate law in the country to automatically clear felony records retrospectively as well as prospectively. It is also worth noting that while Pennsylvania’s Legislature later adopted legislation to remove fines and fees as a barrier to eligibility for clean slate as well as petition-based record-sealing, Michigan’s clean slate law was the first to affirmatively remove fines and fees as a barrier to eligibility for automatic record-clearing.
A growing number of states have taken steps toward enacting clean slate policies. In 2019, California passed a law providing for automatic clearance of qualifying misdemeanors as well as some felonies, although the law applies only prospectively.26 Also in 2019, the New Jersey Legislature passed a bipartisan bill creating a task force that will make recommendations to the Legislature for a clean slate program;27 the task force’s work was delayed due to the COVID-19 pandemic but is now underway, with recommendations expected in mid-2021.
In Washington state, a bipartisan clean slate pilot bill passed the Legislature in early 2020 but was vetoed by Gov. Jay Inslee (D)—despite his endorsement of the bill—due to the pandemic and fiscal concerns stemming from the subsequent state budget gap.28 In Connecticut, multiple versions of clean slate legislation were introduced in 201929 and 2020,30 as well as through a proposal included in the governor’s 2020 budget;31 legislation introduced in the 2021 legislative session passed out of the House Judiciary Committee and House Appropriations Committee in April and May, respectively, and is now moving through the state’s Legislature.32
Clean slate in Michigan
Michigan became the third state in the country to enact a clean slate automated record-clearing policy—and the first to automatically clear felony records retrospectively as well as prospectively—in October 2020. The law’s passage followed a multiyear public education and legislative campaign led by Safe and Just Michigan (SJM), a state-based criminal justice reform organization. Notably, Michigan’s clean slate law was the first to automatically clear convictions without conditioning eligibility on payment of criminal legal debts, such as fines and fees.33
Under the new law, individuals will be allowed to have up to two felonies, four high-level misdemeanor convictions, and an unlimited number of low-level misdemeanors34 automatically “set aside”—the state’s term for record-clearing—following seven years without a subsequent conviction for misdemeanors and 10 years for felonies. A petition-based system continues to allow individuals to petition for set-aside relief from a broader range of records that are not clean slate-eligible, with waiting periods ranging from three years for most misdemeanors to five or seven years for more complex records.35
SJM helped organize and mobilize a broad and diverse bipartisan coalition in support of the bill that included allies such as the conservative Mackinac Center, Detroit Justice Center, American Civil Liberties Union (ACLU) of Michigan, Michigan Coalition Against Homelessness, Michigan Faith in Action, Still Standing Against Domestic Violence, and, critically, groups led by system-impacted communities such as JustLeadershipUSA and Nation Outside. The diversity of the coalition—which came together around multiple lobbying days in Lansing, key hearings, and votes—proved critical to building bipartisan support among key legislators.
Community engagement and listening sessions were a critical feature of the campaign and played a significant role in shaping the legislation. In partnership with directly impacted leaders from across the state, SJM and other members of the coalition held regional community engagement meetings in 10 highly affected cities, focusing on barriers people face due to criminal records and the promise of a second chance through expungement. SJM also helped organize advocacy and storytelling trainings in collaboration with JustLeadershipUSA and the Michigan Coalition Against Homelessness to support community members impacted by criminal records in shaping the legislation as well as the public debate around the bill.
As public and political support grew for Michigan’s clean slate bill, SJM received technical support not only from CAP and CLS but also from Code for America, which engaged key state agencies and stakeholders in service of implementation planning parallel to the bill’s movement and eventual passage. Lt. Gov. Garlin Gilchrist (D) played a key role in convening the state agencies to align around an implementation plan so that relevant state entities would be ready to hit the ground running upon the bill’s passage and to ensure that the bill was written in a way that could be implemented technically.
Michigan’s clean slate bill was introduced as part of a larger expungement expansion package in the House in September 2019 and brought up for hearings in the weeks that followed. The measure was voted out of the House Judiciary Committee in October 2019 and passed by the House as part of a seven-bill reform package in November 2019. Each bill in the package passed with overwhelming bipartisan support, ranging from 97-10 to 102-6. After delays due to the COVID-19 pandemic, the bill package was finally heard in and unanimously voted out of a key Senate committee in June 2020 and sent to a floor vote, where it passed with overwhelming bipartisan support in September 2020. After the House voted to approve various Senate changes to the bills, Gov. Gretchen Whitmer (D) signed the full package into law on October 12, 2020.
The diversity of sectors and breadth of political perspectives represented in the Clean Slate Michigan coalition proved critical to SJM’s ability to generate broad public support for the legislative package and will be instrumental in successful implementation of the law, which is now underway. Following a two-year development period to get the state’s new clean slate program up and running, automatic set-asides are expected to begin in April 2023. The law is expected to expunge the records of half a million people in Michigan—5 percent of the state’s population—and possibly more.
Bipartisan momentum in support of clean slate policies has also been spreading to states in the South. In June 2020, the North Carolina Legislature unanimously passed the bipartisan Second Chance Act, a major record-clearing expansion bill that automates record-clearing for nonconvictions and paves the way for a clean slate bill that fully automates expungements in the state.36 And in August 2020, Louisiana enacted three substantive expungement bills,37 expanding access and eligibility for record-clearing and similarly paving the way for an automated clean slate policy, which state advocates are now advancing.
Clean slate campaigns are underway in a growing number of additional states, with four new campaigns launched in 2021 in New York, Texas, Delaware, and Oregon.38 In addition to Connecticut’s clean slate legislation clearing key committee hurdles, 2021 has seen the introduction of clean slate legislation in New York39 as well as unanimous passage of Delaware’s clean slate legislation by the state’s Senate.40
The Clean Slate Initiative (CSI)—a bipartisan national movement to automate the clearing of criminal records that block second chances for tens of millions of Americans—launched in 2019, inspired by the Pennsylvania law and subsequent efforts to adopt automatic record clearance in other states. Sheena Meade joined CSI as the organization’s first managing director in May 2020. With support from a broad array of criminal justice philanthropies41 as well as a diverse steering committee and advisory board, CSI is now providing technical assistance, financial support, and in-kind campaign resources to more than a dozen state clean slate efforts.42 To learn more about CSI and its state campaigns, including how to get involved, visit the organization’s website.43
Fair chance licensing in the states
The exponential growth in incarceration rates and the use of employer background checks in recent decades has coincided with a fivefold increase in state occupational licensing requirements since the 1950s.44 Today, nearly 1 in 4 U.S. jobs requires an occupational license or certification, and these requirements can erect another barrier for workers with records.45 Workers in every state must secure permission from a government agency to work in an increasing number of jobs. Unfortunately, such licenses and certifications often require strict background checks that impose exclusions that are not appropriately tailored to community health and safety goals. Instead, many qualified applicants with arrest and conviction records are unnecessarily rejected and, therefore, unable to work in their chosen professions. Following decades of overcriminalization and biased policing and charging, Black, Indigenous, and Latino people are more likely to have a record and thus be barred from working in numerous professions because of it.
What is fair chance licensing?
Today, nearly one-quarter of U.S. jobs require workers to secure a license or certificate from a government agency in order to work. Many occupational licensing laws impose unfair and unnecessary background check restrictions that block workers with records from numerous jobs in high-growth industries, such as health care, education, transportation, child care, and other direct care services. Today, six of the nation’s 10 fastest-growing professions are health care occupations that require a license in many states, and many of these health care jobs are heavily staffed by Black and Latina women, who are more likely to have a record than white women.
People with arrest and conviction records are continuing to organize and demand that employers and policymakers remove unfair barriers to work. In recent years, those demands have expanded to include fair chance licensing reforms that reduce restrictions on working in occupations requiring a government license or certification.46 Fair chance licensing reforms are necessary to open up growing occupations with good pay to workers with records. Such legislative and regulatory changes are also crucial to achieving racial equity following decades of disproportionate criminalization of communities of color, which has served to compound other negative effects of structural racism across society.
While states’ approaches to fair chance licensing reform vary, key features and priorities for reform, as highlighted in a recent report from NELP,47 include those aimed at narrowly tailoring restrictions and increasing procedural fairness:
- Eliminate blanket bans that automatically disqualify workers with certain records.
- Require licensing boards to consider candidates case by case using specific, established criteria, including whether the record is directly related to the duties of the profession, the length of time that has passed since the conviction, and evidence of rehabilitation and mitigating circumstances.
- Remove overly broad and subjective criteria such as “good moral character” and disqualification for offenses of “moral turpitude”—vague legal standards that can be confusing to applicants for licensure while providing licensing boards cover to automatically reject candidates with records.
- “Ban the box” by removing questions asking about criminal history from licensing applications to ensure fairer consideration, avoid discouraging applicants with records, and avoid an unnecessary “candor trap” or “truth test” for applicants.
- Limit the types of record information requested in background checks to recent, occupation-related information to prevent the inclusion of older, less relevant information that can color a reviewer’s opinion when making licensing decisions.
- Provide clear, easily accessible guidance to licensure applicants regarding potential grounds for disqualification and the nonexistence of blanket bans.
- Ensure applicants receive clear notice of disqualification, including a written explanation, and a reasonable opportunity to respond with additional information before their application is rejected.
- Require ongoing data collection by licensing boards to aid in tracking progress as well as identifying additional areas in need of reform.
- Increase uniformity in licensing standards by enacting broadly applicable state laws that supersede the patchwork of highly variable state licensing laws applicable to specific professions.
For more information about fair chance licensing or to find advocacy resources such as a model bill, visit NELP’s fair chance licensing campaign website.48
The hurdles that unfair licensing policies present for workers with records are compounded by lack of transparency, unchecked discretion by licensing agencies, and tremendous variation across states and occupations when it comes to which types of records are considered and how. Use of vague criteria such as “good moral character” requirements and exclusions for offenses of “moral turpitude” can lead to additional confusion for workers as to whether they might qualify for a license—and, without limits or safeguards, those subjective terms may mask blanket licensure denials and increase the likelihood of implicit racial bias affecting decisions.49
In every state, Black people are incarcerated at more than double the rate of white people; on average, Black people are incarcerated at more than five times the rate of white people, and, in several states, in excess of 10 times the rate.50 By putting stable, well-paying jobs out of reach of many people with records, unfairly broad licensing policies further contribute to disproportionate rates of poverty among communities of color as well as racial inequality across the nation. On average, states have 56 occupational licensing laws and 43 business licensing laws that include mandatory restrictions for people with felony convictions.51 Meanwhile, the wage advantage enjoyed by workers with a license rises with age, from $1.60 more per hour compared with workers without a license at age 25 to $3.50 more per hour by age 64.52 People with records deserve fair access to licensed occupations so that they have the opportunity to support their communities through more stable, better-paying, and safer work.
Fair chance licensing in Rhode Island
Following a three-year coalition-based campaign, Rhode Island responded to demands for fairer access to work from people with records by enacting S. 2894, a robust fair chance licensing reform law, in July 2020. Direct Action for Rights and Equality (DARE),53 a Rhode Island-based grassroots organization, spearheaded the campaign with support from the Center for Health and Justice Transformation (formerly the Center for Prisoner Health and Human Rights), NELP, community-based advocacy organizations, and a multiracial coalition of individuals directly affected by criminal records.
DARE began the campaign by engaging formerly incarcerated community members and others directly affected by criminal records; these individuals were integral to every part of the campaign, from policy design through implementation. Core to DARE’s strategy was the active participation and leadership of Behind the Walls—a DARE committee consisting of dozens of currently and formerly incarcerated people and their loved ones. Behind the Walls members shaped policy recommendations and strategy decisions, attended and facilitated coalition meetings, met with policymakers, and organized outreach to other directly impacted people, including through in-person conversations at biweekly expungement clinics organized by DARE in 2019 and 2020. Importantly, in addition to achieving policy reforms, the campaign also built community power by developing key skills such as public speaking, meeting facilitation, and strategic planning among DARE members.
DARE began its policy development efforts with research into existing Rhode Island occupational licensing laws and the barriers facing workers with records. Following its assessment of the legal landscape, and after receiving input from a broad range of key stakeholders, DARE drafted a fair chance licensing reform proposal and identified legislative sponsors in the House and Senate who introduced the bill in June 2018. DARE simultaneously developed public education materials, built out a broad coalition of other local organizations and directly impacted people, and sought buy-in among state agency and licensing officials.
DARE formally launched its fair chance licensing campaign with a public event in April 2019. Later that month, DARE members—including many directly impacted people—were invited to testify in support of the measure at its first hearing in April 2019 before the House Judiciary Committee.54 The hearing featured an overwhelming showing of support from stakeholders across the political spectrum, including from conservative supporters such as the group Right on Crime.
DARE leveraged relationships with coalitions and other partner organizations to expand the reach of its educational and outreach efforts, engaging Providence College student groups, faith-based groups and institutions, the Rhode Island Advisory Committee to the U.S. Commission on Civil Rights, and members of the Formerly Incarcerated Union. A media campaign further raised awareness about the need for fair chance licensing reforms in the state. DARE also conducted outreach to key government stakeholders— including the governor’s working group for criminal justice, which endorsed the legislation; the Newport City Council, which adopted a resolution in support of the bill; as well as representatives from the offices of the governor and attorney general, the state police, and the Rhode Island Police Chiefs’ Association, all of whom ultimately supported the legislation. DARE met at least once with every state agency that expressed concern about the bill, seizing the opportunity to educate and build support among key state licensing officials. In one key example, DARE’s outreach and engagement brought in the Rhode Island Department of Health as a champion of fair chance licensing in support of health equity.
By the campaign’s end, DARE’s fair chance licensing coalition had grown to include approximately 45 social and racial justice organizations—including groups such as JustLeadershipUSA, Center for Health and Justice Transformation, Center for Justice, Formerly Incarcerated Union of Rhode Island, Reentry Campus Program, OpenDoors, Substance Use Policy Education and Recovery PAC, Black & Pink PVD, Showing Up for Racial Justice, Rhode Island State Council of Churches, Rhode Island Coalition for the Homeless, and ACLU of Rhode Island.
Despite the COVID-19 shutdown, which halted most legislative work in the state in 2020, Rhode Island’s fair chance licensing bill was selected by state House leadership for consideration in the summer of 2020 after the murder of George Floyd and the national uprising that followed. DARE submitted statements from numerous directly impacted community members, and, at the request of policymakers, testified over Zoom during a July 2020 hearing. The following week, the bill passed both chambers of the Legislature with only one vote against. Then-Gov. Gina Raimondo (D) signed the bill into law in late July, and the new law took effect on January 1, 2021.55
Rhode Island’s new fair chance licensing law limits rejections to convictions that “substantially relate” to the occupation, listing specific factors for consideration; prohibits denial of a license if rehabilitation has been demonstrated through specific factors; limits the types of records that may be considered for occupational licensing; and establishes procedural protections, including providing applicants the right to a written explanation of an intended denial and the opportunity to respond before a final decision has been issued.
Following passage of the law, DARE and the Rhode Island fair chance licensing coalition shifted their efforts toward implementation of the new law, including by educating directly impacted communities and employers. DARE plans to track licensure applicants with records and has established partnerships with local attorneys to provide legal assistance for applicants, in conjunction with outreach efforts. It is also continuing to advocate with the governor’s office and key state agencies regarding needed policy changes to comply with the new law.
As bipartisan awareness of unjust licensing barriers has grown, numerous states have passed reforms to ensure that qualified job seekers with records are not unfairly shut out of good jobs that can offer economic security and mobility. 2017 saw the enactment of fair chance licensing reforms in Arizona, Illinois, Kentucky, and Louisiana. In 2018, these reforms became law in at least seven states—California, Delaware, Indiana, Kansas, Maryland, Massachusetts, and Tennessee. In 2019, state legislatures adopted fair chance licensing laws in at least nine states—Arkansas, Iowa, Maryland, Mississippi, Oklahoma, Nevada, North Carolina, Texas, and Utah—although New Mexico’s bill was unexpectedly vetoed.56 In 2020, although momentum was disrupted by the COVID-19 pandemic, fair chance licensing reforms were enacted in at least six states—Idaho, Ohio, Pennsylvania, Rhode Island, West Virginia, and Michigan—and the District of Columbia. So far in 2021, a New Mexico bill including broad fair chance licensing reforms has already been signed into law. The diverse array of red, blue, and purple states embracing these policies underscores the widespread and bipartisan nature of the growing movement in favor of reform.
Federal occupational licensing reform legislation has not yet been adopted, but there is one noteworthy example of federal policy change offering evidence of the success of these types of reforms. After September 11, 2001, the U.S. Transportation Security Administration (TSA) screened 1.5 million port workers for transportation worker licenses. While the agency’s policies were far from perfect, instead of instituting automatic, mandatory bans based on criminal records, TSA incorporated some of the above best practices for fair chance licensing, specifically allowing for case-by-case review and submission of mitigating evidence through waiver applications and appeals. NELP documented that TSA granted more than 95 percent of appeals challenging the accuracy of records and 90 percent of waiver petitions. By NELP’s count, at least 75,000 workers—disproportionately workers of color—avoided unjust disqualification. Case-by-case review was especially beneficial to Black and Latino applicants, who were more likely to be initially denied but able to earn licenses through an appeal or waiver application.57
Fair chance licensing and a first step toward clean slate legislation in North Carolina
In July 2019, following a two-year, coalition-based public education and advocacy campaign led by the North Carolina Justice Center (NCJC),58 in collaboration with the North Carolina Second Chance Alliance59 and NC Conservatives for Criminal Justice Reform, the state enacted a strong, bipartisan fair chance licensing law.60 The new law, S.L. 2019-91, took effect on October 1, 2019.
After identifying the North Carolina laws and licensing restrictions that most severely restricted employment for people with records and policy reform options for a fair chance licensing policy, NCJC conducted a series of six listening sessions across the state to engage with and solicit feedback and input from directly impacted communities, as well as a series of discussions with state licensing boards to generate feedback and buy-in on a menu of recommended reforms. They developed public education materials and conducted significant statewide outreach and education to system-impacted communities, state policymakers and agencies, and the media.
NCJC and the Second Chance Alliance worked to raise awareness about the need for fair chance licensing reform through a variety of activities and efforts. They hosted a day-long convening with directly impacted individuals and organizations across the state to develop and align around a legislative agenda that ultimately included occupational licensing reform. They centered fair chance licensing—along with clean slate and other second chance policy reforms—in a 2019 statewide reentry summit that drew more than 1,000 directly impacted individuals from across the state to the North Carolina state capitol. NCJC and the Second Chance Alliance also played a leading role in shaping the recommendations of a State Reentry Council Collaborative convened by Gov. Roy Cooper (D), which included licensing reforms. A media campaign and extensive social media engagement, including multiple videos showcasing support from directly impacted people and other key stakeholders, also helped to put fair chance licensing on the map in North Carolina.
During the summer of 2019, House and Senate leaders, the NCJC, and a diverse group of stakeholders and advocacy groups from across the political spectrum—including the conservative in-state think tank the John Locke Foundation—worked to align around the legislation ultimately introduced in July as H.B. 770,61 which reflected the major reforms advocated by the campaign. Congregations, advocacy groups, Second Chance Alliance chapters and members, community-based organizations, direct service providers, educational institutions, workforce development boards, and the State Reentry Council Collaborative all engaged to support the legislation. Following unanimous passage of the bill in both chambers of the state legislature, S.L. 2019-91 became law in July 2019.
The comprehensive new law limits when an occupational licensing board may refuse a license based on the applicant’s record and imposes certain helpful procedural requirements. More specifically, the law prohibits rejection based on arrest records, blanket bans based on any felony or misdemeanor conviction, and the use of vague standards such as “moral turpitude” and “good character.” Instead, licensing boards must consider specific factors and base decisions on whether an applicant’s record is “directly related” to the duties and responsibilities of the occupation or “violent or sexual in nature.”62
Following the law’s passage, NCJC and the Second Chance Alliance collaborated with Forward Justice and NC Conservatives for Criminal Justice Reform on getting out the word about the new fair chance licensing law and its benefits, educating both directly impacted communities and employers and engaging the broad coalition that supported the bill’s passage to ensure broad dissemination of educational materials. NCJC and Second Chance Alliance allies plan to monitor licensing boards’ compliance with the law and continue to advocate with the governor’s office and key state agencies regarding needed policy changes to comply with the new law.
In parallel, NCJC has partnered with the Second Chance Alliance and other licensing reform partners to expand access to record-clearing. Following a public education and outreach campaign that centered the leadership of directly impacted North Carolinians, the Second Chance Act, or S.B. 562,63 unanimously passed the North Carolina Legislature in June 2020, significantly expanding eligibility for record-clearing and opening the door to automated record clearance, starting with records that did not lead to a conviction. Building on the new law, NCJC, the Second Chance Alliance, Forward Justice, NC Conservatives for Criminal Justice Reform, and a broad bipartisan in-state coalition are now advancing clean slate legislation to further expand expunction eligibility, with the ultimate goal of automated record clearance.
As described above, significant state activity during the past several years demonstrates that fair chance licensing reforms have the potential to expand to additional states and be incorporated into federal law if campaigns have strong leadership and receive adequate support. Many of the more than 20 state laws adopted in recent years incorporated some of the substantive and procedural recommendations described above. But even in states that have taken steps toward licensing reform, barriers persist, and further changes remain necessary to expand improvements to all occupations, close loopholes, or adopt more comprehensive fair chance licensing schemes.
Furthermore, fair chance licensing reform is just one important component of broader efforts to remove barriers to good careers, expand job access to workers of color, and ultimately address occupational segregation. With disproportionately high numbers of Black and Latino people plagued by the stigma of an arrest or conviction record, the barriers to licensed professions facing people with records represent one aspect of the myriad discriminatory policies that exacerbate occupational segregation.
The phenomenon of occupational segregation refers to the fact that Black and Latino workers, particularly women, are more likely to hold low-paying, unsafe jobs that lack benefits.64 The current reality that a disproportionate share of those working in underpaid, insecure, and unsafe jobs are people of color is neither inevitable nor accidental. The problem cannot be solved by “diversifying” good jobs, because the more the ranks of an occupation are filled by Black workers, the lower the wages and the job quality.65 Meanwhile, the more female-dominated the occupation, the more undervalued the work. In order to integrate the labor market, changes must be made on multiple fronts—improving job quality, raising wages for underpaid work, and removing barriers to accessing good jobs. Fair chance licensing reforms attempt to address the last of these goals by removing the legal barriers that keep large numbers of workers of color out of licensed professions, which can offer more job security and economic stability.
How Congress can learn from the states
The rise in bipartisan momentum for both clean slate and fair chance licensing reforms in red, blue, and purple states across the United States has begun to trickle up to the federal level, sparking momentum in Congress to advance federal reforms informed by state successes.
Currently, there is no federal record-clearing remedy available—even for arrests on federal charges that never led to a conviction. Inspired by the groundswell of support for expanding and automating record-clearing in the states, bipartisan legislation to create the first federal record-clearing remedy and establish a platform for automatic federal sealing has now been introduced in both the House and Senate, with federal lawmakers publicly stating their intention to build on the success of clean slate in the states.
Rep. Lisa Blunt Rochester (D-DE) and Rep. Guy Reschenthaler (R-PA)—one of the sponsors of the Pennsylvania clean slate law—introduced the Clean Slate Act in the U.S. House of Representatives in 2019 and 2020.66 Bipartisan companion legislation was introduced in the U.S. Senate in December 2020 by Sen. Bob Casey (D-PA) and Sen. Joni Ernst (R-IA), and the bicameral Clean Slate Act was introduced in April 2021, commemorating Second Chance Month.67 The bill would create a process to enable people with federal arrests and a broad set of conviction types to petition to have their records sealed, while also establishing a system for automatic sealing of qualifying federal records, starting with nonconvictions, nonviolent marijuana crimes, and federal drug possession records.
In addition to bringing record-clearing to the federal level, a critical step that federal policymakers can take to support the state efforts described throughout this report is to provide federal funds to help states shoulder the upfront costs of clean slate implementation. While clean slate laws are expected to save states money in the long term by streamlining a costly and burdensome state workload, the initial costs of implementing a new automated process may present a barrier to take-up for states facing budget gaps in the wake of the COVID-19 pandemic. For example, Gov. Inslee vetoed legislation to establish a Washington clean slate pilot in March 2020, despite his prior endorsement of the bill, citing cost concerns spurred by the onset of the pandemic. President Biden pledged to create a Smart Data Infrastructure for Second Chances federal grant program for this purpose as part of his campaign platform during the 2020 election.68
As fair chance licensing reforms have gained visibility and support across the United States, momentum for reform has spread to the federal level as well. For example, the Next Step Act, introduced by Sen. Cory Booker (D-NJ) in 2019,69 includes a comprehensive federal scheme of fair chance licensing protections that apply to federal, state, and local licensing agencies that rely on background checks using records maintained by the FBI. The law would require licensing agencies to adopt many of the substantive and procedural fair chance licensing reforms described above, thereby encouraging widespread reform and more uniform policies across the nation through the incentive of continued access to FBI records. The law would simultaneously require the FBI to better ensure the accuracy of the records it releases in response to requests from licensing agencies, including by obtaining missing dispositions and correcting inaccurate records.
With federal policymakers urgently focused on creating large numbers of jobs and stabilizing families’ incomes following the pandemic, removing barriers to employment for workers facing the stigma of a record will be essential to ensuring a full and equitable economic recovery that does not leave tens of millions of people with records behind and further entrench the United States’ stark levels of racial inequality. While there may be little that Democrats and Republicans in Congress seem to agree on right now, these policies remain among the few that have strong bipartisan support, offering an opportunity for bipartisan cooperation to remove barriers to work. It is also worth noting the need for nondiscrimination hiring protections as an important complementary tool to ensure that workers with records can access newly created jobs, such as through the public infrastructure investments promised in the American Jobs Plan.
Lessons learned and observations for policymakers and advocates
The whirlwind of recent momentum in the states for clean slate and fair chance licensing reforms between 2017 and 2021 has provided a wealth of learnings for policymakers, advocates, and stakeholders. The following is a noncomprehensive list of lessons and observations for policymakers and advocates seeking to take up these policies at the state level in the years ahead.
Bipartisan support has made success possible in states of all political stripes
The states that have enacted clean slate and fair chance licensing reforms have legislatures and executive branches controlled by different parties and are located across the country. Each of these reforms garnered support not only from a broad coalition but also from both sides of the aisle within the legislatures. The diversity of states that have enacted clean slate and fair chance licensing reforms makes clear that these policies can be taken up in red, blue, and purple states alike.
Broad-based stakeholder support can cement long-lasting change, while creating appetite for further reforms
Widely backed, bipartisan legislation that enjoys the support of a diverse coalition of stakeholders can create the conditions for a durable win that: (1) gets fully implemented, (2) faces low risk of rollback, and (3) motivates lawmakers to further build on change that everyone sees as a win. For example, the broad, strange-bedfellows support for Pennsylvania’s 2018 Clean Slate Act solidified the law as a popular platform among Republicans and Democrats in the state Legislature, as well as among key stakeholders including the state’s District Attorney’s Association—not only insulating the law from the chance of rollback, but affirmatively paving the way for speedy expansion, first through the removal of fines and fees as a blocker to eligibility in 2020 and subsequently through an anticipated bipartisan legislative push in 2021 to extend the law to include felonies.
Leadership of directly impacted communities is critical to this work
As awareness has grown about the need to overhaul the United States’ broken criminal legal system, including removing unjust barriers to economic security caused by the stigma of widespread criminal records, awareness has also grown across the criminal legal field that those closest to the problem bring valuable insight for crafting solutions. Indeed, the idea for clean slate automatic record clearance flowed directly from the lived experiences of people who were unable to access petition-based record clearance systems, who were flooding legal aid programs in search of legal representation so that they could access expungement. Centering the leadership and lived experiences of people affected by criminal records is essential both to shape well-designed reforms that will actually help the people they are intended to help and build power and legislative expertise among the communities most impacted by broken policies, who are now rightly leading the way in shaping the reform agenda. DARE’s fair chance licensing campaign in Rhode Island—through which the Behind the Walls committee of directly impacted leaders played a pivotal role in shaping the state’s licensing reform proposals—and North Carolina’s Second Chance Alliance, which has organized thousands of directly impacted residents across the state and channeled their experiences into a bipartisan reform agenda, offer two recent models of such leadership in these types of campaigns.
Removing barriers to opportunity for people with records is essential to racial justice and to a full and equitable recovery
The historic collision of the pandemic, economic crisis, and uprisings against structural racism and police brutality has underscored the urgency of enacting policies to remove barriers to opportunity for people impacted by the criminal legal system and to promote a full and equitable economic recovery. With the combined pressures of the health, economic, and racial justice crises, advocates saw the unanimous passage of Pennsylvania’s fair chance licensing bill, North Carolina’s Second Chance Act, major expungement legislation in Georgia, and final Senate committee passage of Michigan’s clean slate package all within the span of a single week in June 2020.
Implementation planning for clean slate policies should be done upfront
Front-loading implementation planning is advisable to ensure that the bill that moves through the legislature is technically implementable and designed to take into account the state’s current criminal records data infrastructure. A best practice is to engage key agency stakeholders early on in the process of developing a clean slate bill to inform the process for introducing automated record clearance using existing data and technology in each state. Early engagement of key stakeholders at implementing agencies is critical to building important relationships and ensuring that they see themselves as partners in shaping and implementing an automated system, rather than as an adverse party forced by the legislature to adopt a new system, whose opposition can risk derailing a bill. Early implementation planning also ensures that questions about how the bill will work can be answered in hearings and helps to facilitate more accurate fiscal notes that appropriately consider a state’s current system and technology.
Fines and fees are among the most significant barriers to record-clearing in the states
Widespread inability to pay Ferguson-style fines and fees70 serves as a major obstacle to record clearance under existing petition-based systems. If not addressed proactively in the design of clean slate policies, huge numbers of otherwise eligible individuals will be shut out from getting their records cleared, with a disproportionate impact on communities of color. For example, criminal debts threatened to disqualify half of otherwise eligible misdemeanor convictions in Pennsylvania and 75 percent of otherwise eligible misdemeanor convictions in Philadelphia—with relatively small sums of $275 to $551, on average, standing in the way of record clearance for people who are too poor to pay. Michigan’s clean slate law offers a model, as it ensures that unpaid fines and fees cannot prevent an otherwise eligible individual from receiving an automatic set-aside under the law. Under this law, individuals will still owe fines and fees but will not be blocked from record clearance; additionally, the state government is empowered to rescind expungement if an individual does not make a good faith effort to pay restitution to victims. Similarly, Pennsylvania’s enactment of Act 83 removed fines and fees—but not restitution to victims—as a barrier to eligibility for both clean slate and record-sealing by petition. While states may worry that they are forgoing a source of revenue, the available research suggests that state efforts to levy fines and fees are much like trying to squeeze blood from a stone.71 In fact, enabling people to clear their records may better position individuals to be able to pay criminal justice debts by improving their employment and earnings prospects.
A growing body of research underscores the cost of doing nothing and shows how status quo policies are leaving people with records behind
As shown throughout this report, several recent studies documenting the second chance gap reveal that an estimated 90 percent of people eligible for record-clearing are being left behind by petition-based systems, due to cost, complexity, and other barriers. Research on occupational licensing laws paints a similarly dismal picture, with workers with records largely shut out of the fastest-growing industries due to outdated and unjust licensing restrictions. On the flip side, research on second chance policies demonstrates the benefits of these reforms to hard-hit families and communities, as well as the public safety case for fair chance licensing and expanding access to record-clearing given that the risk of recidivism declines sharply when an individual secures employment. Research in this field has catalyzed much of the momentum for reform in the states, while helping policymakers understand the broader statewide economic and societal benefits of removing barriers to opportunity for people with records—including bringing more people into the workforce and interrupting the cycle of recidivism and reincarceration that can result when people are blocked from successful reentry into their communities.
Clean slate and fair chance licensing reforms are complementary and can be mutually reinforced as part of a multipronged reform push
Several states have taken steps toward both clean slate and fair chance licensing reforms, in many cases following multi-issue second chance advocacy campaigns led by the same state leaders and coalitions. For example, after enacting its clean slate law in June 2018, Pennsylvania unanimously enacted a strong fair chance licensing law in October 2020; both campaigns were spearheaded by CLS, with support from CAP and JAN, and each was bolstered by shared coalition infrastructure and championed by many of the same leaders in the Legislature. Similarly, North Carolina enacted a strong fair chance licensing law in 2019 and followed up with the unanimous passage of the state’s Second Chance Act in 2020, which expanded eligibility for record-clearing and opened the door to clean slate beginning with automated clearance of nonconviction records. Both campaigns were led by the NCJC, in partnership with the Second Chance Alliance and NC Conservatives for Criminal Justice Reform, and both policies were priorities featured at statewide reentry events and across public education and outreach efforts.
While much progress on fair chance licensing reform has been made across the country in recent years, most states have opportunities for improvement
Many states, including those in the Deep South, have passed reforms in recent years that begin to address the barriers to occupational licensing faced by people with records. This progress demonstrates interest in the concept of fair chance licensing reforms among advocates and policymakers in those states. However, many states have yet to adopt any fair chance licensing tenets into their occupational licensing schemes. Others have adopted only piecemeal reforms and still have ample opportunities to expand existing reforms to additional occupations, close loopholes, or adopt more comprehensive fair chance licensing reforms.
Bipartisan momentum for policies that remove barriers to opportunity for people with criminal records has spread across the United States in recent years. As more states take up clean slate and fair chance licensing reforms, tens of millions of people affected by the stigma of a record will newly be able to access well-paying jobs, safe and stable housing, educational opportunities, and other pathways to economic security and upward mobility. Meanwhile, federal policymakers have the opportunity to learn from the states by bringing automatic record-clearing and fair chance licensing to the federal level. As policymakers at all levels of government work to “build back better”—and to address the nation’s legacy of racial injustice and persistent racial inequality—removing barriers to employment for workers with records is more urgently needed than ever to ensure a full and equitable recovery that does not leave system-impacted individuals and families behind.
About the authors
Rebecca Vallas is a senior fellow at the Center for American Progress. In partnership with Community Legal Services, she co-developed the clean slate policy model for automatic record clearance. She is also one of the co-founders of the national Clean Slate Initiative.
Sharon Dietrich is the litigation director at Community Legal Services of Philadelphia, a long-time employment lawyer, and co-developer of the clean slate policy model for automatic record clearance.
Beth Avery is a senior staff attorney at the National Employment Law Project, where her work focuses on expanding employment opportunities for people with arrest and conviction records.
The following list provides suggested resources for further information on clean slate and fair chance licensing reform, as well as other second chance policies.
Fair chance licensing