DC Council Must Restore Rights and Opportunities for People with Criminal Legal System Involvement

Testimony of Michael Johnson at the FY2024 Performance Oversight Hearing for the Deputy Mayor for Public Safety and Justice

Chairperson Pinto and members of the committee, thank you for the opportunity to testify today. My name is Michael Johnson Jr., and I am a Policy Analyst at the DC Fiscal Policy Institute (DCFPI). DCFPI is a nonprofit organization that shapes racially-just tax, budget, and policy decisions by centering Black and brown communities in our research and analysis, community partnerships, and advocacy efforts to advance an antiracist, equitable future.

My testimony focuses on the need for the District to 1) provide timely record relief for people with criminal records and 2) improve public reporting of record relief progress and the barriers connected to having a criminal record. Recently, the Council and this committee have taken steps to reduce barriers for returning citizens through bills such as the Second Chance Amendment Act of 2022 (Second Chance Act) and the Removing Barriers to Occupational Licensing for Returning Citizens Amendment Act of 2020. DCFPI urges the committee to continue restoring the rights and opportunities for people with criminal legal system involvement.

The committee should work with the Deputy Mayor for Public Safety and Justice (DMPSJ) to:

  • Amend the Second Chance Act to allow waiting periods for record relief to begin on the date of a person’s conviction rather than after sentence completion, which can go far beyond the end of incarceration;
  • Ensure more urgent processing of automatic expungements for decriminalized offenses, sticking as closely to the original timeline as possible;
  • Require DMPSJ to conduct continuous reporting of record relief progress authorized by the Second Chance Act; and,
  • Ensure DMPSJ provides public reporting of structural barriers faced by people with criminal legal system involvement.

Expand and Ensure Timely Record Relief for Those with Criminal Records

Nearly one in seven DC residents has a publicly available criminal record, and more than 80 percent of people arrested in DC are Black.[1],[2] People with records experience harsh collateral consequences such as difficulties gaining employment and obtaining housing, and lasting social and economic harm to their families and communities.[3] For example, nearly 75 percent of formerly incarcerated people in the US are unemployed one year post-release.[4] Additionally, 87 percent of employers, 80 percent of landlords, and 66 percent of colleges and universities continue to use background checks to screen out applicants with criminal records.[5] Providing DC residents with timely and expansive record relief is critical to advancing public safety and economic and racial justice.

Recently, the Council has made positive strides to provide record relief for DC residents, including the adoption of the Second Chance Act.[6] We support the Council’s intent to shorten the timeline for record relief via the Secure DC Amendment Act, which would revise the timeline for processing relief under the Second Chance Act from October 1, 2029 to October 1, 2027.[7] However, policymakers and agency leaders must do more to ensure timely and robust record relief for DC residents.

Shorten Record Relief Waiting Periods to Begin on the Date of Conviction

First, the committee and Council should amend the Second Chance Act to ensure the waiting period for record relief eligibility begins on the date of a person’s conviction.[8] Currently, the law requires record relief waiting periods to begin after sentence completion, which can go far beyond the end of incarceration.[9] For people who are incarcerated and also sentenced to parole, probation, or another type of community supervision, sentence completion is often well after their release. DC residents on probation are typically under supervision for one to three years, while residents on parole are typically under supervision for five to 22 years.[10] This means that employers, landlords, and licensing boards, among others, can continue denying opportunities to people with records, limiting their economic security and ability to successfully reintegrate into society for years, potentially decades.  Several states, such as Alabama and South Carolina, begin record relief waiting periods on the date of someone’s conviction, resulting in people having their rights restored more quickly than DC residents with comparable sentences.[11]

Moreover, allowing the waiting period to begin on the date of conviction would streamline record relief processes through DC’s local courts, bringing relief to DC residents more quickly. In DC, the local courts impose sentencing and process record clearing, while the Court Services and Offender Supervision Agency (CSOSA) is a federal agency that oversees all DC residents under community supervision. When someone completes their sentence, only CSOSA has immediate access to this information. Any data sharing delays between CSOSA and the DC courts may delay record relief processing. Alternatively, the DC courts have immediate access to conviction records, which means they could begin the process as soon as someone receives a conviction.

Ensure More Urgent Processing of Automatic Expungements for Decriminalized Offenses

The committee also should ensure that the courts automatically expunge decriminalized offense records with much greater urgency. The fiscal year (FY) 2024 Budget Support Act approved a timeline for the courts to complete record relief under the Second Chance Act by October 2029. The Secure DC Amendment Act, currently under consideration by the Council, revises this timeline, requiring the courts to process the automatic expungement of decriminalized offense records by October 2027.[12]

Although the revised 2027 deadline is a step in the right direction, this deadline for the courts to process automatic record expungements establishes a de facto waiting period of up to three years for people with non-conviction and decriminalized offense records—which is longer than many other states’ waiting periods for people with misdemeanor conviction records.[13] While the courts will need time to create systems for processing record relief automatically given that these are new processes, the committee should ensure these records are expunged more urgently and as close as possible to the Second Chance Act’s original timeline of January 2025.[14]

Require Reporting of Record Relief Progress Authorized by the Second Chance Act

Lastly, the committee should craft Budget Support Act language, or a standalone bill, requiring DMPSJ to publish quarterly or bi-annual reports on record relief progress authorized by the Second Chance Act. These reports could include estimates of 1) the total number of DC residents who are eligible for relief and 2) the total number of those residents who are granted relief. Estimates should include summarized and depersonalized breakdowns of those eligible for relief by motion or automatic relief and provide demographic characteristics for each eligible group.

Requiring DMPSJ to publish record relief progress reports would improve public accountability and transparency and foster effective implementation of the law. Holding DMPSJ publicly accountable to implementing record relief may help DC avoid some of the record relief processing delays experienced in other states. For example, courts in Missouri, California, New Jersey, and other states that have recently enacted comprehensive record relief have experienced significant delays in processing record clearing.[15],[16],[17],[18]

Ensure Public Reporting of Collateral Consequences for People with Criminal Legal System Involvement

As noted, returning citizens face continued barriers to employment and economic opportunity upon their re-entry. The Removing Barriers to Occupational Licensing for Returning Citizens Amendment Act of 2020 required DMPSJ to complete a study of these barriers and to provide recommendations for barrier mitigation.[19] More than two years after the January 2022 deadline, DMPSJ has not completed the study.[20]

The committee should work with DMPSJ to understand why the study has been delayed, find solutions for completing it in a timely manner, and then direct DMPSJ to make the results publicly available. Greater transparency around the full scope of structural barriers faced by people with criminal legal system involvement can help researchers, advocates, and policymakers recommend and implement tailored supports for returning citizens and also inform future investments by the committee. Moreover, the study could inform returning citizens and their families of potential barriers they may experience upon release while also providing resources about their rights and available services.

[1] Marina Duane, et. al, “Criminal Background Checks and Access to Jobs: A Case Study of Washington, DC,” Urban Institute, July 2017.

[2]MPD Adult Arrests,” DC Justice Statistical Analysis Tool, 2023.

[3] Collateral consequences are legal and regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment, business and occupational licensing, housing, voting, education, and other opportunities.

[4]  “A Proclamation on Second Chance Month,” The White House Briefing Room, March 2022.

[5] Rebecca Vallas and Sharon Dietrich, “One Strike and You’re Out: How We Can Eliminate Barriers to Economic

Security and Mobility for People with Criminal Records,” Center for American Progress, December 2014.

[6]Second Chance Amendment Act of 2022,” A24-0778, January 27, 2023.

[7]Secure DC Omnibus Amendment Act of 2024,” B25-0345, Lewis George Amendment #2, First vote on February 6, 2024.

[8] Waiting periods refer to a period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Typically, during a waiting period, the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, depending on state law.

[9]Second Chance Amendment Act of 2022,” A24-0778.

[10]CSOSA Congressional Budget Justification,” Fiscal Year 2024.

[11] Margaret Love and David Schlussel, “Waiting for Relief: A National Survey of Waiting Periods for Record Clearing,” Collateral Consequences Resource Center, February 2022.

[12]Secure DC Omnibus Amendment Act of 2024,” B25-0345.

[13] Love and Schlussel, February 2022.

[14]Second Chance Amendment Act of 2022”.

[15] Mark Slavit, “NORML threatens court order against Missouri counties for marijuana law violations,” 13 KRGC, June 2023.

[16] Alexander Lekhtman, “California Officials Have Failed To Seal Thousands Of Marijuana Conviction Records,” Marijuana Moment, October 2021.

[17] Dana Difilippo, “New Jersey state police’s expungement backlog of 46K cases spurs lawsuit,” New Jersey Monitor, October 2023.

[18] Dan Adams, “‘An utter failure’: Law meant to clear old convictions, including for marijuana possession, helps few,” The Boston Globe, November 2021.

[19]Removing Barriers to Occupational Licensing for Returning Citizens Amendment Act of 2020,” A23-0561, January 15, 2021.

[20] DCFPI email correspondence with CJPS staff in January 2024.

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