2019 Legislative Session Summary
A small amount of headway was made this session on broadening expungement opportunities for people with criminal records. We are looking forward to participating in the expungement study proposed by Representative James in HCR 106, which will address the feasibility of automatic expungement, similar to what we have seen with Pennsylvania’s Clean Slate law. We have a lot of education to do when it comes to the benefits of expungement, so if you or someone you know has a success story related to expungement that you want to share, let us know, or - better yet, contact your legislator!
HB 9, by Representative Marino, clarifies that when an expungement application includes two or more offenses arising out of the same arrest, the applicant should only pay ONE expungement fee.
Background check fees are now capped at $10, instead of $15, thanks to HB 139 by Representative Dwight.
Our partners at Louisianans for Prison Alternatives and VOTE fought hard for HB 518 which, while not in its powerful original form, now permits people with a conviction that is not a “crime of violence” to obtain a set aside and dismissal of their conviction, which will no longer count toward any future “habitual offender” charges. Expungement of a record is NOT required under this law.
The final version of SB 98, shepherded by Representatives Jackson and James, makes those entitled to a first offender pardon immediately eligible for expungement without having to wait the requisite ten years. As with all expungements, this is not applicable to those convicted of crimes of violence or sex offenses.
We appreciate the effort by Representative Bagneris in HB 509, which would have legalized marijuana while also providing for a pathway for immediate expungement for those with related convictions. In the rush to make marijuana commercially available - often supported by the tobacco and alcohol industries - those caught up in the “war on drugs” are often forgotten. This legislation did not pass out of its first committee. We hope that if and when marijuana legalization or decriminalization comes to Louisiana, those with criminal records will not be forgotten.
Senator Bishop introduced SB 97, which would have automated misdemeanor expungement, but this bill did not pass committee. Senator Price’s SB 98 originally would have reduced the waiting period for felony expungement from ten to five years, but when this bill did not look like it was going to pass out of committee, was converted to the first offender expungement referenced above.
We know that background checks are difficult to read and can be broadly misinterpreted by people who are not familiar with them - check out this recent article regarding what employers face post-background check. Further, Louisiana law does not provide any guidance on how employers are to use the information they obtain from background checks, even though the Equal Employment Opportunity Commission states that denying jobs based on criminal convictions should be narrowly tailored to a link between the conviction and the field, or otherwise could qualify as discrimination.
Additionally, while several boards were able to pass laws permitting them to see into people’s criminal record histories, some simultaneously sought to be exempted from participating in a clear and transparent process for permitting individuals with criminal records to join their professions. In particular, the Louisiana Pharmacy Board can now can obtain background checks, but did not want to be included in licensing reform for those with criminal records (see HB 503 in “Collateral Consequences” section below).
HB 38, by Representative Hoffman, would’ve raised the age for the purchase of tobacco, creating criminal records for kids just being kids. Fortunately, this bill failed on the House floor.
We were able to influence amendments to HB 99 by Representative Falconer, which in its final form requires background checks for head coaches, but ensures that people with criminal records are not automatically disqualified from working at youth serving organizations.
HB 375, by Representative Turner, authorizes the Louisiana Board of Pharmacy to perform local and national criminal history records check on applicants for controlled dangerous substance licenses, and requires applicants to pay the fees. While there are confidentiality provisions, there are no provisions outlining what happens when those results come back to the Board.
Similarly, Senator Boudreaux’s SB 19 authorizes the Louisiana State Board of Medical Examiners to expand their background check authority to four more categories of health professionals, shifting the cost burden to applicants while conspicuously refraining from describing in law how the Board will utilize the results of those background checks.
Yet further, background checks are now required for certified nurse aide trainees, as a result of Senator Fannin’s SB 32. While there continues to be a lack of clarity as to how results will be handled, at the very least this legislation requires that the relevant program pays the associated fees, instead of shifting the costs to applicants.
There are 1,260 collateral consequences to conviction in Louisiana, according to the American Bar Association’s National Inventory of Collateral Consequences of Conviction. We witnessed an astounding lack of understanding about the far reaches of the criminal justice system during hearings and debates at the Louisiana legislature this session. With every single one of Louisiana’s senators and representatives up for election this fall, we hope that you will attend public forums and ask candidates, “what is your plan to ensure that prison sentences end at the prison gate?” and ask candidates to commit to reducing the collateral consequences of incarceration. We have a lot of work to do.
HB 5, by Representative Dwight, would’ve prohibited convicted sex offenders from participating in a home school program, but was never heard in Committee.
Representative Billiot sponsored a bill inspired by the Innocence Project of New Orleans, the successful HB 85, which prohibits denial or reduction of reparation to crime victims with criminal records, except for when the claim is related to the conviction. We know that those convicted of crimes are often survivors of crimes, and that your past conviction status should not prevent you from becoming whole.
Representative Carter’s HB 161 would have created an animal abuse registry, which has been assessed as ineffective by the national ASPCA. This legislation was considered but did not pass Committee.
Representative Morris brought forth HB 189, a sort of arrest-only-ban-the-box, which now prohibits local governments from initially inquiring about arrest records when hiring. Unfortunately, when other background checks are otherwise required by law (see “criminal records” section), this law will not apply.
HB 224, by Representative Duplessis, authorizes law enforcement to issue a citation and summons instead of arresting people who are driving with suspended, revoked, or canceled driver’s licenses.
HB 397, by Representative Bagneris, prohibits suspension of a driver’s license for individuals who cannot pay criminal fines, except for when the non-payment is willful or the individual does not perform court-sanctioned community service. We worked with partners to limit suspensions to those whose related conviction includes control of a vehicle as part of the offense.
Representative Coussan brought forth HB 527, which would have prohibited people convicted of sex offenses from voting under last year’s voting rights reform. We appreciate Secretary of State Kyle Ardoin coming forward with a solution to close schools on election day so that people who have served their time can participate in the voting process, and thank Representative Coussan for withdrawing his bill.
VOTE will be studying collateral consequences of convictions and reporting to the legislature, thanks to Representative Carpenter’s HCR 109. Senator Gatti also put forth a successful resolution to study the use of solitary confinement on youth, which we will be closely monitoring due to our belief that the use of solitary has long-term effects on the success and survival of formerly incarcerated people.
HB 65, by Representative James, would have authorized people with felony convictions to serve on civil and criminal juries. Not only have formerly incarcerated people earned a restoration of all rights, but full participation in community reduces recidivism and ensures fairness for defendants. While this bill did pass out of House ACJ, it failed on the floor of the House.
Representative Stefanski’s HB 112 now prohibits serving as a foster parent, or living in a home with other foster children, if you have one of a half dozen criminal convictions - including a five year bar for those with drug convictions.
With the massive win of our partners at VOTE during the 2018 session, opening up the right to vote to more people with convictions, backlash ensued regarding the definition of “under an order of imprisonment.” This session, Representative Smith’s HB 402 would’ve clarified that the five year waiting period that triggers voting rights begins immediately after confinement in prison or jail. This bill did not even make it out of its first committee.
The Fresh Start Act of 2019, Representative Edmonds’ HB 503, would’ve provided guidance to licensing boards on permitting people with criminal records to enter sustaining-wage professions in Louisiana. Right now, there is effectively a ban on people with criminal records entering these fields. Eleven boards and commissions sought exemption from this legislation, including the Louisiana Board of Pharmacy which simultaneously pursued the right to conduct background checks on applicants. While this bill made it over to the Senate and out of Committee, it died on the Senate floor.
Representative Stefanski called for the establishment of the Louisiana Civil Asset Forfeiture Commission, which we supported because we believe that people whose property is seized by the criminal justice system should not have to engage in a separate legal process in order to be made whole. While this study made it out of its first committee, it died before it could be voted on in its first house.
Representative Harris’ HB 618 (originally HB 167) went from harsh to palatable, for in its final version it limits initial denials for teacher certifications to the convictions already enumerated in statute, and further asks the State Board of Education to establish regulations for certification of teachers with any type of criminal record - right now, the law only calls for regulations for people with felony convictions.
While Louisiana passed historic criminal justice reform in 2017, we saw a major rollback, as well as a refusal to change systemic practices that lead to disinvestment. For our Justice Reinvestment section, we only have, THE BAD (with a small silver lining):
HB 46, by Representative Bouie, would’ve counted incarcerated people in their home communities - NOT where they are incarcerated - for the purposes of redistricting following the census. This is the ultimate in justice reinvestment and the most transparent and efficient way to elect leaders who can advocate for resources to go back into our most marginalized communities, but the bill failed to pass out of House Governmental Affairs.
In perhaps the most disappointing loss of the session, Representative Magee’s HB 611 (originally HB 255) further delays implementation of several critical pieces of legislation from the original Justice Reinvestment package of 2017. Implementation of provisions that would require courts to assess the financial hardship of defendants before imposing excessive fines and fees and prevent incarceration when defaulting on restitution payments are once again delayed until 2021. Additionally, language that would have clarified when a suspended driver’s license could be reinstated has been eliminated; the silver lining is that while the original legislation limited suspension of driver’s licenses due to non-payment of criminal fines for felonies, JAC was able to work with partners to limit suspensions further to cases where control of a vehicle is an element of the offense for which the fee is assessed. In order to fully address the issues that arise from a user-pay criminal justice system, Representative Magee’s HCR 87 establishes the Louisiana Commission on Justice System Funding, which we will monitor in the interim. Join us!