Published: August 12, 2021
Connecticut Clean Slate Bill Restricts Criminal Conviction History Decisions by Private Organizations
By Julia E. Judish, Pillsbury Winthrop Shaw Pittman LLP
In its 2021 legislative session, the State of Connecticut enacted a so-called “clean slate” bill, Public Act No. 21-32, that forges new ground in prohibiting private organizations in Connecticut from basing eligibility and disciplinary decisions on certain criminal convictions.
The core provision of the new law provides for automatic erasure of criminal conviction history for individuals with certain criminal convictions in Connecticut, based only on the passage of time. By operation of law, criminal conviction records will be erased:
- Seven years after the date of the convicted person’s most recent judgment of conviction for a misdemeanor, or
- 10 years after the date of the person’s most recent judgment of conviction for certain class D or E felonies or unclassified felonies with prison terms of five years or less.
Exceptions to automatic erasure apply to convictions in those categories only for family violence crimes, nonviolent sexual offenses and sexually violent offenses. Because the erasure of criminal conviction records occurs automatically based on the anniversary date of conviction, eligible ex-offenders need not show any evidence of rehabilitation. Although the clock is reset based on a more recent judgment of conviction, an offender’s criminal conviction will still be automatically erased on the designated anniversary date if the individual is facing current charges for reoffending but has not yet been convicted. Governor Edward Miner Lamont Jr., signed the bill into law on June 10, 2021, despite expressing concerns about the scope of the automatic erasure provision.
"For certification programs that are part of membership organizations and for professional societies that relate to licensed occupations, this prohibition directly intrudes on their eligibility standards, ethics and conduct codes, and disciplinary decisions."
These kinds of clean slate laws for ex-offenders have been enacted in many states with respect to consideration of criminal conviction history for licensure decisions and employment decisions. The Connecticut law goes further, providing that, as of January 1, 2023:
“…it shall be a discriminatory practice for any association, board or other organization the principal purpose of which is furthering the professional or occupational interests of its members, whose profession, trade or occupation requires a state license, to refuse to accept a person as a member of such association, board or organization solely on the basis of that person’s erased criminal history record information.”
For certification programs that are part of membership organizations and for professional societies that relate to licensed occupations, this prohibition directly intrudes on their eligibility standards, ethics and conduct codes, and disciplinary decisions. Indeed, the law likely violates the constitutional right of private associations and organizations.
The U.S. Supreme Court explained in its 1984 decision in Roberts v. United States Jaycees:
“There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate.”
In the Roberts case, the Supreme Court also held that states may have a compelling interest in barring discrimination on the basis of race or gender. In contrast to those protected characteristics, however, an adult’s commission of criminal offenses — as established by criminal convictions that have not been expunged or pardoned — is not entitled to the same legal protections and does not outweigh the constitutional rights of private organizations. Some criminal offenses relate to conduct that may be antithetical to a credentialing or membership organization’s purposes and values. For example, a professional society that credentials financial advisors may screen applicants for embezzlement or fraud convictions, and an association of health care professionals may exclude applicants with records of misusing prescription privileges to engage in opioid trafficking.
The certification community engaged with Connecticut legislators to express these concerns, including through advocacy efforts by the Professional Certification Coalition, which has published a statement of principles for ex-offender reentry bills. Although that engagement resulted in improvements to the bill before enactment, the legislature declined to alter the fundamental structure of the law. Certification organizations can take two lessons from this development:
- Clean slate bill supporters argue that those with criminal conviction records in their past have been unnecessarily denied access to career paths. Certification organizations would be prudent to examine their own policies and not treat all conviction history, even if unrelated to the focus of the organization, as automatically disqualifying.
- Certification organizations should stay abreast of legislative initiatives that affect their organizations. They should be prepared to engage in advocacy and education efforts to protect their ability to self-regulate and their right to establish and enforce eligibility standards and conduct codes that reflect their organization’s values and mission.