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Letter on the FDIC’s Proposed Rule on Employment for Individuals With Criminal Convictions

The Brennan Center submitted a comment on the FDIC’s Proposed Rule, “Incorporation of Existing Statement of Policy Regarding Requests for Participation in the Affairs of an Insured Depository Institution by Convicted Individuals”

Published: February 28, 2020

Re: Comment on the Federal Depos­it­ory Insur­ance Corpor­a­tion’s Proposed Rule, “Incor­por­a­tion of Exist­ing State­ment of Policy Regard­ing Requests for Parti­cip­a­tion in the Affairs of an Insured Depos­it­ory Insti­tu­tion by Convicted Indi­vidu­als”

The Bren­nan Center for Justice at New York Univer­sity School of Law welcomes the oppor­tun­ity to submit comments on the Federal Deposit Insur­ance Corpor­a­tion’s (“FDIC” or “the Corpor­a­tion”) proposed rule to codify agency policy related to Section 19 of the Federal Deposit Insur­ance Act (the “Regu­la­tion”). Section 19 bars employ­ment of someone convicted of a crime of dishon­esty from work­ing for an insured insti­tu­tion without the consent of the FDIC — func­tion­ally prohib­it­ing many people with minor crim­inal convic­tions from being employed by banks.[1] The Regu­la­tion imple­ments this stat­ute and provides for excep­tions.

The Bren­nan Center is a non-partisan public policy and law insti­tute that focuses on improv­ing Amer­ica’s systems of demo­cracy and justice.[2] The Bren­nan Center’s Justice Program seeks to ensure a rational, effi­cient, effect­ive, and fair crim­inal justice system. As part of that mission, we seek to reduce mass incar­cer­a­tion by redu­cing racial and economic dispar­it­ies in the crim­inal justice system while also advoc­at­ing for systemic reforms that will reduce the crim­inal justice system’s size and sever­ity. We commend the FDIC for continu­ing to eval­u­ate and refine its rules to ensure greater access to employ­ment for those with crim­inal convic­tions. However, we urge the FDIC to make several addi­tional changes that will increase employ­ment oppor­tun­it­ies for those with crim­inal back­grounds while simul­tan­eously main­tain­ing the safety of the nation’s depos­it­ory insti­tu­tions.

Currently, 2.1 million people are behind bars in Amer­ica. Our coun­try’s rate of incar­cer­a­tion, with nearly 1 out of every 100 adults in prison or jail, is nearly eight times higher than the rates in West­ern Europe and other demo­cra­cies.[3] The U.S. prison popu­la­tion is largely drawn from the most disad­vant­aged part of the nation’s popu­la­tion, consist­ing mostly of young men of color, often without a strong educa­tional back­ground. Addi­tion­ally, nearly 5 million people are on proba­tion or parole while each year, more than 10 million people cycle through county and city jails.[4] As another consequence of mass incar­cer­a­tion, more than 70 million people in the United States have a crim­inal record of some kind.[5]

Mass incar­cer­a­tion produces signi­fic­ant economic hard­ships for those who encounter our justice system. It costs taxpay­ers nearly $200 billion and carries a major depress­ive effect on the economy: by some accounts, exper­i­ence in incar­cer­a­tion can lead to a nearly 20 percent decrease in earn­ings. And those burdens are not evenly distrib­uted; instead, they perpetu­ate racial dispar­it­ies in Amer­ican soci­ety.[6]

While we applaud the FDIC for codi­fy­ing and loosen­ing rules that can negat­ively impact the economic prospects of so many with minor crim­inal records, we believe the Corpor­a­tion’s guid­ance can be expan­ded to offer oppor­tun­it­ies to even more people. Consist­ent with the FDIC’s request for comments on its treat­ment of expun­ge­ments, de minimis offenses, and “all aspects” of Section 19, we include sugges­tions for further expand­ing the de minimis excep­tions, clari­fy­ing expun­ge­ment rules to include a broader cross-section of eligible indi­vidu­als, and ensur­ing that indi­vidu­als with crim­inal justice debt are not unfairly barred from employ­ment at FDIC-insured insti­tu­tions.

  1. The De Minimis Excep­tion Can Be Safely and Reas­on­ably Expan­ded.

We applaud the FDIC’s efforts to clarify the de minimis excep­tion, which provides that the Corpor­a­tion’s “approval is auto­mat­ic­ally gran­ted and an applic­a­tion is not required” for people convicted of some types of covered offenses.[7] Among other things, the rule states that people convicted of minor shoplift­ing offenses need not seek FDIC approval before affil­i­at­ing with an insured depos­it­ory insti­tu­tion; nor, the Regu­la­tion states else­where, do people convicted of drug offenses that amount to “simple posses­sion.”[8] These are steps in the right direc­tion.

However, we coun­sel against using time spent in prison or jail to define the broader limits of the de minimis excep­tion. Currently, the excep­tion also extends to people convicted of a covered offense punish­able by a year or less in prison or a fine of $2,500, provided they were only actu­ally incar­cer­ated for “three (3) days or less.”[9] Func­tion­ally, this rule precludes nearly anyone who has spent time in jail, and almost all people who have been sentenced to a term of impris­on­ment, from taking advant­age of the de minimis excep­tion. We recom­mend expand­ing the limits of the excep­tion to recog­nize the over-use of incar­cer­a­tion in the Amer­ican crim­inal justice system.

Many Minor Offenses Carry a Prison Sentence of One Year or More, Limit­ing the Reach of the De Minimis Excep­tion.

Because most prison sentences start at one year (almost by defin­i­tion), exclud­ing people who commit offenses “punish­able by” more than a year in prison would exclude most people who ever pass through the doors of such a facil­ity.[10] The rule likely exists to ensure that people who commit offenses seri­ous enough to warrant impris­on­ment do not receive de minimis treat­ment. But our research demon­strates that nearly 40 percent of the Amer­ican prison popu­la­tion is unne­ces­sar­ily incar­cer­ated — and that 25 percent of incar­cer­ated people should never have been sent to prison in the first place.[11]

Our nation’s use of incar­cer­a­tion as a punish­ment of first rather than last resort makes incar­cer­a­tion a weak proxy for offense sever­ity. As a result, using time spent in prison to circum­scribe the de minimis excep­tion may prevent it from bene­fit­ing all people who have commit­ted minor offenses. In New York, for example, the one-year limit would render ineligible anyone convicted of a lower-grade felony,[12] such as possess­ing a stolen laptop, or selling any drug in any amount.[13] These offenses are only slightly more seri­ous than crimes that the FDIC expli­citly notes do not require an applic­a­tion — shoplift­ing and drug posses­sion — but would fall outside the line.

By Exclud­ing People Who Have Spent Time in Jail, the Current Phras­ing of the De Minimis Excep­tion Risks Entrench­ing Racial and Economic Dispar­it­ies.

The de minimis excep­tion’s exclu­sion of people who have spent time behind bars is espe­cially prob­lem­atic when it comes to jails. Accord­ing to the Regu­la­tion, “jail time” includes “any signi­fic­ant restraint on an indi­vidu­al’s free­dom of move­ment,” a defin­i­tion broad enough to encom­pass pretrial deten­tion in a jail.[14] But pretrial jail deten­tion is a common exper­i­ence in the crim­inal justice system — and, crit­ic­ally, people detained in a jail pretrial have not been convicted of commit­ting any crime. People enter Amer­ican jails more than ten million times every year, and the aver­age amount of time someone spends there is 26 days — far above the Regu­la­tion’s three-day cutoff.[15] Jail stays are even longer in New York City, the heart of the bank­ing industry. There, the aver­age length of a jail stay is 75 days, and just 29 percent of people are detained for “four or fewer days.”[16] As a result, confin­ing the de minimis excep­tion to people who served just “three (3) days or less of jail time” could render it irrel­ev­ant for almost all people who were detained in jail at all before their trial and convic­tion.

This in turn could have disturb­ing implic­a­tions for racial justice. Many juris­dic­tions use a “money bail” system, in which whether someone enters jail before trial depends on whether they can afford to post bail or pay a bonds­man to do it for them. In fact, nearly two-thirds of the more than 740,000 people in U.S. jails are there await­ing trial, a popu­la­tion that grew 433 percent between 1970 and 2015, accord­ing to the Vera Insti­tute of Justice.[17] Vera attrib­utes this growth to an increased reli­ance on money bail.[18] This bail process has limited or no relev­ance on personal char­ac­ter­ist­ics that would be pertin­ent to an employer, and is espe­cially irrel­ev­ant to the type of trust­wor­thi­ness that Section 19 is inten­ded to address, and that banks in partic­u­lar value in their employ­ees.

Said more simply, in many places, whether someone has spent time in jail depends more on their wealth than public safety. And such money bail systems dispro­por­tion­ately burden people of color, who are less likely to be able to afford to pay for their release, and less likely to have a family member who can pay on their behalf.[19] Given the racial dispar­it­ies already present in Amer­ican jails — Black people remain 3.6 times more likely to be incar­cer­ated in local jails than white people[20] — tying the reach of the de minimis excep­tion to how long someone has spent there may rein­force those dispar­it­ies, and dispro­por­tion­ately bene­fit job applic­ants who are white, wealthy, or both.

* * * * *

To summar­ize, recog­niz­ing the Amer­ican justice system’s over­use of incar­cer­a­tion, we recom­mend that the de minimis excep­tion be exten­ded to people who have served more than a trivial period of time in prison, and to people convicted of crimes “punish­able by” more than one year in prison. Three years may be a prefer­able cutoff, as it would also capture minor felon­ies. Second, we recom­mend that the Regu­la­tion be revised to clarify that time spent in pretrial deten­tion is irrel­ev­ant to someone’s eligib­il­ity for the de minimis excep­tion. This could be accom­plished by modi­fy­ing the Regu­la­tion’s defin­i­tion of “jail time” to encom­pass only time spent incar­cer­ated as a punish­ment or a sanc­tion.[21]

  1. The FDIC should Clarify its Defin­i­tion of “Expun­ge­ment” by Remov­ing the Word “Complete.”

Under the Regu­la­tion, “a convic­tion that has been completely expunged . . . will not require an applic­a­tion.” Changes made in 2018, and incor­por­ated into this new Regu­la­tion, clarify that whether an expun­ge­ment is “complete” does not depend on whether records of the convic­tion exist in some form: “The fail­ure to destroy or seal the records will not prevent the expun­ge­ment form being complete for the purposes of Section 19.”[22]

While we commend the 2018 changes and clari­fic­a­tions of language around expun­ge­ment, we suggest that the FDIC elim­in­ate the word “complete” before “expun­ge­ment” in this section. Most states provide an expun­ge­ment option of some kind for those with crim­inal records.[23] These processes vary signi­fic­antly, however, depend­ing on the juris­dic­tion. For example, some states offer broad relief, denom­in­ated as “seal­ing” in some cases and “expun­ge­ment” in others, which may permit an applic­ant to legally deny that the sealed or expunged convic­tion ever even exis­ted.[24] But in some states that right comes with several excep­tions.[25] And apart from seal­ing or expun­ge­ment, some states also offer certi­fic­ates of rehab­il­it­a­tion, which provide less relief but are specific­ally inten­ded to relieve licens­ing restric­tions.[26]

The FDIC’s language addresses this dispar­ity in how states imple­ment the philo­sophy of expun­ge­ment, but places the on burden the insured insti­tu­tion or the Corpor­a­tion to determ­ine the mean­ing and “complete­ness” of expun­ge­ment. Accord­ing to the FDIC’s own brochure, Your Complete Guide to Section 19, “if the records are not destroyed or sealed, the FDIC will look to the intent of the order or the stat­ute in effect when the expun­ge­ment was gran­ted to determ­ine if it is ‘com­plete’ for Section 19 purposes.” The wide vari­ety in expun­ge­ment prac­tices creates a signi­fic­ant level of ambi­gu­ity for those tasked with inter­pret­ing unfa­mil­iar state law.

  • The FDIC Should Not Require Repay­ment of Fees or Fines Before Submis­sion of an Applic­a­tion.

The current rule states that, “Before an applic­a­tion is considered by the FDIC, all of the senten­cing require­ments asso­ci­ated with a convic­tion or condi­tions imposed by the pretrial diver­sion, or similar program, includ­ing but not limited to, impris­on­ment, fines, condi­tion of rehab­il­it­a­tion, and proba­tion require­ments, must be completed, and the case must be considered final by the proced­ures of the applic­able juris­dic­tion.”[27] This policy has the poten­tial to further entrench poverty by barring employ­ment at an FDIC-insured insti­tu­tion for indi­vidu­als who might be compli­ant with other condi­tions of their sentence but continue to pay down fines asso­ci­ated with their convic­tion.

Since 2008, almost every state has increased crim­inal and civil court fees or added new ones, and the categor­ies of offenses that trig­ger fines have also been expan­ded.[28] This increase in fees and fines has exac­ted a steep human cost as indi­gent people may face hundreds or thou­sands of dollars in accu­mu­lated debt that they are unable to pay. Fees and fines are also frequently assessed in a racially discrim­in­at­ory way. For example, a 2017 report by the U.S. Commis­sion on Civil Rights found that muni­cip­al­it­ies that rely heav­ily on revenue from fees and fines have a higher than aver­age share of Black and Latino resid­ents.[29] In a recent exam­in­a­tion of fee and fine prac­tices in Flor­ida, Texas, and New Mexico, the Bren­nan Center found that from 2012 to 2018, those three states alone amassed a total of almost $1.9 billion in uncol­lec­ted debt and that the amount of unpaid debt within that time frame has grown year after year in those states.[30]

Fee and fine debt repres­ent a grow­ing burden for many Amer­ic­ans. People strug­gling finan­cially are saddled with debt that makes it nearly impossible for them to support them­selves and their famil­ies. For those who have complied with other condi­tions of their sentence, their abil­ity to pay off crim­inal justice debt should not be held against them when it comes to eligib­il­ity for future employ­ment. Further, for the purposes of Section 19, whether one can pay their fines often has no bear­ing on the trust­wor­thi­ness that Section 19, in partic­u­lar, is inten­ded to address. For these reas­ons, we urge the FDIC to modify the regu­la­tion by elim­in­at­ing “fines” entirely from its list of senten­cing require­ments that must be complied with prior to applic­a­tion.

  1. The Regu­la­tion’s Treat­ment of People Whose Convic­tions Were Reversed on Appeal Should be Clari­fied.

We applaud the FDIC for clari­fy­ing that Section 19 does not apply to “any convic­tion that has been reversed on appeal.”[31] Left unmod­i­fied, this guid­ance would expand oppor­tun­it­ies for justice-involved people and square with prevail­ing legal prac­tice.[32] It would also be easy for hiring managers to follow, and offer clear guid­ance to job applic­ants.

However, the Regu­la­tion adds a condi­tion, stat­ing that Section 19 does apply, and appears to require applic­a­tion to the FDIC, where an applic­ant’s convic­tion was “set aside or reversed after the applic­anthas completed senten­cing.”[33] From context, it is not clear whether this language is inten­ded to require applic­a­tions from people whose convic­tions are reversed after serving their sentence, or after sentence has been imposed. Signi­fic­antly, though, either read­ing would create confu­sion. Because senten­cing gener­ally quickly follows convic­tion, convic­tions are rarely (if ever) reversed before sentence is imposed.[34] And due to appel­late delays, whether a convic­tion is reversed before or after a sentence is served can depend on mere chance.[35] To remedy this confu­sion, we recom­mend remov­ing these excep­tions and provid­ing a simple, clear rule — that convic­tions reversed on appeal do not require applic­a­tion to the FDIC.

* * * * *

In summary, while the proposed Regu­la­tion attempts to provide neces­sary clar­ity to job applic­ants with crim­inal records, we believe it can be clari­fied even further, and expan­ded. First, the FDIC should consider broad­en­ing the de minimis excep­tion to account for the over­use of impris­on­ment and pretrial incar­cer­a­tion in Amer­ica’s crim­inal justice system. Second, job applic­ants should be able to apply to the FDIC while continu­ing to repay any crim­inal justice debt — not only after that debt has been repaid in full. And third, the FDIC should clarify its treat­ment of expunged convic­tions and convic­tions reversed on appeal. These changes will further increase oppor­tun­it­ies for people with a crim­inal record, better acknow­ledge the complex real­it­ies of crime and punish­ment in Amer­ica, and ensure that FDIC policy is effi­cient and easy for industry profes­sion­als to follow.

Respect­fully submit­ted,

[1] Incor­por­a­tion of Exist­ing State­ment of Policy Regard­ing Requests for Parti­cip­a­tion in the Affairs of an Insured Depos­it­ory Insti­tu­tion by Convicted Indi­vidu­als, 84 Fed. Reg. 68,353 (Dec. 16, 2019) (to be codi­fied at 12 C.F.R. pt. 303).

[2] This letter does not purport to repres­ent the views, if any, that the New York Univer­sity School of Law may have.

[3]See “The State of Justice Reform 2017: The State of Pris­ons,” Vera Inst. of Justice (2017),­ons (last visited Feb. 21, 2020) (offer­ing stat­ist­ics on the scale of the Amer­ican crim­inal justice system); compare id. with “Quick­Facts: United States,” U.S. Census Bureau,­facts/fact/table/US/PST045218 (last visited Feb. 21, 2020) (estim­at­ing the size of the adult popu­la­tion at 255 million, compared to roughly 2.1 million behind bars).

[4]See Jennifer Bron­son & E. Ann Carson, Bureau of Justice Stat­ist­ics, NCJ 252156, Pris­on­ers in 2017 15 (2019), (noting the dispro­por­tion­ate incar­cer­a­tion of young Black men); Dani­elle Kaeble, Bureau of Justice Stat­ist­ics, NCJ 251148, Proba­tion and Parole in the United States, 2016 1 (2018),­tail&iid=6188; Zhen Zeng, Bureau of Justice Stat­ist­ics, NCJ 251774, Jail Inmates in 2017 2 tbl.1; id. at 8 (2019),­tail&iid=6547; Berna­dette Rabuy & Daniel Kopf, Pris­ons of Poverty: Uncov­er­ing the Pre-Incar­cer­a­tion Incomes of the Imprisoned, Prison Pol’y Insti­tute n.2 (July 9, 2015), https://www.pris­on­ (noting low pre-incar­cer­a­tion educa­tion levels for people in prison).

[5] “NGI Monthly Fact Sheet,” Fed. Bureau of Invest­ig­a­tion,­it­ory/ngi-monthly-fact-sheet/view (last visited Feb. 18, 2020) (show­ing 77.7 million crim­inal finger­print records as of Novem­ber 2019); see also Matthew Fried­man, Just Facts: As Many Amer­ic­ans Have Crim­inal Records as College Diplo­mas, Bren­nan Ctr. for Justice (Nov. 17, 2015),


[6] Peter Wagner & Berna­dette Rabuy, Follow­ing the Money of Mass Incar­cer­a­tion, Prison Pol’y Initi­at­ive (Jan. 25, 2017), https://www.pris­on­ (putting the cost of oper­at­ing the nation’s judi­cial and legal appar­atus at $186 billion); Bruce West­ern, The Impact of Incar­cer­a­tion on Wage Mobil­ity and Inequal­ity, 67 Am Soc. Rev. 526, 536 (2002),­ern/public­a­tions/impact-incar­cer­a­tion-wage-mobil­ity-and-inequal­ity (estim­at­ing a reduc­tion in earn­ings of between 16 and 19 percent); Devah Pager, The Mark of a Crim­inal Record, 108 Am. J. of Soc. 937, 957–60 (2003)­a­tions/mark-crim­inal-record (docu­ment­ing the racially dispar­ate impacts of a crim­inal record).

[7] Incor­por­a­tion of Exist­ing State­ment of Policy Regard­ing Requests for Parti­cip­a­tion in the Affairs of an Insured Depos­it­ory Insti­tu­tion by Convicted Indi­vidu­als, 84 Fed. Reg. at 68,360–61.

[8]Id. at 68,359, 68,361.

[9]Id. at 68,360. The regu­la­tion specific­ally refers to “three (3) days or less of jail time,” but goes on to define “jail time” as “any signi­fic­ant restraint on an indi­vidu­al’s free­dom of move­ment.” Id. Thus, spend­ing more than three days in prison or (presum­ably) home confine­ment would also disqual­ify someone from taking advant­age of the de minimis excep­tion.

[10] “FAQ Detail: What is the differ­ence between jails and pris­ons?”, Bureau of Justice Stat­ist­ics (last visited Feb. 12, 2020),

[11] Lauren-Brooke Eisen et al., Bren­nan Ctr. for Justice, How Many Amer­ic­ans Are Unne­ces­sar­ily Incar­cer­ated? 8, 24–26 (2016), https://www.bren­nan­cen­­a­tion/how-many-amer­ic­ans-are-unne­ces­sar­ily-incar­cer­ated.

[12] In New York State, sentences of incar­cer­a­tion are capped at 364 days for a misde­meanor. N.Y. Penal Law § 70.15(1). Felony sentences begin at a little over a year. Id. at § 70.00(3); but see id. at § 70.00(4) (permit­ting judges to impose a more leni­ent sentence in some cases).

[13] N.Y. Penal Law § 165.45(1) (making posses­sion of stolen prop­erty worth more than $1,000 a Class E felony); N.Y. Penal Law § 220.31.

[14] Incor­por­a­tion of Exist­ing State­ment of Policy Regard­ing Requests for Parti­cip­a­tion in the Affairs of an Insured Depos­it­ory Insti­tu­tion by Convicted Indi­vidu­als, 84 Fed. Reg. at 68,360.

[15] Zeng, supra note 4 at 2 tbl.1; id. at 8 tbl.8.

[16] New York City Dep’t of Correc­tion, NYC Depart­ment of Correc­tion At a Glance: Inform­a­tion for the 12 Months of FY 2019 (2019) 1,­loads/press-release/DOC_At_Glance_FY2019_072319.pdf.

[17] Léon Digard & Eliza­beth Swavola, Vera Inst. of Justice, Justice Denied: The Harm­ful and Last­ing Effects of Pretrial Deten­tion 1 (2019),­a­tions/for-the-record-justice-denied-pretrial-deten­tionsee also Zeng, supra note 4, at 5 tbl.3.

[18] Digard & Swavola, supra note 17, at 1.

[19]See Adureh Onyek­were, How Cash Bail Works, Bren­nan Ctr. for Justice (Dec. 10, 2019) (detail­ing racial dispar­it­ies in bail prac­tices), https://www.bren­nan­cen­; Wendy Sawyer, How Race Impacts Who Is Detained Pretrial, Prison Pol’y Initi­at­ive (Oct. 9, 2019) (demon­strat­ing that people of color are over-repres­en­ted in jails), https://www.pris­on­ also Taryn A. Merkl, New York’s Upcom­ing Bail Reform Changes Explained, Bren­nan Ctr. for Justice (Dec. 10, 2019), https://www.bren­nan­cen­­ion/new-yorks-upcom­ing-bail-reform-changes-explained.

[20] Ram Subramanian et al., Vera Inst. of Justice, Divided Justice: Trends in Black and White Jail Incar­cer­a­tion, 1990–2013 22 (2018),­a­tions/divided-justice-black-white-jail-incar­cer­a­tion.

[21]See Incor­por­a­tion of Exist­ing State­ment of Policy Regard­ing Requests for Parti­cip­a­tion in the Affairs of an Insured Depos­it­ory Insti­tu­tion by Convicted Indi­vidu­als, 84 Fed. Reg. at 68,360 (defin­ing “jail time” in a sentence begin­ning, “The FDIC considers jail time to include…”).

[22]See id. 68,353–55 (describ­ing the history of the State­ment of Policy and its proposed codi­fic­a­tion in the C.F.R.); id. at 68,360.

[23]See “Judi­cial Expun­ge­ment, Seal­ing, and Set-aside,” Restor­a­tion of Rights Project (last visited Feb. 14, 2020), https://ccre­source­cen­­a­tion-profiles/50-state-compar­is­on­ju­di­cial-expun­ge­ment-seal­ing-and-set-aside/ (docu­ment­ing wide­spread adop­tion of seal­ing and expun­ge­ment prac­tices).

[24]See, e.g., Colo. Rev. Stat. § 24–72–706(1) (describ­ing broad seal­ing author­ity); id. at § 24–72–703(2)(b) (“the defend­ant and all crim­inal justice agen­cies may prop­erly reply, upon an inquiry into the matter, that public crim­inal records do not exist with respect to the peti­tioner or defend­ant”).

[25]See, e.g., Mo. Rev. Stat. § 610.140(9), (10) (enumer­at­ing cases in which an applic­ant must acknow­ledge an expunged convic­tion, but other­wise provid­ing a limited right to deny the convic­tion’s exist­ence).

[26]See, e.g., N.Y. Corr. Law § 701 (“certi­fic­ate of relief from civil disab­il­it­ies,” provid­ing relief from, among other things, licens­ing restric­tion). Note, however, that licens­ing author­it­ies retain the discre­tion to restrict an indi­vidu­al’s license on the basis of a previ­ous convic­tion. Id. at § 701(3).

[27] Incor­por­a­tion of Exist­ing State­ment of Policy Regard­ing Requests for Parti­cip­a­tion in the Affairs of an Insured Depos­it­ory Insti­tu­tion by Convicted Indi­vidu­als, 84 Fed. Reg. at 68,354, 68,360.

[28] Matthew Menen­dez et al., Bren­nan Ctr. for Justice, The Steep Cost of Crim­inal Justice Fines and Fees 6 (2019), https://www.bren­nan­cen­–11/2019_10_Fees%26Fines_Final5.pdf.

[29] U.S. Comm’n on Civil Rights, Targeted Fines and Fees Against Communit­ies of Color: Civil Rights & Consti­tu­tional Implic­a­tions 3 (2017),­utory_Enforce­ment_Report2017.pdf.

[30] Menen­dez et al. supra note 28, at 10.

[31] Incor­por­a­tion of Exist­ing State­ment of Policy Regard­ing Requests for Parti­cip­a­tion in the Affairs of an Insured Depos­it­ory Insti­tu­tion by Convicted Indi­vidu­als, 84 Fed. Reg. at 68,359.

[32] In New York State, for example, a convic­tion “that is subsequently vacated on direct appeal no longer exists” and cannot be used as the basis for subject­ing a defend­ant to the state’s recid­iv­ist senten­cing laws. See People v. Thomas, 33 N.Y.3d 1, 8, (2019); cf. People v. Bell, 138 A.D.2d 298, 300 (1st Dep’t 1988) (Sulli­van, J., dissent­ing) (“follow­ing its reversal, defend­ant’s earlier convic­tion was no longer a convic­tion”), modi­fied, 73 N.Y.2d 143, 165 (1989) (adopt­ing the reas­on­ing in Judge Sulli­van’s dissent and affirm­ing as modi­fied).

[33] Incor­por­a­tion of Exist­ing State­ment of Policy Regard­ing Requests for Parti­cip­a­tion in the Affairs of an Insured Depos­it­ory Insti­tu­tion by Convicted Indi­vidu­als, 84 Fed. Reg. at 68,360 (emphasis added). Tech­nic­ally the regu­la­tion states that such convic­tions are “treated consist­ent with pretrial diver­sions,” but unless the program entry pred­ates Novem­ber 29, 1990 (id.), applic­a­tion is also required in those cases. 18 U.S.C. § 1829(a)(1)(A).