RECOMMENDATION 11
Seal Lower-Level Criminal Records from Public View
An estimated 70 million Americans have some record of contact with the criminal justice system. While many people are eligible to have those records sealed or expunged, such action rarely occurs at the state or federal level – even when cases are dismissed or end in acquittal. Most people are either unaware that they have the right to petition for relief or are deterred by the cost and complexity of the process. As a result, millions of Americans are burdened by the often substantial collateral consequences associated with criminal records: impediments to jobs, housing, education, and other important rights and privileges. Automatic record sealing, often called “clean slate” policies, simplify and automate the typically cumbersome record-sealing process for people who have remained free of further criminal convictions over a specified period of time. In some states, current law and pending legislation also expand the types of records eligible for sealing, while maintaining the private record for use by law enforcement, courts, and other criminal justice agencies. While clean slate reforms at the state level are relatively recent and have yet to be rigorously evaluated, the Task Force finds that underlying evidence on the collateral impacts of criminal records is clear. Therefore, automatically sealing records in certain cases is a useful tool that not only can help people and their families move forward with their lives, but also can improve public safety by reducing recidivism.
Recommendation
Congress should pass legislation that automatically seals certain federal criminal and non-conviction records and should appropriate grant funding to help states adopt and implement clean slate laws.
Implementation Steps
- Congress should adopt legislation requiring automatic sealing of publicly available records for: (1) certain lower-level, nonviolent federal convictions, including simple possession of controlled substances, following a conviction-free period of no longer than seven years; and (2) federal arrests that result in acquittals and determinations not to file charges as soon as practicable, but no later than six months from the date of the acquittal or determination not to file charges. The legislation should apply retroactively and should provide for the continued access to records for the courts, law enforcement, corrections departments, and other criminal justice agencies.
- Congress should adopt legislation allowing people convicted of more serious nonviolent federal offenses to petition to have their record sealed from public view, following a conviction-free period of no longer than seven years. The legislation should apply retroactively and should provide for the continued access to records for the courts, law enforcement, corrections departments, and other criminal justice agencies.
- Congress should appropriate funding to the Bureau of Justice Assistance for annual state technical assistance grants that support planning and implementation of automatic record-sealing policies.
Annotated Citations
Prescott, JJ., and Sonya B. Starr. “Expungement of Criminal Convictions: An Empirical Study.” University of Michigan Public Law Research Paper No. 635, 16 March 2019. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3353620 This study offers three sets of empirical findings. “First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility.” This illustrates the large gap between eligible people and those who obtain relief. “Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population. Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.”
Selbin, Jeffrey, et al. “Unmarked? Criminal Record Clearing and Employment Outcomes.” Journal of Criminal Law and Criminology, vol. 108, no. 1, Winter 2018. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7617&context=jclc “The FBI reports that almost 74 million people, or nearly one-third of American adults, have a criminal record, mostly for arrests not leading to a conviction and misdemeanors.” Criminal record checks “act as a substantial barrier to gainful employment and other opportunities.” It is even more troublesome, then, that “criminal records can exist indefinitely.” Also, America is unique in providing public access to such records, including arrest records. This problem is highlighted by the fact that the overwhelming majority of these records are for relatively low-level offenses. Clearance of criminal convictions can reduce collateral consequences. Many methods have emerged to assist in record clearing, including legal intervention such as post-conviction record clearing, judicial remedies to expand record clearing enacted by several states, federal support for such efforts, and community-based record clearing clinics.
Yee, Mackenzie J. “Expungement Law: An Extraordinary Remedy for an Extraordinary Harm.” Georgetown Journal on Poverty Law & Policy, vol. 25, no. 1, Fall 2017. https://www.law.georgetown.edu/poverty-journal/in-print/volume-25-issue-1-fall-2017/expungement-law-an-extraordinary-remedy-for-an-extraordinary-harm/ The consequences of a criminal conviction propound far beyond mere incarceration. Even after release, formerly incarcerated people face significant hurdles in reintegrating into society. These collateral consequences include restricted access to the labor market, denial of public benefits, exclusion from the political process, and an entrenchment of the cycle of poverty. In effect, these consequences result in a double-edged sentence where burdens—formatively comprising a “new civil death”—accrue long after formerly incarcerated individuals have been released. Some proposed remedies have emerged, including judicial reentry programs and “ban the box” laws prohibiting employers from inquiring about criminal history during initial job applications. But none of these addresses the comprehensive hurdles faced by formerly incarcerated people. Instead, a “robust expungement mechanism” is key to “lessen[ing] the burdens imposed” in reentry. Certain empirical studies of juvenile expungement have confirmed the effectiveness of expungement in practice, resulting in net benefits to the government in the form of increased wages, tax revenues, and overall societal contribution.
U.S. Commission on Civil Rights. Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities. June 2019, https://www.usccr.gov/pubs/2019/06-13-Collateral-Consequences.pdf “Each year, federal and state prisons release more than 620,000 people to return to their communities.” This report authored by the United States Commission on Civil Rights catalogues the countless hurdles faced by formerly incarcerated people upon release, including: “barriers to voting, jury service, holding public office, securing employment, obtaining housing, receiving public assistance, owning a firearm, getting a driver’s license, qualifying for financial aid and college admission, qualifying for military service, and maintaining legal status as an immigrant.” These exacerbated punishments undercut the basic theories of punishment; instead of reintegration and rehabilitation, they lead to increased recidivism. The Commission suggests that “[c]ollateral consequences should be tailored to public safety,” avoiding certain “punitive mandatory consequences that do not serve public safety, bear no rational relationship to the offense committed, and impede people convicted of crimes from safely reentering and becoming contributing members of society.” In addition, jurisdictions that impose such consequences should undertake periodic reviews to determine whether they are necessary to help protect public safety or are in any way related to the underlying offense.
Bucknor, Cherrie and Alan Barber. “The Price We Pay: Economic Costs of Barriers to Employment for Former Prisoners and People Convicted of Felonies.” Center for Economic and Policy Research. June 2016. http://cepr.net/images/stories/reports/employment-prisoners-felonies-2016-06.pdf “The findings presented in this paper show that, in 2014, overall employment rates were 0.9 to 1.0 percentage points lower as a result of the employment penalty faced by the large population of former prisoners and people with felony convictions. For men, their employment rate was 1.6 to 1.8 percentage points lower and for men with less than a high school degree, their employment rate was 7.3 to 8.2 percentage points lower.” The calculations in the report “suggest that the population of former prisoners and people with felony convictions led to a loss of $78 to $87 billion in GDP in 2014.”
State Implementation Costs
Utah House Bill 431 (Expungement Act Amendments), https://le.utah.gov/~2019/bills/static/HB0431.html The bill passed the Utah legislature in 2019, was signed into law in May of the same year, and carried a fiscal note of $1,648,200. Estimated volume of records to be automatically cleared is not known.
Pennsylvania Act 56 (Clean Slate Act), https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2018&sessInd=0&act=56 The bill passed the Pennsylvania Legislature in 2018, was signed into law in January of 2019, and carried a fiscal note of $245,000. Estimated volume of records to be automatically cleared is 30 million.
Hunt, Kim Steven, and Billy Easely II. The Effects of Aging on Recidivism Among Federal Offenders. U.S. Sentencing Commission. December 2017. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171207_Recidivism-Age.pdf “The measure of time to first recidivism event can be useful in distinguishing offenders who recidivate early from those who eventually recidivate, but are apparently crime-free for a longer interval. The Commission found that the median amount of time between an offender’s release and his or her rearrest, which is highlighted on each timeline, reflected the greater tendency for younger cohorts to recidivate. Offenders who were younger than 30 when they were released had the shortest median time to rearrest (17 months). Conversely, the oldest offenders in the study, those 60 years and older, had the longest time to rearrest (28 months).”
