A Fresh Start: Expunging Criminal Convictions

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Photo by Alan Levine via Flickr

At least 36 states permit adults with criminal convictions to have their records sealed or expunged, but does “wiping the slate clean” actually produce better outcomes for those individuals without threatening public safety?

A first-of-its kind Michigan study offers some hard evidence that expungement works.

The study, produced as a working paper for the University of Michigan Law School and scheduled for publication in a forthcoming issue of the Harvard Law Review, found that Michigan offenders whose convictions were expunged under the state’s “set-aside” law were more likely to find employment, and that their income increased by 25 percent within two years of their expungement.

At the same time, just 6 percent of “set-aside’ recipients were rearrested within five years (only 2 percent of those for violent offenses)—a low rate of recidivism that the study argued should put to rest fears that expungement laws created a new risk to public safety.

“As an employment intervention, [expungement] compares very favorably to job training in terms of both effectiveness [in successful re-integration with civil society] and cost effectiveness,” the study concluded.

The study authors, J.J. Prescott and Sonja B. Starr, law professors at the University of Michigan and co-directors of the university’s Empirical Legal Studies Center, cautioned that while it was impossible to confirm a direct “causal relationship” between expungement and improved life outcomes, their findings suggested that “at least a large fraction of the improvement that we observe results from the cleaner record itself.”

But the authors added that their study turned up one “discouraging” result: Just 6.5 percent of the Michigan individuals who were eligible for expungement actually applied.

Describing it as a “good news/bad news story,” the authors suggested that a majority of those otherwise eligible to be considered were put off by obstacles ranging from the complicated procedural hurdles involved and lack of access to legal help, to distrust and pessimism about the justice system.

Michigan’s set-aside law, in place since the 1960s, has been streamlined several times.

The statute covers most crimes, including most violent felonies, with the exceptions of traffic offenses, certain sex offenses and felonies that carry potential life imprisonment. But it still requires individuals to have at least five crime-free years following completion of any penalties or requirements mandated by their sentence—including community supervision.

In theory, expungement allows an individual to overcome the barriers to housing, employment, public benefits, and social integration that prevent justice-involved people from resuming productive lives by virtue of having a criminal record. About 19 million Americans have felony conviction records, and a much larger group is estimated to have misdemeanor conviction records that follow them for the rest of their lives.

While bipartisan support for expungement has increased, in practice, there are gaping differences across states in how it is interpreted and carried out, and for whom.

There is also a difference between the complete destruction of a record and its sealing. In the case of the latter, employers in many states are generally unable to see an applicant’s priors, while that information is still available to law enforcement and courts.

Alabama allows youth to petition to destroy their records at 23. California allows victims of human trafficking, facing non-violent charges like prostitution, to petition after three years. Connecticut destroys records after pardons. Florida allows records to be destroyed after ten years for limited first-time offenses.

Illinois seals records for most misdemeanors and felonies after three years, excluding more serious offenses. In Oregon, records may be “set aside” waiting one to 20 years without conviction for 10 years or arrest for three years. Oklahoma allows certain nonviolent pardoned felonies to be expunged after 20 years.

In Wisconsin, a bill expected to pass next month would end current regulations that restrict those eligible for expungement to individuals 25 or younger, and allows a judge to order that records of non-violent, lower-level offenders be expunged after they complete their sentences.

The study authors note that Michigan’s longstanding five-year period sits roughly at the median of a range extending to 20 years.

So far only one state—Pennsylvania—has pushed past all the red tape to make expungement of adult criminal convictions automatic. The state’s 2018 expungement law targets minor nonviolent misdemeanors and provides for the records to be automatically expunged after 10 crime-free years.

The authors say their findings suggest that other states can move in the same direction with little concern about any detrimental impact on public safety.

According to the study, “99 percent of those who receive set-asides in Michigan are not convicted of a felony any time in the next five years; 99.4 percent are not convicted of any violent crime; and 96 percent are not convicted of any crime at all, even a petty misdemeanor.

“In fact, set-aside recipients appear to be lower-risk than the general public.”

Pointing out that the Michiganders who succeeded in having their records expunged represented a “small fraction of a very small fraction,” the authors argued that other states would reap significant benefits by “easing…the procedural hurdles associated with seeking expungement” –and even larger benefits if they made the process automatic.

“For the past decade about 2,000 set asides per year have been granted in Michigan; meanwhile, each year the Michigan state courts add about 300,000 new criminal convictions,” the authors wrote.

“On balance, the population of people living with criminal records is continuing to grow quickly; the set-aside law is like a bucket removing water from an ever-rising ocean.”

The study noted that California had begun to consider an automatic expungement bill in February. Approval of the bill could set in motion a new wave of reforms, with a major impact on the quality of American public life, the authors argued.

Living with a criminal record long after serving their sentence has made it harder for tens of millions of Americans and their families to avoid poverty and it exacerabates “racial disparities in employment,” the authors said.

“Our empirical results suggest that expungement is a powerful policy lever for redressing the negative consequences without risk (and possibly with benefits) to public safety.

“But expungement will only realize its full potential, and make a serious dent in these large-scale social problems, if it is made available much more broadly and much more easily.”

The full paper can be downloaded here.

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