Pure laws are sweeping the country, offering many of the estimated 70 to 100 million people with criminal records the chance to have their records expunged. The benefits seem clear: If a criminal record is no longer available to the public, it should reduce discrimination in housing and employment. This policy aims to give people a second chance, especially those who were unfairly targeted in the first place. Expungement is largely framed as a way to address the flaws of a legal system rooted in racial hierarchy and discrimination.
Key to this new wave of legislation is an effort to make expungement automatic by shifting the burden to the state rather than the person with the record, and by automating the process as much as possible using technology. These policies are a welcome relief against arduous expungement processes, such as the ineffective, confusing and expensive court filings that cause most people to give up on the expungement process or never attempt it at all, creating a “second chance.” One study in Michigan, for example, found that only 6.5 percent of people eligible for expungement successfully completed the process. By making the process automatic and automated, many hope that expungement will be able to reach more people, especially those who can’t afford a lawyer or who understandably don’t want to re-engage with the court system even for the purpose of closing their records. More than ten states have implemented automatic record expungement, including eight states that allow automatic expungement of cannabis-related convictions.
Unfortunately, many states lack the data infrastructure necessary to effectively close criminal records. California’s massive backlog has left tens of thousands of people legally eligible for record clearance still on hold. And new research in California — whose clean slate bill, AB 1076, automates the expungement process for people arrested after January 2021 — shows that these promising new laws may have unintended consequences increase racial inequalities because of how narrowly they are written. People with more serious records or repeated contacts with the criminal justice system are often excluded from clean policies. But the question of who has a more serious criminal record is deeply structured by the race, neighborhood, and income of the person arrested and charged.
Pure laws received broad bipartisan support. But making laws politically acceptable to both parties can result in narrow politics. And while advocates tout the common sense benefits of expunging criminal records, public opinion on expungement is mixed: One recent poll found that nearly 55 percent of respondents oppose expungement on the grounds that public access to criminal records “keeps communities safe.” But the same study found that less than 15 percent of respondents thought a person should never be able to get an expungement, with support for a record-cleansing policy that increases for property and substance offenses and after a person has remained crime-free for seven up to ten years. Both the dominant political framework and public opinion have encouraged a policy of erasure only for low-level, non-violent crimes and for those who have proven that they can remain crime-free.
The violent/nonviolent crime dichotomy is a bit complicated: Many states consider a wide range of crimes to be violent, including things most people consider nonviolent, like burglary, drug crimes, and embezzlement. And “crime-free” is a more nuanced concept than we often think. For the purposes of record clearance policies, criminal behavior is often measured by new arrests or criminal charges and convictions. But living in a neighborhood with an overburdened police force can make you more likely to be stopped by the police.
A new study from California looked at over 2 million Californians who had been arrested at least once. Blacks were more likely than other racial groups to have had a criminal conviction (87.3 percent, versus 79.4 percent of the total), and of those convicted, they were more likely to have a criminal record (73.3 percent versus 58, 1 percent of the total number). 40 percent of blacks were barred from expungement because of the type of crime, compared to 26 to 31 percent of people in other racial groups. This means that a disproportionate share of blacks have been convicted of a crime that disqualifies them from expungement. Even among people with criminal records in other racial groups, blacks were less likely to have a qualifying conviction and were much more likely to be sentenced to prison for their conviction, making even more people ineligible for record clearance.
“What our study shows,” study authors Alyssa Mooney, Alissa Skog and Amy Lerman told me in an email exchange, “is that automating record expungement alone will not be enough to reduce racial disparities in who has a criminal record. … What will be required to actually close the racial gap in criminal records is a policy change that expands eligibility for record expungement to a wider range of cases. This is not a technology problem; it’s a political problem.”