New York Times editors question efficacy of expungement laws

In an editorial titled “Job Hunting With a Criminal Record,” the editors of the New York Times tackle the problem of employment discrimination against the estimated 70 million Americans who “carry the burden of a criminal record.” They question the efficacy of expungement and other popular “forgetting” strategies for dealing with employer aversion to risk, preferring the “longer term” approach of “a change in attitudes about people with criminal records.”

The editorial points out that expungement laws typically apply only to “relatively minor transgressions,” require lengthy waiting periods, and include “significant exceptions” (e.g., they don’t apply to jobs and licenses requiring a background check, a large and growing segment of the labor market). In addition, “trying to keep anything secret in the 21st century is no sure thing.” Finally, “record-sealing laws do not and cannot address the underlying problem of overcriminalization.”

The editorial prefers “ban-the-box” laws that postpone inquiry into criminal record until a later stage in the employment process, and measures that protect against employer liability. It might also have mentioned more transparent “forgiving” approaches to relief being developed in the states, like the Illinois and North Carolina certificates discussed in this recent report of the Marshall Project.

If it is true, as the editorial concludes, that “everyone benefits when people with criminal records are not shut out from the opportunity to be productive members of society,” it is curious that people with federal convictions have no recourse but the antiquated and increasingly elusive remedy of a presidential pardon. If President Obama is so evidently reluctant to use his constitutional power to forgive people who have served their sentences and led productive lives, he might consider supporting legislation authorizing courts to issue judicial certificates of good conduct (or whatever name is preferred) that would have the same effect as a pardon. The American Law Institute and the Uniform Law Commission both have excellent models.