We are pleased to announce the forthcoming publication of a national survey of the various legal mechanisms that exist in each state to restore rights and opportunities after arrest or conviction. Titled “The Many Roads from Reentry to Reintegration,” the report revises and updates the survey CCRC originally published in the summer of 2020.  Like that earlier report, it includes grades for each state in nine different categories of relief, and an overall ranking of the states according to the efficacy of their combined restoration measures. Those who are familiar with the rankings in our 2020 report will find that since then many states have improved their position substantially (mostly at the higher end of the ranking scale, with several impressive exceptions) and many have not (mostly at its lower end).

We hope that this report will allow us to take stock of the extraordinary things that legislatures across the country have been able to accomplish in just the past 18 months, enacting a total of more than 250 separate laws to restore the franchise, clear criminal records, and ensure fair consideration in employment and licensing.  We expect to publish the entire new “Many Roads” report next week, along with a new version of our Reintegration Report Card that showcases the states that have made the most progress and suggests how each state may improve its ranking for the next report.

Today we are publishing an excerpt from the new “Many Roads” report on two of its nine categories: record clearing for felony and misdemeanor convictions. Each state is graded separately in the two categories, although the map that is included midway through this post combines them, as they are combined in the 50-state chart from the Restoration of Rights Project. Record clearing for non-conviction records is covered in a separate section, and will be published here in the next few days.

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Expungement, Sealing & Set-Aside of Convictions: A National Survey

Tens of millions of Americans have been convicted of a felony or misdemeanor.^[1] This number has grown substantially in the last four decades as a result of the policies of “mass incarceration” and so-called “war on crime,” with disproportionate impacts on Black and Brown people.^[2] The vast network of collateral consequences that can flow from a conviction in the modern era has been described as a new form of “civil death.”^[3] In addition to formal consequences imposed by law and rule, widespread dissemination of criminal records online and in background checks operates as a form of continuing “digital punishment.”^[4]  In recent years collateral consequences of a less formal variety have extended even to mere arrest records not followed by conviction.[5] The American way of dealing with a person’s criminal history is unburdened with the considerations of privacy, utility, and basic fairness that have shaped European systems.[6]

In the current era of restoration of rights reforms that begin in 2013, advocates and policymakers have been most active in efforts to authorize or extend systems aimed at limiting access to criminal records through individualized expungement, sealing, or set-aside.^[7] We categorize these remedies as “record clearing” to distinguish them from the “record-supplementing” remedies of executive pardon and judicial certificates of relief discussed in other sections of this chapter.

While the functional effect of record-clearing remedies varies from state to state,^[8] at a minimum they promise to alleviate social stigma and economic discrimination that perpetuates second-class citizenship.

Studies have shown that people whose records are -sealed or set aside experience improved employment outcomes and low recidivism rates.^[9]

States in recent years have passed dozens of laws authorizing record-clearing relief, some for the first time. Other states have continued to expand existing eligibility criteria and/or improve procedures.^[10] Despite the pace of reform, the law remains uneven. In many states and for many types of convictions, eligibility is restrictive, procedures are burdensome, and effect is uncertain.^[11] Moreover, only a small percentage of those who are eligible for relief even try to obtain it. Scholars attribute this so-called “second chance gap”^[12] to multiple factors, including lack of information, cost and complexity of application procedures, absence of counsel, and distrust of the legal system.^[13] In addition, people who are made to wait up to a decade or more after finishing their sentence to become eligible to apply may have little or no incentive to do so. Even if people do obtain relief, they typically face daunting challenges in trying to make it effective, including trying to have expunged records removed from the internet and commercial databases.^[14] For these reasons there has been an increased interest in automating record-clearing relief for convictions, and the year 2021 saw three more states (CT, DE, VA) join the four that had enacted so-called “clean slate” laws in 2019 and 2020.[15]

There are few best practices or model laws addressing these forms of relief. While national law reform organizations have endorsed judicial certificates that dispense with mandatory collateral consequences and signal rehabilitation, none has endorsed record-sealing or set-aside.^[16] With the lack of national guidance, state laws differ widely. The following discussion is an overview of diverse approaches, with grades assigned at the end of the section for misdemeanor and felony sealing and set-aside provisions in each state. Readers wishing more specific information are invited to consult the appendices and the Restoration of Rights Project.

We begin by describing the broad structural categories of record-clearing relief currently in effect across the country, then turn to more specific eligibility criteria, procedural requirements (including judicial standards), and legal effect. At the end of the section, we grade each jurisdiction’s law on its scope, accessibility, and effect. We decided to give separate grades for felonies and misdemeanors, since some states with strong misdemeanor sealing laws do relatively little for felonies.

Scope of Relief by Category

Looking at general record-clearing relief for convictions,[17] the 50 states, federal system, and District of Columbia can be divided into five categories:

• broader felony and misdemeanor record clearing (14 states)
• limited felony and misdemeanor record clearing or set-aside (23 states)
• record clearing for misdemeanors and pardoned felonies (5 states)
• limited misdemeanor record clearing only (3 states and D.C)
• no general conviction record clearing (5 states and the federal system)

The map above shows that more than two-thirds of the states (37) now have laws that extend eligibility for record clearing or set-aside to at least some felonies as well as misdemeanors. Eight states have joined this list in the last three years alone: Oklahoma and Maryland extended eligibility to some felonies in 2018, and North Dakota, New Mexico, West Virginia, Delaware did so in 2019, and Connecticut and Virginia came on board in 2021 – with Delaware and Connecticut making relief automatic for a range of convictions.

Of this group of 37 states, 14 have broad eligibility standards that encompass a relatively wide range of felony convictions.^[18] An additional 23 states have more limited eligibility, typically excluding many offenses, with longer waiting periods, and other requirements (e.g., 14 of the 23 states confine felony eligibility to a single conviction).^[19] States often apply different standards for felonies and misdemeanors so that some with restrictive felony expungement have quite generous misdemeanor relief (e.g., Kentucky, New Jersey). Two of these 23 states (Nebraska and Idaho) authorize set-aside, a form of record relief that in those states does not include sealing or expungement.[20]

Illinois’ record clearing law is most expansive in the country. It extends eligibility for sealing to all but a few very serious felonies without regard to an applicant’s prior record, after a uniformly brief three-year waiting period. Massachusetts, Nevada, and North Dakota also offer sealing for most felonies after slightly longer waiting periods. Arizona, which has long permitted its courts to “set-aside” or “vacate” most convictions upon successful completion of sentence and discharge, enacted its first law authorizing restricted public access in 2021. Among the states that extend record-revision to felonies, Maryland is at the other end of the spectrum,^[21] authorizing expungement for only three specific felonies (theft, burglary, and drug possession with intent to distribute), after a 15-year conviction-free waiting period.^[22] Between these extremes, there are as many differing approaches as there are states, with scope generally dependent on seriousness of the offense, and eligibility often dependent on prior record and the passage of time. These differing approaches, captured in the grading system that follows this section, are examined in detail in the state profiles from the Restoration of Rights Project.

The next group of five states (Alabama, Georgia, Pennsylvania, South Dakota, and Texas) authorize courts to clear misdemeanors but limit clearance for felonies to those that have been pardoned.^[23] All but South Dakota extend relief to a fairly broad range of misdemeanors, though Pennsylvania makes even those convicted of third degree misdemeanors wait for 10 years before they become eligible for an “order of limited access.”  In contrast, Georgia authorizes “record restriction” and sealing for a range of non-violent misdemeanor offenses after four conviction-free years, South Dakota authorizes sealing of less serious misdemeanors after five years, and Alabama authorizes clearance of non-violent misdemeanors and violations three years after conviction if all terms of the sentence have been satisfied.”

The fourth group of three states (Iowa, Montana, South Carolina) and the District of Columbia authorize sealing for misdemeanors only, although their authorities are relatively limited.^[24]  Most restrictive is Iowa’s 2019 law, which makes only a single misdemeanor eligible if 8 years have passed since completion of sentence, if the person has no other convictions, and if additional requirements are satisfied.^[25] D.C.’s law excludes many offenses and has a long waiting period and other conditions on eligibility, and South Carolina makes prior conviction or diversion disqualifying. Montana alone in this group allows multiple misdemeanors to be expunged, with a presumption in favor of relief for most offenses, although only one expungement is allowed in a lifetime.^[26]

The final group of five states (Alaska, Florida, Hawaii, Maine, and Wisconsin) and the federal system lack any general conviction relief, although several of them have narrow, specialized laws, applicable to minor marijuana convictions (Hawaii^[27]) or to victims of human trafficking (Hawaii, Florida, and Wisconsin).

Beyond the general expungement, sealing, and set-aside laws that are the subject of the report cards that conclude this chapter, many states have enacted specialized authorities, often for the two categories already discussed: marijuana convictions and convictions of victims of human trafficking, as well as for youthful offenses. A total of 18 states and D.C. have enacted relief specifically for marijuana and other decriminalized conduct, including automatic relief in eight states (California, Connecticut, Illinois, New Jersey, New Mexico, New York, Vermont, and Virginia).^[28] At least 35 states have a specialized relief law for victims of human trafficking—sometimes covering prostitution offenses only and sometimes covering any offenses that are linked to the victim’s trafficked status.

Just to round out the picture of conviction record relief at the end of 2021, several states, including California, Idaho, Indiana, Oklahoma, and North Dakota, authorize their courts to reduce certain felony convictions to a misdemeanor, thereby avoiding the most severe consequences of conviction.

Additional eligibility requirements

In addition to basic limits on coverage, state laws impose a variety of more specific eligibility requirements, especially for felonies. Typically, certain categories of offenses will be excluded (i.e., higher classes of offenses, DUI, violence, sex, weapons, etc.), or certain people will be excluded based on their past or subsequent criminal record, including prior sealings, pending charges, probation violations, or sex offender registration requirements. Some states make record-closing a one-bite affair, including states with broad and sophisticated schemes like Indiana and Illinois. A number of states have waiting periods of a decade or more, which would seem at odds with stated legislative goals of reducing recidivism.^[29] In addition, many states require payment of some or all court debt (fines, fees, and restitution) as a prerequisite to expungement, and all but one of the rest allow the expungement court to take outstanding court debt into account.^[30] We considered these and other more specific eligibility requirements in deciding how to grade each state’s law in the report card at the end of this section.

In state after state, eligibility criteria are curiously complex, the evident result of expansion and contraction through the legislative bargaining process over a period of years.^[31] It is not surprising that among the cleanest and broadest sealing laws in the country are the top-to-bottom schemes enacted in 2019 by New Mexico and North Dakota.^[32]

Procedural barriers to access

Expungement petitions are frequently difficult, time-consuming, and expensive to prepare, especially without a lawyer. Typically, they require collection of various criminal history records and character evidence, formal service on multiple parties, filing fees, responses to objections, appearances at hearings, service of expungement orders on courts, agencies, and private parties, etc.[33] These challenges have been compounded during Covid-19 by limits on and dangers of physical access to courthouses and agencies. Ironically, the governor of Washington vetoed a bill calling for automatic relief precisely because of pandemic-related budgetary challenges, although such a measure would have reduced the need for in-person procedures.^[34]

Even aside from fees charged to obtain criminal records and run fingerprint checks, filing fees in a number of states may be prohibitively high and unwaivable ($300 in Kentucky and Alabama), while in other states fees have been reduced (from $450 to $280 to $100 in Tennessee) or may be waived. Some courts and agencies have made efforts to assist persons of limited means: Illinois courts and the Office of the State Appellate Defender, for example, publish model forms and instructions for different types of cases and provide guidance for those seeking relief.  In December 2021, the Kentucky Supreme Court ruled that courts must waive both the initial filing fee and the “expungement fee” for those who cannot afford to pay them.[35]

Once a petition is filed, the court may be required to hold a hearing in all cases (e.g., Michigan), for felony offenses only (e.g., Arkansas), if the prosecutor or victim objects (e.g., Maryland), or at the court’s discretion (e.g., Delaware). Relief for eligible applicants may be mandatory, presumed, dependent on the court’s discretion, or require a strong showing of need or rehabilitation. In some cases, the law specifies criteria to guide a court’s decision (e.g., Georgia: “the harm otherwise resulting to the individual clearly outweighs the public’s interest in the criminal history record information being publicly available”). In others the court’s discretion is unlimited (e.g., New Jersey), and in still others sealing is mandatory if statutory eligibility criteria are met (e.g., Indiana, Kentucky, Louisiana). In Utah, where most felonies may be expunged after a graduated waiting period, an order must issue unless the court finds that this would be “contrary to the public interest.”

The enactment of laws requiring officials to automatically seal some convictions would obviate the need for individuals to apply for relief and thereby avoid the many access barriers that currently depress grant rates and produce the “second chance gap.”^[36] Since 2018, more than a dozen states have enacted laws providing for automatic sealing of certain conviction records, five of them (California, Connecticut, Delaware, Michigan, New Jersey) for a range of felonies and misdemeanors.^[37] None of the five broad systems is yet fully operational, largely because all of them promise full (or nearly full) retroactivity. Most significantly, beginning in mid-2022 California is required to automatically seal all convictions previously granted relief under the state’s longstanding set-aside authority for misdemeanors and certain low-level felonies, as well as convictions eligible for this relief. There have been efforts in other states to streamline the sealing process short of automation through simplified administrative procedures.

Effect of relief

The effect of sealing or expungement orders on opportunities restricted by law is unclear in many states. Some sealing laws specify that they do not relieve firearms dispossession or sex offender registration, but many leave a recipient in doubt about their rights and responsibilities where mandatory restrictions are concerned. It is also true that many record-closing laws purport to authorize a person to deny having been convicted, but this is perilous advice when dealing with entities required by law to conduct a background check or governed by federal law. A few states make clear that expunged or sealed convictions must be disclosed for employment requiring a background check (e.g., Illinois, Indiana, Missouri). Kansas specifically requires disclosure of expunged convictions in certain licensing and public employment applications (health, security, gaming, commercial driver or guide, investment adviser, law enforcement), and Missouri has a similar disclosure requirement for professional licenses, or any employment relating to alcoholic beverages, the state-operated lottery, or provision of emergency services. Missouri’s law is one of the few that makes clear that “an expunged offense shall not be grounds for automatic disqualification of an application, but may be a factor for denying employment, or a professional license, certificate, or permit.” Some states require that even non-conviction records that have been expunged must be disclosed in some contexts (e.g., Alabama, Kansas, Louisiana).

State record relief orders are given inconsistent effect in federal law. Some areas of law give effect to one form of relief (e.g., expungement) but not to another (pardon), and vice-versa. Further, whether a specific type of state relief is given effect may differ depending on how the federal rule defines the requisite elements of relief, and whether they apply a federal definition of a term like “expungement.”^[38]

Recipients of relief face also significant challenges with the proliferation of records on the internet and in commercial databases.^[39] Certain companies, including those that conduct background checks, are regulated by the federal Fair Credit Reporting Act (FCRA), whose provisions would seem to prohibit reporting of expunged or sealed convictions.^[40] Despite efforts to compel compliance, “[d]eficiencies of enforcement mechanisms, a certain degree of ambiguity in regulatory guidance, and practical difficulties in constantly keeping databases up to date make the problem of inaccurate and outdated criminal records hard to eradicate.”^[41]

Online “people search” services, which collect criminal records and make them available for a fee, have thus far successfully argued they are “mere information aggregators” not subject to FCRA by providing disclaimers that users are not to use the information for decision-making but only “in an information-gathering spirit.”^[42] Some states have additional protections that supplement FCRA, notably including California’s Investigative Consumer Reporting Agencies Act, which antedates the federal statute.^[43] Indiana’s 2013 expungement law, which post-dates federal FCRA, prohibits commercial record providers from reporting any expunged convictions even if they have not also been sealed.^[44] The Pennsylvania Courts provide a data file each month listing expunged cases that must be removed from private databases under the contract for purchasing court records.^[45]

With little regulation, the proliferation of records on the internet means that most sealed and expunged convictions will continue to appear in Google searches and persist on websites and databases.^[46] People lack the time and resources to track down each place where a record appears on the internet, or the legal skills “to negotiate with, pay off, or sue every company” that profits from it.^[47]

The Restoration of Rights Project contains a 50-state summary of expungement, sealing, and other record relief in each state, with links to specific state profiles that may be consulted for additional detail.[48]

A note on juvenile delinquency records:

All states provide for sealing or expungement of at least some juvenile delinquency records, applying procedures and standards that tend to be more favorable to affected individuals than those applicable to adult records. For example, juvenile records are more likely to be subject to destruction in many states, as opposed to just sealing or sequestration, if relief is obtained. Many states also place general limits on public disclosure of juvenile records apart from any expungement or sealing relief that may be available.

As with adult conviction records, there is significant variation from state to state on how expungement and sealing of juvenile records is handled. Some states make expungement or sealing relief automatic or mandatory, but most make relief discretionary with the court. Some states require a crime-free waiting period, and a few require the court to make a finding of rehabilitation. This variation is evident even among neighboring states. For example, while Montana and Nevada automatically seal most juvenile records when the person reaches age 18 or 21, respectively, South Dakota and Wyoming permit sealing/expungement only upon petition, and only after the court makes a finding of rehabilitation. Similarly, Illinois, Indiana, Maine, Oregon, Virginia, and West Virginia make expungement of most juvenile records automatic, while South Carolina and Georgia require the court to make a finding of rehabilitation.

The individual state profiles from the Restoration of Rights Project each include a description of juvenile record relief laws. In addition, the Juvenile Law Center has published two reports analyzing juvenile record laws in each state.[49]

Report Card: Expungement, Sealing, and Set-Aside of Convictions

The following report card grades each state, D.C. and the federal system on their laws providing for sealing or set-aside of felony and misdemeanor convictions. We provide a separate grade for each type of record since states that provide little if any remedy for felony convictions may cover misdemeanors expansively and effectively. Our grades were somewhat subjective, but in general considered the law’s scope, accessibility (additional eligibility criteria and procedural barriers), and effect. Where an improved law has not yet taken effect, we credit the improvement.

Note that these grades may not correspond exactly with the categories in the map earlier in this section, which were based on structural coverage only. We stress that we have not studied how each of these laws operates in practice, including how difficult it may be to apply without a lawyer or how many people apply for and obtain relief, and our grades therefore may or may not reflect whether and to what extent a particular law actually delivers on its promise.

State grades

	Felonies	Misdos
AL	C	C
AK	F	F
AZ	B	B
AR	C	A
CA	C	A
CO	B	B
CT	B	A
DE	C	B
DC	F	D
FL	F	F
GA	C	C
HI	F	F
ID	D	C
IL	A	B
IN	B	B
IA	F	D
KS	A	B
KY	D	B
LA	B	C
ME	F	F
MD	D	D
MA	A	A
MI	A	A
MN	C	A
MS	D	D
MO	C	C
MT	F	B
NE	D	C
NV	A	A
NH	B	A
NJ	B	A
NM	A	A
NY	D	D
NC	D	C
ND	A	A
OH	B	B
OK	C	C
OR	C	B
PA	D	C
RI	D	B
SC	F	D
SD	F	C
TN	C	C
TX	F	D
UT	C	B
VT	D	D
VA	C	B
WA	B	B
WV	D	C
WI	F	F
WY	D	D
Fed	F	F

 

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End Notes

[1] See J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2460, 2461-62 (2020) (estimating between 19 and 24 million Americans have felony convictions and an unknown “but presumably larger” number have misdemeanors), citing The Economic Impacts of the 2020 Census and Business Uses of Federal Data: Hearing Before the J. Econ. Comm., 116th Cong. 12 (2019) (Nicholas Eberstadt); Sarah K.S. Shannon et al., The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948–2010, 54 Demography 1795, 1806 (2017); Megan Stevenson & Sandra Mayson, The Scale of Misdemeanor Justice, 98 B.U. L. Rev. 731, 746 n.81 (2018).

[2] See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration In The Age Of Colorblindness (2d ed. 2011); James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev. 21 (2012); Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012).

[3] Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1811–14.

[4] See generally Sarah Esther Lageson, Digital Punishment: Privacy, Stigma, and the Harms of Data-Driven Criminal Justice (Oxford U. Press, 2020); James Jacobs, The Eternal Criminal Record (Harvard 2015). See also Lageson, The Purgatory of Digital Punishment (Aug. 17, 2020), https://ccresourcecenter.org/2020/08/17/the-purgatory-of-digital-punishment/, Alessandro Corda & Sarah E. Lageson, Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and the Rise of a New Penal Entrepreneurialism, 60 Brit. J. Criminology 245 (2020); Alessandro Corda, More Justice and Less Harm: Reinventing Access to Criminal History Records, 60 Howard L.J. 1 (2016).

[5] See, e.g., Wayne A. Logan, Informal Collateral Consequences, 88 Wash. L. Rev. 1103 (2013).  The consequences attaching to a non-conviction record are discussed in Section IIE.

[6] Compare “Fundamental Rights and Legal Consequences of Criminal Conviction,” Sonja Meijer, Harry Annison & Ailbhe O’Loughlin, eds. (Hart, 2019)(essays describing how criminal records are used, managed and exchanged in various European countries and Australia, against a background of fundamental human rights that include protection of privacy) with Jacobs, supra note 94 (describing how criminal records are used and managed in the United States in the absence of similar conceptual constraints).

[7] See CCRC annual reports on new restoration of rights laws between 2018 and 2021, linked in note 6, supra. States use various other terms to describe restrictions on access to records, including annulment (New Hampshire) and erasure (Connecticut), but for simplicity this report settles on the generic terms expungement and sealing and uses them interchangeably unless a more specific meaning is indicated. Set-aside laws take a different approach, authorizing a court to “vacate” a conviction in order to signal a person’s rehabilitation, relief that may or may not be followed by sealing the record.

[8] In some states, sealed or expunged records remain available only to law enforcement, which is sometimes required to obtain a court order to access them. In others, public employers and licensing boards will have access, as will private entities authorized by law to conduct a background check (e.g., for working with vulnerable populations). In Indiana, an expungement does not limit access to the record of most felonies, although expunged misdemeanors and non-conviction records are sealed. In some states, “expungement” is indistinguishable from “sealing” (e.g., Louisiana, Kansas, Rhode Island, Vermont), and in others they are functionally distinct remedies (e.g., Illinois, Pennsylvania). In a few states the law directs expunged records to be destroyed (e.g., Connecticut, Illinois Maryland, Montana, Pennsylvania, North Carolina), but even in these states non-public copies are ordinarily retained in a court file. It is not clear the extent to which sealing removes formal consequences such as firearm dispossession and sex offender registration. See Love et al., Collateral Consequences of Criminal Conviction, supra note 6 at § 7:17. Federal law frequently does not accord any legal effect to state expungement or record-sealing. See infra note 128.

[9] See Prescott & Starr, supra note 91 at 2461, 2510-43 (large empirical study finding that people in Michigan who have their conviction set-aside and sealed have “extremely low” subsequent crime rates; an expungement “quite likely” reduces recidivism risk; and those who obtain it experience higher wages and employment rates); Jeffrey Selbin, Justin McCrary, & Joshua Epstein, Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Crim. L. & Criminology 1, 9 (2018) (finding evidence of improved employment and earnings in a sample of clinic clients who received a California set-aside or felony reduction); but see Jennifer Doleac & Sarah Lageson, The Problem with ‘Clean Slate’ policies: Could broader sealing of criminal records hurt more people than it helps?, Niskanen Center (Aug. 31, 2020) (arguing that sealing official records is unlikely to truly hide criminal history because employers can obtain it online; and if records are not available, this may lead employers to use racial stereotypes about who may have a record, as with “ban the box”), https://www.niskanencenter.org/the-problem-with-clean-slate-policies-could-broader-sealing-of-criminal-records-hurt-more-people-than-it-helps/.

[10] See CCRC annual reports linked in note 6, supra.  In 2020 alone, at a time when lawmakers were understandably distracted by the pandemic, 20 states enacted 35 bills expanding or enacting for the first time laws authorizing clearing of conviction and non-conviction records. See Margaret Love & David Schlussel, The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020 (January 2021) https://ccresourcecenter.org/wp-content/uploads/2021/01/CCRC_The-Reintegration-Agenda-During-Pandemic_2020-Reforms.pdf. Michigan authorized a broad automatic scheme while also expanding petition-based relief, and Georgia, North Carolina, and Nebraska also broadened existing provisions for record relief while six states also authorized relief for marijuana convictions after legalization. The year before, 27 states and D.C. had made certain classes of convictions newly eligible for expungement, sealing, or vacatur relief, five of them enacting their first general authority for expunging or sealing convictions (North Dakota, New Mexico, West Virginia, Delaware, Iowa). See Love & Schlussel, Pathways to Reintegration: Criminal Record Reforms in 2019, (Feb. 2020), https://ccresourcecenter.org/wp-content/uploads/2020/02/Pathways-to-Reinteglagesopnration_Criminal-Record-Reforms-in-2019.pdf.

[11] See id; see also Brian Murray, Retributive Expungement, 169 U. Pa. L. Rev. 665 (Forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3617875 (arguing that because expungement was originally conceived through a rehabilitative framework, , many procedural hurdles in the law were intentionally designed to channel relief to those with unusual records of achievement; and, suggesting that a retributive approach would support the case for broader eligibility, an obligation on the state to prove ineligibility, and automated relief. )

[12] Colleen V. Chien, America’s Paper Prisons: The Second Chance Gap, 119 Mich. Law. Rev. 519 (2020).

[13] Prescott & Starr, supra note 91 at 2461, 2486-2510 (finding that among those legally eligible for set-aside and sealing in Michigan, only 6.5% obtain it within five years of eligibility, and suggesting some likely reasons for this low uptake rate). A recent report by CCRC and the National Consumer Law Center documented monetary barriers to record clearing in the form of outstanding court debt and a variety of application-related costs. See The High Cost of a Fresh Start: A State-by-State Analysis of Court Debt as a Barrier to Record Clearing (February 2022).

[14] See, e.g., Corda & Lageson, supra note 94 at 245–64.

[15] See 50-State Comparison: Expungement, Sealing & Other Record Relief (chart 2), supra note 65.

[16] The collateral consequence relief proposals of the American Bar Association (2003), Uniform Law Commission (2010), and American Law Institute (2017), are discussed in the section on judicial certificates. The 1962 Model Penal Code endorsed set-aside, and the 1983 ABA Standards endorsed expungement, but neither organization included this relief in their more contemporary proposals. The only model policies on sealing convictions were published in 2019 by a California nonprofit, suggesting four principles: relief should (1) include an automatic mechanism; (2) come at or soon after the end of sentence; (3) be focused to maximize safety; and (4) extend to a wide spectrum of offenses. See Lenore Anderson et al, Creating Model Legislative Relief for People with Past Convictions, Alliance for Safety and Justice (2019), https://allianceforsafetyandjustice.org/wp-content/uploads/2019/09/Model-Policies-Brief.pdf.  In 2021 California seems to have been the first state to enact legislation incorporating all four of these principles. See note 127 infra.

[17] The categories analyzed do not include specialized record-clearing remedies for such sub-groups as victims of human trafficking, people with youthful and juvenile offenses, and participants in so-called “intervention courts,” or specific categories of offenses such as marijuana possession and other conduct subsequently made non-criminal.

[18] Arizona, Arkansas, Colorado, Illinois, Indiana, Kansas, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, North Dakota, and Washington. In 2021, Arizona supplemented its longstanding broad set-aside authority with a separate system of sealing that will come into effect in 2023. Ariz. Rev. Stat. § 13-90.

[19] California, Connecticut, Delaware, Idaho, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, West Virginia, and Wyoming. All seal convictions except Idaho and Nebraska. The record relief provisions in these two last-mentioned states are discussed in note 110, infra.

[20] Idaho and Nebraska both authorize people sentenced to probation to petition the court to set aside the conviction, which has the effect of restoring rights but does not seal the record. Idaho Code § 19-2604(1); Neb. Rev. Stat. § 29-2264. Nebraska and Idaho are the only two states remaining with a traditional set-aside authority proposed by the 1962 Model Penal Code, although a 2018 Nebraska law authorizes any person who has received a pardon to file a motion with the sentencing court for an order to seal the record. See Sec. 2, SB 1132 (2018), codified at Neb. Rev. Stat.§§ 29-3523(5).

[21] The D.C. sealing law’s coverage of one felony (failure to appear) is too unique to be an appropriate bookend.

[22] Many misdemeanors can also be expunged, but a 10- or 15-year conviction-free waiting period applies (marijuana possession sealing has a 4-year period and certain nuisance crimes have a 3-year period). Md. Code Ann., Crim. Proc. § 10-105. “If the person is convicted of a new crime during [the applicable waiting period], the original conviction or convictions are not eligible for expungement unless the new conviction becomes eligible for expungement.” Id. § 10-110(D)(1). A bill was pending in the Maryland legislature at the time this report went to press to shorten this waiting period.

[23] Relief for pardoned convictions is automatic in Pennsylvania and South Dakota and by court petition in Alabama, Georgia, and Texas. As noted in the previous section on pardon, about a dozen additional states make pardon grounds for expungement. Those states all have separate laws allowing at least some felony and misdemeanor convictions to be expunged or set-aside even if they have not been pardoned.

[24] D.C. does make a single felony offense eligible for sealing: felony failure to appear. D.C. Code § 16-803.

[25] Iowa Code § 901C.3.

[26] Mont. Code Ann. § 46-18-1102, et seq.

[27] Hawaii also authorizes expungement of first or second drug possession violations. Haw. Rev. Stat. § 706-622.5.

[28] See 50-State Comparison: Marijuana Legalization, Decriminalization, Expungement, and Clemency, Restoration of Rights Project, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-marijuana-legalization-expungement/.

[29] For example, by the time someone has satisfied the ten crime-free years after completion of sentence required by both New York and Louisiana, and the 15 years required by Maryland, they would appear to be in little jeopardy of subsequent conviction. See Margaret Love & David Schlussel, Waiting for Relief: A National Survey of Waiting Periods for Record Clearance, Collateral Consequences Res. Ctr. (February 2022)(forthcoming).

[30] See National Consumer Law Center & Collateral Consequences Resource Center, The High Cost of a Fresh Start, supra note 103. Recognizing the unfairness of restricting relief to those with means to pay financial obligations, several states have enacted laws since 2018 to partially alleviate these requirements (e.g., Illinois, New Jersey, Pennsylvania, Washington), but Louisiana is the only state that does not contemplate consideration of outstanding court debt in connection with expungement. Recent advocacy has highlighted the extent to which many people lack the ability to pay these obligations. See, e.g., Fines and Fees Justice Center, https://finesandfeesjusticecenter.org/. A 2018 study of California residents with convictions found that 45% struggle to pay fines and fees. Repairing the Road to Redemption in California, Californians for Safety and Justice (2018), https://safeandjust.org/wp-content/uploads/CSJ_SecondChances-ONLINE-May14.pdf. In 2020, the federal district court in a major Florida voting rights case found that—of hundreds of thousands of people with a felony conviction who had served all their custody and supervision time, but still owed financial obligations—the “overwhelming majority” were “genuinely unable to pay” the owed amounts. Jones v. DeSantis, Case No. 4:19cv300-RH/MJF, 2020 WL 2618062, at *15 (N.D. Fla. 2020), rev’d on appeal by Jones v. Governor of Florida,
975 F.3d 1016 (11^th Cir. 2020).

[31] For example, Minnesota limits felony sealing to a list of 50 offenses ranging from aggravated forgery to livestock theft. Maryland has a long list of crimes eligible for expungement, and another list eligible for “shielding” (sealing) at an earlier date. In Oregon closure is available for many non-violent misdemeanors and less serious felonies, but only if the individual has not been convicted in the previous 10 years (or ever, if the record for which closure is sought is a Class B felony) nor arrested within the previous three years. Missouri’s 2017 sealing law permits closure of a significant number of felony and misdemeanor offenses, with seven years conviction-free waiting periods after completion of sentence for felonies and three years for misdemeanors; only one felony and two misdemeanor convictions are eligible for closure in a person’s lifetime. In New York and Michigan, many felony offenses may be sealed, but each applicant may only seal one felony conviction, and only if the person has no prior felonies (as well as fewer than 2 misdemeanors in New York, or fewer than 3 in Michigan).

[32] For a description of the broad record-clearing schemes enacted from scratch by these two states in 2019, see their state profiles in the Restoration of Rights Project.

[33] Prescott and Starr found that only 6.5% of those eligible for relief in the years they studied were successful in navigating the application process. See Prescott & Starr, supra note 91 at 2466, 2489 through 2492. For in-depth studies of access barriers in two states, see Noella Sudbury, Collateral Consequences Resource Center, Access Barriers to Felony Expungement in Utah (2021); Beth Johnson et al., Collateral Consequences Resource Center, Access Barriers to Felony Expungement: The Case of Illinois (2021).

[34] Rachel M. Cohen, Washington Governor Vetoes Bill That Would Have Automatically Cleared Criminal Records, The Appeal (May 19, 2020), https://theappeal.org/politicalreport/washington-governor-vetoes-clean-slate-bill/.

[35] See Jones v. Commonwealth, Docket 2019-SC-0651-DG (Dec. 16, 2021) (“We can identify no other situation in our Commonwealth where a judge renders a judgment that a litigant is entitled to a benefit under the law, but that litigant cannot obtain the benefit of that judgment unless and until he pays a fee.”)

[36] See supra notes 102 and 103.

[37] In addition to the five states with broader automatic authorities to seal conviction records, Pennsylvania and Utah authorize automatic relief for a most less serious misdemeanors, while South Dakota and Virginia authorize automatic relief for certain minor misdemeanors. Eight states now authorize automatic relief for certain marijuana convictions (California, Connecticut, Illinois, New Jersey, New Mexico, New York, Vermont, and Virginia). See 50-State Comparison: Expungement, Sealing & Other Record Relief, Chart #2, note 65 supra. The Clean Slate Initiative has been a leader in advocating for automatic relief. See https://ccresourcecenter.org/2020/08/03/the-clean-slate-initiative-a-national-bipartisan-coalition/.

[38] For example, in the immigration context, a non-citizen may avoid deportation based on conviction with a “full and unconditional” pardon, but state judicial relief is only recognized if granted “because of a procedural or substantive defect in the criminal proceedings,” and not if granted “for equitable, rehabilitation, or immigration hardship reasons.” See 8 U.S.C. § 1227(a)(2)(A)(vi); Prado v. Barr, No. 17-72914, 2020 WL 596877, at *3 (9th Cir. Feb. 3, 2020); Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004). There have been exceptions made to this non-recognition of expungement, including eliminating conviction as an absolute bar to obtaining Deferred Action for Childhood Arrivals (DACA) status. See https://www.ilrc.org/sites/default/files/resources/definition_conviction-kb-20180307.pdf. The FDIC, in regulating banking employment, until recently only recognized expungements that were “complete” (meaning the record can never be used for any subsequent purpose) but new regulations effective September 21, 2020, will give effect to any expungement or record-sealing. See https://www.govinfo.gov/content/pkg/FR-2020-08-20/pdf/2020-16464.pdf. On the other hand, the Small Business Administration requires loans applicants to disclose convictions even if they have been expunged or sealed. See, e.g., SBA Standard Operating Procedures 50 10 5(K), pp. 110, 293 (eff. April 1, 2019).

[39] See Sharon Dietrich, Ants Under the Refrigerator: Removing Expunged Cases from Commercial Background Checks, Criminal Justice (Winter 2016), https://ccresourcecenter.org/wp-content/uploads/2017/03/Ants-under-the-Refrigerator-published.pdf.

[40] This law requires “reasonable procedures to ensure maximum possible accuracy”—and in the employment context, unless contemporaneous notice is provide to the person being screened, the use of “strict procedures” to ensure data is up to date. 15 U.S.C. §§ 1681e(b), 1681k.

[41] Alessandro Corda, Beyond Totem and Taboo: Toward a Narrowing of American Criminal Record Exceptionalism, 30 Fed. Sent’g Rep. 241, 243 (2018).

[42] Id.

[43] See Cal. Civ. C. § 1786 et seq.

[44] In Indiana, an expungement does not limit access to the record of most felonies, although misdemeanors and non-conviction records, as well as the records of the least serious felonies, are sealed following expungement. See Indiana profile, Restoration of Rights Project; see also CCRC Staff, Indiana’s new expungement law the product of “many, many compromises,” Dec. 15, 2014, https://ccresourcecenter.org/2014/12/15/indianas-new-expungement-law-product-many-many-compromises/.

[45] See Dietrich, supra note 129.

[46] See Lageson, Purgatory, supra note 94.

[47] Id.

[48] See 50-state chart on expungement and sealing, note 65.

[49] See Riya Saha Shah, Lauren Fine, Juvenile Law Center, Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records (rev. 2020); Riya Saha Shah, Lauren Fine & Jamie Gullen, Juvenile Law Center, Juvenile Records: A National Review of State Laws on Confidentiality, Sealing and Expungement (2014). Both reports are available at http://juvenilerecords.jlc.org/juvenilerecords/#!/map. See also Joy Radice, The Juvenile Record Myth, 106 Geo. L. J. 365 (2018) (providing analysis and charts of state laws for sealing juvenile records). Some recent state-specific resources are collected in Love et al., Collateral Consequences of Criminal Conviction, supra note 6 at §§ 2:68 through 2:77.