Racial disparity in clean slate record clearing? California responds

August 25, 2022 CCRC Staff

Reproduced below is a press release describing new research by three California scholars published in the Law & Society Review, based on California sentencing data, showing how eligibility criteria for automatic record clearing “can inadvertently perpetuate racial inequity within the criminal justice system.”

This conclusion seems to us unsurprising, and likely has broader national application for two interrelated reasons: Prosecution policies nationwide have tended to result in more Blacks than Whites being convicted of more serious felonies resulting in prison sentences, while eligibility for automatic record clearance has to date been authorized primarily for non-convictions and misdemeanors (see sections 2 and 3 from the 50-state charts at this link from our Restoration of Rights website: https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside-2/.) The authors recommend that “to reduce the racial gap in criminal records, a change in policy needs to happen to extend record clearance eligibility to a wider range of cases—for example, people with felonies or those sent to prison who are currently excluded.”

The California legislature seems to have anticipated the recommendations in this report, for on August 18 it enrolled and sent to Governor Newsom’s desk a bill that would extend existing automatic record clearing authority to most felonies after four felony-free years, and for the first time to felony non-conviction records. See SB 731. This makes California’s “clean slate” law by far the most extensive in the country.

While California’s broad automatic record-clearing measures may be a hard sell in many other states, hopefully the conclusions of the research will lead other states to take steps to reduce racial inequity in their record clearing laws. The research also points to the need to reexamine prosecution and sentencing policies, which are perhaps inevitably reflected in record clearance laws. All too often White defendants are offered community-based diversionary dispositions aimed at avoiding a conviction record, while Black defendants charged with similar conduct are convicted and sentenced to prison. See, e.g., J.J. Prescott, Benjamin Pyle, and Sonja B. Starr, Understanding Violent-Crime Recidivism, 95 Notre Dame Law Review 1643 (2020). Hopefully this research from California will prompt reconsideration of these front-end prosecution policies, even if reducing racial disparity in record clearing may remain for a time a lagging indicator.

The Law & Society article is behind a paywall ($48 for a PDF download), but we expect to post a more extensive discussion of the research and its accompanying policy recommendations shortly. We will update the California profile from the Restoration of Rights Project when Governor Newsom signs the bill into law.

AMHERST, Mass. – Although they are well-intentioned, eligibility criteria for recent automatic criminal record relief laws used around the country can inadvertently perpetuate racial inequity within the criminal justice system.

The latest issue of the Law & Society Review features innovative research on criminal record relief reform through the publication of “Racial Equity in Eligibility for a Clean Slate Under Automatic Criminal Record Relief Laws” by California-based scholars Alyssa C. Mooney (University of California, San Francisco), Alissa Skog (University of California, Berkeley) and Amy E. Lerman (University of California, Berkeley). Their article sheds light on racial inequities in eligibility among current relief laws in California and identifies two policy amendments that would reduce the share of Black men in California with a conviction record from 22% to 9%. There is currently a 15 percentage point difference between the share of Black men in California who have a conviction record versus white men, and these policy changes would narrow the gap to seven percentage points.

“One of the explicit aims of record clearance policies is to undo the lasting stigma of a criminal record, which has been disproportionately harmful to Black Americans,” said Professor Lerman. “In our study, we analyze how different record clearance policies would interact with patterns in criminal records that map on to race, to try to predict in advance whether efforts to remove criminal records could create unintended consequences that actually increase racial inequity.”

States have recently started enacting automatic criminal record relief laws. These laws allow authorities to regularly review data systems to provide relief for eligible individuals with arrests that never led to convictions. This includes most misdemeanors and low-level felony convictions. They are designed to take the burden of the court petition process off the shoulders of the person with a record.

However, Mooney, Skog and Lerman show how these relief laws can unintentionally maintain racial disparities in criminal records. The authors then suggest ways in which relief laws could instead maximize their potential to reverse these harms. They argue that automating the record clearing process alone is not enough and that in order to reduce the racial gap in criminal records, a change in policy needs to happen to extend record clearance eligibility to a wider range of cases—for example, people with felonies or those sent to prison who are currently excluded.

The study could inform future policy efforts, potentially helping policymakers to avoid the unintended consequences that can result from even well-intentioned efforts at reform. “One of the most important aspects of our study is it provides an example of how we can use data to try to predict the consequences of policies for racial equity before we pass those policies and experience their potentially unintended negative consequences or how they inadvertently do harm,” said Lerman.

To assess equity in eligibility for criminal record relief, the authors use criminal history data from the California Department of Justice, consisting of 2,246,101 people who were arrested in the years 2000-2016. The authors first assess the share of people who are eligible to clear every conviction on their record under current laws and then examine how this varies across racial and ethnic groups. Next, they evaluate how specific recommended changes to the current eligibility requirements and the implementation of adjusted criminal record relief laws could address these racial inequalities.

The authors find that one in five people with convictions in California met criteria for full conviction relief under the state’s automatic relief laws. However, the share of Black Americans eligible for relief was lower than white Americans, reproducing racial disparities in criminal records.

This disparity (or difference) resulted from a higher likelihood of felony convictions, and among those, a higher likelihood of cases that were not eligible under current laws, even if the sentence was complete. Hinging eligibility on criminal records produced by historical racial discrimination in policing and prosecution—such as the prison sentence exclusion—confers disproportionate benefits of automatic relief to white people and must be examined and justified as an exclusionary criterion.

The article includes a discussion of how its findings can reveal the persistent role of race in criminal justice reform, even in cases where the explicit intent is to reduce the harms of mass incarceration. The adjusted reform measures proposed by the authors aim to widen the criteria for automatic relief. Through these recommendations, relief eligibility would factor in discretionary convictions and include a “seven-year sunset rule,” which would provide relief for any conviction seven years after the sentence is complete.

“Black-white and Latino-white disparities would be cut approximately in half, but would persist at 4.0 and 0.5 percentage points, respectively, among all adults, and 6.8 and 1.1 among men,” explained the authors. “The persistent disparities in records of a criminal conviction when both hypothetical reforms were incorporated suggest that Black people are more likely to have charges pending and/or incomplete sentences on a conviction.”

The discussion also flags the severity of missing data across counties, and the dangers that criminal records may persist in online databases. Each of these phenomena may affect a significant proportion of those with criminal records, further amplifying racial inequalities when it comes to getting a clean slate.

“Under the new law, eligible cases will be granted automatic relief in the state’s database, yet our findings highlight that missing case information from counties is a huge challenge for determining eligibility,” Mooney explained. “There is a need for more work on how administrative data quality affects equitable policy change, and whether county resources for data systems determine local effects of state reforms.”

“One perennial challenge is notifying individuals that their records are cleared,” added Skog. “It is incredibly onerous—and often not possible—to locate current contact information for all individuals who will benefit from relief. Plus, there are critical privacy concerns surrounding notification.”

Volume 56, Issue 3 is available online here. It includes seven articles and two book reviews. To read this full LSR article, visit the Wiley Online Library here.