Numerous studies have demonstrated how Black Americans are treated more harshly at every stage of the criminal legal system—from over-policing to overcharging to more punitive sentencing. New research from California shows how eligibility limitations on criminal record relief perpetuate racial disparities in the criminal justice system, and have a disproportionately adverse effect on Black Americans.

The study, by Alyssa Mooney, Alissa Skog, and Amy Lerman, and published in Law & Society Review, examined recent legislative changes to criminal record relief laws in California, one of the first states to automate relief. The study assessed the equity of California’s existing automatic record relief laws by examining the share of people with criminal records who are presently eligible for automatic record clearing, and variations across racial and ethnic groups.

The authors found that 20% of all those convicted of any offense between 2000 and 2016 were eligible for automatic relief. An additional 33% were eligible to petition the court for relief, and 47% were ineligible for any relief at all by virtue of the nature of their conviction or terms of their sentence. But the study also found eligibility was lowest among Black people, with only 15% qualifying for automatic relief, and 29% for petition-based relief. Meanwhile, 21% of White people with convictions qualify for automatic relief, and another 35% are eligible by petition.

As in other states, the California legislature has limited the types of convictions that are eligible for record relief, generally excluding those who spent time in state prison for more serious felonies. Because of the state prison limitation, the study shows 30% of Black people in California will never get relief from their records, compared to 15% of White people and 19% of people with convictions overall. In addition, if all ineligible felony convictions are factored in, the ineligibility rate increases to 40% for Black people, 28% for White people and to 32% overall. (Incomplete sentences, pending charges, and variable waiting periods make it hard to calculate eligibility percentages exactly, while missing data creates another set of problems.)

The study then considered how several hypothetical changes to current California law would affect racial equity in eligibility for record clearing. First, the authors examined the effect of incorporating convictions currently eligible only by petition into automatic relief. Then the study considered the effects of automatically granting record relief after seven years for convictions now ineligible for any relief. Finally, the study considered the result if both of these changes were enacted.

The study found that making relief automatic in cases where it is now “discretionary” (i.e., petition-based) would increase eligibility from 15% to 44% of Black Californians and from 21% to 56% of White Californians—but this would double the racial disparity for automatic relief from 6% to 12%. Enacting a seven-year “sunset” rule (making relief automatic seven years after completion of sentence) for those currently excluded from any record-clearing relief would would reduce disparity slightly by increasing overall eligibility to 58% of Black Californians and 63% of White Californians. If both of these potential reforms were enacted, eligibility for automatic relief would increase to 64% of Black Californians and 70% of White Californians. While some racial disparity remains, it would be no greater than the differential under existing law — and, more significant, the absolute number of people who qualified for automatic record relief would greatly increase.

The study’s authors suggest that other states that have automated some record relief likely have similar racially disparate outcomes because felony convictions are largely excluded from eligibility.

The study also points out that California also has a particular challenge in effectuating its new provisions for automatic record clearing, since many county agencies do not report the outcomes of criminal cases to the California Department of Justice. Because the DOJ administers automatic record relief by sending lists of eligible cases to courts, people with convictions in counties that do not report disposition data will be left without the relief for which they are legally eligible.

Since the initial publication of the study, the California legislature has passed a bill, SB 731, that would incorporate several of the authors’ proposed reforms, which Governor Newsom is expected to sign into law. Another enrolled bill, SB 1106, will make additional cases eligible by removing at least some outstanding court debt as a bar to relief. CCRC will publish a comprehensive review of that legislation when it becomes law. The study’s authors plan to revise their eligibility estimates this fall, based on the new legislation.