We are pleased to announce that we are convening a roundtable meeting in August 2019, hosted by the University of Michigan Law School, to develop a model law on access to and use of criminal records, specifically in cases that do not result in a conviction.

In March, we began a major study of the public availability and use of these non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to criminal records through mechanisms like sealing and expungement increases the earning ability of those who receive this relief, which in turn benefits their families and communities.

The problems of access and use are not limited to private actors:  a recent court decision in New York suggests that police departments in some jurisdictions make operational use of sealed non-conviction records even when the law prohibits it.

While almost every U.S. jurisdiction provides for limiting access to this subset of criminal records, relief varies widely in availability and effect, and is often difficult to take advantage of without a lawyer.  What’s more, arrest records may remain accessible on the internet long after official court files have been made confidential or even destroyed.  When arrests are not charged, the record may be available through state repositories but beyond the reach of judicial sealing statutes.  In the case of diversions, the record may be publicly available before the case is resolved and the record sealed, or the record may not be eligible for sealing at all.

While CCRC’s Restoration of Rights Project now includes state-by-state information on how non-conviction records may be sealed or expunged, our new project examines the operation of applicable laws more closely, including through the lens of such issues as restrictive eligibility requirements (including waiting periods and overall criminal record), burdensome procedures (including filing fees and other financial barriers, and hearing requirements), police and prosecutor access, deniability, and enforcement.  It will note where state law or court rulings permit redaction of records so that dismissed charges may be sealed even if one or more charges in a case do result in conviction.  It will consider the practical and legal differences between different types of access limits, and the problem of expunged records remaining available in private databases and on the internet.

We will produce a working paper addressing key issues and policy options that will be discussed at the August roundtable meeting.  Professors J.J. Prescott and Sonja Starr of the Michigan Law faculty will serve as conference hosts and collaborators.  Legal scholars, practitioners, judges, law enforcement officials, and legislators have been invited to participate, including at least three who have criminal records themselves.  We expect to have technology experts to advise about the operational implications of the policies and legislation we are considering, in light of how states manage their criminal records systems.

The roundtable will produce a set of policy recommendations and model legislation aimed at neutralizing the effect of non-conviction records.  Following the roundtable, we will prepare and issue a report on the recommendations and model law, seeking input from scholars and other interested parties, and then promote the results widely in the academic and advocacy community.

The principal value of this project will be to inform and strengthen efforts underway in legislatures and advocacy organizations across the country to mitigate the disabling effects of a criminal record, including uncharged arrests and dismissed charges, on the lives of people with a record, their families and their communities.  We believe that reforming the law is an important a part of the reintegration agenda—along with advocating for and providing services to people with a criminal record—and we hope this project will be the first stage of a larger national law reform effort to address access to and use of all types of criminal records.  In light of the intense interest in legislatures across the country in mitigating the effect of criminal records, as evidenced in our 2018 report on relevant laws passed just last year, there is an obvious need for such guidance.  The first months of 2019 have evidenced an even greater level of legislative interest, on which we expect to report again in early July.

The Michigan Law roundtable meeting and its follow-up report are being supported by the Charles Koch Foundation and Arnold Ventures.