Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods.  If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison.  Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt.

The preamble to the new Louisiana law says it is intended “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.”  But a felony offender is ineligible to apply for expungement until ten years after completion of sentence, long after recidivism has ceased to be a statistical risk.  In other words, the new law is not likely to do much if anything to “break the cycle of recidivism” or help people “reentering the community” (presumably from prison).  Even misdemeanants have to wait five years before they are eligible. The only people whose records can be expunged immediately are those who were never convicted to begin with. Wouldn’t people returning to the community from prison be more likely to benefit from supportive social services, rehabilitative programming, and assistance with obtaining transitional jobs and housing? 

It is possible that the legislators expected the availability of expungement at some future time to provide an incentive to stay on the straight and narrow — but the reference to employment opportunities upon “reentering the community” suggests they had something more immediate in mind.   Relief after a long period of law-abiding conduct also serves a useful purpose to recognize a person’s full rehabilitation, but it does nothing to overcome obstacles faced by people upon their release from prison.

The formulaic recitation of public safety-related purposes to justify providing relief from collateral consequences is not unique to Louisiana, and neither is the apparent contradiction with those purposes presented by extended eligibility periods.  New broad expungement schemes in Indiana, Minnesota and Arkansas also make felony offenders wait years without another run-in with the law before they can apply for relief.  Any notion that expungement of conviction records will facilitate reentry or discourage reoffending is either mistaken or disingenuous.   Expungement of arrest records is another matter, though concepts of “reentry” and “recidivism” don’t strictly apply where a person is not convicted.

So this raises three questions:  1) why can’t we enact relief from collateral consequences at a time when it will in fact facilitate reentry and impact public safety; 2) why aren’t we doing more to avoid conviction in the first place; and 3) why are legislators and other government officials so hesitant to justify restoration of rights in terms of fairness and/or reward?

The answer to Question #1 is that only a few states have enacted laws authorizing relief from collateral consequences as early as sentencing, when it could be of genuine help with reentry.  New York has had such a law for years, for first offenders sentenced to probation. Vermont, Colorado and New Jersey now also have laws authorizing the sentencing court to dispense with mandatory collateral consequences, and bills that would accomplish this have been introduced in several other states.  Relief at sentencing is a feature of both the Uniform Collateral Consequences of Conviction Act and the Model Penal Code: Sentencing, so perhaps this will be the wave of the future.  Note, however, that not a single state provides record-closing relief to convicted persons prior to completion of sentence, so advocates would do well to consider more transparent forms of relief during the period covered by the sentence.

Question #2 gets a more hopeful answer:  more than half the states have opportunities for diversion and deferred adjudication followed by expungement or sealing.  This means that people charged with minor offenses can avoid a conviction record if they successfully completion of probation.  But again, this is not a “reentry” remedy strictly speaking since by definition the person never leaves the community.  And, in those jurisdictions that condition eligibility on a guilty plea, they may be subject to collateral consequences during the period of probation.  The new Model Penal Code: Sentencing has provisions implementing both diversion and deferred adjudication that do not require a formal plea, and whose specific goal is to enable people to avoid incurring collateral consequences. Since there is never a conviction, the person may answer honestly that they have never been convicted.  These provisions originated in the 1970s when reformers were interested in encouraging rehabilitation through sentencing, as we perhaps are again today. (I would note it is high time that the federal government expanded the only authority it now has for deferred adjudication, 18 USC 3706, from drug possession to any minor offense.)

Question #3 is rhetorical.