Our new report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years. Typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law. These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases.

Waiting for Relief: A National Survey of Waiting Periods for Record Clearing 

The waiting periods for misdemeanor convictions range from a high of 10 or 15 years in Maryland (depending on the nature of the offense) to 0 years in Mississippi (although only first-time offenses are eligible), with most states falling at the lower end of that range. Of the 44 states that authorize clearing of misdemeanor convictions, a near-majority have waiting periods of 3 years or less (19 states) and the vast majority have waiting periods of 5 years or less (35 states).

The waiting periods for felony convictions range from as high as 10 or 20 years in North Carolina to as low as 0-2 years in California, with most states falling at the lower end of that range. Of the 35 states that authorize clearing of felony convictions, a near-majority have waiting periods of 7 years or less (17 states).

Many waiting periods, notably longer ones, reflect a concept of record clearing via expungement or sealing as “recognition of successful rehabilitation and reason to terminate legal disqualifications and disabilities.”[1] In recent years, however, many states have shortened waiting periods in recognition of the constructive role that record clearance plays in facilitating reentry and rehabilitation, reasoning that individuals “need the most assistance immediately after release from prison or termination of sentence.”[2] The seven (7) states that have enacted a general conviction sealing authority for the first time since 2018 have generally (though not invariably) provided shorter waiting periods than states with more venerable systems.[3]

Data on recidivism dating from the 1990s reinforced policy arguments that waiting periods should be long enough to reduce the risk of reoffending after record clearance. But new research on recidivism suggests that shorter waiting periods need not raise public safety concerns. Researchers at the RAND Corporation have raised questions about decades of received truth about the prevalence of reoffending after people leave prison, proposing that the majority of individuals with a conviction do not have a subsequent conviction, and that a person’s likelihood of being convicted again declines rapidly as more time passes.[4]

This new research would seem to cast doubt on the legitimacy of concerns that shortening waiting periods necessarily raises public safety concerns.  Indeed, to the contrary, it suggests that it may be possible to reconcile the seemingly inconsistent policy goals of facilitating and recognizing rehabilitation through shorter waiting periods.

The full report is available here.

—

[1] James Jacobs, The Eternal Criminal Record 131 (Harvard Univ. Press 2015).

[2] Id. See also Brian M. Murray, Retributive Expungement, 169 U. Pa. L. Rev. 665, 695 (2021); J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harvard L. Rev. 2460, 2479 (2020); Jeffrey Selbin et al., Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Crim. L. Criminology 1, 52 (2018).

[3] States that have reduced their eligibility waiting periods since 2016 are Arkansas, Massachusetts, Michigan, Missouri (twice), Nevada, New Jersey (twice), North Carolina, Ohio, Oklahoma (twice), Oregon, South Dakota, Vermont (twice), Washington. States that have enacted a general conviction sealing authority for the first time since 2018 are Alabama, Arizona, Connecticut, New Mexico, North Dakota, Virginia, West Virginia. Additional information about waiting periods in these states can be found in the Restoration of Rights Project.

[4] Shawn Bushway et al., Providing Another Chance: Resetting Recidivism Risk in Criminal Background Checks, RAND Corp. (2022),  https://doi.org/10.7249/RRA1360-1.