A closer look at racial disparities in California’s automatic record clearing

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.

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Racial disparity in clean slate record clearing? California responds

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.

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CCRC has a new Deputy Director!

CCRC’s Board of Directors is delighted to announce that Rob Poggenklass has accepted its offer to serve as CCRC Deputy Director.  Rob has served as a public defender and legal aid lawyer in Virginia and Iowa for more than a decade, and has the technical legal skills, the field experience, and the passion for the policy issues that make him an ideal fit for the position.

“I’m excited to join an organization dedicated to many issues I care so deeply about,” Rob told the CCRC board. “Everyone deserves a chance to live with dignity, and the effects of a criminal record often stand in the way. I have spent much of my career fighting against these barriers. I look forward to elevating these issues across the country at CCRC.”

We first met met Rob three years ago, when he was seeking amicus support for a cert petition to the U.S. Supreme Court in a case involving an Iowa woman who the state courts had ruled ineligible for record clearing because she could not pay the costs of the court-appointed lawyer who had represented her in her diversion case a decade before. CCRC was happy to file an amicus brief in support of Rob’s excellent petition, and while in the end the petition was not granted, Rob impressed us all then as a supremely talented and committed advocate.

We at CCRC are thrilled at our good fortune to have been able to lure Rob away from the client work that has engaged him for more than a decade.  We will welcome him on board in September.

Here are some of Rob’s career highlights:

  • Argued at two state supreme courts (Virginia, Iowa). Won a unanimous decision from the Iowa Supreme Court holding that a person could not be denied expungement of a non-conviction criminal record because of fines and fees owed in other cases.
  • Produced 30 expungement and employment barriers clinics across the state while at Iowa Legal Aid.
  • Organized and lobbied for passage of Virginia’s 2021 record sealing law, which will allow sealing of convictions in Virginia for the very first time when it takes effect in 2025. Wrote the Legal Aid Justice Center’s “know your rights” materials on the new law, as well as a comment for the CCRC website.
  • Authored a report on the unparalleled power of Virginia’s commonwealth’s attorneys during a legal fellowship at the ACLU of Virginia.
  • Represented hundreds of indigent clients in misdemeanor and felony cases as a public defender in Newport News, Va.

SBA proposes rules affecting businesses owned by veterans with a record

Over the past two years, CCRC has been studying the restrictions imposed by the U.S. Small Business Administration on loans to small businesses owned by justice-affected individuals. Many of those same restrictions, which are grounded in an operating policy that recipients of federal assistance have “good character,” also apply by formal rule in the SBA’s business development program under 8(a) of the Small Business Act.

For more than half a century, the so-called “8(a) program” has earmarked federal contracts for businesses owned by socially or economically disadvantaged individuals, and it has been a key driver of community development in urban areas. But the program’s “good character” test has historically excluded from participation many if not most business owned or managed by individuals with a criminal history. The 8(a) program also has satellite programs, including ones offering preferential treatment to businesses owned by women and veterans, though it is less clear whether these programs have similar criminal history restrictions.

Recently, Congress returned responsibility for certifying program eligibility for veteran-owned business from the VA to the SBA, and the SBA has now published proposed certification rules for public comment. These proposed rules offer a first chance to speak to the SBA’s “good character” requirement.

CCRC worked with the Washington Lawyer’s Committee for Civil Rights to draft comments on the proposed rule that are critical of the SBA’s vague and open-ended test of business owners’ “character” that results in disqualification of many deserving individuals from this and other federal programs administered by the SBA. Those comments, which are joined by 24 other organizations, were filed on August 5 and are available here.

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How Europe manages access to criminal records – a model for U.S. reformers

We are pleased to republish a book review by CCRC Executive Director Margaret Love of a collection of essays about how European countries manage access to criminal records. The philosophy and values underpinning the EU approach revealed in these essays are so different from our own that their product will make record reformers in the U.S. green with envy.

For example, the review points out that one of the foundational premises of European systems of criminal records is that giving the public broad access would be “contrary to ‘fundamental’ considerations of privacy and human dignity protected by the European Convention on Human Rights, which implicitly limit loss of liberty and public stigmatization through disclosure of a past crime.” Accordingly, employers and other non-law enforcement entities can have access to criminal records only if their subject explicitly authorizes it, and even then a request will be permitted only in specified circumstances where a criminal record is deemed relevant.

Individuals asked to produce their record may decide that the uncertainty of benefit is not worth the risk of exposure. In this fashion, individuals may take responsibility for achieving their own social redemption even if they lose an economic opportunity.

Only a “dystopian account” of the Australian system of accessing criminal records will seem familiar to U.S. practitioners.

Here is the review by CCRC’s Margaret Love, which originally appeared in Criminal Law and Criminal Justice Books:

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