CCRC stands with those opposing police violence against black people and other forms of racism throughout society. Black lives matter.
Our organization promotes public discussion of how criminal records are used to hold people back in civil society. Discrimination based on a record hits the black community harder than any other, thanks to the long history of officials using the criminal law as a weapon to keep black people marginalized and subjugated.
Most recently, we have documented the Small Business Administration’s decisions to exclude many people from COVID-19 relief due to arrest or conviction, which disproportionately harms minority business owners during an already precarious moment. We have also covered felony disenfranchisement litigation in Florida, where a federal judge held unconstitutional the denial of voting rights to people who have served their time but still owe restitution and fines they cannot afford to pay.
In this time of national turmoil, many protesters have been and will continued to be arrested. Most will be released without charges, some will be charged, and some will be convicted. But every single one of them will end up with a criminal record.
Very few states make it easy to avoid the stigma that even a bare arrest record produces, even when it is not accompanied or followed by any charges. Our flagship resource, the Restoration of Rights Project, documents that even those protesters who are released without charges will need to petition a court or agency to seal or expunge the record of their arrest in order to avoid a lifelong record that can create barriers in housing, employment, and education. In some states, courts or agencies have discretion to deny relief even where the government found no basis to prosecute.
Our Model Law on Non-Conviction Records (2019) recommends that states automatically expunge arrest records that do not result in charges or conviction, as well as charges that do not result in conviction, and that they do it promptly. While 15 states do provide for automatic or expedited relief following a non-conviction disposition in court, 35 do not. And, only a handful of states automatically expunge arrests where no charges are filed. The filing of expungement petitions, costly and cumbersome in normal times, will be especially difficult due to limited access to courts during COVID-19.
It is especially wrong to saddle people who have never even been charged with a lifelong record. This should be one of the first changes in the criminal law to work for in coming months, and it should be an easy one to accomplish.
For people who are convicted, 38 states have laws that allow at least some misdemeanors to be expunged or sealed; 31 of these states also make certain felonies eligible. Waiting periods, filing fees, and other requirements apply. In recent years, 7 states have enacted automatic relief for certain misdemeanors, dispensing with the petition requirement for those who qualify. But there is no authority to expunge or seal federal records, including records of uncharged arrests; and, the laws on record sealing in the District of Columbia are some of the most restrictive in the country.
In two forthcoming posts, we will survey the laws pertaining to non-conviction and conviction record relief across the country. At least with respect to non-conviction records, a menu of recommended reforms is already readily available in our Model Law.