Category: Policy

Starr and Prescott publish groundbreaking empirical study of expungement

Professors Sonja B. Starr and J.J. Prescott of Michigan Law School have released the first-ever broad-based empirical study of the effects of a state law limiting public access to criminal records.   CCRC’s reports have noted the lack of empirical research to inform policies aimed at promoting reentry and reintegration for people with a criminal record—something this study of Michigan’s set-aside law begins to correct.  As its authors observe, “Despite the considerable legislative ferment and the excitement that surrounds ‘clean slate’ initiatives in the civil rights and criminal justice reform worlds, what has been missing from the debate is hard evidence about the effects and true potential of conviction expungement laws.”  A reason for this, as the authors also note, is that by definition criminal records that are the subject of sealing or expungement relief are often unavailable to study.  [Note:  In the summer of 2019, the study was accepted for publication in the Harvard Law Review.]

Using a data-sharing agreement with multiple Michigan state agencies, Starr and Prescott completed an extensive statewide analysis of expungement of criminal convictions in Michigan over the course of decades.  Their analysis reveals three key findings:

  • Uptake:  Just 6.5% of those eligible for expungement successfully complete Michigan’s application process within five years of eligibility.
  • Recidivism:  Expungement recipients “have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws.”
  • Employment:  Expungement receipts see a “sharp upturn” in wage and employment: wages go up on average by 25% within two years, driven mostly by “unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.”

These conclusions just about cover the waterfront of findings we would most like to see about laws that limit public access to criminal records.  Looking at them in reverse order, Starr and Prescott find that expungement is valuable in economic terms for those who receive this relief, and improvements in their economic status will in turn benefit their families and communities.

They also find that those who benefit from expungement present no particular threat to public safety, whether because recipients of expungement are self-selected criminal justice success, because the courts that grant them relief take their likelihood of reoffending into account, or because expungement itself does not tend to increase recidivism risk (and in fact may reduce it).

Finally, and perhaps most disturbingly, few of the people who are intended beneficiaries of Michigan’s expungement law actually obtain this relief, either because they don’t apply for it or because their applications for expungement are not approved.  The authors find six reasons that account for this “uptake gap” (which is greater for people with misdemeanors than felonies):

  • lack of information about the availability of relief;
  • administrative hassle and time constraints;
  • cost (including court filing fees, lost wages, and transportation costs);
  • distrust and fear of the criminal justice system;
  • lack of access to counsel; and
  • insufficient motivation to remove conviction.

In addition, while not a part of the “uptake gap” strictly speaking, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.”  (A person must have no more than one felony conviction and no more than two misdemeanor convictions in order to be eligible for “set-aside” under what is commonly known as the “general expungement statute.”  In contrast to most states, however, most felony convictions are eligible for set-aside.  A Michigan set-aside limits public access to the record, but it remains available to law enforcement and some other government agencies.  See the description of Michigan’s law providing for set-aside in the Michigan profile from the Restoration of Rights Project.)  The authors remark about the eligibility requirements for set-aside in Michigan:

All of these restrictions mean that the low uptake rate we estimated is even starker when viewed in context: it is a very small fraction of a very small fraction. For the past decade about two thousand set asides per year have been granted in Michigan. Meanwhile, each year the Michigan state courts add about 300,000 new criminal convictions. On balance, the population of people living with criminal records is continuing to grow quickly; the set-aside law is like a bucket removing water from an ever-rising ocean.

We note that Michigan’s eligibility requirements are actually more inclusive than those in most states.  See this 50-state chart.

We expect that the findings of this remarkable new study will prove uniquely valuable to advocates and policy-makers considering changes to laws authorizing relief from collateral consequences in the days and years ahead.

Administration wants federal job seekers to disclose participation in diversion

A proposed federal rule, now open for public comment, would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  On February 22, 2019, the Office of Personnel Management (OPM) proposed a new rule to modify its “Declaration for Federal Employment” form (OF–306)—used by federal agencies in applications for federal employment or contracting—to require applicants to disclose not only whether they have been convicted, imprisoned, on probation, or on parole in the last 7 years, as under the current rule, but also whether they have participated in any pretrial diversion or intervention programs during that look-back period.  Such pretrial diversion and intervention programs “allow individuals to agree to comply with specific conditions in lieu of criminal prosecution and upon compliance, to have the charge(s) dismissed.”  No conviction is entered—and in some cases, neither is a plea.

**Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post.

Reform advocates and a growing number of state and federal prosecutors rightfully promote diversionary dispositions as key tools to reduce the collateral consequences of criminal justice system involvement.  But OPM’s proposed rule treats participation in a diversion program—even where there is no admission of guilt—as a marker of criminality.  By requiring candidates to disclose participation in diversion programs, OPM’s new proposed rule subverts the benefits of diversion: “prevent[ing] collateral consequences associated with [an] incident and allow[ing] for positive community perceptions of the justice system.”  See, e.g., Erica McWhorter & David LaBahn, Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79 Alb. L. Rev. 1221, 1239 (2016).

The new disclosure requirement is described further below.  Public comments on the proposed rule may be submitted by April 23, 2019.

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CCRC launches major study of non-conviction records

CCRC is pleased to announce that we are undertaking a major study of the public availability and use of 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 these records through mechanisms like sealing and expungement is valuable in economic terms for those who receive this relief, and improvements in their economic status will in turn benefit their families and communities.

While almost every U.S. jurisdiction makes some provision for limiting public access to non-conviction records, such 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.  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 will examine the operation of applicable laws more closely.

The first phase of this project will produce by early June 2019 a detailed inventory of the laws in each U.S. jurisdiction for limiting public use of and access to records of arrests and/or judicial proceedings that do not result in conviction.  Among other things, this inventory will examine both: (1) categorical or automatic relief (such as general confidentiality laws and limits on considering non-conviction records by employers and licensing boards); and (2) case-specific relief (such as sealing and expungement, either automatic or by application).  For this second type of relief, the study will look at eligibility criteria (including waiting periods and overall criminal record), procedures (including filing fees or other financial barriers), and effect (entities excepted from restrictions on access and use). It will also 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.

After completing the research phase of the project, CCRC will consult with scholars and practitioners to prepare a nationwide analysis, examining specific issues across all jurisdictions, identifying patterns and gaps in existing laws and policies.

The second and final phase of the project will be launched at a roundtable meeting on August 16-17, 2019, hosted by the University of Michigan Law School. The roundtable will produce a set of policy recommendations and model legislation aimed at neutralizing the effect of non-conviction records.  Professors JJ Prescott and Sonja Starr of the Law School faculty will serve as conference hosts and collaborators on this second phrase.  A number of legal scholars, practitioners, judges, law enforcement officials, and legislators have already agreed to participate.  At least three of those invited themselves have criminal records.  We expect to have several technology experts at the table to advise about the operational implications of the policies and legislation we are considering, in light of how states manage their criminal records systems.

Following the August roundtable, we will finalize its recommendations and model law with the assistance of scholars and other experts; publish them in a report; and promote them 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 on the lives of people who have one, on their families and on their communities.  We believe that reforming the law is as important a part of the reintegration agenda as advocating for and providing services to those who are seeking a second chance, 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 shortly.

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Federal farm bill legalizes hemp, but bars participation based on criminal record

In the past six years, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on a person’s ability to achieve employment, housing, education and public benefits, and participation in civil society.  In stark contrast, Congress has not dealt with the problem of reintegration for more than a decade—either by reducing federal collateral consequences or by restoring rights to people with federal convictions.  The new farm bill continues this trend.

Enacted on December 20, 2018, the bill puts in place a new regulatory regime for the legalized cultivation and sale of hemp, a variety of the cannabis plant grown for industrial uses.  At the same time, the bill adds a new collateral consequence to federal law (which already has more than a thousand): anyone convicted of a drug-related felony may not participate in legalized hemp production for 10 years after their date of conviction, unless they are part of a hemp pilot program authorized by the 2014 farm bill.  An earlier version of the farm bill would have banned people with drug-related felony convictions from participating in hemp production for life, so the final bill is somewhat more progressive.

This new restriction reflects and contributes to an ongoing practice in which many jurisdictions that have legalized marijuana have excluded people with marijuana convictions from participating in this booming new industry.  Moving in the other direction, some jurisdictions such as California and Massachusetts—recognizing racial disparities and other injustices of the war on drugs—have enacted policies to clear marijuana convictions, allocate marijuana tax revenue to communities disproportionately affected by past drug policies, and encourage full participation in legalized marijuana industries by members of disproportionately affected communities.

Marijuana decriminalization drives expungement reform

The national trend toward expanding opportunities for restoration of rights after conviction has continued to accelerate throughout 2018.  By our count, so far this year alone 31 states have broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  On November 6, Florida could take the most politically momentous step of the year if its voters approve a ballot initiative amending the state constitution to re-enfranchise more than a million and a half individuals who are now permanently barred from voting because of a past felony conviction.  We expect to publish a full report on these 2018 reforms, similar to the report we published last winter on 2017 laws, by the end of the year.  Expect it to feature the broad occupational licensing reforms enacted in more than a dozen states since last spring.

Another important series of second chance reforms this year has accompanied marijuana decriminalization.  These reforms are documented and analyzed by Professor Douglas Berman in an important new paper titled “Leveraging Marijuana Reform to Enhance Expungement Practices.”  Published in a symposium issue of the Federal Sentencing Reporter devoted to various aspects of collateral consequences and criminal records management, Professor Berman’s paper showcases issues that will becomes increasingly important as the War on Drugs winds down.  Professor Berman is the executive director of Ohio State University’s Drug Enforcement and Policy Center, whose official launch is November 2.  We expect that the Center under his management will give restoration of rights an important place on its policy agenda.

The abstract of Professor Berman’s article follows:  Read more