Category: Scholarly articles

Study measures gap between availability and delivery of “second chance” relief

Professor Colleen V. Chien of Santa Clara University has published a major empirical study in the Michigan Law Review that examines the gap between eligibility for and actual delivery of relief from contact with the criminal justice system, a construct she calls the “second chance gap.” (The term is defined with examples here.) Last week, Chien led a team of law students, researchers and data analysts from Santa Clara University in launching the Paper Prisons Initiative, a project that draws on her study’s methodology to estimate this gap for each state’s record relief laws.

During the current wave of criminal record reforms that began around 2013, every state legislature has taken steps to chip away at the negative effects of a record through authorizing or expanding expungement, sealing, and other forms of record relief. At the same time, it has become evident that bureaucratic and structural obstacles prevent many of these laws from achieving their full promise—particularly when they require a potential beneficiary to navigate a complex and burdensome judicial or administrative process.

Last June, Professors Sonja B. Starr and J.J. Prescott published the first broad-based empirical study of a state law limiting public access to criminal records, revealing that just 6.5% of those eligible for relief in Michigan successfully completed the application process within five years. This conclusion has given additional impetus to the movement to make record-sealing automatic: six states now authorize “clean slate” relief for a range of conviction records, 16 states do so for non-conviction records, and clean slate campaigns are underway in several additional states.

In “America’s Paper Prisons: The Second Chance Gap,”  Professor Chien provides a more general perspective on the gap between eligibility and delivery of second chance relief documented for Michigan by Starr and Prescott. In her article, Chien looks at three forms of relief from contact with the criminal justice system—record-clearing, restoration of voting rights, and shortening prison sentences. Based on her analysis, the paper concludes that in many cases only a small fraction of those eligible for relief (usually less than 10%) have received it. Most notably, she uses novel data collection and analysis to estimate that at least 20 to 30 million American adults have non-conviction records that appear to be clearable under existing law but that have not been cleared. In follow-up state-specific papers available on the Paper Prisons Initiative website, she and her team have estimated the second chance expungement gap in convictions relief for a number of states.

I.

The first part of “America’s Paper Prisons” explores the reasons for the “second chance gap”:

In the same way that the accused remain innocent until proven guilty in the U.S. criminal justice system, many second chance programs require defendants to “prove” that they deserve second chances before awarding them. As such, getting one’s second chance through petition-based processes may include enduring a bureaucratic process, amassing information through a variety of sources, and being evaluated by an adjudicative or administrative body. The high cost of doing so in many cases may be insurmountable.

Chien divides the barriers that contribute to the second chance gap into three categories: administrative barriers, like informational and transactional costs; structural barriers, like a requirement to pay court debt and participate in a formal court hearing; and substantive barriers, like perceptions that the costs of the process outweigh its benefits.[1]

II.

The second part of Chien’s paper estimates the second chance gap for an assortment of relief mechanisms, drawing on both original data collection and secondary sources. Chien uses two metrics: the “uptake gap,” which measures the share of individuals over time who are eligible and have not applied or not received relief; and the “current gap,” which looks at the share of individuals at the certain moment in time who are eligible but have not received relief. Her analysis shows, on a nearly uniform basis, that only a small percentage of eligible individuals obtain relief in petition-based programs.

The relief mechanisms she studies confer different benefits, are animated by differing policy objectives, and vary in eligibility criteria and administrative process. Still, a general pattern is clear across the following second chance gaps that Chien presents:

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Study: Texas diversion provides dramatic benefits for people facing their first felony

Increased use of diversion is a key feature of America’s new age of criminal justice reform. Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record.

Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior. Until now.

By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants. A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect.

Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists.

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Online Criminal Records Impose ‘Digital Punishment’ on Millions

We are pleased to republish this excellent article by Andrea Cipriano, which describes a new study of online non-conviction records, with permission from The Crime Report. The study concludes that law enforcement records may remain freely available online indefinitely, notwithstanding state laws calling for automatic expungement of such records. (For more information on expungement of non-conviction records, see CCRC’s 50-state chart and CCRC’s model law on the subject.)  

Online Criminal Records Impose “Digital Punishment’ on Millions of Americans

by Andrea Cipriano    February 9, 2021

An analysis of Internet data portals that house personally identifiable information (PII) of people involved in the justice system found that compromising information on millions of Americans has been posted online by criminal justice agencies, even if they have not been convicted of a crime.

“Public records…are less likely to reveal information about the criminal justice system itself, and instead more likely to reveal information about people arrested [for] – but often not convicted of – crimes,” said researchers from Rutgers, Loyola Chicago, and UC-Irvine who conducted the analysis.

The analysis, published in the Law & Social Inquiry Journal, concluded that the amount of data accessible online effectively operates as a “digital punishment.” They noted that old arrest and criminal court data is easily accessible because of local law enforcement and court databases, and individuals named in the data have virtually no ability to wipe it from the records.

The researchers, Sarah Esther Lageson of Rutgers University-Newark School of Criminal Justice, Elizabeth Webster of Loyola University, and Juan R. Sandoval of University of California, Irvine, analyzed 200 government websites operated by law enforcement, criminal courts, corrections, and criminal record repositories across the country.

They found what they called an “impressive” amount of personally identifiable information, ranging from photographs to home addresses and birth dates.

The likelihood that this can lead to “identity theft, stalking, discrimination, and harassment” should persuade legislators and justice authorities to develop greater privacy protections, the researchers said.

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“Trump’s Theater of Pardoning”

The piece reprinted below is the first part of Bernadette Meyler’s contribution to a Symposium published by the Stanford Law Review on her book Theaters of Pardoning. It is as cogent a guide to understanding President Trump’s pardoning practices, and how they differ from those of his predecessors, as anything else we have seen. If, as Prof. Meyler argues, the message sent by Trump’s pardons is “the rejection of law,” it would be ironic (though entirely welcome) if they prompted Congress to reroute into the legal system much of the business heretofore committed exclusively to presidential pardoning, notably relief from the collateral consequences of a federal conviction. Then presidents could pardon to their heart’s delight, without worrying about the inherent unfairness of their actions.

“Trump’s Theater of Pardoning”

by Bernadette Meyler

Introduction

In many ways, President Trump has returned to a performance of pardoning more familiar to early modern England than to contemporary America. Largely eschewing bureaucratic processes, Trump has taken advantage of the political theater that pardoning can provide. Like some of the real-life and fictional kings who appear in my book, Theaters of Pardoning, Trump has also called law and legal regimes into question through his pardons, and, in doing so, asserted his own impunity from law. Ignoring the common law restrictions that had accreted around pardoning, Trump has chosen to interpret his power as absolute, unfettered by norms like refraining from judging in one’s own case and forgiving but not forgetting. And this is only the story of Trump’s formal pardons. As Kenji Yoshino’s essay in this Symposium elaborates, Trump’s numerous revisions of history represent even more pervasive efforts at enacting amnesty and oblivion.

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The Purgatory of Digital Punishment

It doesn’t matter whether they’re accurate—criminal records are all over the internet, where anyone can find them. And everyone does.

By SARAH ESTHER LAGESON

On a frozen December day in Minneapolis, William walked into a free legal aid seminar, to try to fix his criminal record. Lumbering toward a lawyer, his arms full of paperwork, William tried to explain his situation quickly. “I want to show you my record here that I got from my probation officer. Here.” Frustrated, William waved papers in the air.

After an employer and a landlord both denied his applications following private background checks, William started to suspect something was wrong with his criminal record. When he finally got a copy, the data made no sense. One arrest was dated to 1901. Another arrest was linked to an active warrant.

“Now, here’s a thing about it. I got one [conviction] in ’82; that was the last time I was in jail.” William paused to scan the document. “And that was that charge here. All of this,” he said, pointing to the paper, “is not me.” It seemed as if someone with a similar name—and a far more extensive criminal history—had been matched to William’s identity in a state police or court record database. He quickly realized that not only was his record incorrect, but it had spread across databases used by background check companies—and was posted on the internet. It was as if someone had stolen his identity—but instead of using his identity to buy something, they used it to slip stolen goods into his pocket.

The lawyers warned William of the Kafkaesque bureaucracy he would face. He had to fix the mismatched identity with the state police, ask the court to fix the 1901 data error, and close the mistaken (but open) warrant. Because he could not afford a lawyer, William had to rely on free legal aid or deal directly with the courts and state bureaus himself. This wasn’t what he wanted to hear. He had been trying for months to get help. The first time he’d tried to meet with a volunteer attorney, he was given an incorrect address and walked around downtown Minneapolis for hours trying to find the office. All of this confusion and frustration led him to the seminar today. He was about ready to give up.

“It’s too much. It’s too frustrating,” William said. “You know, you ain’t done nothing in 30-something years and then all of a sudden you want to get an apartment and you can’t. You’re just stuck the way you are at. That’s just terrible. It’s a bad feeling. It’s like I’ve been on a standstill.”

The problems William faced are rapidly multiplying across the country, in various forms. Incorrect or misleading records from years past pop up on Google searches. Criminal convictions that accurately appear on one background check don’t appear on another. Sealed, expunged, and juvenile records that are legally hidden from public view continue to live on across databases and websites.

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