Category: Scholarly articles

How to expand expungement: base it in retribution instead of rehabilitation

A thoughtful new article by Brian Murray recommends a new way of conceptualizing expungement that should make it easier for reformers to justify facilitating access to this record relief.  In “Retributive Expungement,” forthcoming in the University of Pennsylvania Law Review, Murray argues that expungement should be seen as a way to end warranted punishment rather than to recognize and incentivize rehabilitation.  The argument goes that if the legal and social disadvantages of a criminal record function as part and parcel of the criminal sentence imposed by the court, as opposed to a loosely related system of civil penalties that are activated by other laws and other actors, then the court has an obligation at some point to discharge it.  While this argument is not new, Murray places it squarely in a modern retributivist framework. In an earlier era, the drafters of the 1962 Model Penal Code embraced this idea of tying up the loose ends of criminal punishments through court-ordered dispensation, although they chose a more transparent form of remedy in judicial vacatur or set-aside.  Before that, this function of ending punishment was performed by executive pardon.  In modern times, as ubiquitous background checking has made a criminal record a lasting […]

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Broken records: criminal history errors cost jobs and housing

Ariel Nelson of the National Consumer Law Center has authored an important new report, Broken Records Redux, which describes how errors by criminal background check companies harm consumers seeking jobs and housing.  In particular, the report shows how background screeners continue to include sealed and expunged records in criminal background check reports, omit disposition information, misclassify offenses, mismatch the subjects of records, and include other misleading information.  The report also examines problems arising from the use of automated processes to evaluate prospective employees and tenants. This report, a sequel to a 2012 NCLC report on criminal background errors, observes that since 2012 advocates and federal agencies have litigated many actions for violations of the Fair Credit Reporting Act (FCRA), leading to settlements and judgments requiring background screeners to reform their processes and pay millions in penalties and relief to consumers.  Despite these lawsuits, “companies continue to generate inaccurate reports that have grave consequences for consumers seeking jobs and housing.”  Based on these issues, the report recommends a broad array of legislative and regulatory changes at the federal and state level.  Accompanying the report is an article: Fertile Ground for FCRA Claims, which describes FCRA violations that can result from “inaccurate, incomplete, […]

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Model law proposes automatic expungement of non-conviction records

An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction.  Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law.  It is available in PDF and HTML formats. “Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project.  “Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs.” In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record.  Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction.  The group regards its model as the first step in a broader law reform initiative that will address conviction records as well. Law enforcement officials make over 10 million arrests […]

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Algorithms, Race, and Reentry: A Review of Sandra G. Mayson’s Bias In, Bias Out

In true Minority Report fashion, state actors are increasingly relying on algorithms to assess the risk a person will commit a future crime.  Unlike Minority Report, these algorithms simply estimate the likelihood of rearrests; they do not offer the absolute answer to future criminal behavior that condemned the defendant, Tom Cruise, in the 2002 action film.  Still, criminal justice actors are using many types of algorithmic risk assessments to inform their decisions in pre-trial investigations, bail recommendations and decisions, and post-trial sentencing and parole proceedings.  Sandra G. Mayson’s article[1], Bias In, Bias Out, published this year in the Yale Law Journal, explains how these algorithms could reflect and project past and present racial bias in the criminal justice system and elsewhere. At its core, an algorithm specifies individual traits that are correlated with crime commission.  If the data show that people of color are arrested more frequently, then the algorithm will predict more arrests for people of color.  In this sense, an accurate algorithm “holds a mirror to the past” by “distilling patterns in past data and projecting them into the future.”  Mayson provides an in-depth, yet easy-to-follow explanation of why race neutrality is unattainable when the base rates of […]

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CCRC scholarship round-up – August 2019

Editor’s note:  This past year has seen a burgeoning of scholarship dealing with collateral consequences broadly defined, from lawyers, social scientists, and philosophers.  CCRC’s good friend Alessandro Corda has selected fifteen notable articles published in 2018-19, with information, links, and abstracts.  They are organized into five categories: (1) Legal collateral consequences (2) Collateral consequences and criminal procedure (3) Sex offender registration laws (4) Informal collateral consequences (5) Criminal records, expungement, sealing, and other relief mechanisms A complete and regularly updated collection of scholarship on issues relating to collateral consequences and criminal records can be found on our “Books & Articles” page.  From time to time we will preview and comment on new articles, and Alessandro has promised to provide another round-up by the end of the year.  We hope he will continue indefinitely in the role of CCRC’s official bibliographer.  (A PDF copy of this scholarship round-up is here.)

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