Category: Relief

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.

Living with a marijuana conviction after legalization (updated)

Jacob Sullum, senior editor at Reason, has written a fabulous article about expungement of marijuana convictions in places that have since legalized marijuana: so far 10 states, DC, and the Northern Mariana Islands have legalized.  The piece is now available to the public at this link: http://reason.com/archives/2019/03/01/the-lingering-stench-of-mariju

Sullum tells the stories of eleven individuals, from the jurisdictions that have legalized, who describe how their marijuana convictions have impacted their lives before and after legalization.  He documents the lingering legal and social sanctions that burden people long after they have served their sentences, sanctions that “seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use.”

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UK Supreme Court issues major ruling on employer access to criminal records

On January 30, 2019, the UK Supreme Court issued a significant decision largely upholding the UK’s categorical rules for when criminal records are disclosed to employers, but declaring two key rules incompatible with privacy rights under the European Convention on Human Rights.  The first rule in question, the so-called multiple conviction rule, automatically requires people who have more than one conviction to disclose all prior convictions on “standard” and “enhanced” records checks.  (As explained below, the UK disclosure scheme provides for three levels of checks, depending on the nature of the employment involved, the two specified being the more in-depth.)  The second rule requires that certain youth reprimands and warnings—administered without an admission or determination of criminal charges—be disclosed on both types of checks.  CCRC contributor Alessandro Corda posted about this case this past July when it was being considered by the court and Christopher Stacey, co-director of a charity organization that intervened in the case, who attended the three days of hearings, provided guest commentary.

The decision has significant implications for the employability of people with criminal records in the UK and could offer policy lessons for the US.  It is therefore worth discussing in some detail.

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“Executive Clemency in the United States”

This is the title of CCRC Executive Director Margaret Love’s new article for the Oxford Research Encyclopedia.  The article describes the historic role played by the executive pardon power in reducing punishments (including collateral ones) and explains clemency’s diminished vitality and reliability in modern times in most states and in the federal system.  Love concludes that “[i]t appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.”

Here’s the abstract:

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Press release: New report on 2018 fair chance and expungement reforms (updated)

Washington, D.C. — The Collateral Consequences Resource Center (CCRC) has released a new report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  In the past twelve months, 32 states, the District of Columbia, and the U.S. Virgin Islands have enacted 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime.  The CCRC report analyzes the past year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.  The report, titled “Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018,” is available to download here. 

Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.

The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box:

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