It is important to remember that a racially biased system of over-policing and over-enforcement has created a population where about 70 million Americans have a criminal record. The failures of our policing policies are just the tip of the iceberg when it comes to the failures in our criminal legal system.
Look no further than how we handle record clearing. Clearing a criminal record, through remedies like expungement or sealing, is one of the most powerful tools used to enable people with records to move on with their lives. It allows people to provide for their families and build a stable economic foundation by removing barriers to employment, housing, education, health insurance and more.
Many Americans with criminal records don’t have a fair shot at new employment opportunities, for example, as companies turn a blind eye to applicants who are forced to check the box indicating they have a criminal record. They continue to be burdened by the estimated 45,000 collateral consequences of a criminal record.
As communities begin to rebuild from the economic devastation caused by the pandemic — one that is taking a disproportionate toll on Black and Brown Americans — state and local governments must address the millions of Americans looking for a fair shot at a second chance. They can do that through clean slate policies like automatic record-clearing for certain cases, which would give people with a criminal record a reasonable chance for economic recovery.
Some states already have this system in place. While each state law differs, under the clean slate model, criminal records that may be eligible for automatic clearing range from misdemeanors to non-violent felonies, and can also apply to those who have remained crime-free for a certain number of years. Manually clearing a criminal record is a cumbersome, costly process that often requires the need to hire an attorney. While states generally allow people to petition the court to have certain records cleared, the vast majority of people who are eligible don’t obtain this relief because of cost, complexity of the process, lack of legal representation or because they don’t even know they have the option. If someone is unable to pay for and navigate the process, the record will remain for life.
If we fail to enact policies that enable workers with criminal records to get back on their feet during the eventual recovery, we’ll be leaving behind tens of millions of vulnerable families — signaling that we are ok with the fact that a criminal record means a life sentence to poverty. Meanwhile, nearly half of US children now have at least one parent with a record. The barriers associated with a parent’s record will continue to devastate families if states fail to act, resulting in long-lasting family economic instability. This can also severely limit a child’s life chances, hampering children’s development, educational attainment and even their employment and earnings potential as an adult. At a time of historical economic uncertainty, many families are struggling to make ends meet. Those who have a criminal record are that much more disadvantaged in finding meaningful work and housing, magnifying the impact on their children.
Automating the clearance of certain criminal records via clean slate laws, like Pennsylvania and Utah have done, provides the opportunity to clear records at scale and bring relief to everyone who is eligible, without the burden of filing and processing individual petitions.
Automation also presents significant advantages in the current moment, when people seeking to have their records cleared are not only facing even greater financial challenges, but are unable to hand-deliver petitions to the court. The automated model also promises to be a boon to cash-strapped states by reducing burdensome agency workloads.
As the nation considers long-term recovery efforts, we must demand more from our governors and state legislators regarding the failures of our criminal legal system, starting with automating the expungement process and helping to put millions of Americans back to work.