Life with a criminal record has its undeniable hardships. Some would argue that if a person commits a crime, then they’ve brought it on themselves and deserve nothing more than the life they’ve created. While the argument has some simplistic appeal, it ignores the fact that the impact has exploded, from credit ratings to housing, from SORA to mugshots on the internet, to preclusion from education and licensure. How could anyone trust a barber with a record?
Then there’s the liability potential, as causes of action have been created by myriad laws holding people accountable for the acts of others, in the workplace and at the apartment complexes. Responses to the sad tears of the moment’s victims made complete sense to some, but created a purgatory where not only could a past crime, for which the debt had been paid in full, remain as a permanent taint, but a hard fact that not even the most empathetic of souls could overlook.
In law, there is a mechanism called “expungement,” the legal elimination of a criminal record as if it never happened. Can this end the taint, give those who made a mistake, or copped a plea even though they didn’t commit the crime, the chance to enjoy a productive, law-abiding life?
In recent years, criminal justice reform efforts have increasingly focused on finding policy tools that can lower these barriers. The most powerful potential lever is the expungement of criminal convictions, which seals them from public view, removes them from databases, and neutralizes most of their legal effects.
Will expungement do the trick?
Reflecting the changing politics surrounding criminal justice, the movement for these reforms has attracted a bipartisan coalition, creating a real possibility that more states around the country could pass similar laws. Still, such efforts must overcome the primary objection of critics: that employers, landlords and others have a public safety interest in knowing the criminal records of those they interact with.
Decades of emphasis on safety have given rise to a belief that once a criminal, always a criminal. Even worse, the concerns fail to distinguish between malum in se crimes and malum prohibitum crimes, between trivial offense that fall within a scary category (consider prostitution and sex trafficking, or sexting and child pornography). Are you really afraid of the guy who tossed three undersized fishes caught in his net back into the ocean, or mis-sourced ebony for guitars? We’ve got an awful lot of crimes out there, kids.
In the past year there’s been an explosion of activity on this front, however. In late February, an especially ambitious bill was introduced in the California Legislature, allowing automatic expungement of misdemeanors and minor felonies after completion of a sentence. In Utah, an automatic expungement bill is awaiting the governor’s signature. These developments follow on the heels of the first major automatic expungement law, which passed in Pennsylvania last summer.
The California effort, called “especially ambitious,” presents the question of whether too much emphasis on the harms caused by a criminal record without consideration of the flip side of concern will give rise to unintended, even if obvious, consequences that will either doom the measure or cause an uproar of the passionate to undo it when the sad story of the first victim of someone whose record was expunged hits the front page.
But that doesn’t mean expungement isn’t a proper fix.
For many years, debates about expungement laws have been missing something critical: hard data about their effects. But this week, we released the results of the first major empirical study of expungement laws. Michigan, where our data came from, has an expungement law that exemplifies the traditional nonautomatic approach.
The good news is that people who get expungements tend to do very well. We found that within a year, on average, their wages go up by more than 20 percent, after controlling for their employment history and changes in the Michigan economy. This gain is mostly driven by unemployed people finding work and minimally employed people finding steadier positions.
That’s certainly good for those getting expungements, and suggests that concerns that the internet means the “criminal-record genie can’t be put back in the bottle” are unfounded. But what of the public safety aspect?
In addition, contrary to the fears of critics, people with expunged records break the law again at very low rates. Indeed, we found that their crime rates are considerably lower than those of Michigan’s general adult population. That may be in part because expungement reduces recidivism.
But another likely reason is that expungement recipients aren’t high risk to begin with. Like most states, Michigan requires a waiting period before expungement (five years after a person’s last interaction with law enforcement). Research in criminology indicates that people with records who go several years without another conviction are unlikely to offend again.
The problem here, as in even the California expungement on steroids bill, is that it leaves behind a class of people convicted of either more serious crimes, or disfavored crimes such as rape or domestic violence, in its wake. The same problems that make life untenable for the person convicted of a mid-level felony affect the person convicted of the moment’s more hated felony. So the benefits of reducing recidivism by not impairing a successful return to society is good for the shooter who missed, but not for the one who killed?
The automatic aspect of expungement also solves and creates a problem. When it’s automatic, some will slip through its clutches unnoticed, such as the guy driving the pimped-out Mercedes who hasn’t held a job or paid taxes since his release. He may have no additional arrests, but that doesn’t mean he’s cleaned up his act or you want to get on his bad side. But when it’s not automatic, does it happen?
So here’s the bad news: Hardly anyone gets expungements. According to information Michigan State Police provided to us, Michigan grants about 2,500 a year — but that’s a drop in the bucket compared to the number of criminal convictions there each year. Precise numbers are hard to come by, but we estimate that there are hundreds of thousands annually.
Relatively few people with records meet the legal requirements — but that’s not the only problem. Even among those who do qualify, we found that only 6.5 percent received expungements within five years of becoming eligible. Michigan judges have discretion to reject applications, but that’s not the big reason for this low rate. Rather, over 90 percent of those eligible don’t even apply.
From an academic perspective, there must be a reason for this failure to seek expungement, since it is irrational not to do so otherwise. But then, perhaps they don’t hang out with people charged and convicted of crimes enough. Just as people often commit crimes with mindless abandon, they go on to live out the balance of their lives the same way. For some, expungement is desperately desired, and they will do whatever it takes to remove the taint of their worst decision. For others, it’s Tuesday.
Not everyone can be fixed, and not everyone cares enough to do so. But for those who do, expungement, carefully managed, provides the tool. It’s a shame that New York, woke as it is, has never had an expungement statute and, the current reform-minded regime notwithstanding, has yet to give one much consideration.
Jurisdictions commonly make people wait a period of years before they can apply, then charge a fee, plus, there is the cost of legal counsel to help with the (usually complicated) process. Also, there are typically a range of licensed occupations for which the convictions must still be disclosed. All of these things help to discourage people from applying. It does not surprise me that the study showed Michigan’s procedure to be sparsely invoked.
When I wrote about not hanging out with people with criminal records, that included you. It’s not that these aren’t hurdles, but even if none of these hurdles existed, it wouldn’t change much. You’re thinking about how you would see it. Most ex-cons aren’t you.
It’s worse than that even. No ex-cons are me.
But can you prove it?
“Responses to the sad tears of the moment’s victims made complete sense to some, but created a ***purgatory*** where not only could a past crime, for which the debt had been paid in full, remain as a permanent taint, but a hard fact that not even the most empathetic of souls could overlook.”
Please forgive this pedantry, but “purgatory” should be “limbo.” Souls in purgatory get purged of the taint of sin and then leave for heaven. The souls in limbo don’t get purged and don’t get to leave–sort of like people who have a criminal record that can’t be expunged.
Regarding the (pleasantly surprising) study showing expungement’s positive effects notwithstanding mugshots.com: if that is because most background checks are only run through official databases (e.g., in Tennessee you order a background check from the Tennessee Bureau of Investigation), then if expungements become more common, will some private company start archiving criminal records and selling “expungement proof” background checks based on archived records as well as a scouring of the internet and social media?
Did you ask yourself before writing this comment, how much of an asshole will I look like by first raising the monumentally pointless issue of the imprecise use of purgatory and then leaping into the way it’s done in TN (as far as you’re aware), about which no one outside of TN gives a flying fuck?
And you want to be forgiven?
Great, now I’m in limbo. I didn’t, I should’ve, mea culpa.
Say five Hail Moses and you’re absolved.
Five?
Doesn’t using the reply button count for anything?
Tough choice here: Jerry Garcia and David Grisman, Jimmy Cliff, or that house for sale at 190 Limbo Dr., Hillsborough, TN.
I’m going with Jimmy Cliff.
That’s why it wasn’t six to nine.
I’m going anon for this comment, as I have no intention of dealing with the delusional who refuse to deal the ugly reality of what we do. At least in urban areas, the vast majority of defendants are either stupid, lazy or psychologically impaired, or some combination thereof.
If all it took for expungement was to push a button, they still wouldn’t manage it. Most wouldn’t bother. Some wouldn’t be able to figure it out and some would just scream at the button. We need to stop pretending these are all potential Einstein’s who made one mistake, and whose contributions are lost to society because of their criminal histories.
That’s pretty harsh. More to the point, the merit of the reform is for the benefit of those who want it, need it, and will make good use of it. That may never be a majority of ex-cons, but since our days are spent saving one life at a time, then the reform still matters for those who will benefit from it.
So let’s say someone who isn’t me enjoys punching old ladies. They look at the expungement possibility and think “okay, how often to I get to get away with punching old ladies”. Assuming they’ll spend an average of 180 days in jail for geriatric jabbing and California wants non-felony expungement automatically; do they get to punch two old ladies a year without anyone knowing? Are potentional employers not entitled to know of their semi-annual senior socking?
I use punching old ladies as an example but I don’t commit enough crimes to know if that’s a felony. Just swap it out for any misdemeanor of your choice like hot-wiring a car under $5000 or sticking your pecker in someone’s potato salad at the park. If you’re able to commit crimes like clockwork then people should be allowed to know what makes you tick.
On the bright side, not too many do math well enough to get away with that. One the dark side, CA has, yet again, overshot the mark with this bill.
There are two main problems with getting an expungement in Michigan. The first one is that anyone with two felony counts (as opposed to cases) is ineligible. Meaning if you get pulled over with a brick and a gun in your car, and plead to Possession with Intent to Deliver and Carrying a Concealed Weapon, you’re SOL even though it was one offense. So the population of people even eligible for expungements is far lower than it should be.
The other problem is that the process is paperwork intensive, requiring a defendant to get that paperwork to four or five different agencies and filed with the proper court at the proper time. It’s hard to jump through those hoops without a lawyer to do for you, and the people who need expungements the most for the most part can’t afford lawyers.
That said, it’s been my experience if you can jump thought the hoops and get an expungement hearing in front of a judge, they’re usually granted without issue.
Not that I know, but I wonder whether Michigan’s statute was a horse designed by committee, or that getting through the paperwork and filings is the test, and the grant by the court is just the cherry on the sundae.
It isn’t quite that complicated. And there is a relatively simple form (a few pages) with step by step instructions for what to do. You really only need to fill out one form and just mail a copy of it to everyone listed on the form, and then get fingerprinted at your local sheriff and have that sent to MSP. And if you have questions, you can call, for instance, the AG’s office and someone there will also talk you through the process. But I know now I am getting far into the weeds, and I could get pretty damn far, including rather specific as to just about any question one could have about the data as I am likely the primary expert on the whole process (not something I could claim about anything else).
I personally talked to hundreds of people who called in to ask about the process, either on behalf of themselves or a family member. The primary reason people would start it is because of a specific obstacle that has come up. Like they are up for a promotion, and now they can’t get it until the expungement goes through (that I never understood – someone already employed by the company, the company knows about the conduct, and wants to promote, and yet won’t until the paper clears – seemed rather irrational to me). Or they want to get a particular license. Or one who wanted to get into a retirement home and now couldn’t because of a conviction… from like 1955, the only one on their record. That has got to take the cake as the most irrational one I saw. There were a lot of people who had convictions from a very long time ago who never bothered with expungement because it presented no obstacle to them. But now so many new obstacles have been created on so many things in recent years, perhaps in part because it is easier to search records online.
There are bills pending in Michigan to change the process or even automate it to some extent. The problem with automation, though, is there is no mechanism to actually make it work and actually without a probably multi million (or more!) dollar effort to create a whole new statewide court docketing system, there is no way you could make it work. But that is yet another rabbit hole, though perhaps something worth discussing as I imagine the other states contemplating such laws may have similar problems with actually implementing them.
Dave, you know how I replied to the guy from TN that it wasn’t all about TN, and nobody really gave that much of a fuck? On the other hand, is there something, anything, so fascinating about your comment that it’s worth as much of my time (or anyone else’s) as it would take to read it?
Sure. The last paragraph, regarding automatic expungement legislation, and the impossibility of implementing it without vastly changing systems there is likely no will or money to actually change. That is a big fucking problem, one that isn’t unique to any one state, that no one who proposes such legislation seems to be aware of. But I grant you you can trash the first two paragraphs and still have gotten that point.
I didn’t read the last paragraph, Dave. I got bored after the first one. There’s only so much time in a day.
Automatic sealing of a record of conviction seems … overly ambitious. Like it or not, doing things takes resources. Doing anything takes time. Someone has to devote their time to searching records, to filling out paperwork, to filings the paperwork, to sending the order to appropriate agencies and to the ever-growing private background entities that grab information online and produce it to employers . People who don’t practice criminal law probably look at these automatic proposals with little downside for anyone. But, for courts and their probation departments (those that would be in charge of carrying this out in my state of Ohio, at least), would have to devote significant resources to make automatic sealing happen. I simply don’t trust that being done correctly.
Of course, maybe I’m wrong (happens now and then) and some budgets will grow sufficiently to allow someone to take on the duty of automatically sealing a record of conviction. I’d be afraid, though, that defendants would trust or assume this magic will happen, only to find out later their conviction doesn’t magically go away because some unknown bureaucrat failed to do the job. I’m sure there must still be a statutory mechanism to get into court if represented. But, if so many folks don’t avail themselves of the opportunity anyway, is this where we should spend our resources? More probation officers able to supervise people means less people out of prison. Asking departments to hire people or devote existing resources to this endeavor seems like it may not be the panacea it appears to be. (of course, I’m all wrong because there exists a kid who has written a program that will do this automatically.)
The mechanics of doing any of these expungement schemes is always subject the capacity, the people and the will to make them happen properly. Experience suggests that this has never been a strength of the legal system, including mad computer skillz (see the suckiest interface ever, PACER, for example).