Expungement: Case Closed?

The consequences of a run-in with the law can persist for decades after a formal sentence has been served. People with records face major barriers to employment, housing and education, effectively condemning them to second-class citizenship.

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.

At least 36 states have laws allowing expungement, but they tend to be narrow in scope. Whether it’s allowed typically depends on the number of convictions and the type of crime; people usually have to wait years after completing their sentences and go through an elaborate process to have their records cleared.

In the past several years there has been an explosion of activity on this front, however. Recently, 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 in the summer of 2018.

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.

Given the large potential benefits of expungement, why wouldn’t someone apply? Most people don’t know they can get an expungement, are ignorant of the process, or don’t have lawyers to advise them. The process is long and complicated, requiring visits to police stations and courthouses. The fees and costs (which usually total close to $100, not including transportation and time away from work) are a barrier for people in poverty. And people with records have often had painful experiences with the criminal justice system, making the prospect of returning to it for any reason daunting.

The low rates of applications for expungement are consistent with broader findings about the difficulties that poor and middle-class Americans face in dealing with the legal system. When the state makes it cost-prohibitive for citizens to exercise a right or opportunity, it’s not that different from outright denying that right or opportunity. Most individuals won’t be able to jump through all those hoops.

The policy upshot of most industry research is clear: obtaining an expungement should be made as simple as possible. Ideally, states should follow the approach of Pennsylvania and newer California and Utah bills, and make expungement automatic once the legal requirements are met.

Expungement is a powerful tool for improving outcomes for people with records, without risk (and possibly with benefits) to public safety. But lawmakers need to make it much easier for people to actually use this legal instrument while getting a fresh lease on life.