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New research finds that automatic expungement of nonviolent criminal records could be a boon for eligible offenders, but few apply when the process is complicated.
Less than 7 percent of eligible people in Michigan apply to have their criminal records expunged, but those who do reap significant benefits in terms of obtaining housing and employment, according to new research from the University of Michigan.
The study, the first to empirically examine the effects of expungement, lends credence to a growing movement to make that process simpler by automatically sealing criminal records of certain nonviolent offenders.
“When expungement is not automatic (and takes time, effort, and even money), only a very small share of the people eligible for relief actually apply for and receive an expungement,” wrote researchers J.J. Prescott and Sonja B. Starr, co-directors of the Empirical Legal Studies Center at the University of Michigan Law School. “But those who do see clear improvements in economic outcomes and pose little public safety risk. Taken together, these findings have a clear policy upshot: they support the expansion of expungement availability ... in particular the emerging movement to make expungement occur automatically.”
Research has shown that people with criminal records face significant barriers in trying to get housing and employment, though both are seen as key to a successful reintegration to society. Because of that, most states allow for some sort of record expungement, but the process is typically bound by certain restrictions and requires a complicated application process. In some cases, there are fees that can be prohibitive for low-income families. (In Michigan, for example, people may apply to have their records sealed only if they have been convicted of no more than one felony or two misdemeanors.)
To streamline the process, several states are moving toward automatic expungement, commonly known as “clean-slate” laws that in most cases apply to nonviolent offenders who haven't been re-convicted of another crime for a certain amount of time after their first conviction. Last year, Pennsylvania became the first state to pass a comprehensive clean-slate law that uses computer software to automatically flag records eligible for expungement, which then go to the Pennsylvania State Police for approval. Legislators in Utah passed a similar bill this month, and lawmakers in Connecticut and California are currently considering their own proposals.
The proposals have received support across the ideological spectrum, pushed by both Democratic-leaning organizations and Koch Industries, which typically backs Republican candidates.
Despite the uptick in legislative interest, studying the effects of expungement policies has stumped researchers, as the fact that records have been wiped clean means they are "not typically available to study,” the report notes. Prescott and Starr got around that hurdle through a data-sharing partnership with the state of Michigan that allowed them to view “de-identified” criminal records from almost 30,000 cases that were sealed, each of them matched with the person's wage and employment data.
According to their research, just 6.5 percent of eligible people in the state had their records sealed within five years of first qualifying for the process. The data “do not identify unsuccessful applicants,” the report says, but police made it clear that “the low uptake rate can be primarily attributed to individuals’ failure to apply, rather than to denials of applications by judges.”
Researchers identified several reasons for the low application rate, including the time and administrative constraints inherent to the process, the non-negotiable $50 application fee and, notably, a simple lack of information about the existing “set-aside” law.
“Every advocate we spoke to mentioned this concern, and many thought it was the single most important uptake barrier,” the researchers wrote. “Most people with records, even if they are eligible for set-asides, lack the information they need to pursue them.”
The law is complicated and hard for a non-lawyer to understand, the report notes, and many people also lack basic information about their own criminal records (for example, that a traffic offense can be counted as a criminal conviction if it involves a guilty plea).
“Several advocates told us that when they run set-aside fairs, even though their materials promoting the fairs identify the key eligibility requirements, a substantial majority of those who turn up learn when they are there that they are not eligible, and walk out frustrated,” the report says. “It is certainly plausible that there are conversely many people who are eligible who assume that they are not.”
Those barriers are likely similar in other states with expungement laws, as nearly every one “requires individuals to apply for expungements and gives judges the discretion to deny them.”
For people who do have their records sealed, recidivism rates are extremely low. In Michigan, just 6 percent of recipients are rearrested within five years, and only 2 percent of those are for violent offenses. Re-conviction rates are even lower, meaning the population is generally low-risk, researchers found.
That “defuses the most common policy argument against expungement laws: that the public (including employers and landlords) has a safety interest in knowing about the prior records of those with whom they interact,” the report says.
The safety question is the most prominent objection to clean-slate laws. A Feb. 7 public hearing on Connecticut’s proposed legislation drew dozens of negative comments from landlords and real estate agents.
"This is not an easy problem to solve, but forcing landlords to house potentially dangerous individuals by limiting information during the selection process is certainly not the answer," wrote Rick Bush with the Connecticut Coalition of Property Owners.
An analysis of employment data showed that people in Michigan with expunged records also had improved odds of being employed and of earning at least $100 per week. That could simply mean that people with sealed records are more motivated to apply to jobs, researchers note, but also suggests “that those with expunged records gain access to more and better-paying jobs.”
Those benefits will likely expand as more states move toward automatic expungement, but even states that do not consider those policies could make existing laws more accommodating for eligible offenders by allowing online applications, getting rid of fees and generally increasing awareness about the process, the researchers concluded.
“Expungement will only realize its full potential, and make a serious dent in these large-scale social problems, if it is made available much more broadly and much more easily," they wrote.
Kate Elizabeth Queram is a Staff Correspondent for Route Fifty and is based in Washington, D.C.