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.