More States Consider Automatic Criminal Record Expungement

By: - May 25, 2021 12:00 am

Julia Elkins and Adam Spence of Lansing, Michigan, watch as their daughter takes her first ride on a new bike. The parents are among the hundreds of thousands of Michigan residents who are seeking reprieves from felony convictions. A national movement to automatically expunge criminal records is gaining momentum in the states, but for many, including Elkins and Spence, it could be years before they have a clean slate. Anna Nichols/The Associated Press

FORT WORTH, Texas — Doug Smith spent five years and eight months in a Huntsville, Texas, prison for a felony he committed while suffering from substance use disorder and mental illness. He was released in 2014, rehabilitated but still bound.

“I was immediately turned down for 90% of the jobs I applied for because of my record,” Smith recalled in an interview, remembering the months he spent struggling to find a place to work and live during his re-entry process.

“The only apartments that would accept me were places that would except anyone, where there was lots of drug use and crime,” he said.

About 1 in 3 U.S. adults, some 70 million people, have a criminal record, including those who were arrested but not convicted. These records have long-lasting consequences that can hinder a person’s access to employment, housing or a professional license.

As of April, at least 11 states have automatic record expungement laws, but eligibility depends on the number of convictions and the type of crime, according to the Collateral Consequences Resource Center, a nonprofit repository of state and federal restoration laws and policies.

Many people who are eligible fail to get their records cleared because the process can be costly and complicated. A 2020 study by two University of Michigan law professors found 90% of those eligible in Michigan don’t apply.

Now, a growing number of states are trying to ease the burden of expungement and record clearing by making the process automatic, without requiring any action by the people seeking to clear their records. In 10 states, Stateline found a dozen bills introduced this year that push for automatic clearing, expungement or sealing of criminal records.

Supporters say these bills are necessary to get millions of people back to work, but critics argue that sealing criminal records could threaten public safety.

Andy Teas, a spokesperson with the Houston Apartment Association, said everybody needs a place to live and deserves a second chance, but housing providers need to know whether someone presents a danger to their neighbors.

“If you know someone just got out of prison for something horrible, for public safety a housing provider needs to know that,” Teas said. “But if someone was convicted for possession of marijuana 20 years ago, that doesn’t really matter.”

A Compromise in Virginia

Virginia lawmakers passed the state’s first automatic record-sealing bill this session after both sides compromised. Republicans expressed concerns about the lack of transparency in expungement.

“Particularly, employers have the right to know before you would be employed if you embezzled money from a previous employer,” said state Sen. Ryan McDougle, a Republican, on the Senate floor in March, according to the Richmond Times Dispatch.

Shannon Taylor, an attorney with the Virginia Progressive Prosecutors for Justice, told the newspaper that the advocacy group supports the idea of making expungement easier but favors a petition process to allow prosecutors to review each case “and balance it with public safety to the community, to which we are responsible first and foremost.”

The compromise bill would set up a system of automatic sealing, both for charges that were dropped or dismissed and for nine types of misdemeanor convictions that are at least seven years old. It also would allow petition-based sealing of numerous misdemeanor and felony convictions. The bill is awaiting Democratic Gov. Ralph Northam’s signature.

Northam’s office did not immediately respond on whether the governor intends to sign the bill.

In 2020, Louisiana, Michigan, Pennsylvania and Vermont enacted laws addressing automatic expungement to some extent, according to the Collateral Consequences Resource Center.

California postponed implementation of its 2019 automatic record relief law from early 2021 to mid-2022. In Washington state, Democratic Gov. Jay Inslee vetoed an expungement bill, citing cost concerns.

The process of making criminal record expungement automatic can take years because some states don’t have the systems in place and adopting them can be expensive.

‘Hope to Millions’

Automatic record-clearing bills pending in Connecticut and Texas have not had much opposition and have good chances of passing this session, according to supporters.

Two bills relating to automatic orders of nondisclosure passed the Texas House earlier this month with bipartisan support. An order of nondisclosure is a court order prohibiting public entities such as courts and police departments from disclosing certain criminal records. These bills would prevent some minor, nonviolent crimes from appearing in background checks performed by private entities such as employers and landlords.

Advocates, including Smith, say one bill has a good chance of making it to the finish line before the session ends May 31.

“These bills have brought hope to millions of people in Texas,” said Smith, who helps lead the Statewide Leadership Council, a group of formerly incarcerated Texans formed by the Texas Criminal Justice Coalition, an advocacy group.

“We’ve got a statewide call to action right now, and we’re all working to get this bill to the governor’s desk, but even if it doesn’t it’ll be OK because we’re in this for the long haul,” Smith said.

Smith also is part of Clean Slate, a national coalition of community and advocacy groups helping to write and lobby for automatic record-clearing bills. The group began in Pennsylvania, where the first statewide automatic record-clearing bill was passed in 2018.

More than 36 million criminal cases have been cleared in Pennsylvania since the bill was enacted in 2019, helping 1 million people, according to Sheena Meade, the coalition’s managing director. Similar bills have also been passed in Michigan and Utah but have not been fully implemented, Meade said.

Expungement bills also have been introduced in Louisiana and North Carolina. Additional campaigns launched this year in Delaware, New York, Oregon and Texas, according to the Clean Slate website.

“We’re hoping to begin building a foundation in these states and expand eligibility and automation so one day millions of people with a criminal record have a pathway to economic stability and better access to housing,” Meade said.

Maintaining Access

In states that allow for certain criminal records to be sealed or expunged but don’t have an automatic process, people must file a petition in court, which is complicated and expensive. Then the courts must process each petition individually. Clean Slate aims to streamline the process by making record-clearing automatic through a computer program. Once someone has remained crime-free for a certain period, the program would automatically erase or seal that person’s eligible records.

But prosecutors and law enforcement officials who use sealed records want to make sure these laws don’t affect their access. A 2019 survey from the Collateral Consequences Resource Center found half of the states either do not allow law enforcement access to sealed records for routine law enforcement activity, or restrict law enforcement access to a court order or formal written request.

The Michigan Association of Chiefs of Police and the Prosecuting Attorneys Association of Michigan both spoke out against limited access in their state before a measure passed in 2020. The laws sealing eligible misdemeanors after seven years and eligible non-assaultive felonies after 10 years went into effect in Michigan on April 11, but it will take years before the changes are implemented, according to the state courts website. Law enforcement and prosecutors will continue to have access to sealed records until then.

Before Clean Slate launches a campaign in a new state, Code for America, a nonpartisan tech organization that works with local governments, makes sure the state’s criminal records can be automated. They also make sure there’s a history of advocacy work for record-clearing happening in that state, Meade said.

In 2015, Texas lawmakers sought to automatically seal the criminal records of people who were arrested but never convicted or acquitted of a crime. But when the law was enacted there was no way to automate the process, according to Sarah Mae Jennings, a staff attorney at the Texas Fair Defense Project, an advocacy group.

The current Texas bill would build on that law and open the door for automatically sealing other records, she said.

“It’s a big step to begin that process of talking about automation and what that looks like and who is doing what,” Jennings said.

Six Texas Republicans and three Democrats sponsored legislation that would expand nondisclosure to most first-time misdemeanor offenses except for traffic violations or driving under the influence.

Preliminary research from the University of Michigan published in 2020 by the Harvard Law Review found that a year after a record is cleared, Michiganders were more likely to be employed, and their average quarterly wages were 22% higher compared with eligible people whose records have not been cleared.

Pocketless Scrubs

Smith spent nearly a year working low-paying jobs with lousy conditions, including one at a warehouse in Austin, where he sorted used smartphones and was made to wear pocketless scrubs because managers worried he would steal, he said.

But unlike most of the people he met while incarcerated, Smith had a master’s degree in social work. In 2015, he was hired by the Texas Criminal Justice Coalition, where he is now a senior policy analyst.

That year, Smith lobbied to help pass a bill that would have expanded record-clearing eligibility, but the bill was vetoed by Republican Gov. Greg Abbott, who said it went too far because it would have allowed courts to expunge dismissed criminal charges, including serious ones.

“First, dismissal of a criminal charge is not necessarily an indicator of the defendant’s innocence of that crime, particularly when a multicharge arrest results in a plea agreement,” wrote Abbott in his explanation for blocking the bill. “Second, unlike orders of non-disclosure, which seal records from public view, expunction seals the records even from law enforcement.”

In Texas, only felony cases that are dismissed after completing deferred adjudication community supervision are eligible for nondisclosure after five years, according to the Clean Slate Clearinghouse, a project developed and funded in part by the U.S. Department of Labor.

There are more than 860 collateral consequences in Texas for people with certain felony offenses on their record, ranging from driver’s license revocations to being unable to work or volunteer in some positions, according to the National Inventory of Collateral Consequences of Conviction, a project funded by the U.S. Department of Justice.

“Having been incarcerated, there is an urgency, a sense of grave injustice to people I know is ever present,” Smith said. “So, it’s never just a job and we’re going to keep fighting until we can grow our wings back.”

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