A Call to Simplify and Broaden Expungement Laws

Formerly incarcerated individuals are often released only to find social and economic barriers harsher than the penalty itself. The internet age makes this problem even worse given the ease of accessing criminal records. Recognizing these barriers, most jurisdictions have enacted laws that permit individuals who show good behavior to obtain a conviction dismissal and seal their records. Proponents of these laws tout their role in helping formerly incarcerated individuals contribute to society, reducing recidivism, and increasing overall societal welfare. Opponents argue that the public, particularly prospective employers, have the right to know who has a criminal record. However, a recent study highlighting the importance of the expungement laws for reentry is shaking up this debate.

A forthcoming study in the Harvard Law Review by J.J. Prescott and Sonja Starr links expungement to improved employment prospects. The study illustrates that within one year of expungement, an individual’s odds of being employed and earning $100 per week increase by a factor of 1.13 and 1.23, respectively. Individuals who receive expungement see a wage increase of $4,400 within a year, a 23 percent improvement over individuals whose records are not expunged.

The study also addresses public safety concerns: recipients of expungements have a relatively low recidivism rate, with 1.8 percent re-convicted of crimes within two years and 4.2 percent committing crimes within five years. While the data cannot establish a causal link between the expungement and reduced rates of recidivism, they do not rule out its impact on recidivism.

Yet despite the benefits, very few records are expunged. According to the study, “only 6.5% of eligible individuals . . . receive [expungements] within five years of the date in which they qualify.” Prescott and Starr, citing interviews with Michigan expungement practitioners, suggest that lack of information, administrative hassle, time constraints, fees, distrust in the criminal justice system, and insufficient motivation could all be underlying causes of the low rate of eligible individuals obtaining expungement relief. Individuals are either unaware of the expungement remedy, or chilled by the prospect of navigating through a criminal justice system again. An empirical study probing the reasons for low rates of expungements would help evaluate the efficacy of the remedy and assist future policy design.

Criminal justice researchers often face significant obstacles to obtaining data because of the fragmented nature of the system. Research into expungement laws has proven particularly challenging because it involves sealed records. Prescott and Starr were able to bypass the obstacles by using the data available in different state agencies. They obtained criminal history for “almost every . . . [expungement] in Michigan history through March 2014,” totaling approximately 30,000 cases. Further, they obtained the criminal history of all Michigan state cases through March 2014 that were not expunged within five years of eligibility. Wage and employment information for all defendants in both sets of criminal cases were obtained through the state Unemployment Insurance and Workforce Development agencies using social security numbers as identifiers. A combination of these records provided a robust data set to arrive at their conclusions.

Prescott and Starr’s study convincingly links expungements to successful reentry and belies arguments that expungements jeopardize public safety. The study attempts to isolate reasons behind low rates of expungement requests in order to suggest avenues of reform. Their findings linking increased earning potential and reduced recidivism to expungement make a strong case for simplified expungement procedures.

Article source: Prescott, J.J., and Sonja B. Starr, “Expungement of Criminal Convictions: An Empirical Study.” Harvard Law Review, forthcoming.

Featured image created by: Mark Sheppard