‘Clean Slate’ Justice Laws Offer a Second Chance—Only to Some

Clean slate laws are sweeping the country, offering many of the estimated 70 to 100 million people with a criminal record the chance to have their record expunged. The benefits seem straightforward: Making a criminal record no longer publicly available should reduce housing and employment discrimination. The policy aims to give people a second chance, especially those who were unfairly targeted to begin with. Expungement has largely been framed as a way to address the errors of a legal system rooted in racial hierarchies and discrimination.

Key to this new wave of legislation is the effort to make expungement automatic by shifting the burden to the state rather than the person with the record, and automating the process as much as possible using technology. These policies are a welcome relief against onerous expungement processes, like inefficient, confusing, and expensive court petitions that caused most people to drop out of the expungement process or never try at all, creating a “second chance gap.” One study in Michigan, for instance, found that only 6.5 percent of people eligible for an expungement successfully completed the process. By making the process both automatic and automated, many hope that expungement can reach more people, particularly those who can’t afford an attorney, or who understandably do not want to reengage with the court system even for record-sealing purposes. Over a dozen states have implemented automatic record clearance, including eight states that authorize automatic relief for cannabis-related convictions.

Unfortunately, many states lack the data infrastructure necessary to effectively seal criminal records. A massive backlog in California has left tens of thousands of people who are legally eligible for record clearance still waiting. And new research in California—whose clean slate law, AB 1076, automates the expungement process for people arrested after January 2021— shows that these promising new laws may have the unintended consequence of increasing racial inequality because of how narrowly they’re written. People with more serious records or repeated contacts with the criminal legal system are often excluded from clean slate policies. But the issue of who has a more serious criminal record is deeply structured by the race, neighborhood, and income of the person who is arrested and charged.

Clean Slate laws have received broad bipartisan support. But making laws politically palatable to both sides of the aisle can result in narrow policy. And while advocates point out the common sense benefits of criminal record expungement, public opinion for expungement is mixed: One recent public opinion survey found that nearly 55 percent of respondents were opposed to expungement on the grounds that having public access to criminal records “keeps communities safe.” But the same study showed that less than 15 percent of respondents felt a person should never be able to get an expungement, with support for record clearance policy rising for property and substance-related offenses and after a person has remained crime-free for seven to ten years. Both the dominant political framework and public opinion have encouraged expungement policy for only low-level, nonviolent crimes and for those who have proven they can remain crime-free.

The violent/nonviolent crime dichotomy is a bit complicated: Many states deem a broad variety of offenses as violent, including things most people would consider nonviolent, like burglary, drug crimes, and embezzlement. And “crime-free” is a more nuanced concept than we often think. For the purposes of record clearance policy, criminal behavior is often measured by new arrests or criminal charges and convictions. But living in an overpoliced neighborhood can lead to an increased likelihood of being stopped by police.

New research from California looked at over 2 million Californians who have been arrested at least once. Black people were more likely than other race groups to have been convicted of a criminal charge (87.3 percent, versus 79.4 percent of total), and of those convicted, were more likely to have a felony record (73.3 percent versus 58.1 percent of total). 40 percent of Black people are barred from expungement due to the type of crime, compared to 26 to 31 percent of people in other race groups. This means that a disproportionate share of Black people have a felony conviction that disqualifies them from expungement. Even among people with felony records in other race groups, Black people were less likely to have a conviction that fit the criteria and were much more likely to have been sentenced to prison for their conviction, rendering even more people ineligible for record clearance.

“What our study shows,” study authors Alyssa Mooney, Alissa Skog, and Amy Lerman told me in an email exchange, “is that automating record clearance alone is not going to be sufficient to reduce racial disparities in who has a criminal record. … What will be needed to actually reduce the racial gap in criminal records is a policy change that extends record clearance eligibility to a wider range of cases. This isn’t a technology problem; it’s a political problem.”