One in 3 people in the United States has a criminal record. These individuals are subject to more than 44,000 legal sanctions and collateral consequences that create barriers to housing, job access, education, nutrition assistance, and many other necessary resources.1 Indeed, the deeply rooted discriminatory policies and practices of the criminal legal system—which disproportionately affect people of color, LGBTQ people, and people with disabilities, among other vulnerable groups2—fuel systemic inequalities and cycles of poverty and hardship, stigmatize and exclude people with criminal records, and impede community integration.3
Addressing this massive barrier to justice and severely limiting the role of fines and fees is essential to establishing a meaningful path to criminal record-clearing. Key steps to addressing these barriers include:
- Eliminating or reducing court fines and abolishing fees
- Supporting systems that promote transparency in the use of fines and fees
- Allowing expungement of cases with unpaid monetary sanctions
This issue brief explores how individuals trying to clear their criminal records face enormous hurdles and challenges due to fines and fees and underscores the importance of implementing measures that will eliminate these barriers.
Background: The record clearance process
Some criminal records can be sealed from public view or removed through expungement, exoneration, or pardons. However, these paths to record clearance are notoriously difficult to navigate. As a result, only about 7 percent of people with criminal records who are eligible for expungement have their record cleared within five years of eligibility.4 The criminal legal system imposes process barriers such as inaccessible filing systems and lack of legal assistance, as well as material barriers such as lack of transportation to required court appearances, child care challenges, and high filing fees.
1 in 3
Share of people in the United States who have a criminal record
Number of collateral consequences that exist because of a person’s criminal history
Fines and fees in particular contribute to the United States’ startlingly low record clearance numbers. Fines are part of court sentencing, intended to serve the punitive or deterrent purposes of other criminal sanctions. Fees, on the other hand, are intended only to make money for the state; defendants are usually required to “reimburse” the state for their public defenders, court-ordered drug testing, electronic monitoring, and much more.5 Of course, the distinction between different types of court debt means little to the people paying them. The overall amount of criminal justice debt and the number of people affected are unknown,6 but the Fines and Fees Justice Center estimates that court debt alone totals more than $27 billion.7
Restitution is another form of monetary sanction intended to compensate victims of crime. However, it is collected at a very low rate,8 and the federal government estimates that more than 90 percent of restitution currently owed to survivors of crime will never be collected.9 Furthermore, a prior criminal conviction often bars survivors from accessing restitution funds.10
Most restitution is owed to insurance companies rather than to the individuals who are actually hurt by crimes. In practice, private corporations are able to use the criminal legal system as a collection agency against poor individuals—predominantly Black and brown—who are disproportionately convicted of crimes.11
Courts often deny individuals the opportunity to seal or expunge their records if they are unable to pay the imposed fines or fees. Without the ability to seal or clear their records, system-impacted individuals are left to overcome the stigma of their record as they struggle to build toward a successful future.
Unpaid monetary sanctions can often extend probation terms, pushing back the date a person’s case is closed and, in turn, the date they are eligible for expungement. In many states, unpaid fines and fees are often considered grounds for probation violation and incarceration, potentially adding a new charge and a new arrest to an individual’s record. These barriers can ultimately continue a vicious cycle of poverty and hardships or result in recidivism, particularly among marginalized groups.
While there is abundant evidence indicating that monetary sanctions stymie rehabilitation and community integration, there is little evidence to suggest that these sanctions improve public safety.12 In fact, research shows that police in jurisdictions that rely on fines and fees for more of their revenue are less likely to close serious cases because they are forced to spend their time acting as debt collectors.13
The importance of record-clearing
The collateral consequences of having a criminal record affect every aspect of a person’s life. Nine in 10 employers, 4 in 5 landlords, and 3 in 5 colleges and universities use criminal background checks.14 These restrictive barriers exist across a number of domains, barring millions of people from accessing the paths and resources needed to promote stability for themselves and their families.
9 in 10
Share of employers who use criminal background checks
4 in 5
Share of landlords who use criminal background checks
3 in 5
Share of colleges and universities that use criminal background checks
- Housing: More than 1,300 barriers to housing exist across jurisdictions and at the federal level, affecting access to rental housing, homeownership, student housing, and public housing. These include the denial of rent or sale of a home, denial of constitutional fair housing law protections, and even eviction or housing forfeiture.15
- Job access: Criminal background checks are legally but often unfairly used by employers to justify not hiring people solely based on their records, rather than evaluating their qualifications or fitness for the role. In addition, criminal convictions often bar people from obtaining certain occupational licenses, excluding millions from the job market.16
- Education: Thousands of colleges and universities in the Unites States require the disclosure of criminal history during the application process.17 This hurdle prevents many individuals from accessing higher education.18 Additionally, the Free Application for Federal Student Aid (FAFSA) includes a question about applicants’ drug conviction history, creating a barrier to accessing necessary federal funding.19
- Safety net program eligibility: In some states, people with felony drug charges must navigate legal barriers to safety net programs and public assistance—such as the lifetime ban from Temporary Assistance for Needy Families (TANF) and the Supplemental Nutrition Assistance Program (SNAP)—leading to food insecurity and hardship for entire families.20
- Voting and civic participation: An estimated 5.2 million people with criminal records across the country experience felony disenfranchisement, meaning they have been stripped of the right to vote in elections—including the recent 2020 presidential election.21 Furthermore, people with certain records are banned from serving on a jury and running for or holding public office.22
How records are cleared
The excerpt below comes from the CAP fact sheet, “Expunging and Sealing Criminal Records: How Jurisdictions Can Expand Access to Second Chances”23
An expungement removes arrests and/or convictions from a person’s criminal record entirely as if they never happened. Even a court or prosecutor cannot view a person’s expunged record. In contrast, sealing removes a person’s criminal record from public view, but it can still be accessed through a court order.
Most states provide some form of expungement or sealing for certain types of records. Yet the federal government currently does not have a regular mechanism for clearing federal conviction or even nonconviction records. Expungements and sealing typically require the individual to file a petition, appear in court, and serve a waiting period without reoffending. Taking these steps, however, can cost hundreds of dollars in legal and administrative fees, dissuading many who are eligible from expunging or sealing their criminal records. Additionally, many eligible individuals simply may not know that these remedies are even an option.
Barriers to record-clearing
Most states have enacted their own petition-based record clearance processes. However, this often comes with its own set of challenges, many of which can put significant financial strain on the applicant.
A petition-based court process alone can cost individuals hundreds of dollars in administrative fees and associated costs, which many low-income and marginalized people might not be able to afford.24 In many states, applicants are burdened with costs such as application fees, fingerprint processing, notary fees, and copy fees for court documents.25 Additionally, the convoluted petition process typically requires the assistance of legal counsel, which can add thousands of dollars in attorney fees.
Other financial burdens may be imposed by everyday social and logistical realities. For example, the cost of transportation to court proceedings, lost wages or time away from work, and payment for child care services can severely hinder the expungement process, especially for applicants whose financial resources are already limited. With so many expenses involved, it is no surprise that so few eligible people successfully expunge their records.
Recommendations for reducing and removing barriers
Comprehensive steps must be taken to prevent criminalization and reduce harm for the 1 in 3 people in the United States who already have a record, as well as the millions of families and communities indirectly affected by the system’s collateral consequences.26 In order to address the harms stemming from fines and fees and prevent monetary sanctions from inhibiting record clearance, it is critical for state and local governments to implement the following policies:
- Reduce or eliminate fines imposed as punishment: There is no evidence that such fines improve public safety, yet they trap millions of people in debt.27
- Abolish fees that are imposed only to generate revenue: Such fees harm individuals and families and drive people deeper into both the criminal legal system and poverty. Moreover, they have been shown to keep police from solving serious crimes and often generate little to no net revenue because the cost of collections is so high.28
- Reform restitution to prioritize redressing harm rather than furthering cycles of hurt, poverty, and criminalization: This effort should involve reducing or eliminating restitution interest as well as eliminating restitution to government institutions and corporations.
- Require public reporting of fines and fees data: This publicly accessible information would aid in transparency around how much criminal justice debt is held by people in the United States.29
- Automate criminal record-clearing through clean slate laws: Such actions would automatically clear certain misdemeanors and felony records, without the burden of a court-petition process or monetary requirements, after a set period of time.30
- Decouple sealing and expungement eligibility from court debt: This would allow for expungement regardless of outstanding fines, fees, and restitution, as long as the individuals have met other legal criteria.
- Remove other barriers to criminal record-clearing: These barriers include expungement fees, fingerprinting requirements, mandatory or discretionary hearings without substantial notice, and complicated filing procedures, such as in-person filing requirements or paid online filing.
Removing fines and fees and their harmful consequences is key to addressing the barriers to clearing a criminal record. At the same time, the justice system must work at all levels to end hyper-criminalization and mass incarceration, remove the collateral consequences of having a criminal record, and invest robustly in essential community services. Taken together, these measures can significantly improve individuals’ chances of successfully reentering society and avoiding the harmful setbacks that can accompany a criminal record.
It is time for states and localities to recognize the harms that stem from the use of monetary sanctions and work toward comprehensive measures that aim to remove the collateral consequences of criminal records, eliminate or reduce the use of court fines and fees, and support transparency and awareness of the negative effects that monetary sanctions can have on system-impacted communities.
- The Sentencing Project, “Americans with Criminal Records” (Washington: 2015), available at https://www.sentencingproject.org/wp-content/uploads/2015/11/Americans-with-Criminal-Records-Poverty-and-Opportunity-Profile.pdf; U.S. Commission on Civil Rights, “Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities” (Washington: 2019), available at https://www.usccr.gov/pubs/2019/06-13-Collateral-Consequences.pdf.
- Elizabeth Kai Hinton, LeShae Henderson, and Cindy Reed, “An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System” (Brooklyn, NY: Vera Institute of Justice, 2018), available at https://www.vera.org/publications/for-the-record-unjust-burden; The Sentencing Project, “Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System” (Washington: 2018), available at https://www.sentencingproject.org/publications/un-report-on-racial-disparities/; Charlotte Knight and Kath Wilson, “LGBT People as Offenders within the Criminal Justice System,” in Lesbian, Gay, Bisexual and Trans People (LGBT) and the Criminal Justice System (London: Palgrave Macmillan, 2016): 85–111, available at https://link.springer.com/chapter/10.1057/978-1-137-49698-0_5; Center for American Progress and the Movement Advancement Project, “Unjust: How the Broken Criminal Justice System Fails LGBT People of Color” (Washington and Denver: 2016), available at https://www.lgbtmap.org/file/lgbt-criminal-justice-poc.pdf; Rebecca Vallas, “Disabled Behind Bars: The Mass Incarceration of People With Disabilities in America’s Jails and Prisons” (Washington: Center for American Progress, 2016), available at https://www.americanprogress.org/issues/criminal-justice/reports/2016/07/18/141447/disabled-behind-bars/; Benjamin Harris and Melissa S. Kearney, “The Unequal Burden of Crime and Incarceration on America’s Poor” (Washington: Brookings Institution, 2014), available at https://www.brookings.edu/blog/up-front/2014/04/28/the-unequal-burden-of-crime-and-incarceration-on-americas-poor/.
- Simone Ispa-Landa and Charles Loeffler, “Indefinite Punishment and the Criminal Record: Stigma Reports Among Expungement-Seekers in Illinois,” Criminology 54 (3) (2016): 387–412, available at https://onlinelibrary.wiley.com/doi/abs/10.1111/1745-9125.12108; Christopher Uggen, Jeff Manza, and Angela Behrens, “‘Less than the average citizen’: stigma, role transition, and the civic reintegration of convicted felons,” in Shadd Maruna and Russell Immarigeon, eds., After Crime and Punishment: Pathways to Offender Reintegration (Portland, OR: Willan Publishing, 2004): 258–290, available at https://users.cla.umn.edu/~uggen/Uggen_Manza_Behrens_CH_04.pdf.
- J.J. Prescott and Sonja B. Starr, “Expungement of Criminal Convictions: An Empirical Study,” Harvard Law Review 133 (8) (2020): 2460–2555, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3353620.
- Menendez and others, “The Steep Costs of Criminal Justice Fees and Fines” (New York: Brennan Center for Justice, 2019), available at https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justice-fees-and-fines.
- Briana Hammons, “Tip of the Iceberg: How Much Criminal Justice Debt Does the U.S. Really Have?” (New York: Fines and Fees Justice Center, 2021), available at https://finesandfeesjusticecenter.org/2021/04/28/new-ffjc-report-how-much-criminal-justice-debt-does-the-u-s-really-have/.
- Dana A. Waterman, “A Defendant’s Ability to Pay: The Key to Unlocking the Door of Restitution Debt,” Iowa Law Review 106 (455) (2020), available at https://ilr.law.uiowa.edu/print/volume-106/a-defendants-ability-to-pay-the-key-to-unlocking-the-door-of-restitution-debt/.
- U.S. Government Accountability Office, “Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Improved” (Washington: 2018), available at https://www.gao.gov/assets/gao-18-203.pdf, p. 1.
- Beth A. Colgan, “Beyond Graduation: Economic Sanctions and Structural Reform,” Duke Law Journal 69 (2020), available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4025&context=dlj, p. 1561.
- Matthiesen, Wickert & Lehrer, S.C. Attorneys at Law, “Subrogation of Criminal Restitution in All 50 States” (Hartford, WI: 2021), available at https://www.mwl-law.com/wp-content/uploads/2018/02/CRIMINAL-RESTITUTION-CHART.pdf.
- Menendez and others, “The Steep Costs of Criminal Justice Fees and Fines.”
- Rebecca Goldstein, Michael W. Sances, and Hye Young You, “Exploitative Revenues, Law Enforcement, and the Quality of Government Service,” Urban Affairs Review 56 (1) (2020): 5–31, available at https://journals.sagepub.com/doi/full/10.1177/1078087418791775.
- Rachel West and others, “News You Can Use: Research Roundup for Re-Entry Advocates” (Washington: Center for American Progress, 2016), available at https://www.americanprogress.org/issues/poverty/reports/2018/04/05/448711/news-can-use-research-roundup-re-entry-advocates/.
- Jaboa Lake, “Preventing and Removing Barriers to Housing Security for People With Criminal Convictions,” Center for American Progress, April 14, 2021, available at https://www.americanprogress.org/issues/poverty/news/2021/04/14/498053/preventing-removing-barriers-housing-security-people-criminal-convictions/.
- Marina Duane and others, “Criminal Background Checks: Impact on Employment and Recidivism” (Washington: Urban Institute, 2017), available at https://www.urban.org/research/publication/criminal-background-checks-impact-employment-and-recidivism/view/full_report; Amanda Agan and Sonja B. Starr, “The Effect of Criminal Records on Access to Employment,” American Economic Review: Papers & Proceedings 107 (5) (2017): 560–564. available at https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2892&context=articles.
- Josh Moody, “Ban the Box: Opening the Door to College for Felons,” S. News and World Report, January 17, 2020, available at https://www.usnews.com/education/best-colleges/articles/ban-the-box-opening-the-door-to-college-for-felons.
- U.S. Department of Education, “Beyond the Box,” available at https://www.ed.gov/beyondthebox (last accessed November 2021); Bradley Custer,” 3 Ways the Biden Administration Can Give Second Chances to Justice-Impacted College Students,” Center for American Progress, April 19, 2021, available at https://www.americanprogress.org/issues/education-postsecondary/news/2021/04/19/497880/3-ways-biden-administration-can-give-second-chances-justice-impacted-college-students/.
- U.S. Government Accountability Office, “Federal Student Aid: Actions Needed to Evaluate Pell Grant Pilot for Incarcerated Students,” available at https://www.gao.gov/products/gao-19-130 (last accessed November 2021).
- Twelve states have a full ban and 25 states have a modified ban on TANF benefits for individuals with felony drug charges; nine states have a full ban and 25 states have a modified ban on SNAP benefits for individuals with felony drug charges. See Chesterfield Polkey, “Most States Have Ended SNAP Ban for Convicted Drug Felons,” National Conference of State Legislatures, July 30, 2019, available at https://www.ncsl.org/blog/2019/07/30/most-states-have-ended-snap-ban-for-convicted-drug-felons.aspx; The Sentencing Project, “Americans with Criminal Records”; The Network for Public Health Law, “Effects of Denial of SNAP Benefits on Persons with Felony Drug Convictions” (Edina, MN: 2020), available at https://www.networkforphl.org/resources/effects-of-denial-of-snap-benefits-on-convicted-drug-felons/; Darrel Thompson and Ashley Burnside, “No More Double Punishments: Lifting the Ban on SNAP and TANF for People with Prior Felony Drug Convictions” (Washington: Center for Law and Social Policy, 2021), available at https://www.clasp.org/publications/report/brief/no-more-double-punishments.
- Chris Uggen and others,”Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction” (Washington: The Sentencing Project, 2020), available at https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/.”
- U.S. Commission on Civil Rights, “Collateral Consequences.”
- Kenny Lo, “Expunging and Sealing Criminal Records: How Jurisdictions Can Expand Access to Second Chances” (Washington: Center for American Progress, 2020), available at https://www.americanprogress.org/issues/criminal-justice/reports/2020/04/15/483264/expunging-clearing-criminal-records/.
- Maura Ewing, “Want to Clear Your Record? It Will Cost You $450,” The Marshall Project, May 31, 2016, available at https://www.themarshallproject.org/2016/05/31/want-to-clear-your-record-it-ll-cost-you-450.
- Prescott and Starr, “Expungement of Criminal Convictions.”
- The Sentencing Project, “Americans with Criminal Records.”
- Menendez and others, “The Steep Costs of Criminal Justice Fees and Fines.”
- See Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (New York: Russell Sage Foundation, 2016); Leslie Paik and Chiara Packard, “Impact of Juvenile Justice Fines and Fees on Family Life: Case Study in Dane County, WI” (Philadelphia: Juvenile Law Center, 2019), available at https://debtorsprison.jlc.org/documents/JLC-Debtors-Prison-dane-county.pdf; Goldstein, Sances, and You, “Exploitative Revenues, Law Enforcement, and the Quality of Government Service.” Menendez and others, “The Steep Costs of Criminal Justice Fees and Fines,” estimates that some counties in New Mexico spend as much as $1.17 to collect every $1 in fines and fees. See also Oregon Child Support Program, “Child Support Information Related to Oregon Youth Authority (OYA)” (Salem, OR: Oregon Department of Justice, 2020), available at https://berkeley.box.com/s/5mgugtq1ritzrvj86rylezbfin5yt9an, which shows that the Oregon Department of Justice spent about $866,000 to collect $864,000 in juvenile incarceration fees in 2019.
- Hammons, “Tip of the Iceberg.”
- Akua Amaning, “Advancing Clean Slate: The Need for Automatic Record Clearance During the Coronavirus Pandemic,” Center for American Progress, June 25, 2020, available at https://americanprogress.org/article/advancing-clean-slate-need-automatic-record-clearance-coronavirus-pandemic/.
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Director, Criminal Justice Reform
Senior Policy Analyst, Poverty to Prosperity Program