Advancing Clean Slate: The Need for Automatic Record Clearance During the Coronavirus Pandemic

A prison cell block is seen at the El Reno Federal Correctional Institution in El Reno, Oklahoma, July 2015.

The COVID-19 pandemic has led the United States into another recession and left millions of Americans without a job or means to support themselves or their families. The nation is seeing some of the highest unemployment rates documented since the Great Depression, with little indication of how long the crisis will last. The process of finding a job will be challenging for many, but for justice-involved individuals who were already struggling to find employment and build a successful life before the pandemic, it will be nearly impossible. Of the 13.3 percent of Americans currently looking for work, individuals with a criminal record will almost certainly be among those last hired once jobs do reappear.

Today, between 70 million and 100 million people in America are living with a criminal record, which hinders their chances of success, even long after they have been exonerated or have completed their sentence. Due to the stigma of their records, these individuals face significant challenges finding a job, securing housing, or attending college—challenges that will only be compounded by the COVID-19 pandemic. Having a record often means that one moment of indiscretion leads to a lifetime of poverty and suffering. Many policy advocates and lawmakers recognize the need to advance policies aimed at providing these individuals a second chance to fully contribute to their communities. Now, in the midst of a global economic crisis, these policies are needed more than ever before.

In particular, lawmakers must push for “clean slate” policies, which center around reducing the negative effects of a criminal record through automatic record-clearing for minor nonviolent cases. Several states have taken the lead on enacting clean slate legislation to provide better opportunities for their constituents, and now, even federal legislators are pushing for federal clean slate laws. Amid the current crisis, the passage of clean slate measures must become a priority to ensure that the tens of millions of people affected by the justice system are able to successfully reenter society and participate in the nation’s recovery.

This column looks at the need for clean slate legislation, highlighting advances made since the first automatic record-clearing state law was passed in 2018 and examining how states and the federal government have taken steps to provide a pathway to success for those who have been negatively affected by the criminal justice system.

The case for automatic record-clearance measures

In many countries, one’s rights are restored once they have completed their sentence or been exonerated. But for far too many people in the United States, a criminal record often leads to a number of collateral consequences that can prevent someone from successfully moving forward in life, even long after completing their sentence. For example, formerly incarcerated people face challenges entering the workforce, where 9 in 10 employers use background checks in their hiring process. One study found that job applicants with convictions are 60 percent less likely to receive callbacks than those without convictions. Such setbacks can be particularly difficult for applicants of color, who often face additional challenges in the hiring process due to discrimination against their race or ethnicity. Now, with the coronavirus affecting the country’s economy, and unemployment rates at an all-time high, access to job opportunities has become even more scarce for those reentering society. Even once job opportunities become more available, those with a criminal record will have to compete against a much wider pool of applicants while overcoming the stigma of their arrest or conviction. In addition, housing and education opportunities can be hard to come by for those with a record: 4 in 5 landlords use background checks to make determinations on rental applicants, and about 2 in 3 colleges and universities review an applicant’s criminal history when making both admissions and funding determinations.

With so many long-term barriers imposed on justice-involved individuals, accessing essential life resources can be incredibly difficult, leading many toward a life of poverty and ultimately a downward spiral of recidivism and reincarceration. Previously incarcerated people are 10 times more likely than the general public to end up homeless, and individuals who remain unemployed only two months after reentry are twice as likely to recidivate than those who are employed. These setbacks affect not only the record-holding individual but also their family members. This is especially true for dependent children, as the collateral consequences of a parent’s record can significantly affect children’s mental development, education, future employment opportunities, and overall well-being. An estimated 33 million to 36.5 million children in the United States have at least one parent with a criminal record. This means that nearly half of America’s youth population may be denied the opportunity for a successful future even before they have the chance to reach their full potential.

Most states have recognized the need to reduce the impact of collateral consequences from a criminal record and have provided a mechanism for certain records to be sealed or expunged through a court petition. However, this process is flawed and comes with its own set of challenges. Many who are eligible to petition the court are unaware of this option or do not have the resources needed to navigate the challenges that come with seeking relief from the courts. Additionally, a successful petition process is often confusing and requires thousands of dollars for legal services and court fees, as well as time away from obligations such as work and child care—both of which are valuable resources that are scarce for those seeking to clear their record, especially during the coronavirus crisis. With so many barriers and potential setbacks, it is no wonder researchers at the University of Michigan find that only 6.5 percent of those eligible are able to clear their records within five years of eligibility.

At a time when many are recognizing the need to reform the U.S. criminal justice system, momentum is gaining to implement an automated record-clearance process that would resolve many of the burdensome challenges that come with petitioning a court. Support for clean slate measures is not only widespread but also bipartisan. Polling by GBA Strategies and the Center for American Progress finds that 70 percent of Americans, across party lines, support state legislation that would automatically clear qualifying records once someone remains crime-free.

State and federal lawmakers—from both sides of the aisle—have taken note of the public’s interest in clean slate reforms and are beginning to advance these measures within their jurisdictions. During the current public health crisis and looming economic recession, it is vital that such policies are implemented quickly so that justice-involved individuals can access the essential life resources they need to survive and can contribute to the nation’s economy recovery.

Momentum for clean slate at the state and federal levels

In 2018, following many years of efforts to expand access to and eligibility for record-sealing, Pennsylvania became the first state in the nation to pass clean slate legislation that would automatically seal criminal conviction records for qualifying offenses. Act 56—better known as the Clean Slate Act—was passed with near-unanimous approval from both chambers of the legislature and signed into law by Gov. Tom Wolf (D).

Passing clean slate in Pennsylvania

Community Legal Services first worked to ease the petition process in Pennsylvania by developing a program to automatically generate expungement petitions. The program, which was first released in 2011, reduced the amount of time to prepare petitions from several hours to several minutes and brought greater efficiency to the petition process, helping lawyers file more petitions statewide each year. But legal aid lawyers in the state knew this would not be enough to meet the need for record-clearing. Community Legal Services teamed up with the Center for American Progress to develop and publish the idea for automating the entire record-clearing process in order to ensure that everyone who is eligible gets a clean slate. From 2015 to 2018, a broad bipartisan coalition—including both Democrats and Republicans, as well as directly affected communities, business, law enforcement, and even professional football players—joined Community Legal Services and CAP in advancing the first-ever clean slate bill in the country.

Under Pennsylvania’s clean slate law, nonviolent misdemeanors are automatically sealed after 10 years if an individual remains conviction-free. A record query is then conducted through computer technology and any qualifying records are automatically sealed, meaning that those records will no longer come up in third-party background checks and are also shielded from public view—including from employers, housing officials, and educational institutions. The automatic sealing also releases an individual from going through the arduous and costly process of filing a court petition. Since the measure went into effect in June 2019, Pennsylvania has sealed more than 34 million cases and counts via automation and helped 1 million Pennsylvanians clear their records.

Shortly after Pennsylvania enacted its clean slate law, Utah followed suit to become the second state in the United States to enact a clean slate measure, in a unanimous vote from both chambers. Like in Pennsylvania, Utah’s clean slate law automates the preexisting process of court petitions and automatically seals low-level criminal records as long as the record holder has committed no additional crimes in the past 5 to 7 years, depending on the offense. Implementation is in the early stages, and state leaders expect the new automated process to significantly reduce the backlog of applications, where individuals often wait for up to six months just to see if they qualify for an expungement.

Other states have been moving toward enacting clean slate measures of their own. In November 2018, Michigan’s House chamber passed a bipartisan clean slate measure nearly unanimously. Michigan’s clean slate legislation is the first to include automatic expungement of certain qualifying felonies, as well as misdemeanors, after 3 to 7 years following completion of their sentence and without a new conviction. The bill is now moving through the Senate. This spring, Washington State also passed, with overwhelming bipartisan support, legislation putting it on a path to clean slate; however, the bill fell victim to a set of vetoes of any state priorities not considered directly related to COVID-19. Meanwhile, Connecticut Gov. Ned Lamont (D) introduced a clean slate proposal as part of his 2020 budget, and similar legislation has gained significant attention and traction in the state legislature over the past two years. Likewise, California enacted legislation to automatically clear certain records in October 2019. However, unlike Pennsylvania or Utah, the California measure is prospective in scope and will only apply to records of conviction or arrests made after January 2021. New Jersey also passed legislation last year that requires the state to implement an automated clean slate expungement system, pursuant to the recommendations of a governor-appointed task force that begins its work this year. And several additional states, such as Louisiana and North Carolina, are advancing promising measures that would open the door to automatic record-clearing, such as through automatic expungement of nonconviction records.

As more states look to adopt automatic record-sealing measures, federal lawmakers are learning lessons from their state counterparts and working to bring record-clearing to the federal level. Unlike at the state level, there is—with very limited exceptions—no legal remedy or process for getting most federal records cleared. The Clean Slate Act, introduced by Rep. Lisa Blunt Rochester (D-DE) and Rep. Guy Reschenthaler (R-PA)—one of the champions of Pennsylvania’s Clean Slate Act when he was a state senator—would, for the first time, allow individuals to petition to have certain federal records sealed after completing all terms of their sentence and establish automatic sealing of certain federal records, beginning with drug offenses. If enacted, the measure would be the first of its kind at the federal level.

Conclusion

The COVID-19 pandemic and resulting unemployment crisis have elevated the need to pass clean slate legislation. With the recent demands to reform the U.S. criminal justice system, there is no better time than now for more states and the federal government to pass clean slate automatic expungement laws. These laws not only reduce the collateral consequences of a criminal record but also allow justice-involved individuals to have a second chance at life after completing their sentence, without having to endure the trials and tribulations that often stem from a judicial process.

This opportunity to reenter society after an arrest or conviction is not only critical for record-holding individuals; it is also necessary to ensure full participation in the efforts being made to restore the nation’s economy post-pandemic. Several states such as Pennsylvania and Utah have recognized the need to ensure a pathway toward success by advancing automatic record-sealing measures. Now, federal lawmakers are starting to follow suit. As the nation prepares for a major reset, it is vital to ensure that the many Americans who have been affected by the justice system are not shut out of rebuilding efforts.

Akua Amaning is an associate director for Criminal Justice Reform at the Center for American Progress.