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On the Same Page: Clearing Criminal Records for Those Who’ve Earned a Second Chance

By Anne Teigen | Aug. 24, 2020 | State Legislatures Magazine

Keith worked at an amusement park near Harrisburg, Penn., when he was in high school. That’s where he learned he could sell the free tickets he was given at full price and pocket the money, he explains in a video for the Center for American Progress. Eventually, he was caught and charged with theft by unlawful taking, a third-degree misdemeanor. More than 10 years later, his record still haunts him. “There’s been multiple jobs where they’re like, ‘Oh, yeah, we want to hire you,’” Keith says in the video. “But once they see the record, they call me back and say they can’t do nothing for me.”

Marilyn was arrested twice, in 2005 and in 2007, for possessing small amounts of marijuana, she says in a video recorded for Community Legal Services, a Pennsylvania group that serves people with criminal records. Both times the charges were dismissed, and she was never convicted of the crimes. But it took 14 years for her arrest records to be cleared.

Khalia, who also worked with Community Legal Services, accidentally knocked over a stack of bootlegged CDs being sold by a Philadelphia street vendor. As she was restacking them, a police officer mistook her for the seller and arrested her for counterfeiting. It took approximately a year for her to sort out the mistake. “It was defeating to my ego,” she says in a video.

Personal stories like these aren’t hard to find. (Community Legal Service tells many of them on its website.) Keith, Marilyn and Khalia are just three of the many Americans with criminal records. The FBI estimates that 70 million to 100 million Americans, or 1 in 3 adults, had criminal records in 2015. The records document arrests, criminal charges or convictions and include related information held by police departments, courts, district attorneys or probation departments. Having a criminal record means people can face “collateral consequences”—legal and regulatory sanctions and restrictions that can limit or prohibit access to employment, occupational licensing, housing, voting, education and other opportunities.

State lawmakers are working across the aisle to pass what are known as “clean slate” laws, which wipe away records of minor offenses or arrests without conviction and let people who remain crime free move on with their lives.

Lifelong Barrier

Collateral consequences are rooted in attempts to protect public safety. People convicted of assault or physical abuse, for example, could be a potential threat in a job working with children or the elderly. And shouldn’t law-abiding individuals have the right to know if a candidate for office has been convicted of embezzlement or fraud?

Those critical of clean slate laws want prosecutors and victims to have input into applications for expungement and argue the public should have the right to know about past criminal behavior.

For many Americans, however, having a record for a minor criminal offense or an arrest without a conviction can be a lifelong barrier to acquiring family economic security and leading a successful, crime-free life. According to the American Bar Association, there are more than 45,000 federal and state statutes and regulations that disqualify or disadvantage individuals with conviction records.

Currently, every state has procedures of some kind allowing certain people with criminal records to petition a judge or court to clear their records. These procedures, however, can be baffling and cumbersome. Even the terms states use to describe record clearance can be confusing—annulment, destruction, dismissal, erasure, expungement, sealing, set-aside, vacatur. And the meanings of the terms can vary by state. In many instances, people are never notified when their records can be cleared or instructed how to do it. The process is sometimes so complicated it requires hiring an attorney or paying expensive filing fees.

A recent University of Michigan study found that only about 6.5% of individuals in that state who were eligible to get their records cleared actually went through the process within five years. But they probably should have. Within a year after a record was cleared, the study found, people were 11% more likely to be employed and those with jobs earned wages 22% higher than those with uncleared records.

The groundbreaking Michigan study and similar ones have caused a push from policymakers across the political spectrum to consider ways to help people clear their records.

Cleaning the Slate

In 2018, Pennsylvania became the first state to enact clean slate legislation, a policy model that uses technology to automatically clear criminal records if a person stays crime free. The Pennsylvania law requires criminal records for nonviolent misdemeanors like shoplifting, theft of less than $200, or prostitution to be sealed from public view if the offender stays crime free for at least 10 years. The legislation received bipartisan support. The program is run by the Administrative Office of Pennsylvania Courts, which will also, after 60 days, automatically seal charges that didn’t result in convictions.

Sealing records prevents third-party background checks and searches by employers, housing officials or educational institutions. Sealed records do not disappear completely, however. They remain available to law enforcement and some federal agencies. And the law does not allow records of serious crimes like homicide, sexual assault or other violent offenses to be sealed.

Representatives Sheryl Delozier (R-Pa.), Jordan Harris (D-Pa.) and Senator Jeff Jackson (D-N.C.)

From left, Pennsylvania Representatives Sheryl Delozier (R) and Jordan Harris (D); North Carolina Senator Jeff Jackson (D).

Pennsylvania Representatives Jordan Harris (D) and Sheryl Delozier (R) co-sponsored the bill. “People who had a criminal conviction from decades past and have turned their lives around, without any other police involvement, have faced employment barriers due to their prior bad actions,” Delozier said in a statement at the time.

“By sealing criminal records we’re helping Pennsylvanians access jobs, housing and educational opportunities that they would otherwise be barred from accessing,” Harris stated in a guest commentary for the Philadelphia Chamber of Commerce. “We’re helping our friends and neighbors who have stayed out of trouble truly move on from mistakes they made years ago. That helps keep people in the labor force and out of prison, which reduces state prison spending and increases taxable income.”

One year after the law’s implementation, approximately 34,000,000 cases had been automatically sealed, including those of Keith, Marilyn and Khalia. Now, “it’s gonna be easy for me to actually show everyone that I can advance and do a lot better for myself,” Keith said in his video.

In her video, Khalia says she is finally looking at the future hopefully. “Having my record cleared has really given me a lot more confidence,” she said. “For me now, just knowing I can go into a bank and get a loan without someone looking at me crazy, or being able to work with certain businesses and not having them look at my records ... It feels good.”

Others Follow Pennsylvania’s Lead

Other states are taking notice of Pennsylvania’s success. In 2019, Utah enacted clean slate legislation, and New Jersey and Louisiana created statewide task forces to develop and implement clean slate policy. California also enacted record-clearing legislation and, in 2021, the state will begin automatically clearing records for arrests not resulting in conviction.

Legislatures have demonstrated that this is a bipartisan, cross-branch issue. Lawmakers in North Carolina and Georgia enacted broad record-clearing reforms that make it easier for people to petition the courts for relief. North Carolina’s bill was voted unanimously out of the House and Senate, and the state is looking to do more in the years ahead. “When we do something in a bipartisan way, that’s great. … But when we do it unanimously, that’s a clear signal that there’s more to do in that space,” North Carolina Senator Jeff Jackson (D) told the News & Observer.

A clean slate bill introduced by Connecticut lawmakers earned an endorsement from the governor, who allocated money for its implementation in his budget. And clean slate bills pending in Michigan are the first in the country to include the automated clearing of some felonies. Demonstrating the bills’ bipartisan support, they passed nearly unanimously out of the House in 2019 and unanimously out of two Senate committees this year.

Delozier, the co-sponsor of Pennsylvania’s law, underscored the importance of the measure’s bipartisan support. “Putting political party aside, we can agree that we don’t want government to be in the way of making commonsense changes in our criminal justice system," she said in a 2020 statement. "Having the goal of getting people back to work and giving those that have earned a second chance the opportunity to succeed is just good public policy.”

Anne Teigen is the program director for NCSL’s Criminal Justice Program.

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