Overview
Seventy-four million people in the United States have a criminal record — mostly for arrests that did not lead to a conviction or for misdemeanor convictions. By age 23, half of Black and Latino men, more than one-third of white men, and one in eight women have been arrested. Those with criminal records face collateral consequences that may affect many aspects of their lives, from employment and housing to immigration. Unlike some countries, U.S. jurisdictions generally allow public access to criminal justice information, meaning both even private actors like employers and landlords can make decisions based on one’s records.
Recording clearing has become one way to attempt to lessen the burdens faced by those who have been arrested or convicted. “Expungement” is petition-based record clearing, while “sealing” refers to automatic record clearing without needing the individual with the record to initiate the clearing. However, record clearing (particularly expungement) is challenging in the U.S. due to factors such as racial marginalization and lack of access to justice.
While there are many arguments both supporting and opposing record clearing, this study focuses on an empirical question that has never been studied: If states desire to lower the barriers to record clearing, what would be the most effective legislative changes to do so?
We address this question by analyzing decades of criminal records in Pennsylvania and Kansas. We analyze each state separately, examining what could happen to record clearing in each state given certain amendments to the state’s record clearing laws. Our findings are particularly relevant for legislatures interested in implementing or expanding record clearing remedies.
Pennsylvania Study
Pennsylvania offers record clearing mostly through the state’s Clean Slate Act, which passed in 2018 and took effect mid-2019. The Act expanded expungement eligibility as well as sealing for non-violent offenders, resulting in over thirty million sealed records in the year following its passage.
We obtained data from four Pennsylvania counties: Allegheny, Beaver, Butler and Lawrence. These counties were chosen because we were pursuing separate research into criminal justice record clearing in the same area. We scraped criminal records from the judicial website for the Court of Common Pleas, the trial court, for cases adjudicated from 1990 to early 2021.
Results
In Pennsylvania, we found some surprising results:
- Legally imposed financial obligations (LIFOs) are critical barriers. Our most important finding is that nominal fees, fines, and restitution are significant barriers to record clearing. There appeared to be few, if any, ability-to-pay exemptions from these barriers. To the extent that one believes that record clearing is a useful policy and that non-payment partly stems from inability to pay, our findings illuminate disturbing echoes of poverty-based punishment.
- Look-back periods may be unnecessarily lengthy. Eligibility criteria for record clearing include lengthy look-back/waiting periods, despite some evidence suggesting recidivism rates become close to those with no criminal records after surprisingly short amounts of time free of criminal justice involvement. (This idea remains an open question, so we proceed with caution on this point.) The result is that individuals who may be statistically indistinguishable from those with no criminal records waited years to receive record clearing remedies.
- Difficulty in implementing sealing results in eligible records remaining visible. As of the time we scraped the data from publicly available judicial sources the Court had been sealing records for more than two years. Yet, a startling number of records resisted clearing, likely because the information needed to determine definitively their eligibility for clearing did not exist in practicable electronic form. The information missing here was of the most basic kind, such as the dispositions of criminal cases.
- Difficulty in implementing automatic clearing results in individuals resorting to petitions. Accommodating nuanced legislation likely induced errors in implementing automatic record clearing, forcing a number of otherwise eligible individuals to resort to the petition-based process that the automatic processes were designed to supersede.
Kansas Study
Unlike Pennsylvania, Kansas had no sealing statute, so expungement was the only remedy for those seeking record clearing. Kansas law did allow for the expungement of most convictions.
We obtained data from 29 localities in Kansas. During 2020 and 2021, we scraped criminal case records with filing dates from 1990 and forward from the Kansas statewide court look-up portal and from the Johnson County case search website. Counties outside of Johnson (the most populous country) allowed cases to be searched through a separate site but for a fee for each record, which proved costly. As a result, our effort produced records on 254,622 cases in Kansas, with Johnson County’s website contributing 94,074.
Results
Our analysis in Kansas suggests two results, the first of which is consistent with prior research:
- Lack of access to justice leads to a major second-chance gap. There are a large number of seemingly eligible individuals who have not yet requested petition-based record clearing. Such a high number of eligible but uncleared convictions likely stems from a distressingly familiar access to justice problem.
- Data issues in Kansas’s system make accurate analysis impossible. Structural holes and wholesale irregularities in the data that were available make a complete analysis impossible. Unless there are sources of information easily available to the court but withheld from the public, it may be impossible to test hypothetical record clearing legislation without addressing these massive data issues.
Conclusion
Our findings are particularly relevant for legislatures interested in implementing or expanding record clearing remedies. Most notably, our findings suggest that two of the most effective changes for lowering barriers would be removing eligibility criteria based on outstanding legally imposed financial obligations (LIFOs) and reducing the length of waiting or lookback periods. We have also demonstrated severe problems with criminal justice data, problems that do and will affect any effort to implement or expand record-clearing. Our findings also reinforce results that other researchers have reported: the second-chance gap is staggering. If record clearing is a wise policy, there is much work to be done.