By Michelle Blouin, Communications Associate, Access to Justice Lab at Harvard Law School
D. James Greiner, Honorable S. William Green Professor of Public Law at Harvard Law School; Faculty Director of the Access to Justice Lab at Harvard Law School
Would-be criminal justice system reformers have long believed that a criminal record inhibits the search for secure employment, housing, and life happiness, and those problems in turn lead to increased recidivism. For reformers, the answer to these challenges has been some kind of criminal justice record clearing. Expungement—a court order to remove a record of an arrest, charge, conviction, prison stay, or other form of criminal involvement from public view—is one form of record clearing. The Access to Justice Lab has been conducting a long-running randomized controlled trial in Kansas to study expungement’s impact on reentry outcomes. In this first of three Proof Over Precedent posts on the topic, we look at the study goals and design and some initial findings on achieving expungement. The next two blogs and podcast episodes will follow up with study findings on employment, housing, and life satisfaction outcomes, as well as policy suggestions.
Although intuitive, the thought that expungement might support, in a positive way, an individual’s employment, housing status, happiness, agency, and effort to avoid recidivism is just a hunch; only some evidence exists to support this hypothesis. To test whether expungement helps, though, the A2J Lab needed a way for (some) eligible individuals to obtain the requisite court orders. At first, the A2J Lab thought that it might face a happy problem: perhaps obtaining an expungement was so easy that there would be no way to randomize ethically some eligible individuals to obtain the order and others not to obtain the order. After all, studying the effect of some intervention requires creating two groups, one that obtains the intervention and another that does not. If everyone who wanted one could get an expungement (an achievement that the A2J Lab would celebrate from an access to justice point of view), there could be no study. The A2J Lab’s questions on this point were heightened by the fact that many attorneys believe expungement is a straight-forward process that individuals can pursue on their own, if they desire, without need for legal aid nor policy support.
When the A2J Lab examined expungement processes, however, it doubted the attorneys’ assertions that the process was easy. So, the Lab decided to pursue a two-part study. First, the Lab would assess whether randomizing eligible individuals to either full representation from a legal aid attorney versus self-help materials plus a 30-minute brief advice session would make a difference in the expungement order success rates. Second, the Lab would assess whether achieving expungement orders improved individuals’ outcomes on employment, housing, life satisfaction, and recidivism.
This blog post reports the results of the Final State Reentry Project on the first question: whether legal aid versus brief advice plus self-help makes a difference in the rates at which eligible individuals achieve expungement orders.
Final Stage Reentry Project: Expungement Study Overview
The A2J Lab designed a study to understand the effect of record clearing on housing security and employment stability. Since an RCT randomly assigning whether or not an individual received an expungement wasn’t ethically possible, the Lab looked at randomizing the way in which an individual received an expungement. That meant working with Kansas Legal Services (KLS), a statewide legal aid firm helping low and moderate-income people in Kansas, to randomly assign whether individuals received full legal assistance in seeking an expungement or a 30-minute legal consultation and self-help materials to seek an expungement on their own.
For their part, KLS had a vested interest in the outcome of the study. As an oversubscribed legal service provider, they wanted to know if their services were truly needed by individuals seeking expungement or if their limited resources could best be applied elsewhere.
The National Institute of Justice, Charles Koch Foundation, and the Chan Zuckerberg Institute provided further support in funding the study.
The phrase “record clearing” encapsulates different variations of removing records of criminal justice involvement from easy public view. As is true of almost everything in the criminal justice system, remedies vary by state:
- Record suppression: sealing a record from public view but making it available to a certain subset of individuals including law enforcement and licensing bodies
- Further distinction includes those for non-conviction cases (the majority of record-clearing remedies) and conviction cases (including Kansas)
- Record destruction: completely destroying a record so that it is no longer available to anyone
- Expungement: Petition–based clearing: individuals must petition to request the court to clear their records (in other words, individuals must initiate a lawsuit)
- Sealing statutes: Automatic record clearing: usually pursuant to a statutory mandate, courts identify eligible cases for record clearing and clear them without requiring action on the part of the individual*
*This is how the process works in theory; in practice, we found varying results.
For the sake of the expungement study, we focused on petition-based record suppression of convictions.
Methodology
To enroll 345 participants in the study, field partner KLS confirmed income, citizenship, and case type qualifications of individuals who contacted them seeking help for expungement services. The participants were randomized into one of two groups in the RCT: those receiving traditional attorney services from KLS from intake to the final expungement aftercare and those receiving self-help materials and a 30-minute legal consultation related to the expungement. Study randomization began in July 2020 and closed in July 2022.
Participants authorized the A2J Lab to obtain data from the Kansas Department of Labor, public utility records, tax records from the Kansas Department of Revenue, and criminal records from the Kansas Bureau of Investigation. They further agreed to complete surveys, for which they were compensated, sent out every three weeks for a period of two years. The surveys—five in total, sent out on a repeated cycle—addressed the outcomes the study measured, particularly in areas of happiness and agency, for which existing records could not provide.
The surveys provided a highlight of the study, methodologically speaking, returning an 82 percent response rate. “Very, very high for a social science survey,” Professor Jim Greiner, Faculty Director of the A2J Lab, noted.
A Big Win for Legal Aid, a Loss for Access to Justice
So, what was the (first) result? Was there a difference in success rates between the attorney representation group and the brief advice plus self-help group? In short, there was a difference, and it was massive. Two years after enrollment, a whopping 80 percent of individuals offered traditional attorney representation had received an expungement order. For all but a small handful, the expungement was complete: the effort covered all aspects of their prior criminal justice involvement. The corresponding number for the brief advice plus self-help group was . . . [drum roll please] . . . 8%. The expungement order success rate for the attorney representation group was 10 times that in the brief advice/self-help group.
There were four implications of this astonishingly huge difference.
- First, score one for legal aid. Legal aid attorneys were massively effective at obtaining expungement orders, even when compared to individuals receiving a lot of legal help in the form of brief advice and self-help materials.
- Second, it’s a bad day for access to justice. As Proof Over Precedent has discussed elsewhere, when there is this big of a difference in results between those who have an attorney and those who do not, there is a serious access to justice problem. “Big win for legal services in terms of obtaining the legal remedy,” said Greiner. “For the rest of the world, usually a win for legal services means a sad moment for those of us who care about access to justice, in terms of measuring the pro se accessibility of the system.”
- Third, attorneys are clueless about how hard the law is to navigate. As noted above, attorneys thought that obtaining an expungement was so easy that anyone could do it. Not so.
- Fourth, randomizing attorneys versus legal aid would allow the A2J Lab to study whether expungements help people in employment, housing, life satisfaction, and recidivism. “The whole idea then is we’re going to randomize legal services to obtain an expungement, expecting that there will be different rates of success,” Greiner said on Proof Over Precedent™. “And so, by randomizing the legal services, we are effectively randomizing the expungement itself, and then we can compare outcomes.”
So why is getting an expungement order so hard? Read on.
How to Expunge a Conviction Record (in Kansas)
The first step for an individual seeking a second chance via expungement is to do nothing. That’s right…for a period of, say, three to ten years, on average, an individual may desire to clear his name and move forward in life but can do nothing about it. This waiting period begins after sentence completion and restarts if an individual has any new arrests or convictions in that time.
Following the waiting period, the individual may seek petition-based clearing in the form of record suppression (not destruction) for a conviction in Kansas. While this sounds like a one-step request, it actually is a complicated process requiring completion of six forms (separate forms for each offense), many of which ask for information one cannot obtain easily; a filing fee; and proposed orders, created by the individual, both for the record clearing petition to be granted and, bizarrely, for it to be denied. A2J Lab Research Director Renee Danser points out in the accompanying episode, “What I find to be one of the more egregious examples is asking for the arresting officer’s badge number.” Since record clearing requires completion of the sentence and waiting period, the likelihood that an individual would remember the arresting officer’s badge number from the event is slim. If the individual has a lawyer to assist with the petition-based record suppression request, the lawyer would be familiar with the process and would know if certain seemingly excessive requests in a form are necessary to complete. If the individual is self-representing, form completion alone would likely prove to be a major obstacle to a successful expungement.
Then there’s the record itself. Or is it records? The record-clearing process is not a straightforward method of sealing one record stored in one place; instead, an individual’s record of a criminal event may appear in different forms for different agencies (perhaps under different names if married names are involved), some of which may be publicly accessible and some of which may not. A pro se litigant is responsible for locating all instances of record appearances and working with the agencies responsible for holding these records. This means factoring in all opportunities for error:
- The initial court needs to suppress the record, then also direct the statewide system to suppress the record, and also direct lower courts to do the same.
- Law enforcement agencies that would have had the individual’s record on file—including police, prison, probation or parole agencies—need to also be on the same record suppression plan.
- Kansas Bureau of Investigation must follow suit and direct the Federal Bureau of Investigation, the Kansas Secretary of Corrections, and Kansas law enforcement agencies to seal the record as well. Individuals must notify private record check agencies themselves of an expungement.
And lastly, the courts need to suppress the record of the expungement proceeding as well to ensure no findings of such a process; in Kansas, this means creating a new civil case for the sake of suppressing criminal records and then suppressing the civil record after clearing the criminal records. In the case of the study, KLS helped make this happen quickly due to their statewide service; once again, though, a self-represented individual would not likely have this sway nor knowledge.
The A2J Lab study found surprising instances and further reasons why a pro se litigant might stumble in the search for his own criminal record. Data analysts in the study came across multiple occasions of discrepancies and omissions of key information between otherwise matching sealed records, leading to inconsistent recordkeeping. “Zombie records” revealed flawed—or at least, incomplete—record suppressions in which some individuals had records of a prison stay (not cleared) but no records of conviction (successfully cleared) to justify those stays; this led to KLS taking over “expungement aftercare” service to ensure records were suppressed when and where they’re supposed to be suppressed—a boon for those with full legal representation but another setback for pro se litigants. Data analysts further noted in the study evidence of poor archive management of older documents (illegible handwriting was a consistent issue) and indecipherable document layouts (varying details among documents and navigation challenges in finding details).
Expungement Outcomes
Over the next two weeks, we’ll look at how effective record suppression is on individuals’ employment, housing, and life satisfaction. Stay tuned!
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.