By Michelle Blouin, Communications Associate, Access to Justice Lab at Harvard Law School
The Final Stage Reentry Project, an extensive study on expungement, has not failed to surprise us here at the Access to Justice Lab. In randomizing individuals seeking expungements to either receive full legal representation or self-help materials with a short legal consultation, we discovered just how difficult it is to clear a criminal record and just how necessary it is to have legal help to do so.
In our second Proof Over Precedent post, we shared the “sad and depressing” results of measuring the effect of expungement on employment, comparing (in a statistically credible way) those who received an expungement to those who did not. The “sad and depressing” finding we discovered: no difference between the two groups.
In this third post, we focus on the impact expungement has on housing and on identity and overall life satisfaction. How did the results surprise us this time? Despite our hypothesis that a clear record would clear the way for housing and happiness, expungement once again had no impact. “Assuming that you wanted expungement to help people, this is pretty sad,” said Ryan Halen, Data Analyst at the A2J Lab, who crunched the numbers throughout the duration of the study.
Expungement Study Recap
The Lab conducted the study, which randomized 345 participants from July 2020 to July 2022, in partnership with Kansas Legal Services (KLS), a statewide legal aid firm helping low- and moderate-income people in Kansas. The National Institute of Justice, the Charles Koch Foundation, and the Chan Zuckerberg Initiative provided funding support for the study.
The two-part study looked initially at whether a traditional attorney-client relationship versus brief advice plus self-help makes a difference in the rates at which eligible individuals achieve expungement orders. An astounding 80 percent of those receiving the attorney obtained an expungement order; by contrast, just 8 percent of the brief advice and self-help group got an expungement order. The study also found the expungement process to be difficult and cumbersome for any individuals attempting to do it on their own—a win for attorneys but a loss for access to justice initiatives.
The second part of the study—looking at the effect of expungement on various social outcomes including employment, housing, and overall happiness—gave insight into the participants’ expectations and the actual outcomes. The clash (between what participants thought would happen and what did) was unexpected and disappointing.
A common point of discussion among both parts of the study is the waiting period to obtain an expungement. In Kansas, where the study took place, individuals with a criminal record must endure a waiting period between three to ten years. The wait begins after sentence completion and restarts if an individual has any new arrests or convictions in that time. Researchers have considered whether the waiting period avoids the critical time after sentence completion when a clear record would potentially benefit individuals most.
Has a Cleared Record Helped with Housing?
Just as with employment outcomes reported in last week’s Proof Over Precedent blog, study participants showed optimism with housing, indicating that they believed they had a better chance in obtaining better housing without a criminal record. In reality, though, participants did not show any statistical difference in housing outcomes, regardless of whether they obtained an expungement or not.
Measuring outcomes in the context of housing meant combining participant responses to surveys with data from their public utility records and tax records (all with participant consent as part of the study). The surveys, which had a high 83 percent overall response rate, asked questions about moves, missed rent payments, homelessness, housing satisfaction, new housing applications, and housing deterrence (a question of how discouraged an individual feels in looking for housing with a criminal record). The Department of Revenue records confirmed addresses. And the public utility records both confirmed addresses of individuals and offered insight into a person’s financial stability based on prompt bill payments.
The overall picture of study participants, both with and without cleared criminal records, was one of stability, at least in housing. “The suggestion may be that this group of people who participated in our study may not be representative of all of those who are eligible for expungement,” said A2J Lab Faculty Director Jim Greiner. “They may, however, be representative of people who are seeking expungement.” The tenacity required to endure the challenging process of obtaining an expungement may be a trait that serves in maintaining a stable housing situation.
The results are disappointing given the optimism expungement offered individuals with criminal records. How do we account for this lack of an effect on housing? Just as with the results of expungement on employment, the waiting period to obtain an expungement may play a role in its effect on housing as well. “People have had to settle into their life with their criminal record,” said Marilyn Harp, former executive director at Kansas Legal Aid. “And so they had adapted […] and are paying rent at some place that they’re satisfied with because that’s the best they can do in their circumstances.”
Another way to express this same point is with the word “scarring”—the concept of diminishing returns on the benefits of expungement over time. If the benefits of record clearing were to be most effective within five years of completing all criminal justice involvement (including any probation), it would not show up in the data given the average five-year waiting period.
How Satisfied in Life are You?
If an expungement didn’t move the needle in providing better employment and housing opportunities, one could reasonably think that those receiving an expungement may, at least, have more overall life satisfaction. Alas…
The surveys showed 98 percent of study participants cited identity-based reasons (“my criminal record doesn’t reflect who I am anymore”) as one of the reasons they sought an expungement. The questions, which the Lab asked periodically throughout the two-year study period, touched on happiness, satisfaction, anxiety, and sense of agency—that is, how much people felt they had the ability to change or direct their lives in the way they wanted. The surveys, however, displayed no statistical difference in identity-related and life satisfaction-focused responses between those who obtained an expungement and those who did not.
To measure life satisfaction, A2J Lab data analysts conducted a principal component analysis, which combined separate survey questions into a composite score of similarly measured questions. They’re confident in the results showing no statistically significant difference since the data did detect differences in certain questions related to deterrence in job and housing applications.
Despite the dreary data, life satisfaction may come from a place not measured in the survey. KLS’ Marilyn Harp noted that there’s some satisfaction in having the court system—which helped create the identity of these participants as criminals, she noted—begin to recognize them for changing their lives through expungements. “Anecdotally, I very rarely hear somebody not say, ‘You don’t understand what it means to have that cloud lifted from me,’” Harp said.
The Study’s Silver Linings
Greiner sees potential for adjusting the expungement study. Whereas some randomized controlled trials that do not return positive results may mean scrapping the tested concept altogether, he suggested that this study may need to expand access to expungement by shortening waiting periods. To study whether waiting periods pose an obstacle for various outcomes, perhaps randomizing waiting periods to study the impact of a shorter waiting period would be more effective.
In the meantime, the data does offer guidance, even in showing an ineffective impact of expungement. “We might not have seen many concretely positive outcomes, but we’re not seeing bad things either. If society isn’t benefitting from continuing to maintain access to these records, then we should be expunging people’s records,” said the A2J Lab’s Ryan Halen. “We should be letting people move past these past mistakes because it’s not costing us anything.” (Alas, even that view isn’t unanimous: more to come from Faculty Director Jim Greiner on that point sometime in the future . . .)
If you’re interested in more on this topic, listen to our corresponding Proof Over Precedent episode.