By Michelle Blouin, Communications Associate, Access to Justice Lab at Harvard Law School
A name without a criminal record attached has a clearer path to stable employment, housing, and overall life satisfaction, many criminal justice reformers would argue. They might also point to unstable employment, housing, and life satisfaction as contributing factors in recidivism. The Access to Justice Lab conducted a long-running randomized controlled trial in Kansas to study expungement’s impact on reentry outcomes, which we covered last week in the Proof Over Precedent blog and podcast episode. This week, we look at the impact of record clearing on employment–a reason 84 percent of our study participants cited for wanting an expungement.
Expungement Study Recap
The Final Stage Reentry Project: Expungement Study, which randomized 345 participants from July 2020 to July 2022, was a two-part study measuring 1) expungement success rates based on randomizing eligible individuals to either full representation from a legal aid attorney or self-help materials plus a 30-minute brief advice session, and 2) whether achieving expungement orders improved individuals’ outcomes on employment, housing, life satisfaction, and recidivism.
The lab partnered with Kansas Legal Services (KLS), a statewide legal aid firm helping low and moderate-income people in Kansas, to provide the randomized legal assistance. The National Institute of Justice, the Charles Koch Foundation, and the Chan Zuckerberg Institute provided funding support for the study.
While “record clearing” varies by state, this study focused on petition-based record suppression of convictions, which is covered by Kansas law.
So what did we discover in the first part of the study? Legal aid matters in expungement cases. Two years after enrollment, 80 percent of individuals randomized to receive traditional attorney representation achieved an expungement order; by comparison, only 8 percent of the individuals assigned to the self-help and brief advice group attained an expungement order. These findings underscored both the difficulty in navigating expungement order paperwork on one’s own and the difficulty in getting many attorneys to see the process for what it is: a serious access to justice problem.
Effect on Employment
While employment ranks high among individuals’ motivation for obtaining an expungement, one factor has it beat—identity. A whopping 98 percent of participants, from both the legal representation and self-help groups, said that their criminal record does not accurately reflect who they are anymore. Next week’s blog and podcast will address possible identity effects, which the Lab measured with surveys. For this week, Proof Over Precedent focuses on the administrative data and participant survey responses the Lab gathered to study two job-related questions: Did people think expungements would result in better employment? And did expungements actually result in better employment for those who obtained them?
Let’s not prolong the answer to these questions. No, an expungement did not succeed in bringing better employment to individuals despite participants’ optimism that it would (at least not in the two-year follow-up period; we will provide a five-year follow-up in a future report). “We kind of end up in the worst world, where, yes, it does make people think that they’re going to have improved prospects, but those improved prospects do not materialize at all,” said Ryan Halen, Research Analyst at the A2J Lab, before he clarified that in “the worst world”, expungement would have made things worse for people, which did not happen, statistically speaking.
Calculating Optimism and Employment
Measuring the data to answer the two questions meant combining survey responses from participants and administrative data gathered from various sources.
About every five weeks, study participants answered survey questions about the status of job applications, job attainments, and overall job satisfaction. We saw a significantly high 80 percent survey response rate from participants.
Survey questions could then be translated into such factors as “job application deterrence”, referring to the avoidance or fear of trying for a new job; if these numbers decreased, we could equate lower deterrence to more optimism in potentially getting a new job either within the same company or with a different one.
To get employment data, the lab worked with the Kansas Department of Labor, which showed that the majority of participants receiving income stemmed from formal market wages rather than self-employment or the gig economy. We determined total income as the benefits claims from a job (calculated from weeks of benefits eligibility vs. weeks of benefits collection) plus the wages as reported quarterly. We further defined those as “unemployed” in a given quarter if the Kansas Department of Labor indicated an income of less than $100 in a quarter; we calculated “full time employment” as the minimum amount an individual would need to make at minimum wage if employed full-time during the quarter.
In gathering data, lab researchers made note that many people may have already been employed at the time they sought expungements at the start of the study. “The surprise that I recall seeing when we got the first round of Department of Labor data and seeing just how many of our study participants actually did exist in that data,” said Renee Danser, A2J Lab Research Director. “[T]hat probably foreshadowed results at that time.”
Explaining Cognitive Dissonance
A2J Lab researchers described expungement’s impact on employment as “surprising and depressing.” The reasons for the surprising results, however, are more difficult to pinpoint. “What could be the problem here that is preventing expungement from doing what we all hoped it would do?” A2J Lab Faculty Director Jim Greiner asked study researchers in the corresponding Proof Over Precedent episode.
The research showed large income intervals (jumps in income) for some participants despite the data and surveys showing no change in employer nor change in position within the same company. Marilyn Harp, former executive director at Kansas Legal Aid, speculated, “One of the things I hear from clients is a gratefulness that somebody took a chance on them. That could be a reason why an employer hires somebody with a record…they may be staying with the company but doing new things.”
The timeline of the expungement study also aligns with the Covid-19 pandemic and economic upheaval of that time. While most people felt the burden of a stagnant economy at that time, study participants navigating post-expungement employment did too and likely felt the same obstacles as well. “Our research never takes place in a vacuum, right?” said Patricia Gansert, A2J Lab assistant data analyst. “We just happen to be collecting these data during a period of immense economic upheaval…Even if they were feeling more optimistic about applying to new jobs because of their expungement, the general economic situation may have reduced that.”
Another significant culprit for expungement’s lackluster impact on employment is the waiting period for the expungement itself. We referred to the steps in Kansas to suppress a conviction record in our last blog. The state’s rare allowance of clearing convictions is counterbalanced by a waiting period, ranging from three to ten years, in which individuals must complete their incarceration, probationary period, and/or parole before they are allowed to go through the complicated process of applying to clear their record. In the meantime, in the state of Kansas, the individual’s criminal record starts at the time of arrest (since most arrests are publicly accessible via the Kansas Open Records Act) and becomes an official record at the time of conviction—Kansas Bureau of Investigation maintains all of these records, which can be accessed by the public for a fee. The expungement study participants typically had waiting periods between three and five years. During this waiting period, participants likely adapted to living with a criminal record, finding jobs they could work with a criminal record. All of this may contribute to another reason for the study results…
“Scarring.” It’s a term coined by scholars to indicate “resume gaps, loss of experience, discouragement, and reduced search that can be difficult to undo.” Scarring points to the diminishing effect of expungement benefits over time. That effect doesn’t heal with a cleared record because damage is done in the waiting period while an individual learns to live with a criminal record.
Employment Impact Takeaways
The findings imply that shorter waiting periods might help individuals see better results in their employment, but the A2J Lab’s Danser cautions policymakers not to settle for partial solutions. The other obstacle in expungements’ effectiveness is the complexity in obtaining an expungement. The combination best suited for success pairs shorter (or no) waiting periods with a simpler record clearing process for individuals without legal representation.
Next week, we bring you the study results of expungement on housing and life satisfaction outcomes.
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.