Legislating A Future Where People With Criminal Records Can Rebuild Their Lives

From The Nuance:

For millions of people in the U.S. who hold a criminal record, finding steady employment is the largest barrier to reintegration into society. While formerly incarcerated people look for steady work, existing features of the criminal legal system makes finding work extremely difficult.

Over the last five years, several states have introduced and passed “Clean Slate” laws, designed to automatically seal records for millions of people with low-level offenses. This policy can be life changing for millions who have been subject to exclusion from steady and meaningful employment and secure housing for past nonviolent offenses.

To understand the dynamics of the issue, we spoke with Dr. Christi Smith, a Resident Senior Fellow and Logan Seacrest, a Fellow, both from R Street Institute.

Barriers to Reentry into Society

Formerly a parole officer, Smith described first-hand experiences working with adults who sought stable employment and housing, but struggling to find work that incentivizes law-abiding behavior, keeping many trapped in a cycle of poverty and uncertainty. “We know that the primary barriers to full reentry and reintegration into society include a lack of employment or lack of housing. Individuals that are trying to do everything lawfully, but that are, you know, hitting those dead ends. They still have to put a roof over their head, they still have to put food on the table, and they’re more likely to return to survival crime. These barriers are contrary to the notions of public safety,” said Smith.

Smith emphasized that people involved in conversations around “Clean Slate” laws fail to underscore the “sheer magnitude” of people affected by criminal records in the United States, upwards of 70 million. According to Smith, laws keeping returning citizens from finding employment has steep macro-economic impacts, erasing $87 billion from our annual GDP.

In most states, people with a criminal record can request it be sealed through a petitioning process. However, the process is long, expensive, and not well known as an option among formerly incarcerated people. This poses immense challenges to utilizing the system. “The current system advantages those with the money and resources necessary to undertake a complicated and arduous sealing process. On average, less than ten percent of people eligible to have their case sealed actually had it sealed under the existing petition based system. It requires hiring an attorney, which is an expense that’s probably beyond the reach of someone struggling with employment due to a past conviction,” explained Seacrest.

Smith and Seacrest both noted that some form of record sealing has long existed. The new era of Clean Slate policies have a wider reach, are less bureaucratically burdensome, and are automatic.

“The reality is that a criminal record never totally goes away. What Clean Slate laws do is seal it from public view so that it’s not as easily accessed by those that aren’t truly in need of it to make the decision that they want to make,” said Smith.

Impact of Clean Slate Laws

To date, 10 states have passed Clean Slate laws. Smith noted that each bill had bipartisan and bicameral support. Each state’s laws are in different phases of implementation. Smith noted that Pennsylvania is considered to have the “gold standard” of Clean Slate policies. Since implementing Clean Slate laws in 2019, Pennsylvania cleared 1.2 million cases through automatic sealing, which impacted 40 million people.

Each state’s Clean Slate laws look different, with varying windows for record sealing, eligibility and standards for implementation.

Clean Slate laws are also tied to efforts towards racial justice, as BIPOC individuals are overrepresented in prisons and populations with histories of criminal records. In particular, Black Americans in state prisons are incarcerated at five times the rate of White Americans, despite making up 13% of the U.S. population. In introducing their Clean Slate bill, Connecticut lawmakers explicitly cited racial justice as the motivating factor behind the policy. “In Connecticut, they found that African Americans were 9.4 times more likely than white people to be incarcerated, and Latinx people were almost four times more likely to be incarcerated. Connecticut is viewing this as an opportunity to combat some aspects of systemic racism,” explained Smith.

The majority of Clean Slate laws have only been in effect for one to four years, with some going into effect in January 2023, thus, Smith and Seacrest will need more time before they can assess data that demonstrates the full impact of the policy. However, they have come across anecdotal evidence to speak to the profound change people with sealed criminal records experience as they seek employment, housing and work towards a stable life. “I always think about the actual stories of people, such as Alyssa from New Orleans. She graduated nursing school with honors, but she was unable to get a nurse practitioner license because of a single offense. And Louisiana suffers an acute shortage of nurses. In states that passed Clean Slate laws, people like Alyssa can now put their education to use and make a valuable contribution to the community,” said Seacrest.

Goals for Policy Expansion

In the future, Smith emphasized the importance of having more uniform criteria for record sealing. Additionally, she pointed to the need for data management reform. There can be overlap in criminal record data between the state and federal level, however, records are only actively sealed at the state level.

“That’s an issue of data management. In California, they can’t even determine who is eligible because the most major jurisdictions use different data management systems. Making sure that there’s technology and infrastructure support to facilitate that is critical,” said Smith.

Smith noted that Colorado took time after the passage of their Clean Slate law to organize their data before implementing record sealing, making for a smoother transition. Clean Slate legislation is currently active in Illinois, Missouri, New York, North Carolina and Texas.

Looking ahead, Smith has a piece of federal legislation on her radar. First introduced during the 117th Session of Congress, the “Fresh Start Act” looks to create a grant program for states that implement an automatic record sealing framework. The bill is expected to be introduced again this session.

For Seacrest, expanding the impact of Clean Slate involves widening the scope of eligibility to include more nonviolent offenses, such as drug felonies. “In some states, Clean Slate laws only apply to misdemeanors. I would recommend thinking about extending that to low level nonviolent felonies, such as drug felonies. After a certain amount of time, it’s unfair that we continue to punish people for a mistake years and years in the past,” said Seacrest.

Overall, Clean Slate laws have gained widespread traction within the last five years. Smith and Seacrest see ongoing legislative efforts to implement and expand Clean Slate as a positive trajectory. “Clean Slate is something that policymakers can do to help reduce prison populations that is supported by lots of different stakeholders in the criminal justice system: advocates and reformers, and also law enforcement and prosecutors. They know that public safety suffers when people are barred from obtaining the basic building blocks of life. Ultimately, facilitating reentry after prison provides an incentive to stay on the right side of the law,” said Seacrest.