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Smart record clearing laws reduce the long-term effects of a conviction

In 2014 two young children in Yamhill County, Oregon were put into foster care. Their loving grandmother immediately applied to be their foster parent. Her foster care application was denied and the children were bounced from home to home. Grandma unfortunately had a 25-year-old felony conviction – for a crime that under current Oregon law is treated as a violation. Had she filed for expungement – a process that erases one’s criminal record – she would not have a disqualifying conviction on her record and the children would be with her today.

The consequences of a conviction are far reaching. The American Bar Association (ABA) recently found over 44,000 collateral consequences of a criminal conviction. These penalties include prohibiting gun ownership, loss of the ability to vote, limits on housing, barring certain occupational licenses, barriers to employment, and more. Collateral consequences prohibit people with convictions from fully engaging in civic society and reintegrating, much like the grandmother in Oregon who was arbitrarily prevented from caring for her grandchildren.

Further impeding an individual’s ability to become a successful member of society is that 60-70% of the collateral consequences the ABA found were directly related to employment. The Heritage Foundation discovered there is an undeniable link between collateral consequences, lower unemployment rates and higher recidivism rates. (Link)

Some jurisdictions have attempted to reduce the barriers to employment by prohibiting employers from asking about criminal history. For example, in the UK, after a certain time has passed for individuals with low level convictions, their history is considered “spent” and they do not have to disclose their conviction to potential employers. The “spent” conviction will not show up on the basic background check, but will appear on the standard or enhanced background check, unless the conviction was “filtered” – similar to expungement in the US.

This system is very similar to the “Ban the Box” movement in the US, which prohibits employers from asking applicants if they have a criminal history. As of August 2017, 20 states have enacted “Ban the Box” laws for public sector employers and in an additional 9 states the law applies to private sector employers as well. (Link)

While the UK “spent” system and the “Ban the Box” movement are positive steps for ex-offender job applicants, there are still problems that preclude those individuals from entering the job market. A recent study found that when employers do not have criminal history information, they still discriminate against groups that contain a disproportionate number of ex-offenders. (Link) By using information available to them, for example names or information that comes up on a background check, employers are making assumptions about criminal history which negatively impacts an applicant’s ability to get a job.

The best way to ensure that ex-offenders who committed less serious crimes have a clean start is to establish a process that allows them to clear their record. Currently, one’s ability to do that depends on the jurisdiction of the conviction and the nature of the crime. The federal system as well as states including Alaska, Arizona, and Florida, have no mechanism for clearing a criminal record. Other states, such as Oregon, New York, and Louisiana allow one to clear both felonies and misdemeanors. Adding to the complexity is that some states will completely destroy one’s record, while others will only seal the record. The state can reopen sealed records in certain circumstances. The effect of a cleared record also depends on the state. Generally, if a record is expunged, it is as if the conviction never occurred and the individual does not have to disclose it on applications for jobs or licenses. While in other jurisdictions, the law requires disclosure of expunged or sealed records in certain circumstances and may even show up on background checks. The Clean Slate Clearinghouse has detailed information on the rules in each state for clearing a criminal record. (Link)

When we construct barriers to social integration for individuals with criminal histories, we develop a system that encourages recidivism. Unnecessary and over-burdensome collateral consequences are a way to ensure that ex-offenders remain on the outside of society. By allowing ex-offenders a way to erase their record, we are removing those barriers and inviting them to reintegrate.