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Expungement: A Gateway to Work

By Margaret (Peggy) Stevenson

We cannot conceive of any business necessity that would automatically place every individual convicted of any offense in the permanent ranks of the unemployed.

Green v. Missouri Pacific Railroad Company, 523 F.2d 1290, 1298 (8th Cir. 1975)

Criminal histories harm millions of people in the United States either directly through a person’s own history or indirectly through the record of a family or community member. Expungement can make a broad difference.

While terms and remedies differ, I use “expungement” here to mean the amelioration of a person’s criminal record to the legal extent possible.1 With a focus on low-income clients, I discuss expungement generally and the effect that expungement has on employment specifically. I describe some practice models for delivering expungement assistance. I treat only adult records; juvenile record sealing generally is handled as a separate process.

The Profound Collateral Consequences of Criminal Convictions on Low-Income Communities of Color

The consequences of having a conviction in one’s past extend well beyond the completion of the sentence; a conviction can stifle opportunities for employment, housing, public benefits, student loans, serving as a foster parent, and visiting relatives in jail, even decades after the offense. Many people who had been convicted report a heavy psychological weight that inhibits them from fully integrating into society. While my emphasis here is on how expungement affects employment specifically, the broad benefits of expungement are far-reaching and highlight the importance of criminal-record amelioration in social justice.2

 

Many Affected Americans. While the United States has 5 percent of the world’s population, it incarcerates 25 percent of the world’s prisoners.3 Conservative estimates find that 65 million people in the United States—roughly 25 percent of the population—have a criminal history.4 Even though incarceration rates may be slowing, the effects of imprisonment are not.5

The people with records are not the only ones who suffer consequences, of course; the effects reach the families and communities of those who are convicted.6 In 2007 nationwide 52 percent of people in state prison and 63 percent in federal prison had children who were younger than 18, meaning that over 1.7 million children had a parent in custody.7 The effects of criminal records extend to communities as well since absent would-be wage earners leave reduced incomes and economically challenged neighborhoods.8

A Poverty Law Issue. Clearing a record without an attorney is frequently difficult. The absence of sufficient free legal help and the inability to pay for private attorneys mean that many low-income people unnecessarily carry the burden of an expungeable conviction for years.9 Since expungement elevates wages, an ever-widening income gap results from lack of expungement assistance and leaves low-income people who have been convicted increasingly further behind.

A conviction can stifle opportunities for employment, housing, public benefits, student loans, serving as a foster parent, and visiting relatives in jail, even decades after the offense.

With support from the U.S. Department of Justice’s Second Chance Act funding, the U.S. Department of Labor, and grants, the number of expungement service providers is growing.10 Legal Services Corporation (LSC) regulations do not restrict its grantees from handling expungements, and an estimated two dozen offices in 19 states do such work.11 Adding expungement assistance to LSC programs nationwide would be a broadly beneficial antipoverty strategy.

A Civil Rights Issue. The disproportionate racial effect of the criminal justice system is documented and clear. The Center for American Progress reports that “[w]hile people of color make up about 30 percent of the United States’ population, they account for 60 percent of those imprisoned.”12 In relation to whites, “blacks have almost 5 times the risk of being jailed.”13 Nationally African Americans and Latinos are involved in the criminal justice system in numbers disproportionate to their representation in the general population.14

The Vera Institute of Justice recently evaluated statistics in Manhattan and found that, compared to white defendants, black and Latino defendants were more likely to be detained, to receive a custodial plea offer, and to be incarcerated.15 At the same time their cases were also more likely to be dismissed.16

What an Expungement Does

Having recognized that criminal records adversely affect large numbers of low-income people of color, we turn now to the legal remedy of expungement. Because expungement is a matter of state law, the effects of expungement differ across the United States.17 Generally expungements shield what others are able to find out about a past conviction. For example, in California a person who completes a drug diversion program may have the record sealed, meaning that “both the arrest and the conviction shall be deemed never to have occurred.”18

Expungement remedies most often are offered for less serious offenses and for people with shorter conviction histories. Sentences for more serious offenses are served in state prisons as opposed to county jails, and expungement laws typically treat prison and jail sentences differently. The only expungement remedy for federal convictions applies to some drug possession offenses committed before the defendant was 21 years old.19

For some convictions, the court has no discretion but to expunge a conviction. For example, in California most convictions for which a person served time in county jail must be dismissed if the probation period is terminated early or if the person has complied with the terms of probation and has no new convictions during the probationary period.20 Based on the conviction involved, reducing some felony convictions to misdemeanors is allowed in some states. Reducing a felony to a misdemeanor is usually a matter of judicial discretion.21 Typically courts weigh the severity of the offense, the time passed, community service, length of sobriety, or other demonstration that the person is moving forward in life.22

Generally, even after a conviction is expunged, law enforcement and the courts are able to see the record of the expunged conviction. Enabling courts and law enforcement agencies to see expunged convictions may initially seem problematic. However, this access likely increases judges’ willingness to grant an expungement since the expunged conviction will be discoverable in case of a future offense.

How Expungement Helps Employment

The primary reason that most people seek expungement is to improve their employment situation. Given the sheer number of criminal records, the effect of expungement on employment in the United States could be immense. Generally expungement makes the record of a conviction unavailable to many employers. The federal Fair Credit Reporting Act bars commercial background-check companies from reporting arrests or nonconvictions that are over seven years old.23 Many state laws are more protective of employees and applicants.24

State laws usually differentiate between which employers may see conviction records. For example, employers involved in national security, law enforcement, courts, prisons, and related positions have almost unlimited access to applicants’ and employees’ records, including arrests, dismissed cases, convictions, and juvenile offenses. An intermediate tier of employers having access to expunged records includes employers working with sensitive populations such as the elderly, children, or the disabled; licensing boards; and banks. Some intermediate-tier employers may access limited types of convictions, such as drug-related convictions for those employees whose jobs involve access to medications. These employers’ use of dismissed convictions may be limited, however, and waivers enabling employment may be available. Most private employers in retail, grocery, hospitality, service, and other industries must rely solely on commercial background-check reports for information on applicants for employment (unless they do their own Internet searching).

Given the sheer number of criminal records, the effect of expungement on employment in the United States could be immense.

Benefits to Workers and Their Families. When expungement allows a person to get a job, that person’s family income increases. Our clients at the Record Clearance Project earn an average of $6,190 more each year after an expungement.25 Initial findings of a study in progress show that people seek expungement assistance after a 25 percent decrease in earnings over a period of many years.26 The researchers found that expungement halts the decrease in earnings and may improve earnings.27 Our Record Clearance Project data also show delayed applications for expungement: of the more than 700 convictions the program has had dismissed, 70 percent were over 10 years old, and 37 percent were over 20 years old.28

One reason expungement raises income is that it helps applicants obtain professional licenses. An estimated 20 percent of the U.S. workforce required a professional license in 2006, and the number was increasing.29 Health professions have some of the largest job growth, and many require some form of licensing.30 An unquantifiable benefit of expungement on employment is workers’ willingness to apply for promotions or new positions without fear of disqualification by a background test.

Societal Benefits. Society benefits from expungements in that increased employment grows public revenue, reduces recidivism, and improves public safety.31

Increased Public Revenue. Increased employment means increased tax revenue. Excluding workers with criminal records from employment shrinks the U.S. job force by 1.5 to 1.7 million workers. This exclusion represented a loss of $57–$65 billion in the 2008 federal gross domestic product alone.32 Research has shown that our Record Clearance Project generates an estimated net gain for the government of $34,308 across three years in increased taxes and reduced public assistance.33 The value of these benefits grows over time.

The people with records are not the only ones who suffer consequences, of course; the effects reach the families and communities of those who are convicted.

Reduced Recidivism. Employment reduces recidivism by providing income, responsibility, and a sense of self-worth. Individuals who find work following incarceration are less likely to recidivate than those who are unemployed. Various studies have shown the beneficial effect of employment and job training programs in reducing recidivism.34 One study found a 62 percent lower recidivism rate for people who were released from prison and worked for at least a month than for those who were released from prison and were unemployed.35

Improved Public Safety. The understanding that facilitating employment improves public safety is gaining national recognition. In its recent My Brother’s Keeper program, the White House noted that giving people opportunities to work helps “improve public safety and improve lives.”36

Benefits to the Hiring Process. Both employers and job applicants benefit from accurate criminal-record reports and clear laws on when expungements and criminal records may be considered.

Alleviating Employer Concerns About Potential Negligent Hiring Charges. Many employers are afraid of potential liability for hiring someone with a criminal record were that person to reoffend. Employers should feel insulated from a charge of negligent hiring if a worker’s record has been expunged or if the worker has been granted a Certificate of Rehabilitation by a court. A publication by the Lawyers’ Committee for Civil Rights Under Law, Best Practice Standards, advises employers on various aspects of hiring people with conviction histories.37

Delaying Conviction Inquiries. “Ban the Box” is a nationwide movement to delay questions regarding conviction history until later in the hiring process.38 Removing the check box from the initial job application enables an applicant to proceed further instead of being rejected outright. While not an expungement remedy, Ban the Box does ameliorate a person’s record for employment purposes.

A Note of Caution on Background Checks. Approximately 90 percent of employers run background checks on employees.39 However, commercial background-check reports are notoriously inaccurate.40 The Fair Credit Reporting Act requires employers to offer a copy of the background-check report to the person reported on so that the person can see the basis for the employer’s action and correct any errors.41 Workers are well advised to request a copy of the background-check report so that they can ensure that expungements are recorded correctly and do not appear where prohibited.

An Example of an Expungement Practice

Delivering expungement services is similar to delivering legal services in other practice areas. Here I outline the Record Clearance Project’s practice and highlight ways in which it could be replicated in other offices. I also list other offices with active expungement practices.

Community Education. Because so little accurate information is available, community education on expungement is particularly valuable.42 People are eager for information, and many sites are eager to host presentations on expungement.43 Indeed, 85 percent of people attending community education presentations by the Record Clearance Project reported in an anonymous, voluntary evaluation that they had been unaware of basic information on expungement prior to the presentation.44

Legal information on expungements can be made more accessible through the Internet or in written materials. For example, Ohio Legal Services has a step-by-step decision tree to assist people online in determining their eligibility and next steps toward expungement.45 The courts, some legal aid offices, and some private law firms often offer information on expungement.46

Drop-in Rap Sheet Review. In what Record Clearance Project students named “Speed Screenings,” students conduct drop-in interview sessions four or more times a year. At Speed Screenings, people bring their criminal-history reports (also known as “rap” sheets, or record of arrests and prosecutions) for analysis by student teams. Students determine (subject to attorney review) which convictions are eligible for expungement, which convictions require other remedies, and what the path toward expungement is for the client. From a standardized advice sheet, students select the applicable paragraphs and, following consultation with a pro bono attorney, explain the next steps to the client.

The value of Speed Screenings is significant. Among those at recent Speed Screenings,

Speed Screening helps select cases for representation in court when program limitations mean that not all clients can be represented. The Record Clearance Project prioritizes clients who have a job offer pending or are in a job training program and have been temporarily rejected for internship placement.

In 2013 the Record Clearance Project expanded its Speed Screenings to a jail and added preexpungement mentoring for people upon release from custody. As an incentive, if clients participate in mentoring, we prepare their expungement petitions once they are eligible. The details of this new project are beyond my scope here, although I am happy to give further information upon request.

Representation. Generally a separate expungement petition or application is required for each conviction. Preparation of the basic expungement petitions is fairly formulaic, with the exception of the client’s declaration or affidavit. Indeed, Community Legal Services in Philadelphia has developed “Expungement Generator” software that pulls a client’s information from the court’s criminal-record database and automatically fills in the fields for court petitions.47 Using a state-approved form, the public defender office in Los Angeles County files 4,500 expungement petitions a year for clients.48 Paralegals primarily complete forms for people pro se, generally in one interview.

When a person is seeking the exercise of judicial discretion to clear a record, legal help in presenting sufficient and appropriate information to a judge is key.

Expungement cases are not resource-intensive. They require no discovery, and a person may reapply if denied at first. Other than assuring sensitivity in interviewing, the main concern is potential immigration consequences of seeking expungement.49

Expungement Interviews. When a client’s case requires a declaration, we usually ask the client to attend two or three interviews. The first interview covers where the client is now and allows the client to focus on achievements, sobriety, and success. Subsequent interviews explain the client’s “turning point,” the lifestyle left behind, addictions conquered, and new paths chosen to assure the judge that the client is moving forward in life. When a person is seeking the exercise of judicial discretion to clear a record, legal help in presenting sufficient and appropriate information to a judge is key. We teach students in the Record Clearance Project to help the client discuss how “that was then and this is now” to show the judge that the client has left the criminal justice system behind.

During these interviews, the interviewer’s sensitivity is more important than sophisticated legal analysis. The frequency of tears in expungement interviews is the highest I have seen across many practice areas, as people revisit some of the most difficult, raw, and embarrassing times of their lives. Individuals often have trouble confronting their history because of trauma in their past. For example, many of the Record Clearance Project’s clients suffered abuse as children and self-medicated with drugs or alcohol; criminal convictions resulted. Revisiting the past can be psychologically difficult without sensitive legal assistance to guide and buffer the process.

Moot Court. To prepare clients for their hearings, the Record Clearance Project offers the opportunity to attend a preparation session a week before the hearing. Through the generosity of Santa Clara University School of Law, the Record Clearance Project holds practice sessions in the law school’s moot courtroom, thereby providing a realistic setting in which clients can practice.

Volunteers role-play “judges” and ask questions such as those a hearing judge might ask. Students in the Record Clearance Project role-play deputy district attorneys to give clients the experience of hearing what the district attorney’s office or probation department may say in court about the clients. The students who worked on the clients’ cases take notes on the clients’ “testimony.” A critique session follows each client’s testimony to help the client think about the best way to present information and, significantly, to calm the client’s nerves.

Court Hearings. Expungement hearings are not necessarily adversarial. Indeed, the individuals seeking expungement are the proof to many that the criminal justice system can work: they have emerged from their sentences to demonstrate that they are on the path to a new future.

Because the hearing can serve a powerful function as a “redemption ceremony,” judges are effective when they take the time to speak with the petitioner. A reentry “redemption ceremony” can be an important capstone for criminal-justice purposes.50 Judges who have carefully read the clients’ declarations and supporting documentation can question petitioners about their statements and acknowledge the contributions and progress that they have made. A judge’s congratulations and grant of an expungement petition frequently bring tears as the person’s progress is recognized and the weight of a criminal record is lifted.

When a judge does not grant an expungement or reduce the felony, usually the judge explains to the petitioner what the judge would like to see, such as a longer period of sobriety, more community service, or completion of programs. Thus the grant is not so much denied as postponed, giving the petitioner a chance to come back.

Alternative Spring Break with Law Students. The Record Clearance Project has been fortunate to host from six to eight Columbia Law School students for their Alternative Spring Break for the last three years. We pick clients with relatively few criminal convictions and no legal complications and finish their petitions during an intense week of work. We can complete roughly a dozen clients’ petitions in that week.

We pair a law student with a student in the Record Clearance Project, and each learns from the other. While the Alternative Spring Break immersion experience is beyond my scope here, I would be happy to provide further information.

Law Reform and Impact Litigation. Opportunities for law reform abound in the expungement arena. Until recently legal aid programs had not been involved in expungement, and public defenders who do expungement work often lack the resources to file major litigation. Given the few free expungement advocates, many procedural barriers—such as inaccurate instructions for filing—have not been challenged, even though they frequently prove too steep for many potential applicants to clear on their own. Thus problems go unremedied, and unlawful practices by agencies and courts go unchecked. Through legislative remedies, many organizations have made substantial progress on behalf of people who have been convicted, and the Uniform Law Commission drafted—and the American Bar Association approved—a Uniform Collateral Consequences of Conviction Act in 2009.51 But important work for systemic reform and better informed policy remains to be done.

Maintaining a detailed database facilitates informed law and policy. For example, the Record Clearance Project has a list of data that we record about our clients. The Stanford Public Policy team used our data to perform a detailed analysis of criminal-record expungement in Santa Clara County, California.52 As more data are collected and the public comes to understand the benefits of permitting people to move beyond the mistakes of the past, legislative victories should become more feasible.

Substantively and procedurally establishing an expungement practice is relatively easy. The consequences of the work are profound. Assisting people on expungements is a much-needed and greatly appreciated life-changing endeavor for all involved.

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