Expungement and sealing might sound like big, fancy words, and in a way, they are: they can mean a world of difference for those with a criminal record.
Simply put: expungement and sealing are two ways for someone to clear their criminal record. Expungement is the erasure of the record. When a record is expunged, the law enforcement agencies and court where the record occurred are supposed to delete the record from their files, treating it as if it never happened. Sealing, instead of erasing a record, seals it from the public view, meaning the record is only viewable by certain authorized individuals, the identities of whom can differ from state to state. In some states, such as Illinois, juvenile records are automatically sealed, so they cannot be searched publicly, but they may still come up on a number of different background checks.
But what do we mean by a criminal record?
Criminal records are created whenever someone is arrested, regardless of whether or not charges were filed in court. These records consist of any arrests or court cases that resulted from them. Someone can have a criminal record even if they were never convicted of a crime. The concept of innocent until proven guilty does not provide much solace for the many individuals who face barriers simply because of an arrest record. These arrests can and do still pop up on numbers of background checks across the country.
Why are expungement and sealing laws important?
According to a 2015 Brennan Center analysis, over 70 million people have a criminal record of some kind in the United States. That’s roughly one in five people, though other estimates predict the number might be closer to one in three or one in four. Expungement and sealing measures are important because criminal records can provide substantial barriers in areas such as employment, housing, education, public benefits, voting, occupational and business licensing, and more. Experts in these areas often refer to the legal and regulatory barriers created by criminal records as the “collateral consequences” of having a criminal record. However, other researchers favor the term “permanent punishments” because they believe this more accurately reflects the lifelong and intentional impacts these laws have in restricting individual’s actions in everyday life. For example, in Illinois alone, there are 1,189 different permanent punishment laws according to a 2020 report conducted by the Heartland Alliance.
The National Inventory of Collateral Consequences of Conviction explains that while some of these consequences may serve a legitimate public safety purpose (i.e. preventing those with gun violence convictions from purchasing firearms), many of these laws and regulations do not have regard for important factors such as how the crime relates to the opportunity the law is restricting or the amount of time that has passed since the date of the conviction.
With the proliferation of big data, criminal records can have more of an effect than ever, increasing the number of ways and places that a criminal record may show up.
An article by The Markup titled When Zombie Data Costs You a Home tells the story of Rafaela Aldaco, a single mother who was accepted to a non-profit transitional housing program in suburban Chicago. She was later denied because her Rentgrow screening report resurfaced an arrest from 20 years earlier, when she was 18, an altercation with her then-boyfriend. Approximately 9 out of 10 landlords use screening programs like Rentgrow’s to conduct background checks on potential renters and non-profit and public housing agencies use them as well.
These permanent punishments can and do have detrimental effects in the job market. For example, a report by the Prison Policy Initiative shows that the unemployment rate is 27% for formerly incarcerated individuals, which is even higher than the general unemployment rate during the Great Depression. For those unfamiliar with the way the unemployment rate is calculated, it only factors in those who are unemployed that are actively seeking employment. Incarcerated individuals are heavily unemployed, but not from lack of trying.
Expungement and sealing laws are so important because they give individuals an opportunity to proceed with a clean, or at least cleaner, slate. It helps afford them the opportunity to move beyond their past actions (for those who were actually guilty of the crimes they were arrested or convicted for, and it saves individuals with only arrests from being judged for a crime they were never actually convicted of. Our criminal legal system is supposed to help lower crime, yet it consistently recreates the conditions for crime by disenfranchising a large percentage of our country’s population and denying them the opportunities to meet basic needs through employment, housing, and more.
How do these expungement and sealing laws work? How do they differ from state to state?
Generally, expungement and sealing laws are determined by the state. These laws lay out which types of charges are eligible for expungement or sealing. For example, in states like Illinois, which is considered to have record clearing laws on the more progressive end, non-convictions are eligible for expungement and convictions are only available for sealing. Certain types of records are eligible for relief almost immediately, while others have specific wait periods. Usually, the individual seeking expungement or sealing will have to file a petition and appear in court, where a judge will decide whether or not to grant their petition. Some states also have automatic expungement systems in place for certain types of arrests or charges. Expungement and sealing laws can vary drastically from state to state.
Luckily, many states are in the process of expanding their laws. There has been a revival of record relief reforms within the past seven years, which the Collateral Consequences Resource Center (CCRC) describes as a “torrent of record relief legislation.” According to the CCRC’s 2020 report, approximately 40 states have expungement and sealing laws for at least some felonies and many misdemeanor convictions, and 49 states and the District of Columbia have some kind of expungement and sealing laws on the books for most types of non-convictions. However, Congress has yet to enact any similar laws for federal convictions. If you are curious about the strength of your state’s laws, CCRC’s report also includes rankings on how state laws perform in different areas of relief.
Nonetheless, there is still much progress to be made. According to the CCRC, the vast majority of people who are eligible for record relief do not end up obtaining it. This can occur for a variety of reasons, including lack of information or knowledge that they are eligible for relief and lack of access. The expungement and sealing process can be extremely confusing for someone who wishes to file on their own and can be significantly cost prohibitive. For example, in addition to attorney’s fees, it often costs money to get copies of your criminal record and to file a petition in court.
Lastly, as expungement and sealing becomes more popular, lawmakers and government officials also have to create policies that allow these forms of relief to fulfill their intended purpose. For example, it is possible for expunged or sealed records to still show up in different online databases if the database has not been notified of the expungement or sealing (usually the paperwork order that a record be expunged or sealed only gets sent to local law enforcement agencies). Some states, such as Illinois, have laws that specifically make it illegal for employers or other agencies to consider an expunged record. In Pennsylvania, the Administrative Office of Pennsylvania Courts (AOPC) has made a deal with background check data brokers that they will sell them the most up-to-date public court records if they contractually agree to incorporate any updates to these records (such as expungements). This way the AOPC can help ensure that expunged records are no longer in these databases.
If you are interested in learning more about the importance of expungement and sealing and the effects of criminal records on people’s everyday lives, I recommend checking out the Collateral Consequences Resource Center. They regularly publish their own research and share interesting articles on the topic. If you want to learn more about what collateral consequences/permanent punishments exist in your own state, I suggest checking out the National Inventory of Collateral Consequences of Conviction.
Looking for similar reading from Novel Hand? Check out Eleanor’s article How a Loaf of Bread Lead to My Understanding of the Prison System. Eleanor speaks to the value of supporting businesses that employ formerly incarcerated individuals in helping break the cyclical nature of mass incarceration and poverty.
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- How is Transformative Justice Different from Restorative Justice? - December 30, 2020
- Expungement and Sealing: What Are They and Why Should States Expand These Forms of Record Relief? - November 13, 2020