The following post was written by CLS attorney Tracie Johnson, and originally appeared in The Legal Intelligencer on July 17, 2020. You can read it at https://www.law.com/thelegalintelligencer/2020/07/17/using-innovation-to-address-racial-disparities-in-the-criminal-justice-system/.
Pennsylvania’s Clean Slate law, which celebrated its first anniversary June 30, was a first-of-its-kind bill that cleared certain criminal convictions through automation. It has sealed more than 35 million criminal records so far, helping more than one million people to get a fresh start. In particular, the law has made a racial justice impact by providing record sealing relief to Black Pennsylvanians who remain targets of a criminal justice system desperate to maintain control over Black bodies.
We know that due to over-policing and racial profiling, Black people are disproportionately impacted by the criminal system, despite being no more likely than white people to commit crimes. We know that there are blatant racial disparities in terms of who gets arrested, charged, convicted, and sentenced, with Black people facing harsher treatment on each front. As such, Black Americans are left to contend with criminal records that limit their opportunities for social and economic prosperity.
Clean Slate ensures that Black people who already are at greater risk of facing discrimination because of their race alone are not dually limited by their criminal records, which are often used as a proxy for race by people in positions of power. In this technological age, criminal records are at the fingertips of every employer, landlord and institution of higher education. We know that nearly nine out of 10 employers, four out of five landlords, and three in five colleges perform criminal background checks. Clean Slate seals certain records from view to prevent decision-makers from using them unfairly. Pennsylvanians with certain records now have a greater chance at accessing housing, education and employment.
The U.S. Census Bureau reports that Pennsylvania has an overall population of 12.8 million. Of this population, 81.6% of residents are white, and 12% are black. The Pennsylvania Commission on Crime and Delinquency reports that about 69% to 70% of people arrested in Pennsylvania are white, while 30% to 31% are nonwhite. As for Clean State, the Pennsylvania State Police (PSP) shared data showing that of the 1,132,734 Pennsylvanians who had their record sealed, 29% were Black while 68% were white.
When examined together, these statistics show that Black Pennsylvanians in particular have had arrest records sealed, including arrests without convictions and arrests for summary offenses. This is undoubtedly due to the fact that Black people are more likely to be racially profiled, stopped, and arrested than their white counterparts, and face an overwhelming police presence in their neighborhoods. According to the Pennsylvania Commission on Crime and Delinquency, people of color accounted for 31% of arrests made in Pennsylvania in 2017, while accounting for only 19% of the general population.
The PSP data also revealed that white Pennsylvanians disproportionately got misdemeanor convictions sealed. This is likely due to several factors, including lack of quality data from Philadelphia prior to 2006, the requirement to pay court fines and costs in order to benefit from Clean Slate, and more lenient sentencing for white people in the criminal justice system. Fortunately, there are solutions already on the table to address this disparity.
First, the courts have agreed to update missing data from Philadelphia to ensure that more convictions are able to be identified by the computer query that automatically seals records. That initiative will ensure that millions more Philadelphia cases are identified for automatic sealing under the current Clean Slate law.
Second, the Clean Slate law must be amended to remove the requirement that fines and costs be paid before records can be sealed.
Community Legal Services champions Pennsylvania House Bill 440, which will make sealing possible for Pennsylvanians who are unable to satisfy their court fines and costs due to being locked out of the job market because of their records. Take the case of Ms. Dawkins, a mother of two. She is currently in school right pursuing a degree in health education technology. She has been denied jobs as a nursing assistant and a data specialist because of her record and fears that she will continue to face barriers to employment upon graduating. As the Clean Slate law currently stands, her record cannot be sealed because she owes $1,500 in court fines and costs on it. As the sole provider for her family, she cannot afford to satisfy these court financial obligations. Due to long-running structural racism in America, racial economic inequality is still a serious issue. As such, we are fighting to ensure that all Pennsylvanians can access needed record clearing, not just those who can afford to satisfy court debt, who are disproportionally white.
Third, Clean Slate must be expanded to include more kinds of conviction records, including felonies. A 2017 study looking at the growth of felony convictions over that past 30 years revealed that, as of 2010, one-third of Black men in America had a felony conviction. Felony conviction records create severe barriers to employment, housing, education, and more. The Drug Policy Alliance shared that people with felony convictions are twice as likely to be denied employment. Right now, the only record clearing remedy available for a felony is a pardon, which can take as long as five years to get from the time of application. For vulnerable, low-income Pennsylvanians already under water, that is simply too long of a wait. As such, Community Legal Services supports expanding record sealing to include convictions for felonies, including for offenses such as drugs and theft.
Community Legal Services is an anti-poverty nonprofit law firm that assists low-income Philadelphians with critical legal needs. Our advocates are aware that race, class, gender, sexual orientation, ability, religious ideology, and other identities often determines how and why a legal issue will arise and whether a person will be able to access justice. Since 1966, CLS has fought to challenge systems that perpetuate injustice. Our most recent victory involves ending criminal record discrimination in occupational licensing.
As an organization that serves residents of the nation’s poorest big city plagued by racial economic inequality, we have a clear role and stake in the fight for racial justice. This fight is not new, and neither are our efforts.
Criminal justice reform has been a hot topic for a couple of years now and the current state of social unrest around police brutality has made the issue that much more pressing. At Community Legal Services, we are not here to sensationalize the plight our clients. We work to make important policy changes to correct racial harms of the past and present. We celebrate the progress that has been made through Clean Slate and other reforms, and we will keep fighting for laws that bring more equity and justice to our clients and communities.
Tracie Johnson is an Equal Justice Works Fellow sponsored by Greenberg Traurig and staff attorney in the Employment Unit at Community Legal Services. Johnson first worked with CLS as a certified legal intern on the Youth Justice Project. She now works to create career pathways for women and girls of color who face barriers to employment and higher education because of their juvenile and adult criminal records.
To find out if your record has been sealed or if you qualify for Clean Slate, visit www.mycleanslatepa.com.
