Expungements: Good or Bad? Discuss.
Two quite different perspectives on the value of record clearing (which I will refer to here as “expungements” as a shorthand) are sometimes articulated. Here’s one.
“Expungement is the best remedy for people with records. It really does provide a clean slate. It doesn’t require employers or landlords to follow the law or to do the right thing, like ban-the-box and fair hiring remedies do. And it works across the board (with employers, landlords, schools, etc.). In cases where expungement does not eliminate a record, it still might reduce it. People with records want expungements, and they are overjoyed when they get them. Expungements are capital improvements in people’s lives, by eliminating an employment barrier.”
“Expungements are worthless. Or at least they only help a few people who don’t need as help as much as other people who do not qualify for them. A small percentage of people with records can get expungements, and usually either only or arrests or long after a minor conviction. Expungements are zero help to people with recent convictions/incarceration or more serious records. Pushing an expungement agenda deflects attention from more useful remedies, like ban-the-box. Moreover, you need a lawyer to get an expungement, and it often doesn’t work anyway, because the case keeps popping up in commercial databases and on Google.”
A few weeks ago, I discussed these two views with my friend and former client Bill Cobb, Deputy Director of the Smart Justice Campaign at the ACLU. Bill helped me see that these two positions are a false choice. Both views have lots of truth.
Bill related to me that he has had moments of frustration with proponents of expungement expansion (including elected officials). This is not because he thinks expungements don’t matter. He agrees that expungements can be a terrific remedy for those who qualify. It is because if expungement is the be-all and end-all of a reform agenda, many people with records will be left out in the cold.
This led us to discuss the reality that people with different criminal record histories will benefit from different remedies. For instance, some people who will not qualify for expungement may be protected by EEOC’s criminal record guidance or a similar fair hiring law. But those remedies mostly apply for people who have a significant period of “redemption” (as Professors Blumstein and Nakamura call it), that is, a period in the community without subsequent conviction. Law and policy must also provide remedies for people recently reentering the community from incarceration. Given that there is little legal recourse with employers for those individuals, subsidized employment may be the best policy option.
Around 100 million Americans with records are trying to overcome them. There is no silver bullet to achieve this goal. We need a menu of policy options. And communications strategies. And employer education. And community organizing. And so much more.
So yes, expansion of expungements through expanded eligibility and increased service delivery is a worthy goal that is deserving of our time and energy. But it can’t be the only issue on our plates. It must be part of a larger vision to repair the damage created by public policy and background screening over the last twenty years.
What do you think the vision should be?