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CLS Blog: Clean Slate Record Clearing: A Policy Tailored for the Digital Age

Employment

CLS Blog: Clean Slate Record Clearing: A Policy Tailored for the Digital Age

Clearing a criminal record can change the course of a person’s life. Every year, one thousand low-income individuals come to Community Legal Services of Philadelphia (CLS) because they are facing barriers to employment caused by criminal records. Consider CLS client James, who struggled for years with under and unemployment and could not sufficiently provide for his family because of old and minor drug arrests. After getting his record cleared, he immediately got a good job with UPS because his arrest records no longer showed up on his background check. James’s story is one of many where clearing a record led directly to employment.

Research backs up the idea that record clearing increases both employment and earnings. And all around the country, hundreds of thousands of people seek out legal help to clear their records each year. That is why many states have looked to expand their record clearing laws, and why the Clean Slate campaign, which calls for the automated sealing of criminal records, has attracted so much positive attention. And yet there are those, like the author of a recent article on Slate.com, who claim record clearing is an ineffective remedy in the digital age. Here’s why that’s wrong.

Clean Slate was born out of the understanding that, in today’s world, the sources of criminal record information are multiple and complex.  

In fact, Clean Slate is a direct response to the increasing availability of records because of technology, and uses that very same technology to remove access to records. Clean Slate policies specifically target the electronic sources of records most likely to create barriers to employment, housing, and opportunity, and use fully automated computer queries to eliminate access to those records.

In Pennsylvania, records sealed under its new Clean Slate law require the various governmental agencies that maintain public-facing records, including the courts and law enforcement, to limit public access.  In other words, once a case is sealed under Clean Slate, employers, landlords, licensing agencies, and the public cannot access these records through any governmental database.

But Clean Slate doesn’t only address records maintained by the government. In Pennsylvania, commercial background screeners generally obtain their data directly from the courts and are required to regularly update their databases with information provided by the courts to remove expunged and sealed cases. Clean Slate campaigns across the country include reforms to similarly ensure that private background check screeners do not report cases that have been sealed. Additionally, the federal Fair Credit Reporting Act (FCRA) requires commercial background screeners to report only accurate information, meaning they cannot legally report cases that have been expunged or sealed.

Moreover, the policies proposed by the Clean Slate campaign make it even simpler to maintain up-to-date record information by removing the potential for human error inherent in manual data entry. In Pennsylvania—the first and only state in the nation to pass an automated Clean Slate law so far—the court system and the state police will use computer programs to run automated queries that identify and seal eligible cases. This process will not require judicial intervention, paperwork, or any other manual tasks. It also eliminates the need for individuals to navigate complex bureaucracies, often without the help of a lawyer.

The Clean Slate campaign does not turn a blind eye to the various ways that criminal record information is disseminated or gloss over the technological challenges at issue. By its very nature, Clean Slate policies require a deep understanding of the data environment in any given state, and a collaborative approach that brings in advocates, affected individuals, government agencies, and the experts who understand how record information is shared across various state and private databases. The Clean Slate campaign focuses on identifying states with centralized record systems that can be used to automatically limit access to each database where criminal record information appears. In other words, Clean Slate’s explicit goal is for states to take “control over their data,” by limiting access to criminal record information themselves, without the need for manual processes driven by individual or court intervention.

Of course, record clearing tools like Clean Slate are not perfect, and it’s possible that some records will continue to be made available by private sources. While mugshot websites are certainly problematic, advocates are already working in a variety of ways to challenge their practices. For example, advocates have argued that such websites should also be regulated under the FCRA and thus maintain accurate records. When records are expunged or sealed, record information should be removed from such websites free of charge. And Florida recently passed a law allowing individuals to sue mugshot websites who charge fees for the removal of records.

Moreover, while private entities publishing arrest record information online is troubling, it does not diminish the important impact that record clearing can have on access to opportunities like employment, education, and housing. Research shows that 96% of employers utilize background checks, not internet searches, to screen for and evaluate whether to hire someone based on a criminal record. When a record is cleared and no longer shows up on an official background check, it makes a huge difference. Especially in the current environment of worker shortages, employers are supportive of hiring people who have had their records cleared. As Tom Baldridge, the president of the Lancaster Chamber of Commerce, said in a recent article, “no one is looking for additional barriers to hire people.” He also noted that Pennsylvania’s Clean Slate law “gives some people who might have been hesitant to fully enter the workforce because of some past indiscretions the confidence to come back, and that’s a win-win.”

Additionally, many record clearing laws include protections for those seeking jobs by making clear that once a record is expunged or sealed, it is like the record never occurred. The person can honestly not disclose it, and it would be unlawful for employers to consider it. The same is true in the education context where many colleges and universities explicitly state that records that have been expunged or sealed need not be disclosed on applications.

Research on record clearing and employment has found a positive impact.  Preliminary findings of a study out of Michigan show that in the first year after record clearing, the probability of employment rose by 6.5% and wages rose by about 22%. A study in California, where some convictions can be expunged, found that participants who had their records expunged reported an average increase in yearly income of $6,190. In addition, 93% of participants reported increased confidence in their future job prospects. As Clean Slate laws rapidly expand access to record clearing across the country, it is important to continue measuring their impact through research, rather than relying merely on anecdotes and speculation.

People with records face a multitude of barriers and challenges, and Clean Slate laws are only one piece of the solution. States must also continue to advance policies that directly remove barriers to employment, occupational licensing, education, housing, and more. But Clean Slate is an ambitious, innovative, and common-sense approach to a problem large in scope, and will provide life-changing benefits to the hundreds of thousands of people who qualify.

Date: 
01/25/2019