The Clean Slate Clock

The problem

A criminal record in the United States is a life sentence served outside prison. Somewhere between 70 million and 100 million Americans have one, roughly one adult in three, counting arrests that never led to a charge and charges that never led to a conviction. The record appears on the background check that most employers, most landlords and many colleges now run, and it costs the person the job, the apartment or the place whether or not the offence was serious, whether or not it was decades ago, and, for arrests without conviction, whether or not they did anything at all.

The research on when a record stops predicting anything is settled. Criminologists who followed people with records over decades found that after about seven to ten years without a new offence, a person with a record is no more likely to offend than a person of the same age who never had one. The record's predictive value expires. Its practical effect does not, because nothing removes it.

Every state has a procedure for clearing some records, and almost nobody uses it. The procedure is a petition: a form, a fee, a court date, usually a lawyer, and in many states a hearing at which a prosecutor may object. A study of Michigan's process found that only about 6.5 percent of people eligible to clear their records ever did, and that the ones who did saw their wages rise about 22 percent within a year, and their employment rise with it. The benefit was large; the uptake was tiny; the barrier was the petition.

Pennsylvania removed the barrier in 2018. Its Clean Slate law required the courts to seal eligible records automatically, by running the eligibility rules against the state's own database, and by June 2020 about 30 million records had been sealed, covering some 40 million charges, without a single petition. Michigan, Utah, Virginia, Delaware, New York and the District of Columbia have followed. The federal government, which holds a record on every person it has ever charged, has no procedure for clearing one at all: there is no federal expungement, for anyone, ever.

The proposal

The Clean Slate Clock: a record seals itself. Arrests without conviction seal immediately. Misdemeanour convictions seal after five years without a new conviction; nonviolent felony convictions after ten. The sealing is automatic, by the court's own database, with no petition, no fee and no hearing. Sealed records are invisible to employers, landlords and the public, and visible to law enforcement, the courts, and the licensing bodies for a short statutory list of sensitive occupations. Federal records are covered for the first time. Background-check companies must delete what the courts have sealed.

How it would work

1. The clock. Every conviction carries a date after which it seals: five years for a misdemeanour, ten for a nonviolent felony, counted from the end of the sentence, and reset by a new conviction. Violent felonies and sex offences are excluded and the list of exclusions is in the statute, not in a prosecutor's discretion.

1. Arrests, at once. An arrest that ends without a charge, or a charge that ends in dismissal or acquittal, is sealed on the day it ends. A person who was arrested and never convicted has no record to explain.

1. Automatic. The court runs the rule against its own records on a schedule, as Pennsylvania's do, and seals what qualifies. No form, no fee, no lawyer, no hearing, no notice required of the person, who may not know the rule exists and should not need to. A person may check the status of their record online.

1. Sealed, not erased. A sealed record is invisible to the public, to employers, to landlords, to schools and to background-check companies. It remains visible to law enforcement, to courts in sentencing a later offence, and to the licensing bodies for a statutory list: work with children, the elderly, in law enforcement and in a few security roles. The list is in the law and is short.

1. The federal gap. Congress creates, for the first time, a federal sealing procedure on the same clock, applied automatically by the federal courts and reflected in the FBI's database, so that a sealed state record does not reappear on a federal check.

1. The data brokers. A company that sells background checks must delete sealed records within 30 days of the seal and may not report them; reporting a sealed record is a violation of the Fair Credit Reporting Act with statutory damages. The private databases that today keep what the courts have cleared are the reason a seal is worth little without this clause.

1. Reporting. A person whose record is sealed may answer, on any application, that they have no record, and no employer or landlord may ask about sealed matters. The same rule the Pennsylvania law states.

The numbers

The people. 70 to 100 million with a record; on the order of 30 million with a record that would qualify for sealing under the clock today, most of them for misdemeanours and old arrests.

The uptake. Under petition: about 6.5 percent. Under automation: effectively all who qualify, as Pennsylvania's 30 million sealed records show.

The wages. A 22 percent increase in wages within a year for those whose records were cleared, in the Michigan study, with employment rising as well. Applied to millions of people earning below the median, that is billions of dollars a year in earnings and the taxes on them, and a corresponding reduction in the benefits and re-offending that unemployment produces.

The cost. The sealing is a database operation the courts already know how to run; Pennsylvania's cost was in the low millions. The federal procedure requires the FBI to build what every state has: a way to mark a record sealed.

The honest objections

"Employers and landlords have a right to know who they are dealing with." They have a right to know what predicts risk, and after the clock runs, the record does not: the person with a ten-year-old nonviolent felony and no new offence is, statistically, the person next door. The sensitive-occupation list in item 4 preserves the check where the stakes justify it. Everywhere else, the record is not information; it is a mark.

"Victims deserve for the record to stand." The conviction stands, in the court's own files and in the sentence that was served. What the clock ends is the public display of it, decades later, to a landlord in another state. A victim's interest is in the sentence and in the person not offending again, and the evidence is that people who can get a job offend less.

"Automatic sealing will clear records that should have been excluded, because databases are messy." They are, and Pennsylvania's experience is that a small share of records required correction after the automatic run, in both directions. The rule provides for correction on notice, and the alternative, a petition system that clears 6 percent of what it should, is not more accurate; it is merely smaller.

"Background-check companies will keep the data anyway." Some will try, and item 6 makes reporting a sealed record a violation with statutory damages, enforceable by the person and by the Federal Trade Commission. The industry has complied with similar rules on old bankruptcies and civil judgments for decades.

"The federal government has never expunged a record and should not start." It has never had a procedure, which is a different thing from a principle. A person convicted of a federal misdemeanour thirty years ago carries it for life because Congress never wrote the clause every state has. This proposal writes it.

Sources

• Pennsylvania Act 56 of 2018 (Clean Slate), and the Administrative Office of Pennsylvania Courts on records sealed by June 2020
• J.J. Prescott and Sonja B. Starr, "Expungement of Criminal Convictions: An Empirical Study," Harvard Law Review 133 (2020), on uptake and wage effects in Michigan
• Alfred Blumstein and Kiminori Nakamura, "Redemption in the Presence of Widespread Criminal Background Checks," Criminology 47:2 (2009), on when a record stops predicting
• Center for American Progress, Bipartisan Momentum Is Growing for Automatic Record Sealing Through the Clean Slate and Fresh Start Acts; Clean Slate Initiative, state adoption tracker
• Bureau of Justice Statistics, Survey of State Criminal History Information Systems, on the number of Americans with records
• Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
• Proposals № 026 (The Landing); № 061 (The Sentencing Table); № 095 (The Bail Table)