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The Right Way to Do Criminal Record Clearance: Automatically

Western states are in the forefront of bringing technology to bear to expunge the records of long-ago convictions and provide new economic opportunity for millions of Americans.

There is a movement for change taking hold across the western United States, one that translates into better access to jobs and economic opportunity for millions of people. In blue and red states alike — California, Colorado, Oklahoma and Utah — governors and legislatures are putting in place reforms that allow criminal records to be cleared automatically and at scale.

The latest example: In May, Colorado Gov. Jared Polis signed a bill into law to clear all eligible criminal records while prohibiting employers from requiring job applicants to disclose information from such a sealed record. Many people with past convictions are already eligible, but instead of putting the burden on them to file never-ending paperwork and navigate complex legal processes, the state will use technology to take care of this automatically.

This is part of a historic shift on record clearance. In February, with Code for America’s implementation support, Utah cleared more than 500,000 criminal records. In May, Oklahoma approved legislation embracing automatic record clearance. In 2019, California pioneered the effort to automatically clear cannabis convictions. And while other states have begun designing and implementing similar policies — including Pennsylvania and about half of the 19 states that have legalized adult-use cannabis — the current momentum appears strongest in the West.

Still, the reality is that today millions of people across the United States live with the barriers and stigma of a criminal record, no matter how old or how minor that record may be. Decades of federal, state and local policies and practices — like the failed war on drugs — have resulted in one in three people having a criminal record. For many, that equals a life sentence to poverty.

Automatic record clearance provides a solution that is equitable, practical and reasonable. By taking on the responsibility of clearing records, government can provide millions of people with old convictions better access to good jobs, housing, education and other opportunities. And it's something that Republicans and Democrats alike are getting behind.

Under traditional petition-based record clearance, less than 10 percent of eligible people receive relief, usually due to a lack of awareness or administrative burden. While the details vary by state — including the use of terminology like expungement, expunction, sealing and orders of non-disclosure — automatic record clearance laws ensure that all eligible people receive relief, eliminate the individual burden of having to determine one’s eligibility, drastically reduce the time spent navigating a complex and convoluted legal process, increase access to good jobs, and promote the economic health of states and localities.

Code for America has helped design and implement people-first, automatic record clearance policies in more than 20 states. Through our work, we’ve learned how to make automatic record clearance policies both impactful and implementable.

There are several key factors that maximize the number of people who will benefit from automatic record clearance and enable government to implement this policy on a meaningful timeline. But, overall, there are three best practices that policymakers should follow:

First, record clearance must be government-driven. Relying on the petition-based approach to record clearance will leave the vast majority of people behind. Automatic record clearance is the only way to ensure that if convictions become eligible for record clearance, the records actually get cleared.

Second, automatic record clearance policies need to be designed with input from the government agencies and people who will be responsible for implementing them. Think courts, criminal history repositories, executive branch agencies and the people who work there. Their knowledge of a state’s criminal legal system data — where the data lives, what shape it’s in, how systems “talk” to each other — is invaluable for creating policies that work in the real world.

And third, policymakers need to think about automatic record clearance as an “end-to-end” service, meaning that passing the policy and clearing the records are just the first steps. The service also needs to inform people that their records have been cleared, help them understand what that means for their life opportunities and connect them to additional legal support resources. To do this, government needs to provide people access to free, confidential, easy-to-understand and on-demand information about their records.

Automatic record clearance is not only possible, it’s critical to delivering economic opportunity for millions of people. The future of record clearance is here, and it’s automatic.

Alia Toran-Burrell is the associate program director for criminal justice at Code for America, the leading tech nonprofit that works with community leaders and governments to build equitable, accessible digital tools and services.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
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