Expand Criminal Record Clearance Policies

Policymakers from across the political spectrum are considering policies to clear some types of criminal records. Criminal record clearance removes a person’s criminal history information removed from public access, most often with the goal of improving employment and other outcomes for people with criminal records. These policies also benefit employers by broadening the pool of eligible applicants without a criminal record, thus reducing their negligent hiring liability. Criminal record clearance is referred to differently in every state: commonly used terms include sealing, expungement, restricting, deleting, closure, and destruction, among others.

Dimensions of State Record Clearance Policies State laws governing the clearance of arrest and conviction information for employment purposes are complicated and vary widely. In recent years, states around the country have enacted laws to increase the availability of criminal record clearance; however, there is no uniform procedure for clearing a record, and each state varies in its requirements and the relief offered. Policymakers looking to expand record clearance in their state should ask the following questions about their current clearance laws: 1. Are cleared records actually cleared? Criminal history information may be available from a variety of sources, including the state repository and court records; state policies that permit clearance from one database do not always ensure clearance from the other. After the criminal records are cleared by the state, they may continue to be reported on commercially prepared background checks because the information is gathered from the database where the record might not have been cleared. Clearance legislation must address each source of publicly available records—as well as the intended effect of the record clearance policy. 2. Which records are eligible for clearance? States that permit felony record clearance frequently limit its application to low-level felonies. There are usually fewer restrictions on misdemeanors, but in both felony and misdemeanor clearance policies, violent and sex offenses are often excluded. The process of determining what types of convictions are eligible for clearance—which are established in statute—provides an opportunity for policymakers to consider racial disparity in the criminal justice system. For example, black people are arrested for marijuana use at a higher rate than white people, despite roughly equal usage, with some counties having a disparity of 10 to 1 in arrest rates. Policies that permit clearance of old drug convictions may help address this problem. 3. When are records eligible for clearance? Policymakers should ensure that waiting periods are appropriate to the offense and informed by available research to increase employment opportunities and maintain public safety. 4. What is the process for clearance? Currently, most record clearance policies require that people petition to clear their records. In many states, this is true even for arrests that do not result in a conviction. This process may involve submitting a petition to the court clerk or participating in a court hearing. Policymakers should consider automating the process to reduce court costs and increase access. 5. How much does it cost a person to clear a record? States frequently charge to file a record clearance petition. The fees can range from no cost to $500, but most commonly fall between $50 and $250. To ensure fees do not undermine a person’s ability to clear his or her record, policymakers should consider reducing these fees and providing waivers for people who are indigent.

The Clean Slate Clearinghouse Funded by, and developed in partnership with, the U.S. Departments of Labor and Justice, the Clean Slate Clearinghouse helps support juvenile and adult criminal record clearance around the country by:

Providing people with criminal records and reentry service providers with accurate, up-to-date information on record clearance and mitigation, as well as contact information for legal service providers in all U.S. jurisdictions; Supporting legal service providers currently engaged in record clearance work and giving new legal service providers the tools and resources they need to develop record clearance programs; and Giving policymakers the information they need to compare their state’s record clearance policies to those of other states and to learn about best practices.