In recent decades, criminal records have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation. Criminal records, even of an arrest or charge that does not result in conviction, can cost someone a job, housing, and result in a range of other serious consequences.
People with a criminal record should have a fair chance to pursue social and economic opportunities in society, particularly after their involvement in the criminal justice system has concluded. Yet, the widespread dissemination of criminal records makes this difficult or impossible in many circumstances. It is especially unfair to stigmatize and discriminate against people who were arrested but never charged, or whose case terminated in their favor.
This year, the Collateral Consequences Resource Center assembled an advisory group of 24 practitioners and experts from across the criminal justice system to develop policy guidance for limiting access to and use of non-conviction records. This group has now completed its work on a Model Law on Non-Conviction Records, which recommends automatic expungement of non-conviction records and other limits on their use by private parties and government officials. (Expungement is defined in the model as sequestering but not destroying records). The group regards its model as setting the stage for a broader law reform initiative that will address conviction records as well.
Piper Kerman, author of the memoir Orange is the New Black, praised the effort to “close the books on non-conviction records,” noting that “[m]illions of Americans have a criminal record, even though they have never been found guilty of a crime.” Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia and a member of the group that developed the model law, pointed out that “Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination.”
Currently, state and federal laws restricting access to and use of criminal records have limited application and are hard to enforce. Laws authorizing expungement or sealing tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating, even when a person has been found not guilty or had charges dismissed. Without this record relief, non-conviction records may be reported in background checks to employers, landlords and others. In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of criminal records, leading some states to simplify and broaden eligibility for relief, and reduce procedural and financial barriers to access. A small but growing number of states have made relief automatic.
Few states have taken steps to deal with the high percentage of records in repositories and court systems that indicate no final disposition. When these records turn up in a background check, it may seem more ominous than a closed case. Paul McDonnell, deputy counsel for New York’s Office of Court Administration and an advisor for the model law project, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.”
Our model law recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused. Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction. Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending. The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies. It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them.
David LaBahn, President of the national Association of Prosecuting Attorneys, indicated that organization’s support for the model law, stating that the collateral consequences of non-convictions “do not serve to make the community safer,” and that “the current structures in place to expunge a non-conviction record can be confusing and difficult for the layperson to navigate alone.”
In proposing broad restrictions on access to and use of non-conviction records, this project aims to contribute to conversations underway in legislatures across the country working to improve opportunities for people with a criminal record. Already in 2019, 44 states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction. The guidance and encouragement provided by this model law can help take this wave of criminal record reforms to a new level.
Margaret Love and David Schlussel served as reporters for the model law. Love is executive director of the Collateral Consequences Resource Center (CCRC) and the former U.S. Pardon Attorney. Schlussel is CCRC’s deputy director.