Expunging America’s Rap Sheet: There is a Reason Judges Need to Exercise Leadership

Giving people a second chance seems obvious to some and to others quite contrary. Judges occasionally expunge records, but in an information age it is questionable whether anything can really be expunged. Moreover there are judicial leaders who advocate giving people a second chance – and yet the hiring policies of the judiciary are often not a model for employers willing to give people the second chance judges encourage the private sector to give individuals. Forgiveness is, in short, a challenge.

Jenny Roberts (American University, Washington College of Law) has posted Expunging America’s Rap Sheet in the Information Age (Wisconsin Law Review, Vol. 2, No. 321, 2015) on SSRN.

Here is the abstract:

As the Wall Street Journal recently put it, “America has a rap sheet.” Today, between 70 and 100 million people in the United States have a criminal arrest or conviction record, and anyone — including employers, landlords, and data collection companies — can easily access these records on line. At the same time, collateral consequences of even the most minor offenses have increased exponentially, affecting employment, housing, parenting, and just about every other aspect of daily life. The convergence of mass criminalization, ubiquitous criminal records, and pervasive collateral consequences is a major factor in the criminal justice system’s troubling racial and economic disparities.

States are reacting to the criminal records crisis in different ways, with many focusing on expanding record sealing or expungement laws that currently range widely in the relief offered. The time has come for a well-tailored response to mass criminalization and collateral consequences in the information age.

Sealing and expungement laws must be part of a multi-faceted approach to alleviating harmful consequences of a criminal record. The goal of limiting access to and use of relevant criminal records to those with a legitimate need to know is best advanced through focused legislative reform.

This Article describes why well-crafted sealing and expungement laws matter, responds to the major moral and practical arguments against such laws, and situates sealing and expungement as part of a comprehensive scheme for relief from a criminal record. Reforms might include regulating data brokers to ensure that sealed or expunged records are removed from their databases, banning employers from asking about arrests not ending in conviction or expunged convictions in the absence of a statutory mandate to do so, and offering employers who comply with such rules immunity from certain negligent hiring lawsuits.




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