State Legislatures and the Uptake Puzzle in Expungement of Criminal Records

62 Pages Posted: 26 Jun 2024

See all articles by Jessica Steinberg

Jessica Steinberg

George Washington University - Law School

Elenore Wade

Rutgers Law School

Date Written: May 27, 2024

Abstract

Expungement has an uptake problem. A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only 1 to 6 percent of eligible people avail themselves of the remedy. Expungement is a powerful policy tool that promotes social and economic reintegration. It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes. One might assume people would rush to court to clear their records. That the opposite is occurring—and new laws are idling on the books—suggests that rights-creation in this space has not been efficacious. This demands a hard look at the mechanics of expungement to ferret out possible reasons for the stagnation of the most sprawling and ambitious policy attempt in recent history to address the collateral consequences of mass criminalization.

This article tackles the uptake puzzle in expungement of criminal records. Employing an access-to-justice framework and drawing from the literature on administrative burden, the article presents findings from a study that identifies uptake barriers embedded in the workings of formal law and institutions. We systematically analyzed the law and procedure governing expungement of felony convictions in all thirty-two states that allow for it. We then developed six metrics to study, all within the control of the formal institutions responsible for creating or administering expungement policy. These metrics investigated access to the expungement remedy in light of the unique legal regime in each state and allowed us to create a state-by-state comparison of whether and to what extent courts and legislatures developed the conditions necessary for a person seeking felony expungement to complete the process successfully. Our study uncovered access barriers to expungement uptake across three domains: informational, procedural, and financial. These barriers reflect governmental decisions to shift uptake burdens to ordinary people and enshrine those burdens in formal law. The article provides rich qualitative analysis of these access barriers as one way to account for the uptake puzzle. With these findings, we elevate access challenges as both central to the efficacy of expungement policy and as eminently avoidable.

In addition, the article offers two broad implications from our research that point the road forward on reform. First, we find that legislatures play a surprisingly dominant role in restricting access to the expungement remedy. By probing the under explored role of legislatures, we surface a more complex treatment of how access barriers are layered across institutions to keep the expungement remedy out of reach. Second, we suggest that each state has developed a de facto “access policy” that serves an adjunctive role to substantive expungement policy. Without exception, these access policies are haphazard in their expression and work at cross-purposes with the stated goals of expungement. We call on legislatures to leverage their substantial convening power to study the real-world circumstances of expungement applicants. We also call on states to draw on the pluralistic access landscape we depict in this Article to turn toward access-promoting choices that increase uptake.

Keywords: expungement, record sealing, criminal law, courts, local government, state legislatures, access to justice

Suggested Citation

Steinberg, Jessica and Wade, Elenore, State Legislatures and the Uptake Puzzle in Expungement of Criminal Records (May 27, 2024). GWU Legal Studies Research Paper Forthcoming, Rutgers Law School Research Paper Forthcoming, Indiana Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4844076

Jessica Steinberg (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Elenore Wade

Rutgers Law School ( email )

217 N. Fifth Street
Camden, NJ 08102
United States

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