AMERICA'S PAPER PRISONS: THE SECOND CHANCE GAP.

• Author: Chien, Colleen

TABLE OF CONTENTS INTRODUCTION I. DEFINING THE SECOND CHANCE GAP A. The Expansion and Promise of Second Chances 1. Avoided Incarceration Costs 2. Public Safety Impact 3. Economic, Dignitary, and Civic Impact B. The Second Chance Gap and Its Causes C. Measuring the Second Chance Gap 1. The Uptake Gap 2. The Current Gap 3. Sizing the Gap(s) 4. Top-Down, Bottom-Up Approach 5. Observing the Leaky Relief Pipeline II. SIZING SECOND CHANCE GAPS A. Second Chance Gaps in Resentencing and Reclassification 1. The Clemency Initiative Second Chance Gap 2. The Compassionate-Release Second Chance Gap 3. California's Propositions 47 and 64 Second Chance Gaps B. Second Chance Gaps in Reenfranchisement C. Second Chance Gaps in Records Clearance 1. State-Level Second Chance Gaps in the Expungement of Convictions 2. Estimates of the Nonconvictions-Expungement Second Chance Gap 3. Estimates of State-Level Nonconvictions Expungement Second Chance Current Gaps 4. Toward a National Estimate of the Nonconvictions Expungement Second Chance Current Gap 5. Explaining Differences in State-Level Nonconvictions-Expungement Second Chance Current Gaps III. NARROWING THE SECOND CHANCE GAP A. Defending, Not Damning, Second Chance Gaps? B. Ruthless Iteration C. Centralization and Burden Shifting D. Automating Delivery of Second Chances IV. OPEN POLICY AND RESEARCH QUESTIONS A. Second Second Chance Gaps B. The Impossibility of Forgetting C. Punishing Innocence with Dirty Data D. Understanding the Impact of Second Chance Relief E. What About the (Women and) Children? F. The First Chance Gap CONCLUSION INTRODUCTION

On February 17, 2019, the Louisiana Times-Picayune reported that the state of Louisiana routinely keeps people incarcerated, "[w]eeks, months, years after their release dates." (1) According to a state auditor's report, the main culprit was inconsistencies in the application of credits for certified treatment and rehabilitation programs to the calculation of release date. (2) Similar miscalculations have been reported in California, where taxpayers have paid tens of millions of dollars in overstays because some inmates were given 15 percent rather than 50 percent good-behavior credit. (3) Overincarceration in Hawaii, (4) D.C., (5) and the federal criminal justice system (6) has also been documented.

A few days earlier, the New York Times reported the death of Steve Cheatham while he was in prison waiting for a court to rule on his compassionate-release application. (7) Created in the 1980s, compassionate-release programs allow federal inmates who no longer pose a threat to be sent home, usually when nearing death. (8) But since 2014, scores of elderly and terminally ill federal prisoners have died while waiting for the Bureau of Prisons (BOP) to rule on their applications. (9) A Department of Justice Office of the Inspector General report found that less than 4 percent of federal inmates who submitted compassionate-release requests were released, in part because of eligibility provisions that were unclear and difficult to apply. (10) The same report estimated that 19 percent of the federal-prison budget was spent to incarcerate aging inmates. (11)

Over the summer of 2020, tens of millions of Americans joined demonstrations to protest the killings of George Floyd and Breonna Taylor by police officers. (12) Over ten thousand people were arrested, (13) including eighty-seven unarmed demonstrators who were each charged with a felony and two misdemeanors for sitting on the lawn of the Kentucky attorney general to protest the lack of charges following Breonna Taylor's death. (14) Even if ultimately dismissed without prejudice, (15) the charges will remain on each person's record unless and until the person, after a waiting period of one to three years, petitions for expungement and the court grants the petition. (16) Many people do not take advantage of this option. As reported in this Article, I find, applying the records-clearance policies of fifty states to criminal histories from each state, that an estimated 30-40 percent of people with records, or twenty to thirty million of the eighty million adult Americans with records, (17) are eligible to clear their criminal records partially or fully on the basis of nonconvictions policies but have not done so.

For individuals that are convicted, formal sentences are only part of the punishment. According to the National Institute of Justice, forty-four thousand private- and civil-sector limitations on employment, housing, civic participation, and many other realms continue to burden those with criminal records long after they have served their time. (18) But while every state offers ways to "expunge" or otherwise improve one's record of criminal convictions to avoid such "collateral consequences," (19) only a small fraction of those eligible for relief get it. Among the dozen or so states analyzed or reported in this study, uptake rates of convictions relief below 20 percent were the norm. (20)

"Second chance" laws, passed by nearly every state over the last decade, (21) are an important pillar of what the late Joan Petersilia has called the current "transformative moment in criminal justice reform ... away from ... harsh punishment policies" and toward rehabilitation. (22) These laws allow individuals charged with or convicted of crimes to have their sentences shortened, crimes downgraded (e.g., from a felony to a misdemeanor), criminal records cleared, licenses restored, and/or voting rights reinstated, but often only on petition. They reflect the sentiment--behind Kim Kardashian West's successful bid for presidential clemency for Alice Johnson (a sixty-three-year-old grandma given a life sentence for a drug-related crime), (23) the 2018 midterm passage of Florida's "Amendment 4" to restore the vote to over a million persons with felony convictions, (24) and the surprise enactment of the bipartisan First Step Act in 2019, which grants early release to qualifying federal prisoners (25)--that everyone deserves a second chance, and many punishments deserve a second look.

But while much fanfare has accompanied the increasing availability of second chances, little attention has been paid to their delivery. (26) In the latest example, in the fall of 2018, Florida voters approved Amendment 4, to allow individuals with felony records--up to 1.4 million of them--to regain their vote without a petition. (27) But confusion about who had outstanding fines and fees, which the Florida legislature ruled would disqualify potential voters, created an "administrative nightmare" that added "confusion and anxiety to people ... trying to exercise their first amendment right." (28) Estimates of the number of people registering and voting pursuant to the measure were "well below what was anticipated when Amendment 4 passed." (29) This Article discusses how, in "second chance" contexts like the ones described--resentencing, compassionate release, reenfranchisement, and expungement--millions of American are stuck in a paper prison, held back by deficiencies in the administration of second chances that have left them unable to vote, drive, serve on a jury, or do one of the tens of thousands of other activities restricted for those with criminal records. (30) Some of the barriers to relief are structural, and related to debt and overburdened bureaucracies. But others are harder to see and stem from administrative factors like unworkable standards, missing and incomplete criminal justice information ("dirty data"), a lack of awareness of second chance opportunities, and the nature of second chance rules that unwind past judgments and policies and reflect contested renegotiations about how to best strike the balance between public safety and equity.

This Article introduces the concept of the "second chance gap"--the difference between eligibility and delivery of second chances--to draw attention to and quantify the impact of these largely invisible and underappreciate-underappreciated structural and red-tape barriers, not steel bars, holding Americans back. As states continue to pass and administer second chance laws, it is worth taking stock of the gaps between eligibility and delivery, the reasons they exist, various options for narrowing them, and the open research questions that surround the administration of effective and impactful second chance relief. This Article is an initial effort to do so, drawing upon and extending several literatures.

First, in its focus on the administrative, rather than substantive, aspects of second chance relief, such as who carries the information burden, it builds upon the awareness in law and policy circles that, as Richard Thaler and Cass Sunstein have observed, "small and apparently insignificant details can have major impacts .... '[E]verything matters.'" (31) Joining other studies that consider mechanisms for influencing the impact of the law other than by changing its substance, (32) it finds small design choices--for example, those regarding how eligibility criteria are articulated (33)--to have outsized impacts when laws are applied at scale.

Next, by discussing and modeling uptake gaps in second chances across a number of domains and ways for narrowing them, this Article makes theoretical and empirical contributions to the existing literature on what has been called the "nonparticipation problem," or the failure or inability of individuals eligible for government benefits to access them. (34) Although "second chances" that remove government punishments are analytically distinct from programs that provide government benefits (like food stamps), cumbersome administrative processes are common to both. By considering the use of government-initiated automation, not applicant-based petitions, to award second chance relief, this Article confronts some of the novel issues being raised by automated and algorithmic decisionmaking systems (ADS), like notification, (the...