RETRIBUTIVE EXPUNGEMENT.

• Author: Murray, Brian M.

INTRODUCTION 667 I. THE PUNITIVE EFFECT OF PUBLIC CRIMINAL RECORDS 673 II. THE ORIGINAL EXPUNGEMENT PARADIGM: PRIVACY AND REHABILITATION 678 A. Criminal Recordkeeping and the Purposes of Punishment 678 B. Early Expungement Regimes: Privacy and Rehabilitation 681 III. THE PRESENT EXPUNGEMENT PARADIGM: PRIVACY AND REHABILITATION AGAIN 688 A. The Promise of Expungement Reform 688 B. Modern-Day Procedure: Rehabilitation Prioritized Again 691 1. Pre-hearing Procedure: Determining Who is Worth the Risk 691 a. The Filing Paperwork 601 b. Monetary Barriers 693 c. Waiting Periods 695 d. Prosecutorial Intervention 696 2. Hearing Standards: Public Safety Calculations and the Burden of Proof 698 a. The Balancing Approach 698 b. Burdens of Proof 701 IV. A NEW PARADIGM: RETRIBUTIVE EXPUNGEMENT 702A A. Retributivist 703 B. Desert-Based Expungement Procedure 707 1. Proportionality, Pre-Hearing Procedure, and Automatic Expungement 707 2. Burdens of Proof 710 3. Retributivist Prosecutors and Expungement 711 C. Summarizing Desert-Based Expungement 714 CONCLUSION 715 INTRODUCTION

The "expungement process" is a disjunctive legal concept. Whereas the term "expungement" (1) promises the hopeful wiping away and creation of a blank slate, "process" conveys time, ordeal, and mechanics. For some time, these processes have been justified as necessary adjuncts to the expungement remedy--features designed to ensure that only the truly worthy petitioners have their records wiped clean. (2) This Article takes a different view, suggesting expungement procedures are a problem, and that their existence stems from a problematic theoretical conception of expungement itself. In particular, the combination of rehabilitative logic and concerns for public safety has let the process, in short, prevent more expungement. (3) And it is those processes that must be scrutinized if substantive expungement law--which has undergone dramatic reforms in numerous states nationwide (4)--is to attain for petitioners what it promises to provide.

Nearly every jurisdiction in the United States promises some form of expungement relief to some subset of individuals who have encountered the criminal justice system. (5) Available remedies come in different shapes and sizes, with broader eligibility in some states, and relatively narrow relief available in others. (6) Initially applicable to just arrests, over two-thirds of states have now extended relief to convictions. (7) The number of attempted reforms has been significant over the past decade, ushering in a new era of expungement, at least in theory. (8) The arrival of a few "clean slate" laws and automated expungement procedures promise more than many ever thought would be possible. (9) But the majority of substantive reforms have not been matched with attention to the procedures accompanying the provision of relief, rendering the promise hollow for many.

Procedure is one aspect of a multi-factored "uptake gap" that undermines the broader utility of expungement. (10) Few who have contacted the criminal justice system know expungement even exists, learning about their eligibility only through the efforts of legal aid and other attorneys. (11) The average petitioner must jump through several hoops, which come in various forms, in order to obtain an expungement. First, there are the initial mounds of paperwork that require the petitioner's attention, and in many instances, the assistance of costly (12) or overworked counsel (13)--counsel that is not guaranteed despite the punitive effects of a criminal record. (14) Petitions require careful attention to detail, the retrieval of numerous government documents, and interpretation of and compliance with state, local, and judicial rules. (15)

Second, there are the tangible and time-based obstacles. Petitioners might have to travel to multiple offices to obtain identity-validating information, such as fingerprints, to enable multiple state agencies to communicate seamlessly. These trips are not free, and the immediate opportunity cost can be high: a missed day of work and pay, or the need to hire a costly babysitter. These realities can discourage the indigent from applying in the first place. For those who can afford the fees, the tradeoff might still not seem apparent. Despite that there are expungement clinics and legal advocates willing to assist, the general knowledge of potential petitioners about their rights and such resources remains low. (16) Third, assuming a petitioner can file the requisite petitions, hurdles remain in the form of objecting prosecutors, (17) agencies refusing to coordinate, (18) and difficult standards of review placing the burden of persuasion on the petitioner. (19)

These obstacles, for some, are features of expungement law. They purportedly identify those who are serious about reentry, effectively rehabilitated, and motivated to better themselves. In short, they operate to delineate who is worthy of expungement by clarifying who has the appropriate character after encountering the criminal justice system. But in an era when the stigmatizing effect of public criminal record history information--often sold by jurisdictions to private parties--is undeniable, irrespective of the person's individual character (reformed or not), these ostensible features are better understood as bugs. They are actually eating away at the core promise underlying expungement regimes, a promise that has been verified by recent studies that show the positive impact of expungement on recidivism and employment. (20)

Why is expungement procedure so complicated and difficult? This Article advances the following theory: these obstacles are the fruits of the original expungement paradigm that was built on two pillars: (1) rehabilitative logic and (2) privacy concerns. These were balanced with the public safety interests of the state, giving rise to moderate expungement regimes in the mid-twentieth century. This paradigm has driven action in the expungement area since. Expungement laws rose to prominence in an era when rehabilitation dominated public policy discussions about punishment. (21) These discussions had great virtue and, in fact, shifted sentencing regimes away from a singular focus on extremely punitive responses to crime. But, like many public policies, reliance on rehabilitation also had unintended consequences. One such consequence of the focus on rehabilitation was a system of expungement procedures designed to locate the most rehabbed individuals, or least "risky bet," by placing the onus squarely on the ex-offender or ex-arrestee. The result was a set of expungement regimes that forced the petitioner to prove her mettle by navigating a world of byzantine procedures and onerous substantive requirements, with decision-makers attempting to balance the petitioner's privacy interests against the public safety goals of the state. (22)

That makes sense when rehabilitation is the underlying goal of corrections and when public safety rationales dominate the administration of the criminal system. Indeterminate sentencing regimes, governed by parole boards and probation officers, operated the same way, looking to proof of rehabilitation as the exit pass from the criminal justice system. (23) A rehabilitative focus allows the state to simultaneously work towards reforming individuals and manage public safety by requiring more and more corrective behavior on the part of those sentenced. And during the completion of a direct sentence, there is cause for that approach.

The problem, however, is that in the context of expungement, rehabilitative premises invert what should be the calculus regarding expungement of a conviction--where the sentence has already been served--or an arrest--where blameworthiness was never found as a matter of law. Expungement presupposes that harm to the petitioner has already been inflicted, either by virtue of an arrest or a conviction with a sentence. The petitioner has suffered at the hands of the state already, either via the stigma attached to the arrest or due to a sentence inflicted after a duly obtained conviction. Having done the time, requiring the petitioner to prove why the state should not keep inflicting harm through the maintenance of a public criminal record in order to obtain expungement is puzzling. Doing so forces petitioners to prove why they no longer deserve punishment, but it is the state that must justify inflicting harm stemming from contact with the system. That is the case for the arrestee without a conviction and the convicted individual who has done his time.

As such, this Article suggests that the original theoretical bases behind expungement regimes actually can stunt their efficacy, meaning the inspiration for expungement has limited its aspirations. Rehabilitative logic supports expungement in theory, but in terms of details of administration, it only can go so far. And we are seeing that unfold again in real-time, as legislators argue over the public-safety implications of expungement regimes and ask whether a particular measure will advance or limit public safety. Public-safety rationales can only go so far to persuade, especially when the fundamental lens through which the average constituent evaluates the criminal justice system remains desert. (24) And when policymakers and decision-makers are still dialoguing about evolving privacy norms, the combination of rehabilitative logic and concerns for privacy does not provide solid ground for expanding expungement relief and making the process less onerous. While a few states have trended towards automatic expungement for a limited class of criminal records, widespread procedural reform across jurisdictions requires a more robust theoretical footing.

In response to this critique, this Article proposes a new expungement paradigm, focusing on the obligations and constraints of retributive justice. Referring to this lens as "retributive expungement,"...