TABLE OF CONTENTS INTRODUCTION 3 I. MARKING: THE CRIMINAL RECORDS PROBLEM 9 A. Mass Criminalization and Records 9 B. Collateral Consequences of Criminal Records 14 C. Criminal Records and Employment 17 II. UNMARKING: THE RECORD CLEARING REMEDY 20 A. Judicial Record Clearing Remedies 23 B. Legal Intervention for People with Criminal Records 24 C. Federal Support for Record Clearing Interventions 27 III. A CRIMINAL RECORD CLEARING CLINIC 29 A. Goals and Methods 30 B. Clients and Remedies 32 1. Set Aside and Dismissal 33 2. Felony Reduction 35 C. Record Clearing Process 36 IV. A CRIMINAL RECORD CLEARING STUDY 37 A. Method 38 B. Sample 40 C. Limits 45 V. FINDINGS AND IMPLICATIONS 46 A. Findings 46 1. Average Employment Rates 48 2. Average Real Earnings 49 B. Policy Implications 51 C. Research Implications 55 CONCLUSION 57 APPENDICES 59 A. Research Methods 59 1. Randomized Controlled Trials 60 2. Matching 61 B. Early-Versus-Late Adopters Hypothesis and Modelling 63 C. Other Figures 67 D. Regression Model and Future Research 68 INTRODUCTION
The United States has the highest rate of incarceration in the developed world. (1) Almost seven million Americans are in prison or under correctional supervision. (2) People of color in general and African-Americans in particular are grossly overrepresented in the prison population. (3) Mass incarceration is widely viewed as discriminatory, costly, and inhumane, and facilitating the reentry of people released from prison has become a bipartisan concern. (4)
Mass incarceration and reentry, however, are only the tip of the criminal justice iceberg, obscuring the underlying and broader phenomenon of mass criminalization. (5) The FBI reports that almost 74 million people, or nearly one-third of American adults, have a criminal record, mostly for arrests not leading to a conviction and misdemeanors. (6) Evidence suggests that by the age of twenty-three, almost one-half of all African-American and Latino men, more than one-third of white men, and almost one in eight women have been arrested. (7)
Maintained in court files or as records of arrests and prosecutions ("RAP sheets") in state and federal repositories, criminal records create collateral consequences that often serve as lifelong obstacles to a range of benefits and opportunities. (8) Harvard sociologist Devah Pager and others have documented the particularly harmful effect of criminal records on employment outcomes. (9) Although the specific labor market effects vary across demographic groups and by sectors of the economy, people with criminal records of any kind experience lower employment rates and earnings than people without such records. According to Pager, criminal records "mark" their owners with a negative job credential. (10)
Because criminal records can exist indefinitely, employment barriers can last a lifetime. NYU law professor James Jacobs calls this phenomenon "the eternal criminal record." (11) Further, public access to such records is a uniquely American phenomenon. European countries maintain criminal records, but court files and data in official public repositories are treated as highly personal. Criminal records can only be released to the person with the record, or to the police, prosecutors, or judges, and under limited circumstances. (12) The United States is even more exceptional in making arrest records publicly available. (13)
Policymakers have responded to the durability and accessibility of criminal records with strategies to reduce their collateral consequences, especially their negative impact on employment outcomes. States are updating and expanding a variety of record clearing remedies that mostly predate the modern era in which such records have become ubiquitous and consequential. (14) Some jurisdictions have begun to limit the use of criminal records by employers in the hiring process. Though employers may still conduct criminal background checks toward the end of the hiring process, so-called "ban-the-box" policies typically forbid employers from asking about criminal history in the early stages, including on the job application and during initial interviews. (15)
Lawyers have responded to the criminal records problem by establishing programs to help people obtain record clearing remedies. (16) Such remedies are generally available to people with records of arrests or relatively minor infractions, misdemeanors, and low-level felonies. (17) The goal of record clearing programs is to provide clients with a "clean slate" when seeking employment, licensing, promotions, and other opportunities. (18) The promise of the record clearing intervention is that it will help people with criminal records gain access to more and better jobs, which in turn will reduce social and economic hardship for individuals, families, and society.
While it is clear that people with criminal records face significant labor market barriers, we are just beginning to understand if, how, and for whom interventions such as ban-the-box policies and criminal record clearing improve employment outcomes. In fact, recent evidence suggests that the impact of ban-the-box policies may be mixed. In the absence of screening job applicants based on criminal records, researchers have found that employers may engage in so-called "statistical discrimination," disfavoring minority job applicants relative to white applicants. (19) These findings remind us that interventions can have uncertain and unintended consequences. (20)
Lawyers have developed criminal record clearing programs under the assumption that unmarking reduces barriers to employment for people with criminal records, but we actually know very little about the relationship between record clearing and employment outcomes. (21) It is unlikely that employers make hiring decisions based solely on the presence of a criminal record, independent of other considerations. In addition, a criminal record may interact simultaneously or synergistically with a host of other characteristics that can impact employment opportunities and outcomes, such as race, education, and work history. (22)
To begin to answer whether the record clearing intervention improves employment outcomes for people with criminal records, we conducted a retrospective timeframe study of a random sample of several hundred clients who received legal assistance from the East Bay Community Law Center's Clean Slate Clinic in Alameda County (Oakland), California. We gathered and analyzed clients' employment rates and average real earnings reported to the Social Security Administration before and after assistance by the clinic. By doing this with four cohorts of clients over time, we in effect created treatment groups (those who received the record clearing intervention) and control groups (those who had yet to receive the intervention), which allows us to say something meaningful about employment outcomes related to the intervention.
While there are limits to our data and method, we can report at least two important findings about the relationship between the record clearing intervention and employment outcomes:
First, the record clearing intervention appeared to boost both average employment rates and average earnings. Average employment rates grew in the years after the intervention from roughly 75% to 80%-85%. For reasons that are not clear, employment rates declined slightly three years after the intervention, though they were still above baseline rates. Average real earnings increased slightly during the first year of the intervention and rose rapidly thereafter--within three years of participation, earnings grew from $4,000 below baseline to nearly $2,000 above baseline, a significant magnitude ($6,000) equal to roughly one-third of total average earnings.
Second, participants sought the record clearing remedy after a period of suppressed earnings, in spite of relatively active and stable employment rates. (23) Their formal incomes were very low from the outset, averaging less than 40% of earnings among local residents. In the wake of the early 2000s recession, participants' average annual earnings fell from roughly $20,000 to $18,000. (24) Average earnings increased to over $22,000 leading up to the great recession but plummeted to just over $14,000 in 2009. This precipitous drop during the great recession was much more rapid and sharp for those with criminal records than for all local residents, likely as a result of the fragile labor market for people with criminal records. When controlling for other factors, participants' average real earnings are about 20 percent ($4,000) below their baseline earnings ($18,000) prior to seeking record clearing.
Such evidence supports arguments for expanding the availability of the intervention. The record clearing intervention might be even more impactful if it were available sooner to help prevent declining earnings and more effective if it were available by operation of law or another mechanism that did not put the burden of unmarking on the person with a criminal record. These relatively simple approaches--more programs, earlier intervention, and automatic clearing--could increase the number of people availing themselves of remedies that reduce the negative employment consequences of criminal records.
In Part I of this Article, we describe the criminal records problem in the United States, where tens of millions of people have relatively minor records that serve as a barrier to employment and other opportunities. In Part II, we describe the record clearing intervention, which is designed to overcome the barriers described in Part I. In Part III, we profile the East Bay Community Law Center's Clean Slate Clinic, a record clearing program that served as the site of inquiry for this study. In Part IV, we explain our study methods to measure the impact of the record clearing intervention on employment outcomes. In Part V, we detail our findings and consider their...