Wiping the Slate Clean: A Proposal to Expand Ohio's Expungement Statutes to Promote Effective Offender Reintegration

Author:Sara C. Schiavone
Position:Capital University Law School, Juris Doctor candidate 2017; The Ohio State University, summa cum laude, B.A. in Sociology and Criminology, Minor in Legal Foundations of Society. This paper would not have been possible without the invaluable guidance of Professor Scott A. Anderson of Capital University Law School. I would not be the student or...
Pages:509-547
SUMMARY

A history and in-depth look at expungement, and how expungement efectively promote reintegration leading to the overwhelming collateral sanctions ex-offenders experience when living with a criminal record.

 
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WIPING THE SLATE CLEAN: A PROPOSAL TO EXPAND
OHIO’S EXPUNGEMENT STATUTES TO PROMOTE
EFFECTIVE OFFENDER REINTEGRATION
SARA C. SCHIAVONE*
I.!INTRODUCTION
The practice of expunging criminal records has received much attention
over the past several years and for good reason. “An estimated twenty
million Americans, about 8.6 percent of the total adult U.S. population, have
recorded felony conv ictions.1 Estimates indicate that the number of
Americans with misdemeanor convictions is several times greater than that.2
In total, an estimated 70 to 100 million Americans have criminal records.3
Of those persons, 65 million “face significant barriers to basic social and
economic opportunities” as a result of having a criminal record.4 “Today, a
criminal record . . . acts like an indelible scarlet letter.”5 It is this labeling
that “creates a [sharp] social divide between ‘law-abiding citizens’ and
‘criminals’” and hinders reintegration efforts.6
Copyright © 2017, Sara C. Schiavone.
* Capital University Law School, Juris Doctor candidate 2017; The Ohio State University,
summa cum laude, B.A. in Sociology and Criminology, Minor in Legal Foundations of
Society. This paper would not have been possible without the invaluable guidance of
Professor Scott A. Anderson of Capital University Law School. I would not be the student
or person I am today without your unwavering support. Thank you.
1 JAMES B. JACOBS, THE ETERNAL CRIMINAL RECORD 1 (2015) (emphasis omitted).
2 Id.
3 Rebecca Vallas & Sharon Dietrich, One Strike and You’re Out,
CTR. FOR AM. PROGRESS 1 (Dec. 2014), https://cdn.americanprogress.org/wp-content/
uploads/2014/12/VallasCriminalRecordsReport.pdf [https://perma.cc/7ZM9-3STY]. On
January 1, 2016, the United States population was approximately 322.7 million. Robert
Schlesinger, The Size of the U.S. and the World in 2016, U.S. NEWS & WORLD REP. (Jan. 6,
2016, 4:05 PM), http://www.usnews.com/opinion/blogs/robert-schlesinger/articles/2016-01-
05/us-population-in-2016-according-to-census-estimates-322-762-018 [https://perma.cc/
FTM3-NM43].
4 Jeffrey Selbin et al., Unmarked? Criminal Record Clearing and Employment Outcomes
2 (Nov. 10, 2016) (unpublished manuscript), http://ssrn.com/abstract=2486867.
5 Id. Keramet Reiter et al., Should a Shoplifting Conviction Be an Indelible Scarlet
Letter? Not in California, L.A. TIMES (Dec. 28, 2014, 4:00 PM), http://www.latimes.com/
opinion/op-ed/la-oe-selbin-prop-47-criminal-records-20141229-story.html [https://perma.cc
/DJX6-4V9D].
6 JACOBS, supra note 1, at 2.
510 CAPITAL UNIVERSITY LAW REVIEW [45:509
In the United States, 2.3 million people are currently incarcerated
more than any other country in the world.7 Of those 2.3 million, over 95
percent will return to their communities someday.8 Each year 636,000 of
the inmates in federal and state prisons are released, while 11 million
inmates cycle in and out of local jails each year.9 Of the 636,000 inmates
who will be released this year, two-thirds of them will be rearrested and sent
back to prison within three years, while three-quarters will be rearrested and
sent back to prison within five years.10 With the recidivism rate being this
high, policies that decrease recidivism rates and, in turn, increase
reintegration rates are highly so ught-after.11 This Comment proposes one
such policy.
This Comment will first discuss the changing purposes of the criminal
justice system within discussing Ohio’s “reentry plan,which examines
Ohio’s purpose for its own criminal justice system.12 Subsequently, this
Comment examines nationwide strategies, other than expungement, that
attempt to promote successful reintegration.13 This section focuses on
certificates of rehabilitationand executive pardonsand explores why
these programs are ineffective when it comes to promoting ex-offender
reintegration.14 This Comment w ill then discuss expungement in depth.15
Part IV analyzes the history of expungement, policy arguments against and
in support of expungement, and how expungement effectively promotes
reintegration.16 Further, this section will discuss the overwhelming
collateral sanctions ex-offenders experience when living with a criminal
record.17
7 Peter Wagner & Bernadette Rabuy, Mass Incarceration: The Whole Pie 2015, PRISON
POLY INITIATIVE (Dec. 8, 2015), http://www.prisonpolicy.org/reports/pie2015.html [https://
perma.cc/LJN4-R9MQ].
8 Alex Friedmann, Lowering Recidivism Through Family Communication, PRISON LEGAL
NEWS (Apr. 15, 2014), https://www.prisonlegalnews.org/news/2014/apr/15/lowering-
recidivism-through-family-communication [http://perma.cc/GE38-KYLR].
9 Wagner & Rabuy, supra note 7.
10 Press Release, Bureau of Justice Statistics, 3 in 4 Former Prisoners in 30 States Arrested
Within 5 Years of Release (Apr. 22, 2014), http://www.bjs.gov/content/pub/press/
rprts05p0510pr.cfm [https://perma.cc/7H86-ELSC].
11 NATHAN JAMES, CONG. RESEARCH SERV., RL34287, OFFENDER REEN TRY:
CORRECTIONAL STATISTICS, REINTEGRATION INTO THE COMMUNITY, AND RECIDIVISM 24
(June 1, 2011), http://www.nationalcia.org/wp-content/uploads/Correctional-Statistics-
Reintegration -into-the-Community.pdf [https://perma.cc/KTT6-N75L].
12 See infra Part II.
13 See infra Part III.
14 See infra Part III.
15 See infra Part IV.
16 See infra Part IV.
17 See infra Section IV.D.
2017] WIPING THE SLATE CLEAN 511
This Comment then analyzes Ohio’s expungement laws in relation to
national expungement law trends.18 The analysis is based on a fifty-state
survey of state expungem ent statutes and discusses the most prominent
trends in expungement legislation today.19 These trends include those
affecting the eligibility criteria of persons eligible for expungement and
those affecting the due process protections of persons obtaining
expungement.20 Finally, this Comment will propose revisions to Ohio’s
current expungement statute that the Ohio legislature should adopt to further
promote reintegration efforts.21
In sum, this Comment will demonstrate that expungement is the most
effective, yet the most undervalued, strategy in promoting successful ex-
offender reintegration. Even though the Ohio legislature revised its
expungement statute in 2012 and 2014, the statute needs further revision for
expungement to serve as an effective strategy in Ohio’s mission to promote
the successful reentry of ex-offenders back into society.22
II.!REINTEGRATION HAS BECOME A PRIMARY PURPOSE OF THE
CRIMINAL JUSTICE SYSTEM
A.!General History
The purpose of the criminal justice system has varied over time. In the
1950s and 1960s, rehabilitation was the central goal of criminal
punishment.23 Most judges in this era imposed sentences they supposed
would “maximize the likelihood that the defendant [would] voluntarily
desist from future criminal conduct.”24 Although many programs were used
to achieve this goal, “educational, vocational, and psychologically based
programs” were the predominant means used to successfully rehabilitate
prisoners at the end of this era.25
18 See infra Part V.
19 See infra Part V.
20 See infra Part V.
21 See infra Part VI.
22 OHIO REV. CODE ANN. § 2953.32 (West 2012). Revisions made in 2014 and 2016 were
relatively insignificant. The 2014 revision clarified that persons who were convicted of two
misdemeanors of the same offense were still able to apply for expungement. See S.B. 143,
130th Gen. Assemb., Reg. Sess. (Ohio 2014). The 2016 revision concerned the handling of
the applicant’s fingerprints. See S.B. 227, 131st Gen. Assemb., Reg. Sess. (Ohio 2017).
23 JACOBS, supra note 1, at 22021.
24 Id. at 221.
25 2 ENCYCLOPEDIA OF PRISONS & CORRECTIONAL FACILITIES 831 (Mary Bosworth ed.,
2012).

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