What Makes a Good Record Clearance Law?

Download our full report: Recommendations for Automatic Record Clearance Policies in Legalization and Decriminalization Legislation.

Imagine getting caught with a small amount of a controlled substance—let’s say cannabis. It leads to a conviction, and you are sentenced. Years later, when you think this should all be behind you, the conviction surfaces over and over again in background checks for jobs, housing, student loans, and more.

Now imagine that your state legalizes cannabis, and anyone over 21 can walk into a store, make a purchase, and never have to worry about that being considered “criminal” conduct. Nonetheless, your conviction still shows up on background checks and continues to be a barrier that prevents you from moving forward in life—even though if it were to happen now, it wouldn’t be considered a crime.

You’ve heard there’s a way to remove the conviction from your record, but there aren’t any free expungement clinics in your neighborhood. Alone, the legal process looks complicated, requiring a lot of time and money—things you don’t have in excess, partially due to your conviction. It is frustrating and dispiriting. You can’t help but wonder, “How is this fair?”

It isn’t. This situation is far too common, and it’s as unfortunate as it is unnecessary.

We’re hoping that situation becomes less and less common thanks to a solution gaining momentum across the country: automatic record clearance. 

Automatic record clearance is a service that government can and should provide to people impacted by the criminal legal system, instead of making them jump through hoop after hoop. By clearing records automatically—instead of putting the burden on individuals to figure out the process—more people can move forward with their lives after contact with the legal system, giving them a better chance at good jobs, housing, education, and more. 

This is especially relevant in the context of legalization and decriminalization of controlled substances like cannabis. If and when criminalization laws change, government should provide automatic record clearance to repair the harm caused by the original policies. This harm is disproportionately felt by Black, Indigenous, and People of Color (BIPOC), who are several times more likely to be arrested for controlled substances like cannabis than white people.

Automatic record clearance laws can lead to more equitable outcomes—but only if they’re designed and implemented in a way that maximizes impact for the people and communities who need it most.

By clearing records automatically—instead of putting the burden on individuals to figure out the process—more people can move forward with their lives after contact with the legal system, giving them a better chance at good jobs, housing, education, and more. 

We at Code for America have learned a lot about what makes an effective automatic record clearance policy by working side-by-side with advocates, policymakers, and public officials. Over the last four years, we’ve worked with over 20 states to design and implement policies that have cleared a broad range of convictions. We started in California, where our record clearance pilot that began with five counties grew to eventually help counties statewide facilitate the reduction, dismissal, or sealing of 144,000 cannabis-related convictions. 

Since then, we’ve partnered with multiple states, including Connecticut, Delaware, Michigan, and Utah, to design and implement broader automatic record clearance policies that clear a broader range of misdemeanors and felonies.

Through this work, we’ve determined 11 best practices that make record clearance policies highly impactful, equitable, and easier to implement for governments. The factors that make broad automatic record clearance policies effective also apply to policies that focus specifically on convictions related to cannabis or other controlled substances. Our new report, Recommendations for Automatic Record Clearance Policies in Legalization and Decriminalization Legislation, goes into great detail with in-depth explanations and diagrams. 

In short, good record clearance policies consider the government process for clearing records, factors that make as many people eligible as possible, and who should have access to and jurisdiction over cleared records after the process is complete.

Considering the record clearance process

We strongly advise against relying on the traditional “petition-based” systems that are in place in most states—meaning systems where people have to apply to have their record cleared. Several studies and our own estimates show that less than 10% of eligible people actually clear their records through petition-based systems—in other words, these systems likely leave 90% of eligible people behind. The petition process is inherently inequitable because it privileges those who already have access to the resources, education, money, or attorneys needed to navigate it. 

Less than 10% of eligible people actually clear their records through petition-based systems—in other words, these systems likely leave 90% of eligible people behind.

With that in mind, we have a few best practices for structuring an automatic process. For example, a state-level agency (like a criminal history repository or an administrative office of the courts) should lead and coordinate the automatic process, beginning by determining which records are eligible, sealing them from public view, and then coordinating with other state and local agencies to ensure they do the same. This creates uniformity and accountability, instead of the inconsistency that can arise from dozens of local agencies acting separately. We also strongly recommend that legislation place firm deadlines for the major milestones in the implementation process—otherwise the process can drag on and on, leaving people with eligible records confused, frustrated, and locked out of opportunities they should have access to.

Expanding eligibility

We believe that automatic record clearance policies in legalization and decriminalization legislation should help as many people as possible. At a bare minimum, no one should have a criminal record for conduct that can no longer be criminally charged—we call this the “Green Standard” for automatic record clearance. 

To get there, legislation should be specific about which conviction types are eligible for record clearance by citing specific statutes and criminal codes, and leaving no room for interpretation. Likewise, we believe that legalization and decriminalization legislation should not include disqualifying conditions or waiting periods. These recommendations help maximize the number of people who benefit from automatic record clearance, and they make policies much easier for governments to implement.

Automatic record clearance policies in legalization and decriminalization legislation should help as many people as possible.

Access to and jurisdiction over cleared records

People living with convictions should be able to access confidential documentation about their criminal case histories (whether their records are cleared or not)—and there is a big opportunity for government to offer this as a person-centered, trauma-informed digital service. We recommend that courts maintain confidential documentation of records that have been affected by record clearance rather than having all traces of them completely destroyed. That might seem counterintuitive, but being able to access confidential documentation about your own cleared convictions can be crucial in equitable licensing and grant programs, in immigration proceedings, or for correcting a background check.

A record clearance policy—even if it’s automatic—won’t do much good if its eligibility is narrow or its process is so complex that government agencies can’t implement it on a meaningful timeline. 

A record clearance policy—even if it’s automatic—won’t do much good if its eligibility is narrow or its process is so complex that government agencies can’t implement it on a meaningful timeline.

What automatic record clearance can do

When it’s done right, automatic record clearance is a game changer for people whose lives have been touched by the criminal legal system.

Imagine again that you were caught with cannabis years ago and charged with possessing a controlled substance. The conviction has surfaced over and over again in background checks for jobs, housing, student loans, and more. But now your state has legalized cannabis—and they’ve also implemented an automatic record clearance law that cleared your record, informed you of the change, and let you know where you can still access your sealed record if you need it.

For the first time, when you apply for a job or an apartment or an educational program, your past conviction isn’t the first thing people see about you. You’re treated more equitably, and you have better access to the things you need to thrive. We don’t need to imagine this future any longer. Every state has the tools and systems needed for automatic record clearance—and we’re here to help make it happen.

 

Interested in learning more? Download our full report: Recommendations for Automatic Record Clearance Policies in Legalization and Decriminalization Legislation.

Are you a government practitioner working on an automatic record clearance policy? Get in touch to explore partnership opportunities.