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 The Hidden Costs of Reentry: Understanding the Barriers to Removing a Criminal Record

May 10, 2022
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NIJ hosted a webinar to discuss under-researched aspects of reentry: expungement of criminal records and the impact of those records. This webinar includes a presentation of ongoing research projects examining the impact of legal aid for expungement and past research projects studying the accuracy and permanency of criminal records and the prevalence of collateral consequences of conviction. A Q&A session will conclude this webinar.
  
  
          Transcript
DARYL FOX: Good afternoon, everyone, and welcome to today's webinar, The Hidden Costs of Reentry: Understanding the Barriers to Removing a Criminal Record, hosted by the National Institute of Justice (NIJ). At this time, it's my distinct pleasure to introduce Jennifer Scherer, Acting Director of the National Institute of Justice, for some welcoming remarks. Jennifer?

JENNIFER SCHERER: Thank you, Daryl. Welcome to the webinar on The Hidden Costs of Reentry. I'd like to begin by introducing our panelists for today's presentation. First, Nicholas Read, Deputy Director for the National Reentry Resource Center. Next, Dr. James Greiner, Professor of Public Law and Faculty Director at the Access to Justice Lab, Harvard Law School. And, finally, Dr. Sarah Lageson, Associate Professor at the School of Criminal Justice, Rutgers University-Newark. I'd also like to give a big thanks to Eric Martin and Dr. Marie Garcia, Senior Social Science Analysts and Advisors here at NIJ, for organizing today's event. As many of you know, NIJ is the research, evaluation, and development agency of the U.S. Department of Justice. We are dedicated to improving knowledge and understanding of crime and justice issues through the lens of science. We accomplish our mission through the “listen, learn, and inform” model: We listen to the needs of the field; learn ways to meet those needs by funding research, evaluation, and development projects; and then inform the field about what we learned. Through events like today's webinar, NIJ can use this model to listen to and learn from panelists and then inform our constituents. Today's webinar will focus on hidden costs, those collateral consequences that can pose a barrier to individuals successfully reentering into their communities. We understand the impact a criminal record has on employment and housing options. We also know that not having a job and stable housing increase the likelihood of recidivism. We recognize that looking at these impacts these conditions have on reentry have tended to be overlooked and underresearched. That's why NIJ is providing funding for research and program evaluation to study the impact these barriers have to reentry. Today's discussion will examine how we can address these barriers and how we can eliminate or at least reduce those hidden costs of reentry. The panel has done outstanding work on this topic, and I'm glad NIJ could provide a forum to share this research. Thank you for participating in the webinar. Over to you, Eric.

ERIC MARTIN: Thank you, Dr. Scherer. And thank you for taking the time out of your busy schedule to provide those opening remarks. Good afternoon, everybody. Good morning to those of you joining us from the West Coast. I'm just here to act as a brief moderator, if you will, for the webinar. I'm mostly going to be handling the Q&A. And just to reiterate what Daryl said, we're going to be holding a question and answer period at the end, but feel free to use that Q&A box as questions pop into your head. If they belong to everybody in the panel, you don't need to attribute who the question is, but if you have a specific question from a specific presentation, it will help us to direct those questions accordingly. First up, we have Dr. Jim Greiner, and he's going to be talking about a current NIJ research project on expungement. And then he'll be followed by Dr. Sarah Lageson from her past NIJ work on the permanency of a criminal record. And then, finally, Mr. Nicholas Read will come in and discuss his work with the National Reentry Resource Council and their database, the National Inventory of Collateral Consequences of Conviction, that they host and make available to the public, which actually came from previous NIJ work with the American Bar Association. So without further ado, Dr. Greiner, if you want to start us off, please.

JAMES GREINER: Thank you so much, Eric, and thanks for the opportunity to be here. And, also, thanks to NIJ for funding this research. I'm going to talk primarily about a randomized controlled trial (RCT) that the Access to Justice Lab, with several partners, has been running to try to figure out whether a particular type of criminal justice record-clearing in fact produces the benefits that proponents of record-clearing generally hope that it will, that I hope that it will. And as a way to introduce the RCT, the particular study that we're running, I thought I'd step back and talk about criminal justice record-clearing more generally, to set the stage and to pose some very broad questions about whether this particular remedy as a way of facilitating reentry is worth it, or  what are the costs and barriers that we face in making it effective.

So this is what we'll do. I'll give a general overview of what criminal justice record-clearing is and throw some distinctions. Provide an overview of our particular study, which is a large-scale field operation and therefore is slow. We're in the middle of it right now and I can provide some very preliminary results about what we're seeing thus far.

So to start out with, what is criminal justice record-clearing? This is a definition that I'm proposing for the purposes of, at least, my presentation, and it has several aspects to it. I'm going to walk through them one by one, but basically, to begin, criminal justice record-clearing is an information-suppression remedy or an information-suppression effort. And characterizing it that way demonstrates that there really are a host of questions in the modern information age about whether it is possible and advisable to suppress information—maybe, rarely, to destroy it, but more likely to surpress information—in order to try to benefit the subject of that information.

So to begin with, the attempt to suppress or destroy information is very difficult to do in the information age. I think you're going to hear some more about the barriers or the difficulties with this suppression of access or destruction of information later, so I won't go into it a great deal here except to say that these visuals, Google, Mugshots.com, et cetera, all of these publicly available or private vendors, sources of information, are very difficult to clear from criminal justice information. To limit access to or destroy information, there actually are several ways that one can go about this. One that has recently been enacted in a bipartisan way in Pennsylvania is to do this via an automatic clean slate law, which basically instructs the judiciary to suppress access to information on certain types of criminal records. Far more common—to my knowledge, every state in the United States requires an individual to file a new court proceeding, a petition. It could be a civil court proceeding. It could be in the original criminal case that gave rise to the conviction or the charge, in case there was no conviction, et cetera. But it requires individual action. And then there's another distinction, which I alluded to earlier, which is to limit access. You're trying to limit access. You're trying to destroy. True destruction of information is extremely rare. More likely, what states try to do is to limit access to it and lock it in a box so that only certain authorized individuals or agencies are allowed to access the information. But you can immediately see that's going to raise questions of its own.

If we are going to try to limit access to or destroy information, one thing we might want to keep an eye on—actually, excuse me. There's a slide skipped. There we go. This particular study is going to look at petition-based limitation of access, the study that we're running at the Access to Justice lab. I just wanted to flag that upfront. If we are going to try to limit access to or to destroy information, we should keep in mind that this information that we're attempting to limit access to or destroy is often, not always, factually accurate. And that will raise a host of questions that we should deal with upfront. One is, is it a good idea, in a theoretical sense, to allow government destruction or suppression of truthful or factually accurate information about a key government function? And as one of the costs of that, I just went on Google and highlighted an article about policing and the fact that that article and, in fact, the entire effort to oversee or to study policing in the criminal justice system, would be made substantially more difficult by the suppression or the destruction of factually accurate information about police behavior, prosecutor behavior, and court behavior. Second thing is that what is the legal basis upon which we might try to compel certain actors, especially certain private actors, to remove factually accurate information from their records? So far, the legal theory that has been employed in some lawsuits (we have no judicial ruling that I'm aware of) is the Fair Credit Reporting Act, and that requires certain holders of information to follow reasonable procedures to ensure maximum possible accuracy. And so you have to understand or you have to come up with a particular theory of what accuracy means to suggest that there may be a legal duty to remove factually accurate information.

Moving on. With factually accurate information about an individual's "record," criminal record—you hear this phrase a lot, "We're going to do something to your criminal record." My view is, there is no such thing as a person's criminal record. That just doesn't exist. Instead what exists are packets and pieces of information held by different government agencies, accumulated at different times, some of which are factually nonoverlapping. The agencies each have their own policies and legal procedures to respond to requests or orders to suppress or destroy information. They often act inconsistently. Their computer systems aren't designed to talk with each other and the whole thing is a tremendous mess. And since our criminal justice system is disaggregated, this is often, you know, five or six or seven or eight criminal justice agencies that hold such records.

To give an example of something that we found in our study, this is a redacted version of one of our participant's criminal justice records. And these are two different sources of information in Kansas where our study is taking place. And these are a set of criminal justice events associated with this participant. And each line in this little mini spreadsheet demonstrates one event. The point of the red is to show which events occurred in one of the record systems but not the other. Both of these record systems were supposed to hold all of the information. We can see that the red shows that the information is nonoverlapping as to most of the criminal justice events. The yellow shows that there is a significant inconsistency in one of them, in that one of the sources doesn't have one of the charges associated with this. And this just demonstrates the difficulty of defining even what a "criminal justice record" is, much less limiting access to it or destroying the information in it. Finally—and this is really the subject of our particular study—the idea is that record-clearing will benefit the subject of that information, the individual; we certainly hope that that's true. And there is one reasonable empirical study that suggests that that might be the case with respect to one aspect that record-clearing is supposed to benefit, and that is employment. There is a key assumption in that study that I can talk about in the question and answer period if that's of interest. However, there are other questions. There is research that suggests that we might want to be careful in this area. So, in particular, the idea of automatic, extremely public, and broad record-clearing at a sudden moment, the way state legislation might effectuate, bears a disturbing resemblance to Ban the Box efforts. And there is some strong empirical evaluation of Ban the Box efforts, generally, that suggests that the results of Ban the Box efforts are mixed and, in some cases, quite depressing. And, again, I can talk some more about that in the question and answer period with respect to employment prospects. Furthermore, the benefits of petition-based record-clearing, such as the one that's available in most states and studied in our study, require a host of assumptions, such as that people can actually petition, that there are jobs and housing units available to folks with records and who might want them, and that recidivism is going to be an issue despite the fact that eligibility typically has very long waiting periods with no association in the criminal justice system. You wonder whether criminal justice record-clearing is even necessary to facilitate an avoidance of recidivism for people who have shown a real, demonstrated ability to do it on their own.

So this raises the question, what is record-clearing for? And, typically, there are these three purposes that are cited—recidivism, employment, housing —and to that extent, we can find out with strong empirical study whether, in fact, criminal justice record-clearing will benefit on those dimensions. And so what we're trying to do with a randomized controlled trial—and that's what I'm going to quickly run through here—is: What does our randomized controlled trial look like and what is it doing? Unfortunately, we don't have hard empirical results to show you yet, because quality research via randomized study is slow and it takes a long time to develop results. But here is the basic idea. This is the basic outline of the study. It involves a partnership with Kansas Legal Services (KLS), which is oversubscribed. There are too many people coming to KLS to request legal services for petition-based expungement in Kansas. In the face of that oversubscription, it is ethical and, in some cases, a good idea to use randomization to decide which of too many individuals will receive traditional attorney-client services and which will be referred to existing self-help materials. And so, basically, we do community outreach engagement to let everybody know that the services are available. Then a potential client reaches out to Kansas Legal Services to make sure that they are eligible in various ways, meaning primarily that they have an item on a criminal record somewhere that is eligible for record-clearing. Then there's study intake and consent and authorization. The consent is informed consent that that discloses the risks, the benefits, expectations, ability to opt out, et cetera, as determined by Harvard's IRB, Institutional Review Board, which has approved the study. We ask the participants to sign authorizations to allow us to obtain administrative records, including s a power of attorney for accessing particular tax and employment records. We do a baseline survey to get a basic idea of some information about the status of the individual as they come in. Their employment status, their housing security, and, in particular, the reasons why they're interested in a record-clearing remedy. We randomize them either to traditional attorney-client relationship or to existing self-help materials. And then we refer the individuals to the particular treatment to which they have been randomized. And then those legal services proceed. We then do either limited-scope services or full-scope services. Full-scope is the word for a traditional attorney-client relationship, meaning the lawyer will interview you and get your papers together and file your petition. And then we do surveys every three weeks for two years. The surveys cover, in particular, housing security, employment status, and overall happiness, and, again, identity, the idea that perhaps people are seeking criminal justice record-clearing because they just don't think that they are the person anymore that is reflected within those records. So these are the representations of the various topics that are covered in our surveys. For some of these topics, there are validated survey instruments available, and, of course, we use those; for others, in particular, housing security, we have to come up with our own. And then we do administrative data collection, which will continue for five years after enrollment. Again, partially, to the generosity of NIJ. And the administrative data collection includes some information on housing security, Department of Labor and Department of Revenue to assess income. And then recidivism, which, again, we think will be quite low, regardless of criminal justice record-clearing. But that's what we want to check, is whether there's a difference in recidivism based on record-clearing.

What we're seeing so far—and, again, this is a long-term study. We are still in the study follow-up period. We actually are closing randomization shortly. Within weeks, we will be closing randomization and then you can see the follow-up periods are for two years for surveys and for a longer time for administrative records. So this is just the nature of the beast when you're doing credible randomization-based field research. Several results we can talk about so far. First of all (which is not disclosed in the slide), there is an access to justice barrier, there's a serious access to justice problem, with petition-based expungement. About 70% to 75% of participants who are assigned to full-scope representation are able to achieve some record-clearing within six to seven months. Almost all of them are able to completely eliminate their records to the extent of the remedy availability in Kansas, which again we can talk about how far that goes. But only about 12% or 13% of those assigned self-help are able to do so. So there really is a serious access to justice problem in the area. The other results that we can see so far are mostly about what sorts of folks seek this remedy. They're typically employed. There's a lot of job turnover. We had not expected quite at the level of labor force participation and income in our study participants. As I mentioned, the records are quite a challenge in terms of their inconsistencies, in terms of their nonoverlapping nature, and in terms of the different ways that different agencies within the same state government respond to court directives to remove or suppress access to information. A good thing that gives us hope that we are going to be able to produce some quality information: We have an astonishingly high survey response rate for our field operation. Usually, I do a little happy dance when I see survey operations get response rates of above 60%. That's just a very, very strong response rate. And as I mentioned, I break into song. In this case, the response rate is around 88% or 89% with no discernable difference in the treatment condition. So folks who are in the self-help condition are responding, as are folks who are in the full attorney response rate. So I'm happy to answer lots of questions. And for that, I will pass it on. The next speaker, I believe, is Sarah.

SARAH LAGESON: Thanks, Jim. That was such a lovely setup for everything I'm going to talk about today, which is about accuracy and permanency of criminal records in the digital age. So I'll talk about how records are created and disseminated. And I'm going to zero in on that same point that was made, that there is no such thing as one criminal record, which complicates our advocacy and our research around criminal record clearance. I'm going to show results from an NIJ study that was funded a couple of years ago (and we're still working hard at cleaning data and publishing on that) trying to measure the accuracy and error of criminal records, as they're held by the state and as those records are disseminated across third parties. And then I'll close by talking about some of the consequences of this data infrastructure that we're working with and some of the theoretical and policy implications.

So, again, no such thing as one criminal record. This study and some other studies I've worked on really thinks about four main types of criminal record data coming from the public sector, from the government. So there's law enforcement records that are often published online as a public notification tool such as a county jail roster. These are all screenshots from New York, as just one example, but each state does this in various ways. Courts most often will publish electronic court dockets as a sort of First Amendment or public access move, usually rooted in state case law. Correction facilities will post inmate rosters as well. And then the criminal record repository exists in every state—usually connected to the state police. And in New York, it’s the division of Criminal Justice Services. And this is where you'd see the “rap sheet,” or the compiled or computerized criminal history. So all of these sources are producing data every day. Millions and millions of records being produced. And, of course, they're being produced for different reasons and different rationales, which leads to this unevenness in data quality and just the way that data are prepared and shared.

As the data is released into the public sector, we've identified two main pathways. The first is when a person is arrested and that arrest data is put into some sort of public roster, which are then crawled by third party websites, reposted to places like Mugshots.com or to people search websites, and then those search results are often indexed by Google search. So a lot of my work is focused the harms that come to people when these records that were created for a law enforcement function or a public notification function are then transformed into an internet data commodity and attached to a person's name. The other main source, of course, is the courts, where charge data is compiled into an electronic court docket, created into a bulk dataset. Those are sold by local jurisdictions, or they're scraped or FOIA'd. They're merged with other forms of personal or consumer and public record data, and then they're resold to background check companies or, again, to the data broker system.

When you talk with agencies who are dealing with how to compile criminal record data, you know, I've learned that a lot of this is done at a very local level, and agencies are often struggling with trying to modernize their data infrastructure but they have limited resources to do so. They are often trying to maintain an institutional control over how their data is structured and created, but they're often forced to rely on third-party software to do that. Of course, responding to community requests and Freedom of Information Act requests, and then efforts to try to synthesize and coordinate date across agencies, is  very crucial when we're thinking about record clearance, but there isn't a lot of data infrastructure in place for the ability to do that. So what we get is not only the difficulties that Jim has identified in trying to clear a government's version of a record, but we have data that are being created for internal government operations that are being made public and actually being transformed into a data commodity. And this, again, leads to the error problems where public records are often showing old cases, outdated cases, or they're misleading cases, there's mismatch with people's names and birthdates, or somebody's record is tied to somebody else's alias, and so it gets very messy very quick. But if you think more broadly, you know, we need to think about all these fundamental changes to the purpose and uses of criminal record data when we're thinking about the context of how we're going to manage and clear and expunge that data.

There is some legal precedent for why all these data are made public, which of course gives us the proverbial Pandora's Box problem with expungement. The first is that the First Amendment protects republication of information that has been produced by the government. You cannot sue a third party or a newspaper for publishing information that has been released by government. This includes arrests that didn't lead to charges, and it includes charges and arrests that were sealed or expunged. And the rationale there is that the historical accuracy of the arrest still exists, even if the arrest was sealed later or the criminal charges sealed later. And so people really have to confront two versions of reality, where their arrest may be a newsworthy event that's published on a blog or on a website or on the local newspaper, but then the legal version of their criminal record might have that same charge sealed through a sealing remedy. We do have the Fair Credit Reporting Act, but that is regulation that covers only consumer reporting agencies, so not websites like Google or platforms that are actually protected by Section 230. And data brokers are not liable under the Fair Credit Reporting Act as well, though there's a couple of cases working their way through the federal courts that might change that in the future.

Another reason for the messiness of criminal record data is where in state law or what sources of law are dictating the release or the public nature of data. So here we have those four types of criminal record data again. In the end—the percents here just show what percentage of states make this data public by law, and law enforcement and court records are widely available as a public record. Usually the rationale, though, is that this is supposed to be for a watchdog function, so the data should really be about police operations or court operations. We don't want secret arrests or closed court. But the way the data are produced means that much more of the information is actually about the people who are arrested or charged with crimes, and the personal information about people far outweighs the information we get about things like judicial discretion, prosecutorial discretion, plea bargains, prison conditions, or racial disparities in arrests. We do get a lot of information about the height, weight, birthdate, and home address of the people who were arrested. The difference here is that the state criminal record or the rap sheet or the computerized criminal history system record (CCH), in only about half of the country does a state deem that a public record. Typically, to get access to what might be the most accurate criminal record, you're going to need fingerprinting. You're going to have to pay a fee or get the consent of the record subject. So it's treated very differently in state law, even though it is sort of the most complete record that exists.

Here’s, again, some screenshots of all the different places that records can travel once they are released. So everything from the clickbait websites to these public records searches, often called people search engines, where you can pay $20 to get an "unofficial background check" about somebody. A lot of these companies really sell their product in terms of volumes. In the bottom left corner, you'll see these instant background check companies promising hundreds of millions of records available to the consumer.

The data does start with the state though. This is an analysis that was published in *Law and Social Inquiry* that shows the number of arrest, charging, and incarceration records that are produced by states. So the N and the percentage here show the number states that affirmatively post this information to their websites. We actually looked at the websites that are run by either the largest county in a state or statewide. And we just merged that with administrative data, but you can see the numbers get really big really fast. So we've got almost 100 million criminal court records that are being put online each year by state and local court systems, arrests over 50 million.

So what's good and what's bad about where we are? Well, this is public data, which you'd argue is a good. We want to be able to watchdog for research journals and advocacy. It could be helpful for these purposes because it includes PIIs, personally identifiable information, so it's usable data. There are apps and services that offer victim notifications. So, for instance, if somebody's harmed you and they're incarcerated, you can get an app to alert you if that person has been released from jail or prison or transferred to another facility. Public defenders, family members can use the public nature of this information to track down their loved ones or their clients. So there are some good uses. What gets tricky, though, is the local production of this data means that it is very uneven in what it looks like and how usable it really is. You could argue it's a bad thing that there's PIIs when we think about somebody having to cope with stigma or discrimination based on a criminal record that can last forever once it's on Google. The data are easily duplicated. They''ve become quite profitable in the personal data ecosystem. But the data are often stale, and expungement is really crucial here because when we think about all the different data brokers and data vendors and third parties that are scraping and purchasing this data, you know, they're really getting cross-sectional slices of data. And when records are expunged or sealed—or even if somebody’s cases is being processed and they're going through the system—that cross-sectional grab isn't going to have the final case disposition. And often the records are very event-focused, because they're often coming from the police and the courts. So we're not getting the full picture of a person. And so the records are often very decontextualized and very stigmatizing, especially when they're reaggregated by a nongovernmental entity that's just scraping all the data possible and dumping it into a person's profile rather than perhaps the rap sheet that might have the case dispositions.

Data brokers also advertise their business model based on quantities. So here's some lines from some of the big players here, advertising, for instance, data diversity, and they have over two billion criminal records in their database. One might show that this is also perhaps a mass criminalization, a problem that these many records exist at all. But this is how they compete with one another, is they say, "We have more data than the competitors." And it's very valuable because it's cheap, it's identifiable. These data can be used for consumer purposes, such as targeting advertising for predatory loans, or some sort of product that's going to be targeted towards low-income people. These are marketable data for purposes outside of criminal justice processing, like risk management, thinking about continuous background checking and the institutionalization of a background screening in general in the employment sector in the U.S. Data brokers so far have been a pretty much unregulated industry. They're not subject to Fair Credit Reporting Act oversight, because they are not a consumer reporting agency that's actually furnishing a report that's going to be used for something like an employment decision. So data aggregation, these people search websites such as post data with a disclaimer that they're not a credit reporting agency. They're all out there and they're kind of operating in this weird gray area. And, you know, these records are clickbait; I think that there's sort of an entertainment value and a voyeurism that leads people to have a lot of interest in these data that perpetuates their durability on somebody's Google search results.

And the PIIs that make this data even more valuable to data brokers include all sorts of biometric information, height, weight, race, skin color, tattoos, scars, and then things like full date of birth, sometimes a full home address. So the chart here is just showing you the different types of agencies that produce criminal record data and the types of PIIs that they include. Again, this is an analysis of the actual data that is put on to government-run websites. So as you can see, there's some variation here, but a tendency to give a lot of personal information.

So I'm going to talk for just a couple of minutes about our study looking at accuracy and error. It's really just asking two basic questions with a lot of complicated data. How reliable are digital criminal record data both in the governmental sources and in private sector sources? And where do records come from, and where do they go? So we talk in the abstract about how criminal records travel around the internet, and they're picked up by different data brokers. But we don't know the ground truth or the granular level of what these data look like. So for the study, we have 178 people from two states who requested from their state a copy of their private-facing rap sheets or their CCH. So this is the version that law enforcement can see and that a person can see about themselves, but the public does not have access to it. We looked at every single arrest and charge, coded them into a database, and then we started doing data matching. So we had the CCHs, and then we ran everyone's name through a Fair Credit Reporting Act (FCRA) compliant vendor who subscribes to three data brokers. So we have three different raw data extracts that a credit reporting agency would rely on. And then we ran everyone's name through a non-FCRA-compliant people search engine. So this is really the things that you see online like whitepages.com style, where you can look anybody up, you're not supposed to use that information for decision-making. We did automated matching when we could, based on case numbers, dates, statutes, and charges. And then we did a lot of hand matching, where we had to really look through each event and say, "Does this seem like they're trying to talk about the same criminal history event or not?" And then the analysis identified a lot of orphan records. These are records that exist on the data broker side or exist on the internet, but they don't exist on the CCH, so they're not part of the governmental record. Here's a screenshot of one person's CCH from New Jersey. And the highlighted portions here show you the types of things we could use for automated matching when we had good information about a case, about the date, about the case numbers. Here's from the same person's CCH where we did not have good information because, as you can see, these are from 1987 and 1990, and these show up as pending courts; we don't have a case disposition here. And then, again, a third or fourth arrest on this person's CCH gave us a little bit more information where we could do some kind of hand matching if the automated matching didn't quite line up.

The totals here show you how many charges–we were looking just at criminal charges here across the states. And these are just the raw numbers: not the matches, but how many of these charge events are showing up at our sources. So we've got like 2,600 across the two states in the CCH, 2,700 showing up in the data brokers FCRA-compliant, and then in the non-FCRA-compliant, a much lower number, only about 650 charges show up.

Now, if we combine them, here we're showing—these are the matches, right? So this is the overlap from where a charge starts in the CCH. And then it shows up on a data broker side, and then it shows up on the internet side. Once we had those matches, though, we started to find all these other data that were showing up in this labeled FCRA here, that's the actual vendors that supply the background check accompanying their data, and then the non-FCRA. And we see a bunch of data that shows up there. And so I'll just show you one chart to try to illustrate this. If you look all the way to the right, where there's all three dots with the line through it, that shows that only 5% of the time all three of our sources are showing the same information for a criminal history event. If you're looking just at the official background check company against the CCH, it's about 26% of the time. So it's just one way to think about accuracy: How much we can trust these records, and then how much we can manage them.

The types of offenses that are showing up in our orphan records go from criminal, drug, and driving related, but then there's also some very serious charges that show up, including robbery, burglary, sexual assault.

And this is just that same participant who's CCH I showed earlier with the pending court. So as you can see, if you look just at his convictions, he's got two convictions, and then both of those convictions show up on the FCRA side, and then we have all of these orphan records. And we did a lot of deep dives on this participant's data, and what we ended up figuring out was that the background check company was pulling data from the state court system; the state court system had entered a bunch of aliases for this participant. And it turns out somebody else in the state system had used the same alias. And so the data were tied to both aliases and then showing up on both of those people's background checks that have been sold by this company. And so things got really tough for this participant because he was getting background checks. And all of these serious charges were showing up that weren't his. He'd go to his state record, it wasn't on there. He tried to file for an expungement which he was eligible for for the two convictions, but having these two open cases from 1987 and 1990 meant his petition was denied. So he was told by the DA you're stuck with this for the rest of your life.

So to close, I think, you know, the consequences are clear for the mechanics of expungement, and how states are going to be forced to really overhaul how they do criminal record data if they want to do expungement well, how we need different privacy protections around how the data leaks out in other places. But for people that are coping with it, you know, many people told me, “I just sort of opt out, like, I tried to find ways to avoid a Google search for myself or to have to deal with a background check company.” So there's a couple quotes here, but people talking about, you know, actually opting out of the labor force to avoid the institutionalization of their record. And, you know, that sort of contradicts everything that we know about recidivism and the value of employment.

And then there's a digital avoidance. So this is a lot of quotes from people saying, you know, “I don't look at it. I I know that there's things out there on my background check. I know there's stuff out there on the internet, but I don't want to see it, it's too much to cope with.” And so when we see these really low uptake rates for expungement, I think this is part of the mechanism, that it's too overwhelming for people.

Now, Jim talked a little bit about this study from Prescott and Starr that shows there's some perhaps benefits to expungement, but very, very low uptake. And, you know, the Collateral Consequences Resource Center has great information about the, enormous amount of legislative activity that's happening around expungement. And I think expungement does work for what it's intended for, which is these regulated sectors, employment, housing, perhaps department of health screenings. But you can't automate expungement compliance by third parties. And I think also—and I'm glad Jim's study is looking at this—a lot of the people I speak to say, it's not just about employment, it is about this identity shift, or just being able to have a way to leverage a clear record against the internet's version and try to maintain your digital identity.

So I think that some ways to address these issues is to give people free access to their own criminal record; we had to pay $40 to get people a copy of their own record, most participants had never seen their record until our study. We need to think about restricting preconviction data or adding technical barriers to automated scraping and bulk grabs of data. Regulating people search and data vendors under the Fair Credit Reporting Act, I think, is a step in the right direction. And in general, this is a moment to think about creating less records. We're spending a lot of time and a lot of energy now in trying to seal or destroy records and moving forward is the way to create less. And I will stop there, thank you.

NICHOLAS READ: I guess that leaves me to bring up the rear here, a thousand and one thoughts in my head. So I'll try to present what I have prepared and not get too distracted by the amazing information presented before me. But as Eric mentioned, my name is Nicholas Read, I am the deputy director for the National Reentry Resource Center. And today, I want to share a little bit of information about two of the—we'll call them “clearinghouses” for generality, that the National Reentry Resource Center operates in the space of criminal records clearance and collateral consequences associated with criminal records.

First, just to start, I want to acknowledge and thank the sponsor for my particular part of the presentation today, and that's the U.S. Department of Justice's Office of Justice Programs, Bureau of Justice Assistance, so a counterpart of NIJ. BJA's mission is to provide leadership and services in grant administration and criminal justice policy development in order to support state, local, and tribal justice strategies to achieve safer communities. So in service of this mission, BJA works with communities, governments, and nonprofit organizations to reduce crime, recidivism, and unnecessary confinement, and to promote a safe and fair criminal justice system.

As I mentioned, I am here representing the National Reentry Resource Center funded and sponsored by the Bureau of Justice Assistance, really set up to be the nation's primary source of information and guidance in reentry. Just for groundwork here, by reentry we mean the process of individuals leaving periods of incarceration, whether that'd be in prisons and jails, both juveniles and adults, and the process of exiting incarceration and reentering or reintegrating back into the community. A nuanced process, not necessarily cut and dried or unidirectional, but really the center is designed to support all aspects of reentry. The National Reentry Resource Center, or NRRC, was established by the Second Chance Act, which is a federal act that authorizes grants to government agencies and nonprofit organizations to provide reentry services. These can include employment assistance, substance use treatment, housing, family programming, mentoring, victim supports, and any range of other services that are designed to support an individual's reintegration back into the community. The funding also supports corrections and supervision practices that are aimed at reducing recidivism. So the National Reentry Resource Center is operated by the American Institutes for Research, where I am housed, in partnership with BJA, as mentioned, as well as the Office of Juvenile Justice and Delinquency Prevention, or OJJDP, as well as a cohort of training and technical assistance providers working directly with Second Chance Act grantees. And these are our partners at the American Institute for Research: the CSG (Council of State Governments) Justice Center, the Vera Institute of Justice, and RTI International. So altogether, what the center does is really seek to advance the knowledge base around reentry, working with the partners we've just mentioned, as well as researchers and partners across the space, really looking to develop tools and resources and highlight existing tools and resources, all designed to assist jurisdictions in implementing evidence-based and data-driven strategies to reduce recidivism. The center focuses on information exchange. So we have a website with news and resources in every kind of format you can imagine, whether that's briefs and reports, we have funding opportunities and events, it’s really a one-stop shop for all information around reentry. A large portion of what we do is, as I mentioned, the clearinghouses I'll talk about here today. We have the Clean Slate Clearinghouse and the National Inventory of Collateral Consequences of Conviction. We also support BJA in the Public Safety Risk Assessment Clearinghouse. And that's designed to disseminate evidence-based information on how to use risk assessments effectively and properly build safe communities. So that's a third portion of our clearinghouse work that I won't focus on here today. And finally, a large part of the mission of the NRRC is to directly provide information and assist people returning, those who are reentering communities and those working with reentrants. We maintain a list of all of the Second Chance Act grants around the country so that individuals who are looking for information can connect with local service providers that may be able to support reentry, as well as receive assistance or information directly from the NRRC through our helpline, which is email- and phone-based. Yes, again, just trying to address the needs of the reentry field and those working with those returning.

So I mentioned that's housed at the American Institutes for Research, invite you to learn more about AIR at air.org but we'll not take up time there.

All right, so a couple of things, and segues nicely with what we heard previously. So BJA, through the National Reentry Resource Center, operates—the first onw I'll talk about here is the Clean Slate Clearinghouse. So Clean Slate Clearinghouse was originally funded by both the Department of Justice and the Department of Labor, and it was really set up to support juvenile justice and adult criminal record clearance around the country. It continues to serve three main purposes and that's providing people with criminal records and non-legal service providers with accurate and up-to-date information on record clearance and other mitigation strategies. It also provides contact information for legal service providers around the country in all 50 states and territories. And this includes legal aid organizations, bar associations, and other organizations that engage in record clearance work, provided strictly for informational purposes. There's no endorsement of any one provider there. But, again, trying to proliferate information for individuals who are interested in record clearance, as we've heard today, which is no easy process nor quick. And then the other parts of the website are designed to provide information to legal service providers on the most up-to-date state statutes and regulations that impact record clearance and the different mechanisms available within each state and the offenses that record clearance is available for.

And then overall we try to supplement all of the state information with a wealth of resources, whether that be research reports that have been mentioned here today—actually, ironically enough, Prescott and Starr pops up quite a few times—but, again, a one-stop shop looking at criminal records clearance. There are many partners that we're actively engaging within this space, some have been mentioned, I think Sarah mentioned the Collateral Consequences Resource Center and the Restoration of Rights Project, which is doing a lot of work in the criminal records clearance space, as well as the Clean Slate Initiative, which we hosted a panel with last week [and] who is actively working on clean slate policies, which Jim mentioned earlier, which are those automatic processes for individuals to have their records cleared from the public space automatically. So there's lots of developing information around that particular mechanism for criminal records clearance. I wanted to give a quick plug for the Clean Slate Clearinghouse in light of what was presented earlier today; we're actively building the partner group in support of that information and are always looking for the most up-to-date resources and information. I know two places I'll be circling back with after today's presentation to continue to provide information there. And definitely invite members in the field that are working in this space to visit the site, connect with us to provide information, or if you're seeking information around criminal records clearance, to certainly let us know.

The main crux of what I wanted to focus on today is another one of our clearinghouses, not technically a clearinghouse by name but serves as this similar function, and that is the National Inventory of Collateral Consequences of Conviction, or the NICCC. So as we've heard a little bit about today, collateral consequences are legal and regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment, business, and occupational licensing, housing, voting, education, and many other rights, benefits, and opportunities. Some collateral consequences are designed to serve legitimate public safety or regulatory functions, such as keeping firearms out of the hands of people convicted of violent offenses. Other consequences are directly related to a particular crime, such as registration requirements for sex offenders or driver's license restrictions for people convicted of serious traffic offenses. But there are some collateral consequences that apply without regard to the relationship between the crime and the opportunities that are being restricted, such as revoking a business license after a conviction of any felony. Frequently, we see that consequences are also applied without consideration for the amount of time that has passed between conviction and the opportunity that's being sought or the person's rehabilitation efforts since the conviction. As I mentioned, we've hosted some panels related to both clean slate and collateral consequences. And I'll touch on that here in a moment. But really, as some of those working in the field have pointed out, these are continuing consequences of conviction that persist oftentimes long after an individual has spent any time incarcerated and, as was mentioned here, can almost feel like or actually be lifetime consequences of criminal conviction.

So as Eric mentioned earlier, the NICCC was started back in 2007 with the National Institute of Justice working hand-in-hand with the American Bar Association. And then in 2012, the NICCC was launched and is now housed, as I mentioned, within the National Reentry Resource Center. The main purpose of the inventory is to serve as an online, fully searchable database that identifies and categorizes all the statutes and regulations that impose collateral consequences in all 50 states, the federal system, as well as D.C., the U.S. Virgin Islands, and Puerto Rico.

So what are we talking about when we talk about an inventory? On the NICCC page, there are currently more than 40,000 different consequences across the country, in states and legal code, that impose some level of collateral consequences on individuals convicted of crimes. For those interested, you can go into the database search by certain jurisdictions. You can search by consequence type, keywords, offense type, discretion, duration; it's really designed to be a database for all of the different consequences that exist.

And we've heard mentioned quite a bit today, particularly with an eye towards housing and employment are probably two areas that we hear the most about in terms of the consequences or the impact of criminal records on individuals, but really what the inventory showcases is how widespread the impact of a criminal record can be on individuals. You'll see here that there are consequences in the database that impact everything from civic participation to government benefits, health and well-being, income, loans and grants, judicial rights; a broad swath of everyday aspects of individuals’ lives are impacted by collateral consequences. Just to give a little context of that, in the panel last week, we featured some individuals looking at particular areas of collateral consequences. So we looked at the impact on voting rights and civic participation in Florida. And the efforts that were designed to provide individuals convicted of crimes with their voting rights and restoring those rights. We looked at the impact on employment and occupational licensing in Ohio and the difficulties individuals face when they do criminal background checks to get a job, or many jobs require specialized licensing that has to be done, whether that's health care or certain trades. And oftentimes, the ability to obtain those licenses in the presence of a criminal record is impacted by state statutes and regulations. And then we also did explore the barriers to housing with a group in New Jersey that's really actively looking to raise awareness around the proliferation of these consequences and the barriers for individuals with criminal records.

The NRRC and the NICCC serves no advocacy role, it's simply informational purposes. So just a little bit by the numbers in case people are curious. We were having a conversation actually with NIJ recently about, what do collateral consequences really look like? What are the impacts that exist? So just a quick dive into some of them. For example, there are more than 1,300 different consequences across all the states or across many or most of the states that are broadly related to housing and residency. So this could be simple, you know, the requirement to conduct background checks for housing, limitations on where individuals with criminal records can live, either geographically or around victims per se, or around children. There are things that can jeopardize continued leases if a criminal record comes to light. One thing I thought that was interesting is that it can even limit or deny housing on public college campuses for students with criminal records. So again, it's a broad landscape of consequences that impact housing. Similarly, if you look at education, again, there's 1,300 consequences related to education in schools, whether that's background checks to attend certain schools, eligibility to receive certain funding in support of continued education, ability to enroll in public schools, in colleges, and, drifting into the trades and vocation, some limitations to being able to enroll in training courses, in vocational training, because of a criminal record. And the last one I'll highlight is taking a look at an area that I don't think we hear a ton about, and that's around government benefits and looking at the concept of food insecurity, as the inventory includes more than 580 consequences that relate to access or the ability to receive public assistance. So this could range from background checks in order to apply for public assistance, whether it's TANF, or SNAP, or other assistance. And in some cases, criminal records can lead to ineligibility for these or the ability to receive increases for public assistance. So I mentioned these as just a handful of the consequences that exist in the system within the inventory itself.

For each of the 40,000 plus, we do provide all the details—as I mentioned, the offenses, the keywords, the legal determinations, the statutory references, and probably most important to many people since this is informational is a direct link to the state statutes and regulations themselves, so that people can learn more about the specifics. Very important to note that the NICCC is not designed to provide legal advice. It's strictly for informational purposes.

So I mentioned that there's over 40,000 consequences now; our team is currently going through a review period for all 40,000 of those and an audit, if you will, just to ensure that everything that's currently in the database is accurate and up to date. What we also do is annually review the inventory for new consequences that have come on the books as well as consequences that have been repealed. We do that each year based on state legislative sessions. We're starting to dive into the 2022 sessions and keeping track of the different statutes and regulations that exist in each state, so that we can have an eye towards what within the inventory needs to be reviewed and updated and potentially removed.

I will just conclude by saying in addition to all of the state information we have, we do have a pretty extensive library of resources related to collateral consequences. So these are state and national studies, standards, policies, and model legislation. We've got state consequence inventories, journal articles, reports, videos, podcasts, you name it. And we're always looking to build that library and have some spots to turn as we follow the research that was discussed today and include some of that. But we're continually looking for the most up-to-date information we can provide around collateral consequences and the impact on individuals within the NICCC. So if there's stuff you're working on, we would love to hear about it, we'd love to connect with you. I want to make sure we have plenty of time to address questions that I see have already started to come in. I want to thank NIJ for the opportunity to share the work that the Bureau of Justice Assistance is supporting through the National Reentry Resource Center.

ERIC MARTIN: Thank you, Nicholas. And thank you all the presenters. That was an excellent webinar and very informative. I learned a lot, and I thought I was pretty familiar with all the presentations before. But I appreciate all your time. So as Nicholas said, we do have a few questions coming in already. And I will go ahead and start. One relatively easy one. Yes, we will make the proceeds from this webinar publicly available, including a recording. You can go to NIJ.ojp.gov. And if you Google the webinar title it should come up, or there's a search feature in NIJ.ojp.gov as well. The first question that came in is for Jim, regarding your study. Why did your research team choose Kansas to locate the RCT?

JAMES GREINER: So we need to find willing research partners that have a strong field operation that they can implement in order to generate participants, and who are interested in this type of research. This is something of an unusual area for a legal services office. Traditional legal aid, legal services focus on government benefits, housing, and family law. And so this is not a standard area for legal services offices. And we needed legal services because in order to assess the effect of criminal justice record clearing, we needed to find a way to effectively randomize whether somebody got criminal justice record clearing, a way that was both legal and moral and ethical. And so in order to do that, we needed a legal services office, an oversubscribed partner, someone who had more people who were seeking assistance than they had the capacity to provide. So there had to be some triage mechanism, therefore, making randomization ethical. We tried to do this in one other state in addition to Kansas and then run it in two sites. The other state was unable to generate the number of people who were interested in the petition-based expungement that we were pursuing. And so we ended up with just Kansas, a very strong field operation because of a very strong research partner in Kansas Legal Services. Of course on this, you know, nudge to Eric, with additional funding we'd love to duplicate this in many, many, many different states. But, of course, we are grateful for pursuing this one in Kansas.

ERIC MARTIN: Thank you, Jim. There's a couple more questions that I think can probably go to all panelists. One, if I can paraphrase the questioner, deals with vacating convictions, and the person who asked the question referenced a Florida human trafficking law. How does your research relate to records where it's no longer accurate? The conviction was in error, so to speak. And you can even expand this out beyond the Florida law to exonerations. I know that this issue comes up in the wrongful conviction space quite often. So if any one of you want to address it or all of you, go ahead.

SARAH LAGESON: I think that the Second Circuit Martin v. Hearst Corporation case really speaks to this because it was a person who was arrested and charged and then the charges were dropped. And the remedy that they got in Connecticut state law was really supposed to make it so the person had never been arrested in terms of the legal status. And so the plaintiff there sued a newspaper for keeping her arrest information online, and the court disagreed. So I think there's a narrow legal question here about when information is considered public record, and therefore republishable by the press or by third parties, versus how to manage the criminal record information that's in all the state agencies. But I think the pragmatic question is that if a person gets an expungement, the burden really is on them to serve that expungement order to every entity that might have that record, whether it's a public source or a private source, and then there's sort of at the discretion of that agency or that entity. And we talked about access to justice a bit. Expungement is a civil remedy, and you don't get a public defender for an expungement, even if you are lucky enough to get legal aid for an expungement. You have to get a legal aid provider that's well versed in tech and able to provide services to help you serve an expungement order that vacates—or whatever that the case disposition is—to serve that court paperwork to all these entities. In New Jersey, we have plenty of people in the study who got an expungement, they got the letter from the state police that said, you've got these expunged, we updated your CCH. And then they got this list of, like, a hundred different places where they were supposed to send a certified copy of the order and became overwhelmed really quickly.

JAMES GREINER: Just to add briefly on that. There are different categories of remedies that are available for people who have criminal records. One of them, which is the subject of this, is information suppression or destruction, where we try to suppress or destruct information so it's no longer available to at least certain classes of people. Another one is adding information. And that's very different. And that's, you know, a pardon, or some sort of acknowledgement from the official system that the criminal record is no longer correct in some way. And one of the things I think that could use more research as an academic—I'm supposed to say it's under-researched, but it could use some more thinking—is under what circumstances (especially in the modern information age, given the difficulties of suppressing access to or destroying information) it might be better to try to add information. You know, the traditional (for the first amendment) adage that the answer to speech is more speech, not to suppress speech, and you maybe could use the same thing. Again, I think this is an area that could deserve a bunch more research.

ERIC MARTIN: Thank you. The next question is for Nicholas. Could you describe the differences of collateral consequences in how they affect male versus female individuals as they return to their communities?

NICHOLAS READ: Eric, that's a very good question. I'll start by saying that the inventory itself doesn't distinguish as to who the impact is on, nor am I familiar with too many (I'm not a legal expert in this space, to say the least) consequences that do differ for men versus women. I think it would more fall in traditional senses of activity, differences in activities, or jobs or, you know, family responsibilities that sometimes differ between men and women. Completely, you know, general examples, could be things like access to family support benefits, whether that's SNAP or TANF. And data may support that that more disproportionately impacts women than men. There may be certain jobs, again, that are more prevalently held by males than females. That could be disproportionate impact. But as far as I know, there's nothing within most of the state statutes that specifically designate that this only applies to men or women. So it'd be completely situational in terms of any differences or disparities.

ERIC MARTIN: Okay. The next question. Sorry, there's a lot coming in and I'm trying to take them not only in order but also get different perspectives and different panelists talking. So if I don't get your question, I apologize. But we have the contact information of all the panelists as well. This one, I'm going to just read to make sure I get it right: "How can we use expungement and other supports mentioned in this presentation to reinforce that reentering citizens have completed their responsibilities to the state?" The impression of the person who gave the question was, “It feels like returning citizens are often primarily viewed as potential recidivists.” And this, of course, is to all panelists.

SARAH LAGESON: I do think that one of the arguments for Clean Slate is this proportionality argument which is, you know, how long should a punishment last? And I think a lot of the work that I shared reinforces this point that even these minor things—or even if it is are more serious conviction—that the punishment in terms of the public stigmatization is really lifelong. And so, you know, the philosophy behind automating expungement and not putting that burden on a petitioner to go ask the state, once again to give them this remedy after they've already completed their legal sentence is to automate it. Now, you know, we pointed out why that might be difficult, but I do think that the questioner's point is well taken by the advocates who are pushing for Clean Slate, which is this idea that punishment has to end at a certain point, and this is one, perhaps, small way, but one way to start to put limits on it.

JAMES GREINER: The only thing I'd add here is that certainly education and additional information is one way to try to go here; it's hard to know how effective it would be. I would say that at least based on some research, all is not as hopeless as it might appear. That's not to say that it's not hopeless and there certainly are, you know, an enormous number of collateral consequences that the panelists have pointed out. There is a fair amount of research supporting the idea that at least employers will discount or essentially disregard criminal records that are old—that many employers at least get the idea that something that happened a long time ago is not really reflective of the way a person is now. That is not true of all employers by any stretch, but there is a fair amount of research suggesting that many employers are already discounting events that are old. What we don't have is great research saying how long ago, and whether the economic benefits are furthered by criminal justice record clearing of some kind or whether the fact that if employers are discounting, whether there's not much work left for a criminal justice record clearing to do on the employment side. That still would leave open the housing side, you know, the recidivism, the identity interests of all, but it just would point out that there is some research suggesting employers are already doing some of this.

ERIC MARTIN: This next question, we kind of hit on some of it. It relates to clean slate laws and, Sarah, I think your presentation is referenced but of course, anybody could jump in. The person with the question is referencing the New York Clean Slate rules. And in their review of those rules, they noticed that it didn't apply to all jobs. Specifically, there were certain ones that were excluded that had statutory access to the fingerprint file. The question is, "Wouldn't this almost exacerbate the difficulty for the individuals with records because it applies to only certain instances and their criminal record, so to speak, is not necessarily clean?" I hope I did a good job paraphrasing that.

SARAH LAGESON: I think it's a good question. It's very timely because Clean Slate was almost passed in the New York budget last week. And I think it's actually emblematic of a bigger policy question, like, where Clean Slate should happen and, as I showed you, there's all these different sources of records. And one of the sources of records at the state level is sometimes, like in the New York example, attached to the occupational licensing boards or attached to agencies that are doing background screening in the public sector, and they have access to these rap sheets where the records would perhaps not be sealed. I've heard about other states where researchers have gotten bulk court data, and then there's a little “e” next to a record that is expunged in terms of public access but, of course, the researcher can still access it. And so there's many, many, many questions tied to expungement that are sometimes not answered in a policy and can also slow down policy. I think, for the researchers in the room, there should be concern that recidivism research is going to be difficult to do if you don't have access to data over time because those records are being cleared. So, I mean, I think it's a fair question, and I think it may lead to confusion; I think, you know, it's a state-by-state problem, but one way to get around it is to really delineate who has access and why and in what context. And I think, big picture, giving people access to their own information would help people contend with a lot of this because they would know what agencies can see what information, they can know what they can see. And we've really not done a good job of giving people access to their own records. So we should think of a criminal record as a health record or as a credit report, these other institutional records that really shape people's life outcomes that we have statutory allowances to make sure you can get a copy of and that there's privacy protections on it. We just don't do that with a criminal record, we treat it really differently. And in New York, you know, there's two versions of the bill—should it go through the courts, or should it go through the DCJS? And I think it's yet to know, where the state's going to land.

ERIC MARTIN: Thank you. We have a question for Jim and then a question for Nicholas. So, Jim, you're up and Nicholas you're on deck. For Jim, "Were there any clear and consistent application compliance burdens when it came to expungement, such as pay a filing fee or settle court fines, if you could talk about that, please?”

JAMES GREINER: Yeah, we actually hope to have a short small article on this that we're gearing up to submit to the *Kansas Law Review,* in response to some rumblings or some comments we heard among members of the bar saying there didn't need to be automatic clean slate in Kansas analogous to Pennsylvania or to now New York, because it was pretty easy to file for an expungement in Kansas, and so folks could just do it on their own. We went and took a hard look at the process and we found some pretty astonishing things. If you go to the courts, the judiciary’s own website saying here's how you file, you get a form that among other things requires you to write down the badge number and the name of the officer that arrested you to initiate the offense. Now, if you put that together with the fact that Kansas law typically demands a 10-year waiting period (in some cases a little bit shorter) for expungement petitions, that's a pretty strong information barrier. We actually had a law student who co-authored this piece call the prosecutor's office and a law enforcement agency to ask how we would get that information. And the the short answer was, they really didn't know how you would generate the badge number of the individual. So then we call the courts back and we said, "Well, how are people filing this if it says that they have to have this information on the petition?" And the answer is the courts don't require it. Wenever look at that and we just process the petition. But it's hard to see how that's very helpful when the form itself that is required to be filed says you must have all this information. So that's one example that we have been scratching our heads about.

Of course, there are the other things that the questioner mentioned, there is the filing fee, you know, the biggest barrier itself, and then the filing fee has to be paid with respect to each petition, and each criminal justice incident is itself subject to different petition. In other words, you can't file one petition and list here are eight items on my record that are all available for expungement. If there are eight items on the record, then there have to be eight petitions, each of which is subject to its own filing fee. So those are the sort of standard ones that we see everywhere. In addition, maybe the biggest one of all is just the long waiting period about how long you have to wait after you have fully paid your debt to society before you can file.

ERIC MARTIN: All right. So Nicholas, this next question is for you. What can attorneys do to ensure that their clients are well-informed about the specific collateral consequences that affect them from the very beginning of the criminal justice process?

NICHOLAS READ: That's a great question. I mean, selfish plug, I would say definitely utilize the information available on the NICCC. Most likely, this would be, lawyers working in particular states. Everything is state-specific or federal crime and territory, so, starting there and just checking to see, in a given state for specific offenses, what are the collateral consequences that are associated with that? It could be very general, like what are the consequences for anybody convicted of a felony in Missouri, or it could be specific crimes that they could look into, offenses and convictions related to specific offenses—or it could be concerns particularly like what are the employment-based consequences that may exist? So really, the inventory does give users a lot of opportunities to dig into the possibilities that might exist. And if I can read into the question, I do think it makes a lot of sense to at least understand them as early as possible. We've started to talk about all of the different things that people can do with that information. But these are laws on the books and then, you know, understanding them and understanding how you might go about mitigating the consequences is obviously going to be a pathway towards helping somebody's client overcome them. And then, I would also say you could reach out to legal service providers, you know, legal aid societies in every state as an amalgamation of lawyers working in the space. Individual lawyers may not have a lot of experience with collateral consequences or record clearance. But oftentimes state legal aid societies will have divisions associated with collateral consequences or records clearance, and it could be a great way for individual lawyers to work with a larger body, to really understand the consequences and then how they'll impact their individual clients.

ERIC MARTIN: Okay. We have about five minutes left. I think time for probably one more question and a very practical question, and this is to all panelists. I live in New Jersey and I'm in need of expunging misinformation on my record. How do I go about doing this? This may be difficult, I acknowledge.

SARAH LAGESON: Well...

ERIC MARTIN: But if there's any tidbits or helpful hints that we could share, that'd be great.

SARAH LAGESON: We had a lot of people in our city that have problems with their record, and one thing we did with our NIJ grant was work with legal aid providers. So I learned a lot about how you actually go about doing this. And feel free to email me if you want me to send you some links or some phone numbers. There is some great legal aid in New Jersey that could help with this, but the first thing I would do is go to the court that has the final disposition for your case. And if you have probation as part of your case, go to the probation office and get the final disposition, because if there's a mistake, the New Jersey State Police that has your rap sheet or your CCH is going to need documentation from the courts and probation that your case is closed or that something was entered in error. Sometimes, the error itself is in the court record or on the probation records, so sometimes, there's a little bit of work that needs to be done with them to have them update their data and then give you a new disposition paperwork that you can come bring in. So, it takes work. It takes going in person, asking for things. Sometimes having to pay for records, but that’s sort of step one. If you don't have a copy of your CCH, then New Jersey State Police have instructions on their website for how you can get that. So, you're going to want to look at the CCH, and really just make sure everything's matching up. And if you are interetsed in filing an expungement, you can now do that online on the New Jersey Court website. Unless, if it was a marijuana conviction, it should be automatically sealed; recreational seal started today in New Jersey. And everything else that's a petition-based expungement you can do on your own. But I would reach out to some of our partners who can help you with that. So, feel free to send me a note and I can get you connected.

NICHOLAS READ: I'll just add...

ERIC MARTIN: I did find—oh, go ahead, Nicholas. Sorry.

NICHOLAS READ: Just quickly. Sarah mentioned a lot of this, but the Collateral Consequences Resource Center has profiles for each state and I just did a quick search of New Jersey and it talked all about the things that Sarah just mentioned. So, if you're in a different state and you're curious as to what mechanisms might be available in addition to the NICCC and Clean Slate Clearinghouse, I would recommend the Collateral Consequences Resource Center and their state profiles, looking at just that. So, I just wanted to throw that in there.

ERIC MARTIN: I did find one more unanswered question and we technically have two more minutes. So I think, we could wrap this up and make everybody happy. This is to all panelists as well. Do any of you have thoughts on the Marijuana Opportunity Reinvestment and Expungement (MORE) Act? And I think it's okay if we don't, but....

SARAH LAGESON: Well, I think...

ERIC MARTIN: I don't want to stop anybody, but...

SARAH LAGESON: It's worth pointing out that marijuana legalization has actually ushered in expungement reform in places where it may have been stalled out. That's certainly the case in New Jersey, that automatic relief was considered years ago as soon as marijuana was on the table. And I think it highlights a lot of the proportionality and the justice and the remedy that we think is in the philosophy of expungement. And so I'd be curious if someone is tracking this, but if a state is considering marijuana legalization, I think that that's the time for the expungement advocates to get in there and try to make sure that any corresponding expungement due to that is going to happen in a broad level and, hopefully, include more people. And I think we're just at the beginning of what that's going to look like.

JAMES GREINER: Just a quick addition, looking at a different type of remedy over an information suppression, adding information, if a particular class of offense is no longer criminal, which is what marijuana legalization has done. And certainly that effort is one of the many components to decriminalize and reduce the size of the footprint of the criminal justice system generally, then maybe adding information saying this conduct would no longer be criminal in the modern era might be an additional way to go. And it might pose fewer barriers in information suppression or destruction, it's hard to know. Just throwing it out there and saying this is something that you could do. And if it might have the same kind of effect as a pardon or some kind of legal court-based acknowledgement of an exoneration. It isn't that the particular factual events didn't occur, it's just that we now think that this is no longer a criminal justice matter or even a legal matter. That there's just nothing wrong with this conduct, and that might have some of the same effects.

ERIC MARTIN: Okay. Well, with that, now the time is approaching 2:30. I'd like to thank all our panelists for sharing their thoughts. It was an extremely informative set of presentations. I'd like to thank Dr. Jennifer Scherer for those insightful introductory remarks and, of course, I want to thank all of you participants who are with us this afternoon as we delved into this important issue. If you are interested in more information on this webinar or reentery in general, I definitely would recommend you go to the NIJ website and then also our colleagues at BJA. This webinar was hosted to support their activities for Second Chance Month. They have a whole set of webinars, podcasts, a number of products to illuminate issues associated with reentry writ large. Thank you for your time and I hope you all have a great day.
    
  
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Date Published: May 10, 2022
    
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