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Expungement of Criminal Convictions: an Empirical Study

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Expungement of Criminal Convictions: an Empirical Study University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2020 Expungement of Criminal Convictions: An Empirical Study J.J. Prescott University of Michigan Law School, [email protected] Sonja B. Starr University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/2165 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Criminal Law Commons, Labor and Employment Law Commons, and the Law and Society Commons Recommended Citation Prescott, J.J. "Expungement of Criminal Convictions: An Empirical Study." Sonja B. Starr, co-author. Harv. L. Rev. 133, no. 8 (2020): 2460-555. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. VOLUME 133 JUNE 2020 NUMBER 8 © 2020 by The Harvard Law Review Association ARTICLE EXPUNGEMENT OF CRIMINAL CONVICTIONS: AN EMPIRICAL STUDY J.J. Prescott & Sonja B. Starr INTRODUCTION ............................................................................................................................. 2461 I. EXPUNGEMENT POLICIES AND RELATED RESEARCH ................................................ 2468 A. The Economic and Legal Aftermath of a Criminal Conviction ................................ 2468 B. Sealing of Criminal Records: The Legal and Policy Landscape .............................. 2472 C. Research Questions and Existing Empirical Research on Expungement ............... 2476 D. Our Empirical Setting and Data ................................................................................. 2480 II. THE UPTAKE GAP: WHO SEEKS AND RECEIVES EXPUNGEMENTS?...................... 2486 A. Estimating Uptake Rates............................................................................................... 2488 B. Who Receives Expungements? ..................................................................................... 2493 C. What Explains the Uptake Gap? .................................................................................. 2501 1. Lack of Information .................................................................................................. 2502 2. Administrative Hassle and Time Constraints ........................................................ 2502 3. Fees and Costs ............................................................................................................ 2504 4. Distrust and Fear of the Criminal Justice System ............................................... 2504 5. Lack of Access to Counsel ......................................................................................... 2505 6. Insufficient Motivation to Pursue Expungement .................................................. 2506 III. RECIDIVISM OUTCOMES ................................................................................................... 2510 A. Recidivism Among Expungement Recipients ............................................................. 2511 B. Interpretation and Implications ................................................................................... 2518 IV. EMPLOYMENT OUTCOMES ............................................................................................... 2523 A. Employment and Wage Trajectories for Expungement Recipients ........................... 2524 B. Interpretation: Expungement Effect, Motivation, or Mean Regression? ................ 2533 V. OTHER OBJECTIONS TO EXPUNGEMENT LAWS .......................................................... 2543 A. General Deterrence......................................................................................................... 2544 B. Statistical Discrimination or Stereotyping................................................................. 2548 CONCLUSION ................................................................................................................................. 2550 2460 2020] EXPUNGEMENT OF CRIMINAL CONVICTIONS 2461 EXPUNGEMENT OF CRIMINAL CONVICTIONS: AN EMPIRICAL STUDY J.J. Prescott and Sonja B. Starr∗ Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge in legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to de-identified data that overcome that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable nonrecipients in Michigan. We offer three key sets of empirical findings. First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility. Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.” Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population — a finding that defuses a common public- safety objection to expungement laws. Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within one year, wages go up by over 22% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and minimally employed people finding steadier or higher-paying work. INTRODUCTION oday, somewhere between 19 and 24 million Americans have felony Tconviction records,1 and an unknown — but presumably much ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Henry King Ransom Professor of Law and Henry M. Butzel Professor of Law, respectively, and Co-Directors of the Empirical Legal Studies Center, University of Michigan Law School. The authors gratefully acknowledge the generous financial support of the National Science Foundation (Award No. SES 1023737) and the assistance of several Michigan state agencies in obtaining data: the State Police; the Workforce Development Agency; the Unemployment Insurance Agency; the Department of Technology, Management and Budget; and the State Court Administrative Office. We are also grateful to Miriam Aukerman, Jeff Morenoff, and David Harding for early advising, to conference and workshop participants at the NBER Summer Institute, Harvard Law School, the University of Michigan, the Center for American Progress, and the Michigan District Judges Association for helpful feedback, to colleagues at Michigan and elsewhere for fruitful discussions, and to all the experts whose interviews and emails are cited herein for sharing their insights. We are indebted to Margaret Love and David Schlussel for their advice and support on this project, and we thank the many research assistants who contributed during the project’s ten-year history, including Patrick Balke, Grady Bridges, Gabriella D’Agostini, David Do, Haley Dutch, Jonathan Edelman, Nathaniel Givens, Seth Kingery, Rami Krispin, Elena Malik, German Marquez Alcala, Charlotte McEwen, Chris Pryby, Chelsea Rinnig, Zehra Siddiqui, and especially Simmon Kim for his extensive efforts. 1 See The Economic Impacts of the 2020 Census and Business Uses of Federal Data: Hear- ing Before the J. Econ. Comm., 116th Cong. 12 (2019) (statement of Nicholas Eberstadt, Henry Wendt Chair in Political Economy, American Enterprise Institute); Sarah K.S. Shannon et al., The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948–2010, 54 DEMOGRAPHY 1795, 1806 (2017). When arrests are added, 75 million Americans — a third of adults — have criminal records. See FBI, NOVEMBER 2018 NEXT 2462 HARVARD LAW REVIEW [Vol. 133:2460 larger — number have misdemeanor conviction records.2 In recent years, policymakers, civil rights advocates, and scholars have paid in- creasing attention to the substantial barriers to employment,3 housing,4 and social integration5 that these records can pose, not to mention the hundreds of collateral legal consequences that typically flow from crim- inal convictions, such as restrictions on public-benefits eligibility and occupational licensing.6 Taken together, these hurdles have been de- scribed as amounting to a “new civil death,”7 and on a collective scale, this phenomenon magnifies racial disparities in employment and other outcomes due to disparities in the distribution of criminal records. For all these reasons, a core part of this century’s emergent criminal justice reform movement has been a search for effective policy levers to miti- gate the reentry barriers faced by people with criminal records. This effort is picking up steam in virtually every corner of the country, with two- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– GENERATION IDENTIFICATION (NGI) SYSTEM FACT SHEET 1 (2018), https://www.fbi.gov/file- repository/ngi-monthly-fact-sheet/view [https://perma.cc/5KQJ-UBL5]. 2 No studies currently document the total number of Americans with misdemeanor convictions. However, statistics collected between 2008 and 2016 indicate that misdemeanors routinely make up over 70% of a state’s criminal caseload. Megan Stevenson & Sandra Mayson, The Scale of Misde- meanor Justice, 98 B.U. L. REV. 731, 746
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