Years ago, when Tony Bibbs was looking for landscaping work in Rochester, New York, he put in applications at dozens of small operations, always writing “will discuss in an interview” in response to the question about having a criminal record. Between the ages of 17 and 32, he was, he said, “running in and out of jail” on various charges of robbery and burglary. He was released for the last time in 1991. After being turned away for employment again and again, he passed out landscaper-for-hire flyers at local churches to advertise his services. Bibbs, now 63, has been cobbling together a livelihood from odd jobs ever since. Without a regular employer, he doesn’t have savings or an opportunity to retire.
“I was young, I was wild. I wasn’t thinking about the future,” says Bibbs, who does advocacy work with the Center for Community Alternatives, a nonprofit that supports people impacted by the prison system. “I did do my time, I did do the probations and paroles and all the things. I just feel that once I completed them, I gave you all what you wanted from me, then you all need to at least give me an opportunity to have it better in life. Right now, I’m digging holes to make a living.”
Bibbs is among the 2.3 million New York residents that have a criminal record and just a few of the activists pushing legislators to pass the Clean Slate Act. Sponsored by state senator Zellnor Myrie, whose Brooklyn district includes Brownsville, Crown Heights and East Flatbush, the bill would establish a two-tier process that automatically seals a criminal record one year after sentencing for a misdemeanor and three years after a felony. The record would be expunged after five years or seven years for a misdemeanor or felony, respectively, as long as there are no new convictions. Those on parole, probation or the registry of sex offenders are not eligible. The waiting period doesn’t include incarceration time.More fromA New Transit Map for Philadelphia Aims to Draw More RidersCan Cities Fill the Swimming Pool Equity Gap?The Great Lakes Region Is Not a ‘Climate Haven’What Becomes of California Housing Policy After the Recall Election
The progressive lawmakers supporting the bill, who are hoping for a vote before the end of the legislative session in June, promote expungement in part as a means of boosting post-pandemic hiring in communities that have been hard hit by the economic impact of Covid-19.
“We cannot have true economic recovery in the state of if we’re telling 2.3 million New Yorkers, ‘Sorry, we don’t want your service,’” Myrie said. “I view this very much as an economic boon and a recovery tool, especially in the age of Covid. When I’m out in my community and I’m talking to folks on the street, people who are trying to get engaged, they say, ‘I don’t want to be involved in criminal activity — what I want is a job.’ Not having that opportunity because of what happened in the past is, to me, a very retrograde approach to inclusivity and economic activity.”
Similar legislation is in place in Utah, Pennsylvania and Michigan; on May 18, the Connecticut state senate passed a clean slate bill that still requires approval by the House of Representatives and Governor Ned Lamont. Eligibility differs from state to state. In Michigan, for instance, misdemeanors are automatically expunged after seven years and only non-violent felony convictions can be expunged after ten years. Under Connecticut’s bill, people convicted of sex offenses or crimes of domestic or family violence are ineligible.
Promoters of these measures say that having a record can serve as perpetual punishment for past misdeeds, dimming housing, educational and professional opportunities. That can steer previously incarcerated people into a cycle of poverty and potential re-incarceration.
“It’s a life sentence that nobody tells you about,” said Katie Schaffer, director of advocacy at the Center for Community Alternatives and a steering committee member of Clean Slate NY, an advocacy coalition. “It affects people who are already economically disenfranchised. It takes them that much longer to become financially stable and support their families. It’s all a direct consequence of mass incarceration.”
According to a University of Michigan Law School study published last June in the Harvard Law Review, people whose criminal records were expunged earned 22% more than those who still had criminal records a year after expungement. The study also found that people whose records are expunged have “extremely low” subsequent rates of re-offending.
That report joins several others pointing to the effectiveness and safety of clean slate laws. A 2020 study by the Brennan Center for Justice, a liberal think tank, found that annual earnings for people who serve time in prison are reduced by an average of 52% after incarceration. Over a lifetime, that can amount to as much as a $484,400 loss in earnings. According to a report by the Data Collective for Justice at John Jay College, approximately two-thirds of people with records have not had a new conviction in ten years.
Pennsylvania’s clean slate legislation went into effect in 2019. It’s too early to measure long-term impact, but there are signs pointing toward the trends documented in the Michigan Law School study. “There has been a drop in the recidivism rate given that now people can increase their earning potential and pursue career paths they previously couldn’t because of their conviction,” said Brandon Flood, secretary of the Pennsylvania Board of Pardons. The law was developed in part to divert the heavy traffic of cases in the courts and expedite the lengthy clerical process of sealing a record. (Expungement still requires a pardon process.) In October, the state expanded its clean slate law, eliminating outstanding court fines and costs, which had long been required to be settled before a record could be sealed.
Still, foes of the New York bill warn that expungement is a public safety risk, especially at a time when violent crime is ticking up after a long decline. In a hearing before the Senate Codes Committee in early May, Bronx District Attorney Darcel Clark applauded the goals of clean slate, but said the bill goes overboard by making violent crimes eligible for automatic sealing and expungement. She suggested “reasonable” measures, like limiting expungeable crimes to most misdemeanors and low-level nonviolent felonies and including the discretion of the courts on violent felony convictions.
Anthony Palumbo, a former prosecutor and Republican state senator whose district covers eastern Long Island, also opposes the bill. “The fact that this bill does not exclude violent felony offenses or allow some level of discretion to a court is a big problem,” he said. “There should always be a second chance in life, but not everyone’s entitled to that in such a short fashion, in such an immediate fashion. From my experience in dealing with victims, with defendants and as a D.A., there needs to be a balance there, and there’s absolutely no balance in this bill.”
His views, he said, are informed by his experience as the son of a homicide detective, and he cited murder and rape cases he’s seen in his career to condemn the notion that those offenders’ records could be sealed. The New York bill proposes that felony charges — even violent felonies — would be sealed and then expunged after waiting periods, as long as there are no new convictions and the individual is not on parole or probation or the registry of sex offenders. Palumbo holds up Michigan’s clean slate law, which excludes some violent felonies from the sealing/expunging guidelines, as an example of a more reasonable measure.
Palumbo also said that application-based expungements are a safer approach. But a 2020 study published in the Michigan Law review found that only 6.5% of people who met the legal requirements for expungement obtained it — a gap that author Colleen Chien of the Santa Clara University School of Law describes as a “paper prison.” Many people aren’t aware of so-called “second chance” opportunities, or cannot afford the fees involved in pursuing expungement. And it’s a daunting prospect for those who are hesitant to get involved with the bureaucracy of the legal system because of prior experience.
“There’s a lot of frustration with having to go through the initial process of filling out the [expungement] application. It’s a lengthy and arduous process,” said Kenneth Edwards, an organizing specialist with the Center for Employment Opportunities, the country’s largest reentry employment assistance program. The organization provides employment and vocational services, such as computer access, job coaching and various certification training. “If you put people at a computer and ask them to do it themselves, nine out of ten of them are going to be frustrated,” Edwards said. “Some are not computer literate, some do not know how to navigate the paperwork they see on the screen. They end up giving up.”
The stark racial and geographic disparities in U.S. mass incarceration have community-wide impacts, a phenomenon that has long contributed to the “concentrated disadvantage” researchers have identified in high-poverty areas. A well-known report from New York’s Green Haven Prison, known as the Seven Neighborhoods Study, showed that 75% of the entire state’s prison population in the 1970s hailed from just a handful of New York City neighborhoods. It’s a pattern has persisted since, says Myrie, whose district includes one of cited neighborhoods.
“For generations, neighborhoods like Brownsville have been over-policed and under-resourced, over-incarcerated and under-invested,” Myrie wrote in an email. “The results have been devastating to people caught up in the criminal legal system and the community at large. A Clean Slate would help returning residents successfully re-enter the workforce, support their families and help stabilize a neighborhood in need of economic security.”
Zaki Smith, a policy entrepreneur at Next100, a think tank, grew up in Brooklyn’s Bedford-Stuyvesant — another one of those seven neighborhoods — during the 1980s crack epidemic. He has a criminal record from more than two decades ago. (He declined to provide details because, he says, he doesn’t want it to define him.) After serving his prison sentence, he spent four years working at a nonprofit as a mentor to empower young people, but lost that job, he says, after a background check.
“I’m doing all the things that you would want a person to do in terms of contributing to the community rather than taking away from it,” he said. “I have served my time. What other debt do I actually owe? This is not necessarily the way you keep communities safe. At all.” His experience, he says, reflects how employment and housing barriers faced by those leaving prison can be counterproductive: “Evidence shows that these barriers produce recidivism — they keep the revolving door going.”
Advocates for clean slate legislation are increasingly finding allies in the corporate community: The Second Chance Business Coalition, launched in April by JPMorgan Chase & Co. and co-chaired by Jamie Dimon, JPMorgan Chase chairman and CEO, aims to lower employment barriers for people with criminal records. Among its members are Best Buy, AT&T, Accenture and Mastercard.
JPMorgan Chase hired 2,100 people with a criminal record in 2020 — 10% of its new workforce — and championed of broadening employment opportunities for people with a criminal record. To promote fair-chance employment, in 2018 it implemented Ban the Box, a campaign that eliminates the checkbox to indicate arrest or conviction on a job application, and in 2019 it established the JP Morgan Chase PolicyCenter to focus on equitable economic growth. Its inaugural programs centered on “second chance” initiatives. The Center submitted comments multiple times to the FDIC to encourage changes to hiring practices and open employment opportunities to individuals whose records encompass a broader range of activity than minor offenses, as long as they don’t pose “undue risk.” In May, the company sent a letter supporting clean slate to New York lawmakers.
“It’s part of making sure we’re helping the state to grow. [A criminal record] is a drag on people’s earning potential and those costs are borne by individuals, families and their communities,” said Nan Gibson, executive director of the PolicyCenter, about the New York bill. The center worked to pass clean slate laws in other states as well, and efforts are underway with legislators in New Jersey and Delaware. “We want to hire people into the firm where we know that they will have a career pathway. Part of this is not letting their record define who they are.”