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There’s No Such Thing as Expunging a Criminal Record Anymore

Criminal-record expungement and sealing laws are an increasingly popular and seemingly simple reform. The logic is sound: For the criminal justice system to work effectively, the system must also let people move on from their past and have equal access to employment and housing, unburdened by the stigma of a criminal record years later.

The problem for millions of arrestees is that on a practical level, expungement isn’t really expungement anymore. Even if a record is officially wiped clean, it’s legal for criminal justice agencies and other websites to keep criminal records online. Arrest records, mug shots, and court records are classified as in the public record in most states. There’s no constitutional problem in republishing public information, as long as the government makes it public first. Further, forcing a website to take down public records would violate the First Amendment.

In November, a new reform campaign announced a push to leverage technology for expungement. Supported by the Center for American Progress, the Chan Zuckerberg Initiative, and Koch foundation groups, the Clean Slate campaign argues that automated, data-driven processes are the key to effective record sealing. The campaign is pushing states to adopt policies that automatically clear certain types of arrests and convictions after a set amount of time, based on progressive record-clearing legislation in Pennsylvania. Offering policy guides for states and talking points for advocates, the campaign promises to close the “second chance gap” by proactively sealing records instead of requiring a person to file a petition. “That means,” says the campaign’s promotional video, “your record isn’t available to your future landlord or potential boss.”

The Clean Slate campaign advocates are correct that record sealing, as it stands now, is incredibly bureaucratic. Criminal-record systems are a byzantine administrative web, with police, jails, courts, and prisons all maintaining separate databases of people’s records. Even record-sealing processes that promise to “automatically” seal records are largely managed by very manual processes, prone to clerical mistakes. The process needs an overhaul that interfaces directly with the data specialists employed by criminal justice systems and the software vendors hired by states to manage records.

For clean-slate policies to work, states must regain control over their data. Regulating records would also allow people to regain some control over their own digital criminal histories. This would let someone like Alan actually leverage his automatic expungement with some confidence, rather than spending months attempting to contact mug-shot website operators and local police administrators. While we may tout the benefits of automatic expungement, these policies have little power until they address the practices of automatic disclosure.

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