The problem with ‘Clean Slate’ policies: Could broader sealing of criminal records hurt more people

Recent conversations about racial bias in policing have highlighted our criminal justice system’s heavy-handedness, particularly in low-income communities and communities of color. An arrest or conviction reduces the likelihood of finding a job or housing for many years to come, contributing to cycles of poverty. In this way, our criminal justice system casts a long shadow over the lives of those it touches. As we decriminalize low-level offenses (like minor drug possession) and recognize that police, judges, and prosecutors treat white and black civilians differently, many have wondered if people with past convictions should have the opportunity to wipe their slate clean and start over without the stigma of a criminal record.

There is plenty of evidence that employers discriminate against people with criminal records, either because they’re worried about legal liability or the job applicant’s reliability and productivity. While discrimination may be rational for an individual employer, it is quite destructive for society as a whole, given the importance of employment to reducing recidivism. It is also perverse and unfair to tell formerly incarcerated people that we expect them to go on the straight and narrow, only to repeatedly slam the doors of honest work in their faces.

With this in mind, a growing chorus has called for broader sealing (also called “expungement”) of criminal records. Sealing an official criminal record hides it from view by employers, landlords, and others doing formal background checks. However, relatively few criminal records are currently eligible for sealing (typically minor offenses committed a long time ago), and the process to have a record sealed is complicated and costly. Advocates are pushing to expand the set of records eligible for sealing—and to leverage technology to make sealing automatic. These are often referred to as ‘Clean Slate’ policies.

Advocates hope that these policies will make it easier for people who have paid their dues to find jobs and build rewarding lives without their criminal records haunting them at every turn. This is a laudable goal, and just last year, at least 31 states implemented record sealing policies.

Unfortunately, the evidence we have suggests these policies will not work. In fact, record-sealing could increase discrimination based on race when criminal records are not visible. Even without these unintended consequences, so long as employers want information on criminal records, sealing official records is unlikely to truly hide the evidence of someone’s criminal justice involvement.

The case of Ban the Box: Hiding information about criminal records did more harm than good

This is not the first time that advocates have tried to reduce discrimination against people with criminal records by hiding those records. So-called “Ban the Box” policies prevent employers from asking about applicants’ criminal records until late in the hiring process. But because they don’t directly address employers’ concerns about safety and fit for the job, not being able to ask about criminal records upfront simply leaves employers to guess. In the United States, young men of color are more likely to have recent criminal convictions. Because of this, Ban the Box incentivizes employers to discriminate against applicants from this group.

Research on this policy’s effects shows that employment for young men of color with limited education actually decreased in areas that passed Ban the Box. While it is possible that the policy helped some people with records get a job, the best evidence suggests that any beneficial effects were small. This is likely because employers could still check applicants’ criminal records at the end of the hiring process. If they didn’t want to hire people with records, they could turn those applicants away at that point. It appears that most did. FULL ARTICLE