Backlogs and Vague Guidelines Blunt "Clean Slate" Impacts

In 2021 alone, more than half of the states in the nation passed "clean slate" laws in one form or another. Some merely created a pathway to expungement for some crimes, while many more aimed to provide for the automatic removal of criminal records that match each state's criteria. With many legislatures recognizing the negative impact that even an old criminal record can have on someone's ability to find housing or a job, embracing the clean slate concept has been bipartisan and vigorous.

In some states, the changes have been driven partly by cultural shifts—such as the rise in medical and recreational marijuana. In the past, drug charges could be a significant barrier for those convicted, even if they only committed a minor crime such as possession. With so many records on the books, automating the process seems like a smart idea—especially when we consider that manual expungement processes are often opaque and complex for offenders to access.

Unfortunately, the reality of the "clean slate" process in many states hasn't fully aligned with what activists and individuals had hoped. Not only is the automatic process in many states hardly automatic at all, but there are fresh concerns that the laws, as written, exclude many of those they were intended to help. Those exclusions are likely to have an outsized impact on racial minorities, who tend to be disproportionately affected by the quirks of the clean slate laws.

First, the backlogs: automating expungement is a massive task requiring accurate, computerized records and effective programming. Neither is easy to come by for states. Consider California, which remains behind on the "automatic" expungement process by tens of thousands of records. With nearly 75% of their records containing incomplete information, it takes time and effort to track down reliable answers about who is eligible and who isn't. In the meantime, those affected will likely continue facing the barriers created by their past.

Next, what about the laws themselves? A common factor in many clean slate laws is the presence of language stating that only "non-violent" crimes are eligible for expungement. Not every state defines "violent" crime the same way—and many crimes classified as "violent" don't involve direct harm. For example, drug sales or distribution might fall under the violent crime umbrella in some states. Similarly, a simple burglary could also be "violent" under the law, even if no violence was involved.

This means that today's clean slate laws could inadvertently shut out thousands of individuals, many of them members of minority groups, from access to the benefits advocates worked to create.

For state governments, the work is only beginning to implement effective criminal justice reform. For employers, it is worth remembering that disqualifying people solely based on a conviction is potentially discriminatory and could also mean missing out on excellent skills. Using the EEOC factors for evaluating criminal history data can mean providing a fair chance to every applicant—even when they can't take advantage of local expungement opportunities yet.