The debate over clean slate laws

What is the right balance between accountability and rehabilitation? It’s a question that lawmakers, criminal justice advocates, ex-offenders, employers, and other groups are currently trying to answer as clean slate laws become more common in the United States.

A clean slate law is a law that makes it possible to erase or remove some criminal records from public view. Sometimes, ex-offenders can “expunge” their records, which typically means that those records are effectively scrubbed from existence. Other times, records can be “sealed,” which means they are no longer public records or accessible as typical “background check information” but are still there to be accessed by law enforcement if needed.

Clean slate laws can take multiple forms. Most of these laws merely open eligibility for record sealing or expungement, leaving it up to ex-offenders to petition the court to have their records officially removed from the public records. Sometimes, though, a clean slate law will feature a more aggressive implementation strategy. For instance, in some states that have legalized marijuana for recreational use, legislators have passed laws that allow for the automatic expungement of past marijuana crimes.

Proponents of clean slate laws argue that they serve as an instrumental gateway to help ex-offenders move on with their lives. Criminal records – even misdemeanors for minor crimes that occurred years ago – can still act as barriers to employment, housing, education, or volunteer work. The option for expungement or record sealing can act as a literal clean slate by allowing these people back into society in meaningful ways.

Skeptics and critics of clean slate legislation argue that there are drawbacks to expunging background check information en masse. Some of those arguments are fairly surface level. For example, some employers feel they have a right to know whether a candidate has previous criminal convictions, particularly a felony. Not all states with clean slate laws allow for the expungement of felony offenses. According to an article in The Sacramento Bee, 23 states currently “allow some felonies to be erased from public view,” which would mean those crimes wouldn’t show up on a background check. In total, 45 states – along with Washington, D.C. and Puerto Rico – have some form of expungement system in place, which means about half don’t allow crimes more severe than misdemeanors to be removed.

The arguments against clean slate laws can sometimes be more complex. In the Sacramento Bee article mentioned above, one key dissenting viewpoint raised concerns police reform. Specifically, that argument holds that not expunging past criminal records is important because those records provide actual proof of over-policing, racial injustice, and other past abuses of power on the part of law enforcement. While expunging those records would help people who were (potentially wrongfully) convicted of crimes, it would be a setback for the nationwide push for police reform and accountability.

Employers should be aware of the expungement laws that exist in their states. Clean slate legislation can complicate things for employers by making it illegal to use certain pieces of background check information in a hiring decision. While one of the purposes behind expungement is to make it so past criminal history doesn’t show up on a background check, do note that criminal history databases may take several days to update. Consequently it is important to abide by the pre-adverse and adverse notification rules that the FCRA requires. Our platform can help you send out those notices in a timely manner.

If you are a job seeker with a criminal record, you should also take the time to learn whether you are eligible for expungement. You can use the MyClearStart program through backgroundchecks.com to get started on that process.