SEALING/EXPUNGING ARREST
AND CONVICTION RECORDS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Unfair Roadblock: As many as 64 million Americans have arrest records, many of which never resulted in conviction. More than 600,000 individuals are released from state and federal prisons every year; hundreds of thousands more are leaving local jails or are serving their sentences in the community. Many of these individuals encounter the stigma associated with having a criminal record as they try to become productive members of society. They also face an explosive growth of legal roadblocks in the form of state and federal laws that make successful reentry much more difficult. (See the Legal Action Center’s report, After Prison: Roadblocks to Reentry, at (http://lac.org/roadblocks-to-reentry/.) In many states there is nothing the individual can do to prevent employers, housing authorities and others to obtain their criminal records and use them to deny them opportunities, even if the arrest never led to conviction or the conviction is old or minor.

How to Remove the Roadblock: States should pass legislation that allows individuals to seal or expunge arrests that did not lead to conviction or to have their criminal records sealed or expunged after a reasonable period of time. These reforms can mitigate the stigma that can result from an arrest or conviction record and lower the barriers to successful rehabilitation and reintegration into society, while protecting public safely and maintaining community trust.

This tool kit provides materials that advocates can use to promote the passage of state laws that provide for the sealing and/or expungement of arrest and conviction records, including:

Additional information about sealing or expunging criminal records can be found in the Legal Action Center’s report, After Prison: Roadblocks to Reentry, at http://lac.org/roadblocks-to-reentry/main.php?view=law&subaction=2.

You will also find useful the Legal Action Center Toolkits Prohibit Inquiries about Arrests That Never Led to Conviction and Standards for Hiring People with Criminal Records if you are advocating for those reforms as well.




THE PROBLEMS POSED BY UNRESTRICTED ACCESS TO CRIMINAL RECORDS – WHAT NEEDS TO BE CHANGED

According to the U.S. Department of Justice, there are over 64 million criminal records on file with criminal justice repositories around the United States. That means that a high percentage of the nation's adult population lives a substantial portion of their lives having a criminal record.

Three quarters of the states allow employers and others to ask about and use arrests that never even led to conviction when making decisions. (See Prohibit Inquiries About Arrests That Never Led to Conviction Toolkit.) Furthermore, in the past 20 years the federal government and many states have dramatically increased the number, range, and severity of civil penalties for those with criminal convictions. In the 1990s, Congress and state legislatures created new restrictions on eligibility for food stamps and public assistance, public housing, student loans, parenting and drivers’ licenses, along side existing bars to employment and voting. The need for legislation that permits the sealing or expunging of arrests that did not lead to conviction and certain criminal records is evident when considering the numerous barriers that exist and the stigma people with criminal records carry long after completing their sentences and changing their lives.

Barriers to Employment

Many existing state and federal laws make it extremely difficult for people with a criminal record to obtain employment.

  • Most states allow employers to deny jobs to people who may have been arrested but never convicted of a crime.
  • Most states allow employers to deny jobs to or fire anyone with a criminal record, regardless of how long ago or the individual’s work history and personal circumstances.
  • Some states post criminal history information on the Internet, making it extremely easy for employers to discriminate against people on the basis of old or minor convictions or even inaccurate or incomplete information.

For more information, see the Legal Action Center’s Standards for Hiring People with Criminal Records Toolkit.

Barriers to Housing

Having a criminal history is a significant barrier to people with criminal records who need to have access to safe, secure and affordable housing just as any other resident in a community. Many people leaving the criminal justice system do not have a home to return to. Additionally, they very often return to communities where persistent poverty and lack of jobs and affordable housing make finding a permanent home difficult. For example:

  • Federal laws give local housing agencies much leeway to decide whether to bar individuals with criminal records from public housing premises. Many public housing authorities deny eligibility for federally assisted housing based on an arrest that never led to a conviction.
  • People with criminal records who seek private housing are often screened out following a background check that reveals their criminal history.

People with a past criminal record who have access to affordable and stable housing have a better chance for succeeding at becoming productive members of society -- by getting employed and remaining crime free. Coming soon, you will find more information in the Legal Action Center’s Housing Toolkit.

Barriers to Education

In 1998, the Higher Education Act was amended by Congress to delay or deny federal financial aid to students on the basis of any drug offense. Nearly 250,000 individuals currently in a state prison were convicted of drug crimes. According to the U.S. Department of Education, over 140,000 students have either been denied financial aid or stopped applying for aid because they thought they were ineligible.

Barriers to Public Assistance

The 1996 federal welfare law prohibits anyone convicted of a drug-related felony from receiving federally funded food stamps and Temporary Assistance for Needy Families (TANF) benefits. Although states have the option of limiting this lifetime ban, most states restrict at least some people with drug felony convictions from being eligible for federally funded public assistance and food stamps. Coming soon, you will find more information in the Legal Action Center’s toolkits on Opting Out of Federal Ban on Food Stamps and TANF.

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WHAT YOU CAN DO

Advocates should seek passage of legislation to seal/expunge (1) arrests that did not lead to conviction and (2) old or minor conviction records, so employers and other non-law enforcement agencies are unable to obtain those records. Sealing/expunging these records will eliminate some of the roadblocks to life’s basic necessities for individuals with criminal records as they seek to rebuild their lives, support their families and become productive members of their communities. (Note: The terms “seal,” “expunge,” “set aside,” and “purge” are sometimes used interchangeably, although depending on the state law they can have very different meanings. “Sealing” technically means that access to a criminal record is limited, but the record is usually not erased or destroyed. “Expunging” or “purging” technically means that the record is completely destroyed.)

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MODEL LAWS

The Legal Action Center has drafted Model Legislation that states can use to seal/expunge both arrests that never led to conviction and old/minor convictions. Also, some states have enacted laws that other states can use as models. Click here to see both Model State Laws and a description of their key provisions.

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ACTION ALERT

If your state is considering legislation to seal/expunge arrests that did not lead to convictions or old convictions after a reasonable period to time, alerting supportive groups and individuals and asking them to contact their legislators to support the bill is an effective way to bring about change. Click here for a model Action Alert you can shape for your specific needs and use to seek grass roots support.

SAMPLE LETTER

Click here for a model Sample Letter you can send along with the Action Alert to help your grass roots supporters write to their elected officials urging them to support legislation to seal arrests that never led to conviction and/or old or minor convictions. Once again you can shape this Sample Letter to meet your specific needs.

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