America's Paper Prisons: The Second Chance Gap

Abstract

Over the last decade, dozens of states and the federal government have enacted “second chance” reforms that increase the eligibility of individuals arrested, charged, or convicted of crimes to shorten their sentences, clear their criminal records, and/or regain the right to vote. While much fanfare has accompanied the increasing availability of “second chances,” little attention has been paid to their delivery. This study introduces the concept of the “second chance gap,” which it defines as the difference between eligibility and delivery of second chance relief; explores its causes; and approximates its size in connection with several second chance laws and initiatives. Using administrative and other data, it finds that among a host of petition-based second chance opportunities, to shorten sentences, restore one’s vote, and clear one’s criminal convictions, only a small fraction (less than 10 percent) of those eligible for relief actually received it. Extrapolating based on a novel analysis of around sixty thousand criminal histories of persons primarily seeking gig-economy work and of the expungement laws governing nonconvictions of all fifty states applying the nonconviction expungement laws of all fifty states to around sixty thousand criminal histories of persons primarily seeking gig-economy work, this study estimates that at least twenty to thirty million American adults, or 30–40 percent of those with criminal records, fall into the “second chance expungement gap,” living burdened with criminal records that persist despite appearing to partially or fully clearable under existing law. These findings suggest that tens of millions of Americans are stuck in a paper prison, held back by deficiencies in the administration of second chances that have left them incarcerated, disenfranchised, or burdened by convictions beyond what the law requires. Some of the barriers to relief are structural and related to debt, overburdened bureaucracies, and the contested nature of second chance rules that unwind past judgments and policies. But others are harder to see and stem from administrative failures like unworkable standards, missing and incomplete criminal justice information (“dirty data”), a lack of awareness of second chance opportunities, and costly and complex processes. Fixing them—by moving administrative burdens from the defendant and onto the state and algorithms through automation, standardization, and ruthless iteration—can narrow the gap. Leveraging them, “Clean Slate” initiatives to automatically clear eligible criminal records can have the potential to help the millions of Americans in the second chance expungement gap. However, the ability of such second chance initiatives to improve outcomes depends on how they are implemented. Debt-related barriers and dirty data can contribute to incomplete automation, leading to “second second chance gaps.” In the realm of expungement, application of the expungement criteria to minor but not major offenses can also have the effect of exacerbating, not narrowing, existing racial disparities within the population of people with records, while improving them within the general population. Further research is needed to understand the impact of automated clearance under different scenarios, such as when the defendant is not notified of the relief received or there is a risk of statistical discrimination making things worse, not better. Overall, however, though other hurdles may remain, automation can remove the unfair collateral punishments, not steel bars, holding back tens of millions of Americans.

Racial equity in eligibility for a clean slate under automatic criminal record relief laws

“…Our analyses revealed that 35% of cases had no disposition, and 75% of people had at least one such case on their record. Missing data may severely limit the potential benefits of automatic relief legislation, and leave a persistent “second chance gap” (Chien, 2020). If cases with missing dispositions are excluded from dismissal, few people will receive a clean slate.…”

“…For example, McElhattan's work (2021) highlights that "The pursuit of harshly punitive policies has often come without commensurate investment in administrative infrastructure, thereby intensifying the pains of punishment for criminalized subjects" (McElhattan, 2021). Without improving data and reporting systems, automatic relief reforms may exclude many people eligible for relief or delay the process (Chien, 2020). The burden will fall on either state and county agencies to investigate missing data, or on people with criminal records to navigate the time-consuming, bureaucratic procedures to correct their record, defeating the purpose of automatic relief (Lageson et al, 2021).…”

“…Criminal record relief laws are primarily designed to remove the restrictions on rights associated with a conviction after a sentence is served, and following a pre‐specified time period. Yet in most states, key barriers to obtaining relief include the burdensome, costly, intimidating judicial process, as well as unawareness of eligibility (Chien, 2020). As a result, uptake is extremely low.…”

“…For instance, while Michigan allowed first‐time convictions to be set aside, only 6.5% of eligible people sought this relief (Prescott & Starr, 2019). Likewise, an estimated 10% of eligible people applied for conviction relief for drug and property offenses that were reclassified to misdemeanors under California's Proposition 47, or marijuana offenses that were legalized under Proposition 64 (Chien, 2020).…”

“…In recent years, states have begun to address this “second chance gap” (Chien, 2020) by enacting automatic criminal record relief laws. Under these new laws, the burden of criminal record relief no longer falls on the person with a record.…”