Abstract
The American criminal justice system was built upon the premise of holding its citizens accountable for violations of law and upon being adjudicated and after having paid their prescribed punishment by a Court of Law, such citizens would be recognized as having “paid their debt” to society. However historical precedent has shown that very little of that premise has been practised. Instead citizens deemed felons of the law are perpetually punished by a series of lifetime collateral consequences, translating into an almost bar on access to employment and housing and other public rights. Expungement, or setting aside those convictions for people who’ve “paid their debt to society” is a clear pathway to increased access to employment for persons with a criminal record.
In the United States, over two million people are currently incarcerated. We have almost a quarter of the world’s prison population, despite making up just 2.3 percent of the world’s overall population (Fair and Walmsley 2021). Between the approximately nineteen million people living with felony criminal records and the even greater number living with misdemeanor convictions, nearly one-third of all Americans have some sort of criminal record. Moreover, the unemployment rate of people with criminal backgrounds is 30 to 40 percent (Apel and Sweeten 2010).
Criminal penal codes were originally created with two justifications. First, they aimed to punish people for violating laws; and second, they sought to deter them and others from committing further crimes. Today, court systems use multiple methods to maintain “law and order,” including the deprivation of liberty through imprisonment, supervision after an adjudication of guilt, and fines and other monetary or labor-related penalties.
Court-imposed punishments theoretically enable a person convicted of a crime to “pay their debt” to society, whether by serving a period of imprisonment, paying fines to the court or to a victim of their alleged crime, or completing labor labeled “community service.” The thought is the same: after a person convicted of a crime pays a debt to society, they are free to resume their life as lived prior to contact with the criminal justice system.
Unfortunately, little of this theory has translated into practice. Instead, people convicted of crimes face other punishments that sit alongside their legal sentences. They are often stigmatized, ostracized, and denied access to basic resources, sometimes for the remainder of their lives. Such extended harm not only defies the original rationale and intent of punishment, but it has also stopped scores of Americans moving forward after paying their debt to society. As Sykes et al. (this volume) point out, “People with any kind of criminal record face barriers to employment.” Criminal records also limit access to housing, despite the fact that, as Augustine and Kushel (this volume) note, “Housing is foundational for stability . . . and for avoiding further law enforcement contact associated with homelessness.” Along with employment and housing, criminal records pose barriers to health care and public benefits. These barriers—also termed “collateral consequences”—cause harm to communities and families and undermine public safety.
So-called “collateral consequences” grossly undermine people’s freedom even beyond a court-imposed penalty. People with criminal histories are denied access to essential means of life, liberty, and the pursuit of happiness. This can force people and their families into poverty or make a return to crime more likely. In addition, it displays no mercy, forgiveness, or concern for people’s well-being.
In a recent study, J. J. Prescott and Sonja B. Starr (2020) analyzed the ongoing harm that criminal records can cause. The authors note, “These hurdles have been described as amounting to a ‘new civil death,’ and on a collective scale, this phenomenon magnifies racial disparities in employment and other outcomes as well, due to disparities in the distribution of criminal records” (2020, p. 2462). As the authors point out, the distribution of justice has been neither fair nor partial. The system metes out punishment and imposes long-term collateral consequences that disproportionately impact people of color. This fact is especially disturbing given America’s historically racist criminal justice system. People of color are not only disproportionately targeted for arrest and incarceration, but also face longer sentences and more stringent supervision after release.
These troubling outcomes could be mitigated if states expunged people’s criminal records, giving them a chance to rebuild stable lives. This approach would also promote public safety. In fact, research demonstrates that people whose criminal records are expunged experience higher rates of employment and earnings, often leading to reductions in recidivism (Selbin, McCrary, and Epstein 2018). Expungement increases people’s likelihood of success over many areas of their lives, thereby improving outcomes for themselves and their families. This not only promotes reintegration, but also reflects the essential shared values of dignity and fairness.
Footnotes
Hakim Nathaniel Crampton was wrongly convicted of first-degree homicide in 1992 and was assisted by the Wisconsin Innocence Project in securing his parole in 2006. He is the founder of AMEN 4 Youth, a restorative justice organization. He currently sits on the Michigan Indigent Defense Commission.