Erasing the mark of a criminal past: Ex-offenders’ expectations and experiences with record clearance

Record clearance and the process of desistance

Laub and Sampson (2001: 48) assert that desistance from crime occurs “as a result of a combination of individual actions (choice) in conjunction with situational contexts and structural influences.” Influential contextual factors include work and family circumstances, education, and institutions such as religious communities (Laub et al., 1998; Laub and Sampson, 2001; Uggen, 2000; Uggen and Kruttschnitt, 1998; Visher and Travis, 2003). Record clearance can play an instrumental role in supporting desistance through several mechanisms that correspond with predominant theories of crime and desistance. These mechanisms are categorized broadly as external (situational/structural) or internal (individual) in nature.

Record clearance can mitigate certain external factors that constrain ex-offenders’ efforts to progress through life-course milestones such as gaining productive and legal employment and fulfilling one’s responsibilities as a parent (Giordano et al., 2002; Jacobs, 2015; Laub et al., 1998; Laub and Sampson, 2001; Uggen and Kruttschnitt, 1998). The removal of past criminal convictions from an ex-offender’s record directly addresses a number of collateral consequences associated with having been labeled a criminal.

Employment is key to successful reentry (Delgado, 2012), yet approximately half of ex-prisoners remain unemployed one year post-release (Travis et al., 2014). A conviction can disqualify individuals from obtaining a wide range of professional licenses, including those required to work as a barber, real estate agent, taxi driver, plumber, or sanitation worker (Delgado, 2012; Ewald and Uggen, 2012; LeBel and Maruna, 2012; Maruna, 2011; Pager, 2008). Many off-limits jobs are in growing economic sectors, like elder care and health care (LeBel and Maruna, 2012). For otherwise-qualified applicants, the stigma associated with a conviction on a job application can preclude consideration for job interviews (Blumstein and Nakamura, 2009; Harris and Keller, 2005; Pager, 2003; Solomon, 2012), and in some cases, not performing criminal background checks can be considered negligence (Harris and Keller, 2005). ³ Certain convictions, including some drug offenses, can lead to exclusion from welfare benefits such as public housing, cash assistance (Temporary Assistance for Needy Families), and food stamps (Delgado, 2012; Maruna, 2011; Mukamal and Samuels, 2002). Private landlords increasingly use criminal background checks to screen housing applicants as well (Oyama, 2009). ⁴ A felony drug conviction while receiving federal student loans prevents ex-offenders from accessing educational opportunities, including financial aid in the form of federal grants, loans, or work-study positions, for a specified period of time (Jacobs, 2015). Past convictions can also hinder parents’ efforts to build or maintain good relations with their children if criminal records are used against them in child-custody proceedings or to prevent participation in school-related activities. Although these prohibitions are ostensibly in place to promote public safety (Jacobs, 2015), they may be counterproductive, increasing the likelihood of recidivism by making it all but impossible for some offenders to maintain the stable employment, housing, financial status, and family relations that enable successful reintegration (Delgado, 2012).

Consistent with differential association and social control theories, when ex-offenders are able to maintain steady, legal employment, and healthy relationships with their domestic partners and children, their social networks are more likely to comprise prosocial associates. These associates may provide support and assistance in the desistance process (Paternoster and Bushway, 2009). At the very least, individuals whose routine activities consist of work and family responsibilities simply have less time and fewer opportunities to associate with antisocial friends and engage in criminal activity (Warr, 1998). Furthermore, good jobs and positive family relationships increase individuals’ social capital, which raises the opportunity costs associated with criminal activity by giving a person more to lose (Farrall, 2004; Laub et al., 1998).

Recent research has drawn a distinction between primary desistance, the termination of criminal activity, and secondary desistance, the assumption of a new identity and lifestyle as a law-abiding person (Maruna et al., 2004a). An ex-offender’s progress from primary to secondary desistance may depend on several psychological shifts, including development of a sense of discontent with one’s identity as an offender that leads to a readiness to change, creation of a viable plan for change, formation and acceptance of a “replacement self,” and disavowal of one’s prior criminal lifestyle, leading to an eventual break from the past (Giordano et al., 2002; King, 2013; Paternoster and Bushway, 2009). Record clearance can facilitate the process of “knifing off ” criminogenic aspects of individuals’ past lives by literally removing certain adverse events from the documentation of their personal histories (Laub and Sampson, 2009; Maruna and Roy, 2007). ⁵ For many of our research subjects, participation in the Record Clearance Project (RCP) signifies their readiness to distance themselves from certain aspects of their past and commence the process of identity reconstruction. This reconstruction process may entail accounting for past behavior in a manner that coheres with a desisting ex-offender’s new self-identity as a law-abiding, prosocial member of society (Maruna, 2001). The opportunity to omit illegal acts from official accounts of one’s past certainly facilitates this process of “re-biographing” (Maruna, 2001; Wexler, 2001).

Successful completion of the record clearance process may assist RCP clients in their efforts to move forward with their employment and family-reconciliation plans, and to reassume or adopt “conventional” identities. Most of our subjects appear to have begun the process of primary desistance, and are on the path toward secondary desistance. Research has found that certain aspects of ex-offenders’ personal narratives are associated with their rates of success with desistance (King, 2013; Maruna, 2001, 2004). To the extent that aspects of RCP clients' experiences cohere with factors associated with successful desistance, our investigation’s findings may reveal ways in which record clearance can facilitate reductions in recidivism.

Finally, an important part of the record clearance process is the formal hearing in which a judge provides validation and affirmation of the erasure of one or more convictions from an individual’s record. This ceremony, an example of what Maruna (2001) calls a “redemption ritual,” has strong symbolic value as it entails reversal of the labeling that occurred when the individual was convicted, public recognition of rehabilitation by a person in authority, and an official reacceptance into society (Maruna, 2011; Maruna et al., 2004b). This formal process of civic reintegration allows ex-offenders to include roles as productive community members, along with work and family roles, in their new identities (Maruna, 2011; Uggen et al., 2004). Beyond a merely ceremonial purpose, the record clearance hearing can “take away a crucial neutralization (condemnation of the condemners) and … pull ex-offenders more deeply into mainstream society” (Maruna 2001: 163). It can increase the ex-offender’s perception of the legitimacy of the criminal justice system, and in turn his or her motivation to abide by the law.

The Record Clearance Project

The RCP at San José State University was created by Margaret (Peggy) Stevenson, JD in 2008 as part of a Courts and Society class in the Department of Justice Studies. This innovative project engages undergraduates—under the supervision of an attorney—who assist people seeking to clear the criminal record(s) they received in Santa Clara County. Potential clients learn about the RCP through a variety of mediums including community education presentations, information tables at events, the Probation Department, the Department of Corrections, the Public Defender’s Office, and word of mouth. Clients’ formal entry into the RCP begins with a speed screening: a 30-minute session where RCP students read a person’s rap sheet ⁶ and inform him or her about the next step toward criminal record clearance. Interested persons, who qualify and are eligible for expungement, then contact the project to be paired with students who prepare and file their petition for expungement or felony reduction. The petition contains various items including a client’s rap sheet, an essay describing how the applicant has turned his or her life around (e.g., volunteer activities, history of employment, being clean and sober for an extended period of time, etc.), and letters of support from persons who attest that he or she is a good candidate for expungement. To be eligible for RCP services, a client must have successfully completed probation (if applicable), must have been convicted of a misdemeanor or felony in Santa Clara County for which they served less than one year in jail, and must not owe restitution. Having numerous criminal convictions does not preclude someone from expungement. Eligible convictions include, but are not limited to, assault with a deadly weapon, assault, grave bodily injury, sexual assault, domestic violence, resisting arrest, drug offenses, petty theft, robbery, vehicle code violations, and failure to appear. The majority of RCP cases involve drug- and alcohol-related convictions. RCP has a very strong success rate with 99% of expungement requests and 94% of felony reductions being granted. When an expungement/felony reduction is denied, it may be because the judge wanted to see more time pass from the last offense, evidence of long-term change, or remorse.

Semi-structured interviews

Semi-structured interviews were conducted with forty persons with prior criminal records. ⁷ Of them, twenty had completed the record clearance process and 20 had registered with the RCP to have one or more convictions cleared but had not yet begun the process. The inclusion of both groups allowed the researchers to examine both anticipated and actual effects of record clearance. The group of respondents who completed the record clearance process (RCP group) differed from the group registered to have their convictions cleared (wait list group) in various respects. Members of the RCP group were more likely to be married than members of the wait list group, ten respondents and six respondents respectively, and members of the RCP group were more likely to have completed some higher education. In the RCP group, fifteen respondents had completed some college, with two completing an associate’s degree, three possessing a bachelor’s degree, and two who had postgraduate education, including 1 holding a medical degree. In comparison, in the wait list group, nine had completed some college and five had not completed high school or obtained a GED. All members of the RCP group had completed high school or obtained a GED.

For three years prior to commencing the interviews, the interviewer participated in meetings with RCP staff; attended court hearings, speed screenings, and information sessions in the community and jail; and held two focus groups with RCP clients. This enabled her to become familiar with the program and its clients, and to hone the skills necessary to truly see and hear the experiences of this group (Janesick, 2000). Because little is known about the impact of expungement on ex-offenders’ desistance and reintegration, semi-structured interviews were determined to be the most fruitful methodological strategy for this project. This investigative technique provided the interviewer with an opportunity to probe interviewees, gave respondents the autonomy to explain and expand upon their experiences, and enabled the researchers to unearth the connections/themes running through respondents’ complex backgrounds (Davidson and Layder, 1994; Fontana and Frey, 2000; Lofland and Lofland, 1995).

All too often, the voice of research subjects, particularly marginalized persons, becomes lost in research, overshadowed by the well-intended, but paternalistic and “all-knowing” researcher (Fine et al., 2000; Fontana and Frey, 2000). In the rare cases that academic research influences policy, the voice of research subjects is not always easily detectable. The focus groups with RCP clients enabled the research team to test the questions that were used in the final interview schedule, decenter the role of the interviewer, learn important aspects of clients’ desistance and reintegration experiences directly from them, and develop interview questions from the social interactional dynamics that tapped into clients’ memories, positions, and ideologies (Ambert et al., 1995; Kamberelis and Dimitriadis, 2005). This process, along with semi-structured interviewing, allowed the researchers to put offenders’ voices at the center of the discussion on desistance and reintegration (Fine et al., 2000). It ensured our policy recommendations would be reflective of, and responsive to, offenders’ lived experiences (McDonald et al., 2013).

The final interview guide contained 57 questions. Some of the questions that were analyzed include the following:

What made you decide to participate in the record clearance process?

Sample selection

After securing permission from each person, the director of the RCP provided the researchers with a contact list of RCP clients. Fifteen respondents were obtained from this contact list. Twenty-five more respondents were recruited from RCP events (e.g., after court hearings, community presentations, and speed screenings). Potential respondents were informed that their decision to participate was completely voluntary and had no bearing on their past expungements or future relationships with the RCP.

Conducting interviews

To ensure reliability, one researcher conducted all the interviews using an interview guide (O’Brien, 2001). All interviews were conducted in a private–public location (e.g., study room in a library or university office) between January and August 2014. Upon completing the interview, respondents received a $20 Visa gift card as compensation for their time and the inconvenience of traveling to the interview site. All participants were over the age of 18 and provided informed consent. The interviews were audio-recorded to capture all the information provided by respondents; this had the added benefit of allowing the interview to flow naturally like a conversation (Lofland and Lofland, 1995). The interviews ranged in length, with the average interview lasting one hour. Data saturation was achieved at 40 interviews (Glaser and Strauss, 1967), at which point the research team began focused coding (Charmaz, 1983).

In the coding and analysis phase, validity of findings was achieved by having two members of the research team independently code the data (Ambert et al., 1995; O’Connell Davidson and Layder, 1994). These documents were compared against each other to ensure consistency. When discrepancies arose, the sections containing discrepancies were reanalyzed. Relevant quotes were gathered together into thematic memos on several topics, including the themes discussed below (Charmaz, 1983). Following the same procedures throughout all interviews positioned the authors to achieve reliable findings (O’Brien, 2001). Generalizability was not an aim of this project; rather, the authors sought crystallization—providing a deepened, complex, and partial understanding of the lived experiences of a politically and economically disenfranchised population (Richardson, 1994).

External factors that affect desistance efforts

Persons with criminal records experience extreme difficulty obtaining employment due to the wide availability of criminal record information (Travis et al., 2014). Sixty percent of employers are reluctant to hire ex-offenders, perceiving their convictions as indicators of their untrustworthiness (Holzer et al., 2001). Respondents, at times, expressed frustration with their inability to gain employment, noting that the limited jobs open to them predominantly involved poor working conditions and low pay—positions sometimes disparagingly referred to as “McJobs” (LeBel and Maruna, 2012). They genuinely hoped record clearance would increase their employment potential and facilitate their successful reintegration into society. Consistent with these hopes, our findings show that record clearance did increase ex-offenders’ confidence in searching for jobs and, in some cases, their access to jobs.

Securing productive and legal employment. Quintessential good jobs—those in specialized fields such as health care; jobs that provided good benefits such as health insurance, retirement plans, etc.; and jobs with the local, state, or federal government—were particularly difficult to secure. Various federal and state laws formally exclude persons with criminal records from a range of employment opportunities (Travis et al., 2014). Of our 40 respondents, 38 noted they were denied employment because of criminal convictions before they completed or while they were awaiting record clearance. For example, Beverly (a 50-year-old African-American woman, who had four felony convictions for theft and three misdemeanors) was unable to gain employment with the United States Postal Service. ⁸ Likewise, Rosa (a college-educated Mexican-American woman) was denied a job due to her multiple convictions:

They were going to hire me, but the biggest obstacle was my criminal history. They weren’t willing to take me because I had a couple of felonies. She said if I only had one felony they might have been able to work with that, but those were felonies … That job that I applied for, that I was going to get hired for and they declined me, was selling medical supplies.

Securing or retaining employment in schools appeared impossible for various respondents due to institutions’ strict rules against employing persons with criminal records. Wanda (a 55-year-old African-American woman whose past is characterized by extensive physical and sexual victimization as well as 20 years of crack cocaine use) was forced to leave her teaching position at a public school.

I even was teaching school and was doing drugs, teaching special-ed … The second time I got arrested, I was with the school district. They let me stay [but] they said, “Well you know the next time the fingerprint comes around,” cause we had to do it every two years, … “we will have to let you go because you have a conviction on your record.” And so, rather than go through that, I resigned.

Background checks. Increasingly, employers are relying on criminal background checks to assess corporate risk and security when hiring new employees (Backman, 2011; Delgado, 2012; Holzer et al., 2001). In fact, one survey found that 92% of responding employers required prospective employees to undergo a background check (Jacobs, 2015). With criminal history records becoming more broadly available through commercial services such as HireRight and ChoicePoint (Holzer et al., 2001, 2003), respondents encountered situations where their potential employment was contingent on passing a criminal background check. Twenty-seven of our interviewees experienced situations where they were denied employment because of a background check. Rose (a 47-year-old white woman convicted of assault with a deadly weapon) explained that background checks directly impacted her employment:

Every day I get emails from recruiters, one was for Google, one was for Facebook, Adobe, PeopleSoft, they all do criminal background checks. I’ve tried submitting and I never heard back. And then the one that I know for sure that it impacted was … a very prestigious [corporate law] firm. I got the job and she came back in and she said, “We’re going to do a background check, is everything clear?” And I said, “Oh, well, you’re going to see something on my record.” And I don’t tell them it’s assault with a deadly weapon, I tell them it’s a domestic dispute. And she goes, “Oh that won’t clear.” She goes, “I’m sorry.” And it sucked because it was such a good paying job. And it was so … I know I could’ve done that job perfectly. I mean I know I could’ve. And I wanted that job so bad.

Fear of rejection inhibits job application. The stigma attached to the ex-offender status, and its limiting impact on job prospects, was so transfixed in ex-offenders’ minds that it became a debilitating self-fulfilling prophecy (Delgado, 2012; Maruna et al., 2009). Some refused to apply for work fearing the rejection they “knew” they would experience. Mario explained:

I was really reluctant … I didn’t want to go through the letdown of going through the process because when I get into most jobs, and I interview, I usually come back with a second and sometimes third interview. And, you know, I don’t want to go through the disappointment of, “okay, so we’re going to do the background check.” And then getting shot down, you know. I’m not going to set myself up for failure like that.

Licensing—a barrier to employment. Licensing, the entry ticket for many Americans into respectable jobs, served as a significant barrier toward employment for our sample in many fields. Melissa (a 35-year-old mixed-race woman with a history of property crimes that she attributes to her past drug addiction) remembers the joy she felt when she received her Certified Nurse’s Assistant (CNA) license. Her sense of accomplishment immediately turned into dismay when she read that her newly awarded certificate had been revoked. She explains:

I went to school in 2009 for six months. I completed the CNA course. I did my externship or internship and everything. I took my state exams … I passed everything. I did this because my teacher told me that it had been so long since my last conviction that they’d probably go ahead and let it go. And so I believed him and I went through everything. And then I got a letter in the mail that had my license number on it, so I did get my license. So I did pass. I did get my license and underneath that it said, “Your license has been revoked.”

Licensing restrictions impact ex-offenders’ ability to drive, particularly if they were convicted of drug felonies (Ewald and Uggen, 2012). When asked why he got his record cleared, Antonio (a 30-year-old, educated, employed, married, Chicano father of one child) simply said: “To get my license. To get my driver’s license back.” While the verdict is still out on whether record clearance would increase the chances of ex-offenders becoming licensed in their desired fields, our research supports that there might be hope, at least for regaining driving privileges. Luis (a 49-year-old Mexican/Native American former drug addict who was convicted of misdemeanor and felony DUIs as well as domestic violence charges) explained:

Today, I have a commercial license. I got a commercial license in 2004 … I started chauffeuring in 2007. I have a commercial class A license, so I’m able to drive a big rig, so I started driving bigger vehicles. And, I got a passenger B endorsement, so I’m able to carry more than ten passengers so that’s how I started driving the buses.

Job access after record clearance. Many people perceive record clearance as the first step toward civil rebirth and greater opportunities. Obtaining reliable employment was a driving force for many respondents in seeking record clearance. Carl (a 44-year old Caucasian man with two DUIs and several misdemeanors for drugs and drug paraphernalia) hoped that record clearance would be the first step in getting a job that would enable him to put a roof over his family’s head and “be successful one day and do something that [his] children are going to be proud of.” For some clients, increased employability was achieved after record clearance, but we did not find uniformity in this outcome. A couple of respondents reported continued difficulty gaining employment and supporting their families in the months and years following completion of the Record Clearance Program.

One of the most striking differences uncovered between the interview groups was that employment was better among respondents who had completed record clearance as opposed to those yet to go through the process. Of the twenty persons who completed record clearance, only two were unemployed; eleven of the persons awaiting record clearance services were unemployed. The types of jobs held by members of the two groups were also remarkably different. Persons awaiting record clearance were more likely to be employed in low paying jobs including caregiving or working in a fast food restaurant or warehouse. Persons who completed record clearance, generally, enjoyed better jobs. For example, Tina and Rosa were both social workers, while Mario was a drug intervention specialist and Antonio worked as a gang intervention specialist. Other “good jobs” held by respondents who completed record clearance included real estate investor, theatre manager, and health-care employee. Indeed, fourteen of the twenty respondents who completed record clearance indicated they experienced better job opportunities post-record clearance. Based on these results, for this population, we cautiously conclude that record clearance may have indeed increased respondents’ employment opportunities.

Some clients reaped immediate benefits from record clearance. Sean (a 24-year-old, married Hispanic man with seven convictions including armed robbery) was able to secure a job as a security guard soon after completing the process: “I applied at a job—a security position—where they actually had to conduct a background check and [it came back] no discrepancies, so honestly immediately after my record was cleared.” Likewise, Allison’s once-elusive dream of working in schools became realized subsequent to record clearance:

The past is now the past. It’s not haunting me anymore. I have a job, now, where I manage a children’s theater company. And I work with probably four hundred kids a year. I work in the schools, in different districts now, they contract us to go in and do their school shows.

The positive impact of record clearance on securing employment was experienced in various fields. Mario, formerly convicted of drug-related crimes, now works as a drug counselor and was offered employment by a major healthcare provider. Although Mario decided not to accept the new job offer, having his record cleared opened the door to choices that would have otherwise been unavailable. Likewise, Angela (a 39-year-old, Italian and Native American mother of several children) acquired her current job with an accounting firm after her record was cleared. As the company runs a full background check on prospective employees, this would not have been an option for her before record clearance.

This job, the one I’m at right now, had an opening, and they’re subcontracted through the government. And I would have never thought to apply there. Because I think—I would hear government and we’re gonna run an extensive background and … I would’ve said, “No. It’s not for me. I’m too ashamed or they won’t hire me because of my background.” And so because I have the expungement I was like, “Oh I’m just gonna give it a try.”

Record clearance not only increased many ex-offenders’ employment prospects, but it increased their salary and provided them with the privilege of juggling multiple jobs. Commenting on his current employment, Mario said: “I make $28 an hour right now doing what I’m doing. So, I mean it puts me in a whole different salary bracket to have the financial, you know, ability to provide.” Michelle expressed how grateful she was for the opportunity to work very long hours:

So, to even be able to work two jobs … it’s hard, sometimes I don’t even get to sleep that much. But I don’t care now because I’ve been given the opportunity. And my kids get so mad at me like, “You need to rest!” And I tried to explain to them … my oldest daughter kind of understands, but she don’t. I tried to tell them, “I haven’t been able to work, like almost 17 years. If I could work three jobs, I would.”

Limitations of record clearance as a step toward employment. Having criminal convictions in various counties and states diminished the potential employment benefits respondents experienced after record clearance. The RCP is only able to help clients clear criminal convictions received in Santa Clara County. Julie (a single white woman now employed as a private bus driver) was successful in clearing her convictions in Santa Clara County, but other convictions, both within and outside California, remained on her record and limited her employment opportunities. Hence, even though completing the RCP program could increase clients’ employment opportunities, this benefit is complicated by factors beyond the parameters of the program.

While some interviewees were overjoyed with their newfound opportunities, unfortunately, some continued to feel the pressure of their conviction(s) even after record clearance. For example, the conviction(s) of a person who successfully completed record clearance is still visible in a background check, with a notation that the conviction(s) had been expunged. Knowing this, many study participants expressed frustrations with the persistent stigma and disadvantage associated with their past criminal record(s). Marcus complained that he was not treated any differently by employers after having his record cleared:

So finally got my record expunged, this is a couple years ago … so I’m thinking like “Oh, finally. My life is going to turn around now.” And it just didn’t. The record expunged, for me, people—I guess it’s just still there—people can see it. It just says it’s expunged but it’s still like—it’s the same treatment … Even with the record expunged it’s still rough. You’re a second rate citizen, nobody wants to give you a chance, it’s really discouraging. Basically I want to give up hope and think about trying to search for jobs in other countries or trying to get a job in Canada or just moving anywhere so my record won’t come up. I have to leave the country. I’m not treated as an American citizen. I was born and raised here but not allowed to work here.

Likewise, Michelle was warned by a person assisting her with the record clearance process that her past, albeit expunged, record would still be visible: “She told me that it was [a] possibility that my fingerprints … my record will come up because it’s fingerprints. Even though your record is expunged, it doesn’t matter.” With this in mind, some respondents expressed a wish that their records could not only be cleared, but also sealed, in order to truly free them from the stigma. In Massachusetts, unlike many other states, the Criminal Offender Record Information (CORI) reform prohibits ex-offenders’ misdemeanor and felony conviction records from being disseminated subsequent to successful discharge from supervision after 5 and 10 years, respectively (Travis et al., 2014). Because in California a person’s criminal record can still be disseminated, even after expungement, we can view record clearance as a means to diminish the collateral consequences of a criminal record, but not as an opportunity to wipe the slate clean.

Furthermore, certain risks—and liabilities—may be associated with ignoring past crimes, especially when allowing certain ex-offenders to work with particularly vulnerable populations, such as children, the elderly, or severely disabled individuals (Harris and Keller, 2005). These must be weighed against the potentially greater risks associated with ex-offenders' widespread unemployment and inability to reintegrate into society (Harris and Keller, 2005).

Research suggests that the risk of reoffending is highest in the period after arrest or release from incarceration, and then declines over time to the extent that ex-offenders who have desisted for six to seven years are only about 1% more likely to commit a new crime than individuals who have never committed a crime (Kurlychek et al., 2006). Uggen (2000) has found that even “marginal” employment opportunities can increase the likelihood of desistance for ex-offenders over the age of 27. As such, record clearance may be most beneficial and least risky for older ex-offenders as well as those whose crimes are in the distant past. The limitations of record clearance as a step toward employment, as reflected in some of our interviewees’ narratives, also suggest that for some offenders who have shown strong evidence of successful desistance, it may be worthwhile to consider policy options that go beyond expunging minor offenses, such as sealing records.

The role of record clearance in overcoming internal obstacles to desistance

Clearly, the record clearance process helps to remove external barriers to desistance from crime and effective reintegration into society, but a quote from Angela highlights the importance of the psychological and emotional benefits of record clearance as well: “Even though this is fixing the outside, … it’s fixing the insides at the same time.”

Cognitive transformation and development of a “replacement self.” As discussed earlier, several studies have determined that the shift from primary to secondary desistance may be predicated on a process of “knifing off ” certain negative aspects of the past, and the formation and adoption of a “replacement self ” (Giordano et al., 2002; Laub and Sampson, 2009; Maruna and Roy, 2007; Paternoster and Bushway, 2009). The desire to leave behind a criminal or substance-abusing lifestyle emerged in the narratives of nineteen of our study participants, fourteen of whom had completed the RCP and five of whom were on the wait list. These individuals spoke of how such a transformation led to their decisions to initiate the record clearance process. Those who had successfully completed RCP also discussed how the process had helped to confirm and cement their new identities.

Readiness to change as a precursor to record clearance. Mario, who is now happily employed, spoke of the need for readiness to change, adding that true change is more than just the ability to avoid probation violations. His perspective echoes scholars’ interpretations of the distinction between primary and secondary desistance:

The whole record clearance process has to be done on a person’s time when they’re ready to stop. I mean, getting off of probation sometimes doesn’t necessarily mean that the person’s ready to stop committing crimes, it just means that the person, you know, is capable of complying with probation.

Breaking from the past and “knifing off” parts of one’s personal history. Many respondents explained how their decision to change was accompanied by a desire to make a clean break from activities and associates from the past. Pete described his realization that his lifestyle was no longer sustainable or even enjoyable:

I’ve really taken a deep look at the things I need to change within myself to have a better life … The drugs and the alcohol, and the parties, started to not get fun anymore. And I started to incur, you know, consequences from my behaviors and actions … If you’re not willing [to change], you’re just going to continue to spiral downward. You have to want it. You have to really realize that, you know, doing the same thing expecting different results is futile.

Developing a “replacement self.” Once ex-offenders leave their old identity behind, the task of constructing a new identity remains. Twenty-two participants (thirteen RCP completers and nine from the wait list) spoke about their new, positive selves. Melissa’s new identity emerged with age, maturity, and the achievement of life-course milestones:

I grew up. I’m thirty-five and I was twenty-one when I did that stuff, you know what I mean … 21–22. You know, it’s like I am not young anymore and I have three kids and a home and a husband and, you know. I’m not that person … It’s really time for me to move on from this. I needed to no longer be the [Melissa] with the … a felon. I just needed to be [Melissa]. Prove that I am a better person.

The role of the record clearance court hearing in de-labeling and starting anew

The removal of all or some elements of a criminal record in a formal courtroom setting can have a powerful effect, providing much-needed external validation, removing a psychologically and emotionally burdensome label, and freeing or empowering an ex-felon to move forward with a new identity (Maruna, 2001, 2011; Wexler, 2001). Seventeen interviewees (fifteen who had completed RCP and two from the wait list) mentioned an experience or expectation of de-labeling. More so than just the outcome (a clear record), the actual process of preparing for, and successfully completing, the record clearance application and hearing can have a powerful effect. Many study participants spoke of this effect, as well as of the role of the court hearing in transforming their relationship with the court system from one based on antagonism to one encompassing mutual respect. This effect can build trust in the criminal justice system and make ex-offenders feel more invested in desistance from subsequent offending.

Changes in the ex-offender’s relationship with the court system. Many study participants’ past encounters with the court system had been consistently fraught with fear and shame. The record clearance hearing experience was noticeably different for several interviewees. Many expressed gratitude for the respect and encouragement they received from judges and other courtroom officials during the hearing, and several described how these positive interactions had bolstered their self-image and confidence, using language that signaled feelings of increased social capital. Mario describes the contrast between past courtroom appearances and the record clearance hearing in language that reflects a sense of agency, which many persistent offenders have been found to lack (LeBel and Maruna, 2012):

It was different because it was good, I mean I was still nervous and scared but I wasn’t in jail clothes and shackles, you know. I mean I walked in there. I initiated it. It wasn’t initiated against me. That’s what was different. It’s because I was the one asking to see the judge, not the judge asking to see me, or making me see him, you know. So I think that’s probably it. It’s because I’m the one who asked to see the judge.

Perhaps Marcus captures the contrast between past court experiences and the RCP hearing most succinctly: “Usually when you go to court something bad is happening. It felt good to walk out of the courtroom be like, ‘justice!’” This perspective reflects an increased perception of the legitimacy of the criminal justice system, which has been found to increase compliance with the law (Tyler, 2003).

Record clearance as a new beginning. For many respondents, the completion of the record clearance hearing marked an additional turning point beyond the internal transformations they had already undergone. Several interviewees felt a sense of liberation as a result of having their records expunged. Wanda said, “Oh my God, I felt like my shoulders … It was this big old weight just lifted off of me. It was like, it was like I was fifty pounds lighter. It was great. It was like the most wonderful feeling.” Allison, whose convictions, all related to substance abuse, damaged her relationships with her family and her employment prospects, expressed similar sentiments:

[i]t kind of put closure on everything. It was done, and now I can move on. You know, it was like the anchor that was weighing me down. Or, it would start to float up, I would be scared again and it would go down. And now it’s gone, you know.

Many spoke about how the process has enabled them to move forward with a better lifestyle. As Steven put it, “to be able to go in and have that taken away where I do not no longer have to say that I was a felon or am a felon … It’s a whole new way of life.” Adrian (a 33-year-old, college educated, employed, single, African-American man) also speaks about the confidence and optimism that came with having his record cleared:

Honestly, I really feel like I can really take on the world now. I can really pursue some of the long-term goals that I have in my life … you know, because it’s really been, because we live in a society where people are very judgmental on something—what they say about you on paper and really not the person who you are … And I think having my record cleared shows that somebody believes in me. Someone’s seeing something good in me … I think that’s just a great feeling to have, knowing that I don’t have to worry about my record being a burden or preventing me from doing something or preventing me from accomplishing goals that I want to have.

Several aspects of the record clearance process, as carried out in Santa Clara County, exemplify what prior scholars have identified as valuable in the promotion of long-term desistance from crime. In the RCP process, the ex-offender must demonstrate a change in behavior, which is then publicly certified by representatives of conventional society (Maruna et al., 2009). The judge affirms not only the desister’s change in behavior, but also his or her good character and respectability as a member of society (Maruna et al., 2009). Finally, the judge expresses high expectations for the desister’s future behavior (Maruna et al., 2009).

The RCP process also reflects a “strengths-based” paradigm, which has been popularized through drug courts, other types of problem-solving courts, and certain correctional programs: participation in RCP is voluntary; the process entails a formal ritual, which highlights an ex-offender’s assets through praise and external validation; and the central component is an opportunity for “earned redemption,” including the “expiration” of a criminal history that is determined to be inconsistent with the ex-offender’s current identity (Maruna and LeBel, 2002; Wexler, 2001). Evidence from our interviews of RCP completers indicates that application of a strengths-based approach retrospectively—to acknowledge and reward individuals who have demonstrated successful efforts to change—may help persons with criminal pasts build and reinforce a new self-identity, participate in the workforce, and truly reintegrate into society as productive citizens.