Nearly one third of adults in the United States have a criminal conviction. These can range from misdemeanors to class A felonies. It is undisputed that having a criminal conviction can have a serious influence on potential life opportunities. This includes, but is not limited to, affecting your ability to find a job, secure housing, or obtaining education. Despite how minor or singular the recorded offense may have been, many individuals will bear this branding for decades.
In wake of the U.S. Supreme Court decision on disenfranchisement in Florida, we decided to research the data of another growing but often unfamiliar criminal justice program – expungement. According to the American Bar Association, “expungement” is the process by which a record of a criminal conviction is destroyed or sealed from state or federal record. Across the US, 40 states have implemented some application of general sealing or expungement processes. Generally, very few states wholly expunge records, and rather “seal” records away from public access.
Figure 1: Availability of criminal conviction record sealing or expungement
In order to evaluate the effect of these programs, we decided to take a look at three categories of data: the correlation between expungement and recidivism, differences in state expungement laws, and corresponding crime rates. Based on the limited amount of data available, our general thesis is that a greater and more inclusive implementation of expungement laws has the potential to help lower recidivism rates and in turn decrease the incarceration population, while having no effect on crime rates.
What does the current data offer?
Now that you have an understanding of what expungement is, let’s look at the data and trends regarding the impact of expunging records on reincarceration across different states.
The 1 year and 3 year reincarceration rates are common methods used to monitor recidivism. Illustrated below, of those who return to prison, the likelihood is higher within the first couple years of release. As time continues, those that are released are much less likely to recidivate.
Figure 2: Recidivism of prisoners released in 30 states in 2005, by time from release to first arrest that led to recidivating event
The map below illustrates the 3 year reincarceration rate across the United States reported by the Virginia Department of Corrections, the lowest being Virginia (23.4%) and the highest being Delaware (64.5%).
Figure 3: 3 year reincarceration rates across the US
In order for us to understand the effect of expungement on recidivism, let’s evaluate 2 states, Massachusetts and Louisiana. These are 2 of 17 states that permit individuals to seal certain misdemeanors or felonies within their state.
According to the state recidivism comparison map above, Massachusetts and Louisiana both reported a reincarceration rate of 32%, as of 2018. If we take the 1 year and 3 year reincarceration rates reported by the state’s Departments of Corrections, and compare them to the corresponding violent and property crime rates, we can see that in both states recidivism rates and crime rates have witnessed a proportional decrease in each category.
Figure 4: Massachusetts and Louisiana recidivism and crime rates
Most notable from the data, in Massachusetts from 2007-2015 (the most recent corresponding data that could be found), the 3 year recidivism rate fell 10 percentage points from 43% to 33%. In Louisiana from 2004-2014, the 1 year recidivism rate fell 5.6 percentage points from 20% to 14.4%. Although the recidivism rates and crime rates in Louisiana are falling at a slower rate than Massachusetts, we can still see the same trends occurring.
Several studies over the years have evaluated the relationship between expungement and recidivism. They also show positive results.
A study conducted by the Bureau of Justice Statistics (2001) explored the impact of expungement on juveniles in New York. They found that among their sample of all individuals arrested at age 16 or 17 (regardless of sealed, unsealed, or destroyed records), an estimated 55% were arrested again at least once during the 10-year follow-up period. When the group was limited to those who did not have their 2001 arrest sealed, the recidivism rate increased to 86%.
Another study published by the Journal of Criminal Law and Criminology investigated expungement and likelihood of reoffending among individuals who have been exonerated. An exoneree is an individual who has been convicted of a crime but was later declared innocent or relieved of all legal consequences of the conviction. In some states, even though the individual has been effectively and legally cleared by the courts of their conviction, it may still remain on their criminal record. Of their sampled exonerees, 66.9% had their record expunged. Among said exonerees who had their records expunged, only 31.6% reoffended. In contrast, among the 33.1% of exonerees who did not have their record expunged, 50% reoffended.
Further, this study also looked at the relationship between reoffending and expungement among exonerees with no convictions prior to the crime of which they were exonerated. Of the exonerees who received expungement, only 16.7% reoffended, compared to those who did not receive expungement, 87.5% reoffended.
Because expungement can encourage recidivism rates to decrease, and both the recidivism and crime rates shown above illustrate a negative correlation, these results not only predict lower crime and recidivism at the state level, but it will also decrease the growing incarceration population.
It is no secret that America has the highest incarceration rates in the world. Many states have begun addressing high incarceration rates and making reforms to decrease their respective incarcerated populations. That being said, incarceration remains a huge problem within the US. In recent years, state and federal prisoner admissions (606,956 in 2017) have been slightly outweighed by releases (623,069 in 2017), but these numbers show that a large population is going into the state and federal prison system every year, and even more alarming, at the most current recidivism rate across the US, approximately 230,500 of those released in 2017 will be reincarcerated within 3 years of their release. A nation wide effort to lower recidivism rates and aid in reentry is necessary in order to truly shrink prison populations in the US.
What does this all mean?
The data illustrated above paints just a small portion of the whole picture. Greater implementation and accessibility to expungement in the US is unlikely to increase recidivism rates. Additionally, expungement programs in Massachusetts and Louisiana show no increase in violent or property crime rates or prison populations in the long run. Given the positive impact expungement can have on the life opportunities of individuals, as well as the positive impact on crime and incarceration, it would be worth establishing or growing current expungement programs across states to learn more.
Expungement gives individuals the opportunity for a second chance. Crimes that were committed decades ago oftentimes limit life opportunities today. This can create a negative feedback loop and ultimately, has long term micro and macro implications. A general argument that using criminal records to bar individuals from employment, education, and living communities, is that it will keep the general public safer and decrease crime. However, given the data, it can be reasonably argued that expungement offers an alternative path to these positive effects.
How more data can help?
Like most social progress laws, we need more data. With better data reported from departments of corrections we can gain a more accurate and updated picture of the effectiveness of expungement on recidivism across the US. This data will help governments and 3rd parties analyze the expungement laws on recidivism and crime, in addition to other economic and social effects.
As mentioned above, a larger sample size would also help. Expungement rates are incredibly low, even among those who are already eligible. Less than 6.5% of those eligible in New York, Michigan, and Washington actually receive benefits. Since there is a low recidivism rate among those who were exonerated, it would be worth monitoring which eligibility requirements are the greatest barriers to receiving expungement.
Want to learn more?
If you are interested in learning more about current expungement laws in your state, check out this link which shows a 50 state comparison of expungement, sealing, and other record relief laws.
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