In the U.S., certain communities experience disproportionate policing, making them more likely to have arrest records and face increased civil and social marginalization. Correspondingly, as a result of criminal records, some individuals face challenges obtaining social benefits – including housing, employment, and government-based assistance.
The fact that some of these individuals’ records meet the criteria for expungement, but do not utilize the process, compounds the ramifications of the injustices committed against these communities. The expungement procedure remains both long and complex, and many people do not avail themselves of the process because they lack awareness of the practice or due to the associated cost. However, expunging criminal records can open vast opportunities for affected individuals and populations. New technologies, including artificial intelligence (“AI”), could transform the oftentimes arcane expungement process through functionally accessible tools.
Legal Considerations & Impacts of Expungement
A Michigan study on individuals whose records were expunged found that their wages increased as result of finding employment, indicating that even if remnants of a criminal past like mug shots still appear on the internet, that expungements help secure employment. Expungement-eligible persons have very low rates of recidivism and the increased access to jobs, housing, and employment further “reduce overall levels of crime.”
Recent legislative change facilitated this optionality as many states expanded or created “Clean Slate” laws, which vary nationally, both for waiting periods and which crimes qualify for expungement (only misdemeanors vs. including minor felonies).
As a result, developers have created AI systems that simplify the procedures for expungement. This has broadly taken two types of approaches: (i) “narrow AI” or state specific applications and (ii) “broad AI,” i.e., nationally applicable tools, in order to allow more people to utilize their state’s legal frameworks.
Narrow AI Application
In Maryland, two AI-assisted record expungement systems have been deployed by leveraging the state’s searchable public database of criminal records. The two systems, MDExpungement and ExpungeMaryland, operate roughly as follows:
- MDExpungement, created by Matthew Stubenberg, locates the clients’ case numbers automatically in the public database. From there the AI analyses the client’s record to determine eligibility for expungement and transfers the information to the appropriate expungement form.
- ExpungeMaryland, developed by Jason Tashea, similarly scrapes through the same public database allowing users to obtain a copy of their criminal records, then taking them through a series of “simply worded questions,” and finally determining if their record qualifies them for expungement. Users can then download both the expungement petition and the fee waiver and, when appropriate, contact an attorney.
MDExpungement and ExpungeMaryland both illustrate the possibilities for using AI to increase access to justice with respect to criminal record expungement, providing potentially life-changing benefits to otherwise unfairly impacted individuals.
Yet, numerous hurdles limit the ability of such systems to have a comparable impact in other states. A threshold issue remains, as often the case, data availability – not all states have the same type of databases as Maryland. Additionally, the expense of accessing criminal records en masse, in other states, limits the national application of such software. While individuals may have trouble obtaining their records, landlords, government service providers, or employers will not have such difficulty.
Therefore, while these Maryland based AI systems work in the state of their design, they lack broad application because of the state-by-state limits on data. In order to expand AI expungement nationally, the AI needs access to relevant public data available in each state, such as court files, laws relating to certain types of offenses, and individual DA’s criteria.
Broad AI Application
An AI system developed in California addresses this expandability concern. In California, expungements, especially for past marijuana charges, have successfully helped thousands of people obtain clear records in order to remove at least one obstacle from accessing government services, housing, or employment opportunities. In 2016, California passed Proposition 64, legalizing marijuana. While an estimated one million Californians have cannabis related charges, less than 3% of expungement eligible persons attempted to clear their records.
Code For America, a nonprofit that works to modernize U.S. government systems, created an AI called Clear My Record. The AI “analyse[s] text in court files, using character recognition to decipher scanned document[s].” After discarding cases involving violent crimes (as those are ineligible for expungement, in California), Clear My Record automatically fills out the expungement petition. In 2016, the program identified “8,132 eligible criminal records” each of which the relevant judge accepted, increasing the number of housing and employment related opportunities for thousands of individuals. In 2019, the program expanded to 58 California counties, in order to allow “district attorneys to expeditiously review cannabis convictions” for an estimated 220,000 people.
Clear My Record takes each county’s criminal history data sets, and scans for eligibility based on Proposition 64 and each DA’s criteria. The system can handle “10,000 individuals in just one minute.” All states could utilize the methodology of Clear My Record-using data from DA offices and the state law to determine eligibility-expanding the possibility of more accessible expungement nationally. AI can increase access to justice by helping individuals clear their records quickly, simply, and accurately.
Criminal records can prevent people from obtaining housing, employment, and public benefits. Deploying new technologies, including AI, can increase access to justice by simplifying the procedures for criminal record expungement, thus providing vast benefits to unfairly impacted individuals. Both state-level and broader systems can have a significant impact, however, the latter provides the most efficient pathway for marginalized communities to access expungement procedures across the country.
 Jamie Gullen, Why Clear a Record? The Life-Changing Impact of Expungement (Community Legal Services of Philadelphia (2018).
 The legal process by which a court orders or directs the destruction of the criminal and public records of the defendant’s crime. See What is Expungement, American Bar Association Journal, Nov. 20, 2018.
 Rebecca Beitsch, Here’s why many Americans don’t clear their records, (June 8, 2016), https://www.pbs.org/newshour/nation/heres-why-many-americans-dont-clear-their-criminal-records.
 J.J. Prescott & Sonja B. Starr, The Case for Expunging Criminal Records, N.Y. Times, Mar. 21, 2019, at A27
 Scrubbing the Past to Give Those With A Criminal Record a Second Chance, NPR, https://www.npr.org/2019/02/19/692322738/scrubbing-the-past-to-give-those-with-a-criminal-record-a-second-chance.
 J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions an Empirical Study, 133 Harv.L.Rev. 2461, 2462-65 (2020).
 Debra Cassens Weiss, Lawyer who Created Expungement App Sees Other Tech Possibilities, American Bar Association Journal, June 3, 2016.
 Anna Stolley Persky, New App Helps People Expunge Their Criminal Records, American Bar Association Journal, Nov. 1, 2014.
 Beitsch, supra note 4.
 Dave Lee, An Algorithm Wipes Clean the Criminal Pasts of Thousands, BBC (April 29, 2019), https://www.bbc.com/news/technology-48072164.
 Code for America Expands Clear My Record to California’s 58 Counties, Code For America (Sept. 5, 2019) https://www.codeforamerica.org/news/code-for-america-expands-clear-my-record-to-californias-58-counties.
 Gullen, supra note 1.