April 20, 2020 Technology

Using the Clean Slate Clearinghouse to Inform Criminal Record Clearance

Alex Lesman

Tens of millions of Americans have a criminal record of some kind, and about a million young people acquire a juvenile record each year. Whether through background checks or public access to court records online, records of past entanglements with the law endure. State lawmakers have increasingly recognized that long-lasting collateral consequences of conviction can hinder access to employment, housing, education, and other opportunities that are essential to establishing a successful life after justice system involvement. This recognition has fueled a national trend toward making it easier to seal, restrict, or expunge these records. (Because state laws use several terms for removing a record from public access, the general term “record clearance” is used here.) In light of this development, defense attorneys, prosecutors, and judges must now take record clearance provisions into account, even while a case is pending.

A new online resource, the Clean Slate Clearinghouse, provides a handy tool for navigating record clearance, by bringing together statutes and other information on one website.

The website provides portals to information for three main audiences: people with criminal and juvenile delinquency records, legal professionals, and policy stakeholders and lawmakers. It gives people with records overviews of the record clearance options in their state and contact information for nonprofit law offices that can help them. For legal professionals, the site provides summaries of all relevant statutes, with links to full statutory texts. There is also a tool for comparing record clearance laws across states. The site gathers news, as well as scholarship on record clearance, collateral consequences of conviction, and related topics. It also features training webinars and original articles on practice points and developments in the law.

Even while a case is pending, the Clean Slate Clearinghouse is a valuable resource for understanding how any resulting record will affect the defendant, the victim (if any), and the public. By considering the availability of record clearance, a defense attorney can gauge how much a conviction will burden a client—will the record be cleared automatically after a year, can it be cleared at the judge’s discretion after five years, or is it ineligible for clearance? Defense attorneys can also better assess diversion and deferral programs, which sometimes have their own record clearance provisions. Prosecutors can compare the burdens and benefits of potential plea deals and diversion and deferral programs, as well as the time span of public access to records. Judges will also want to be well informed on all of these points, in order to fully understand what is at stake in the cases before them and to assess the appropriateness of any deal.

When a case returns to court as a petition to clear a record, all parties must be cognizant of the procedure to be followed and the consequences if clearance is granted. (Not all record clearance provisions require a petition to be filed, but it is common.) The lawyer for the person seeking to clear a record must know, at minimum, whether a charge is eligible for clearance, the waiting period, the filing procedure, the fee (if any), and the burden of proof. Although not all record clearance policies require prosecutors’ participation, many do. Prosecutors are commonly permitted to object to a petition, or to join it. Many statutes require prosecutors to notify victims when offenses involving victims are at issue. If there is a hearing, prosecutors typically are allowed to present evidence, including victim testimony. Under some statutes, the rules of evidence apply; under others, they do not. And judges, as the decision makers under many record clearance policies, must know the procedure and rule of decision for the petitions that come before them.

Let’s see how the Clean Slate Clearinghouse could be used in a hypothetical case. For illustrative purposes, the hypothetical state where this case takes place features actual provisions, gathered from various state statutes, that are fairly common. The citations that follow are to policies on the Clean Slate Clearinghouse, along with the relevant statutes.

John Doe lives with his partner and their daughter in the basement of his mother’s house. He works as a forklift operator at a warehousing company. He has an associate’s degree from a community college, where he studied computer-aided manufacturing, and he wants to get a job in that field. But it has been difficult to get and keep jobs over the past six years since his conviction for misdemeanor assault resulting from a drunken fight outside a bar. The case came in as a felony but was resolved with a plea to a lesser count and a sentence of 30 days in jail, followed by one year of probation. On probation he completed an alcoholism treatment program and joined a sobriety support group. The only other offense on his record is a misdemeanor DWI from his early 20s. Since completing probation five years ago, his only law enforcement contact was an arrest for possession of a small amount of marijuana; the district attorney’s office declined prosecution.

Some employers have told him he cannot work for them with crimes on his record; others never called him back. He has been rejected several times from renting apartments closer to his job after his criminal record showed up in background checks. In addition, his daughter’s school will not let him chaperone field trips, citing a district policy that forbids anyone with a criminal record to volunteer with students.

After hearing that his state allows record sealing, Mr. Doe finds the Clean Slate Clearinghouse online. On the site’s Find a Lawyer page, he enters his zip code and sees in the search results that a legal services organization in his area offers assistance with record clearance. He calls, and after screening, the organization agrees to represent him.

The lawyer for Mr. Doe goes to the Clean Slate Clearinghouse and consults the Adult Criminal Record Policies. She sees that a misdemeanor assault conviction can be sealed five years after sentence completion. Utah-C-3, citing Utah Code Ann. § 77-40-105(3)(c)(iii). Mr. Doe’s DWI conviction, however, is ineligible for sealing. Michigan-C-1, citing Mich. Comp. Laws § 780.621(3). Under some statutes the waiting period is affected by convictions and arrests, before or after the case at issue, such as his marijuana arrest that was not prosecuted. Georgia-C-2, citing Ga. Code Ann. § 35-3-37(j)(4)(A). But this is not the situation in their state, and because Mr. Doe was discharged from probation five years ago, the petition can be filed now. The lawyer looks at the policy page for misdemeanor conviction sealing to see what legal effect sealing would have, so that she can discuss with him whether a successful petition would provide worthwhile relief. After he learns that sealing would permit him to reply to an inquiry from the public that no conviction record exists, and would require criminal justice agencies to do so, he decides that it is worthwhile. Illinois-C-2, citing 20 Ill. Comp. Stat. § 2630/5.2. He also decides that he can afford the $50 filing fee. Ohio-C-1, citing Ohio Rev. Code Ann.§ 2953.32(C)(3). The lawyer drafts the petition, keeping in mind the statutory requirement of stating why the court should grant sealing and the option of including supporting documents, and files it. New York-C-2, citing N.Y. Crim. Proc. Law § 160.59.

Receiving a copy of the petition, the prosecutor goes to the Clean Slate Clearinghouse and scans the Adult Criminal Record Policies. Focusing on misdemeanor conviction sealing, she sees that the statute requires a prosecutor’s objection to specify the reasons for believing denial of the petition is justified. Ohio-C-2, citing Ohio Rev. Code Ann. § 2953.32. Because Mr. Doe’s case involved a victim, the statute also requires the prosecutor to notify the victim and inform him of his right to testify at any proceeding in the case. Indiana-C-2, citing Ind. Code Ann. § 35-38-9-8.

The judge receiving Mr. Doe’s petition looks at the same pages of the Clean Slate Clearinghouse in order to be informed of all requirements and to ensure that the statutory procedure is followed. The statute gives the judge discretion to hold a hearing on the petition. District of Columbia-C-1, citing D.C. Code § 16-803 et seq. Swayed by the fact that the victim has the right to testify if there is any further proceeding in the case, the judge orders a hearing to give the victim that opportunity. As for the decision, the statute directs the judge to order sealing if Mr. Doe’s circumstances and behavior warrant it and if it will be consistent with the public welfare. Kansas-C-1, citing Kan. Stat. Ann. § 21-6614.

Whichever way the judge decides, knowledge of the relevant record clearance statutes is essential for everyone involved. A free and accessible resource like the Clean Slate Clearinghouse, bringing together critical but often buried or scattered information, is a helpful tool to have at hand.

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Alex Lesman is a staff attorney in the special litigation unit of the Legal Aid Society in New York City. From 2017 to 2019, while at The Council of State Governments Justice Center, he helped develop the Clean Slate Clearinghouse.