Automatic elimination of criminal records makes sense and saves money too!

Senator Kim Pate, long a staunch advocate for reform of criminal justice in Canada, has introduced a bill in the Senate that calls for automatic expiry of criminal records after two years (for summary convictions) or five years (for indictable offences) after the completion of a sentence.   Senator Pate argues that Canada’s system of ‘administrative suspensions’, which under the Harper Conservatives replaced the former system of pardons, is cumbersome, expensive, and ineffective.  And National Parole Board  evidence shows that people who have received pardons benefit significantly and have very low rates of being arrested or charged with a crime.

Pate writes: “Criminal records perpetuate stigma, poverty and marginalization, and prevent access to what people need for successful community integration, from housing and employment to education and volunteer opportunities. That punishes not only individuals with records but also their families — especially their children — and prevents these individuals from contributing meaningfully to their community.

There is no accepted figure as to how many Canadians have a criminal record.  The most common estimate is between 3 and 4 million – which would be about one in 7 or 8 adults.  And that number does not include the benefits to others, especially family members, of eliminating criminal records.

Supporting evidence

Two recent U S studies add to the evidence supporting Senator Pate’s proposals.

A study by professors Sonja Starr and J.J. Prescott of Michigan Law School found that in Michigan over many years, despite laws allowing deletion of criminal records after a period of time, only 6.5% of those eligible actually had their records deleted.  And the gap between eligibility and success was greater for people with less serious crimes (misdemeanors) than  for more serious crimes (felonies).

Those who did have their records removed had a subsequent arrest rate much lower than the general population of the state, showing that expungement did not create any increase in crime.  At the same time, this group experienced a “sharp upturn” in wage and employment: wages went up on average by 25% within two years, driven mostly by “unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.”  So there was clearly a large benefit, which included gains to their families, increased tax payments and decreased use of public resources.

Given all the benefits, why did so few people benefit from these laws?  The authors find six reasons.

– lack of information about the availability of relief;

– administrative hassle and time constraints;

– cost (including court filing fees, lost wages, and transportation costs);

– distrust and fear of the criminal justice system;

– lack of access to counsel; and

– insufficient motivation to remove conviction.

As well, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.”  Many more people could have been eligible and thus benefited.

All of these restrictions mean that the low uptake rate we estimated is even starker when viewed in context: it is a very small fraction of a very small fraction. For the past decade about two thousand set asides per year have been granted in Michigan. Meanwhile, each year the Michigan state courts add about 300,000 new criminal convictions. On balance, the population of people living with criminal records is continuing to grow quickly; the set-aside law is like a bucket removing water from an ever-rising ocean.”

Second supporting study

The second study was by Colleen Chien, Professor of Law at Santa Clara University, who studied the take-up of various ‘second chance’ provisions in a number of US states.  These provisions allowed people with criminal records various ways to have their record erased through some kind of application process.  Some of these situations included cases where there was an arrest but no conviction.  Yet these events can also remain on a person’s record and affect things like job applications or travel or even access to various public benefits.  The study estimates that at least 25 million people in the U S are eligible for one of these programs.

The study had two major findings.  First, as in the Michigan study, only a small portion of those eligible took advantage of second chance programs in most states; typically under 10%.  Thus millions of people are still struggling against the negative effects of a criminal record even though laws would allow them to change this.  While in Canada the numbers are much smaller, they would still run into hundreds of thousands of people, not to mention their families.

Chien also found that an automatic record cleansing process was vastly cheaper as well as much more effective.  In Pennsylvania, which implemented an automatic ‘Clean Slate’ approach, the process  cost about 5 cents per clearance, compared to $3700 per application (not all of which were successful) in states that required people to submit such applications.  To put this another way, Pennsylvania could respond to nearly 75,000 clearances for the same cost as one request in other states.

In Canada

As a result of the legalization of marijuana, a group of advocates has been calling for automatic expungement of criminal records related to marijuana possession.  The federal government has instead offered an expedited pardon application process.  Yet the evidence shows that expungement of records would be vastly more effective and much cheaper.  And as Pate argues, the case for automatic elimination of criminal records after a reasonable period following the completion of a sentence applies not just to marijuana possession but to all crimes.  Such a step would provide significant benefits to a very large number of people, including many children, and at a very low cost.