The Steep Price of a Clean Slate

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June 20, 2019

Expungement is set up to give people with a criminal history a second chance. It’s a clean slate, a fresh start. But, it is often only available if you can afford to pay for it.

Having a criminal record that you can’t erase has devastating collateral consequences. People with criminal records often experience government-sanctioned discrimination. A criminal conviction can automatically bar you from many social safety net programs. You could be kicked off food stamps, evicted from your home, or denied student loans. You can even be banned from working for certain kinds of employers or obtaining professional licenses. People whose family members are currently incarcerated can be prevented from seeing their loved ones based solely on their criminal history. Our society treats people with an arrest record as second-class citizens, locked out of many of the privileges and opportunities of normal life.

Given all of these collateral consequences, expungement is a lifeline for people with a criminal history.

Generally, an expungement means that the government will erase all public records of an offense. You are legally allowed to deny that you have been arrested for or charged with the offense. This can open up opportunities for employment, housing, public benefits, financial aid, and serving as a foster parent. It means that you could go back to school, have a fair shot at getting a job, or see your incarcerated family members again.

Each state has its own set of rules that restrict expungements of arrest and conviction records. Expungement is often limited to arrests that did not result in a conviction, convictions for less serious offenses, or people with shorter criminal histories.

There are also frequently procedural hurdles. Many states impose lengthy waiting periods, during which you cannot be convicted of another crime. In the District of Columbia, for example, you have to wait eight years to be eligible to have a conviction erased. Though some circumstances can result in automatic expungement, it is often granted only at the discretion of a court.

Our laws are perpetuating a cycle of poverty where financially-struggling people with criminal records are stuck as second-class citizens.

If this weren’t arduous enough, the process comes with an additional catch: money.

There are two functions of state expungement systems that make it particularly difficult for people experiencing financial hardships to erase their criminal records.

First, states commonly charge exorbitant processing fees. Some states allow these fees to be waived due to financial hardship, but others do not consider an applicant’s ability to pay. Many states charge upwards of hundreds of dollars in fees. In Louisiana, expungement fees can add up to a whopping $550: the Louisiana Bureau of Criminal Identification and Information charges $250, the sheriff and the district attorney both charge $50, and the clerk of court charges $200. And in some states, applicants are charged separate fees for each arrest or conviction. This means that an expungement is out of reach for people who cannot afford to pay the government hundreds or thousands of dollars upfront.

At first glance, an application fee might seem like a practical necessity. But often, these fees aren’t even used to cover the cost of processing the application. In Kentucky, for instance, 90% of the money from expungement applications goes into the state’s general fund.

States also frequently impose a second expensive condition on the process: the requirement that an applicant have paid off all of their court debt. Most people who are incarcerated are subject to court-ordered fines, fees, restitution, or surcharges that are unrelated to their sentence. One woman exited the prison system to find herself $33,000 in debt to the court system. Though she made minimum monthly payments, thirteen years after her conviction the amount she owed had skyrocketed to $72,000 because of interest. If expungement is unavailable until a person has paid off all of their court debt, they could be waiting for years or decades. And if you live in a state that has a waiting period before you can even apply, the clock may not start to run on that waiting period while you still owe court debt.

Laws that deny assistance to everyone except for those with the ability to pay for it are fundamentally unfair.

People who can’t afford expungement even though they have completed their sentence, or were never convicted of a crime, face years of hardships and strife that could be completely wiped away if they could afford it.

According to a 2018 Brookings Institution report, more than half of incarcerated people had less than $500 in annual income two years before they entered prison. Among those who worked, the average income was just over $12,000. These earning prospects are unlikely to improve either during or after incarceration. Prison jobs typically pay less than $1 per hour—and even those wages are usually subject to mandatory deductions for court debt, fines, or post-release expenses that bleed incarcerated workers of most of their income. And the vast majority of formerly incarcerated people earn $15,000 or less the first year after they are released.

All of these factors make it even harder for people to save up the money they need to be eligible for expungement. In this way, our laws perpetuate a cycle of poverty where financially-struggling people with criminal records are stuck as second-class citizens. Meanwhile, wealthy people who have been arrested or convicted can buy their freedom from their criminal records with comparative ease.

The possibility of a clean slate shouldn’t depend on your ability to pay for it. That’s why Equal Justice Under Law intends to challenge these laws in court. Equal Justice Under Law has been fighting since 2014 to protect people in the criminal justice system from wealth-based discrimination, and we believe that discriminatory expungement laws will continue unfairly harming people until the practice is corrected through litigation.