Monday, February 14, 2022
Notable Code for America paper on "Automatic Record Clearance Policies in Legalization and Decriminalization Legislation"
I just saw this recent 18-page report from the folks at Code for America. The full title of the report highlights the goals and essential contents of this notable new document: "Recommendations for Automatic Record Clearance Policies in Legalization and Decriminalization Legislation: 11 best practices for creating high-impact, implementable policies that clear conviction records — automatically." Long-time readers know I have long been particularly interested in criminal justice impacts of marijuana reform and especially record clearance efforts. (I wrote one of the first big explorations of this topic in my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," and more recently co-authored another piece titled "Ensuring Marijuana Reform Is Effective Criminal Justice Reform.")
This new document is a great primer on this enduring topic, and this two-pager provides the particulars of the 11 recommendations in the full report. But I would urge everyone to take the time to check out the full report, and here is part of its text:
Our recommendations are presented in three categories. First are recommendations about the process of automatically clearing records. They include an advisory against relying on petition-based record clearance, a statement on the importance of the process being initiated and coordinated by a state-level agency, and an explanation about why there need to be deadlines attached to every major milestone of the automatic record clearance process. These recommendations are very important for implementation, but are also important to maximizing impact. In order to build public trust in automatic record clearance, we close this section with a recommendation that government study and publicize findings on the impact of automatic record clearance, especially as it relates to equity-related metrics such as racial disparities.
Next are recommendations about who should be eligible for automatic record clearance. In order to maximize impact, legislation needs to provide eligibility that is as expansive as possible. The recommendations explain that, at a bare minimum, all records should be cleared for conduct that is no longer criminalized or can no longer be charged. We advise against including conditions that disqualify people from eligibility because they reduce impact and also make implementation more challenging. Expansive eligibility must be anchored in the law, so we offer an advisory to be as specific as possible when drafting legislation — leave nothing open to interpretation because that causes challenges for implementation. We also recommend that after a bill is passed, no system actors (e.g. judges, prosecutors) should have discretion over who gets relief in the process of automatically clearing records because it leads to inequity and is nearly impossible to implement.
Finally, we offer recommendations about who should have access to and jurisdiction over cleared records. People living with convictions should be able to access confidential documentation about their criminal case histories, whether their records are cleared or not, and there is a big opportunity for government to offer this as a human-centered, trauma-informed digital service. We recommend that courts maintain confidential documentation of records that have been affected by record clearance rather than having all traces of records completely destroyed. We also recommend that courts maintain jurisdiction over these records so that people can continue to exercise their legal rights to pursue any other post-conviction relief remedies besides automatic record clearance, and so that people can access the information about their cleared records should they need it in the future.