PARTICIPATORY EXPUNGEMENT - Columbia Law Review

Most jurisdictions that permit expungement draw the line at certain crimes—usually those implicating one or more victims, serious risks to public safety, corruption, or breach of the public trust. This is unsurprising given how these crimes relate to the moral underpinnings of the criminal law in a democratic society. This Essay explores, given the overall direction of expungement reform, whether expungement should reach more offenses and by what procedural means.

More specifically, it suggests the community’s interest in adjudicating expungement increases with the seriousness of the criminal record, whereas for lower-level criminal records, the petitioner’s interest in reintegration can outweigh the preference for community involvement. As expungement reform climbs the ladder of offense seriousness, a dose of community involvement becomes more justifiable.

Given that expungement relates to the propriety of ongoing stigma and punishment, exempting the community from adjudication becomes increasingly problematic on political, ethical, and legal grounds as the severity of the criminal record increases. In a democratic legal system, the community must have the ability to express its will about the purposes and functions of the criminal law through adjudication. Second, the American constitutional tradition prefers community involvement in criminal matters. Third, communities should be involved in shaping and creating second-chance norms when they are desirable. “Participatory expungement” is warranted when the most significant normative questions relating to the criminal law are present, leaving room for development of a culture of second chances when the community thinks it is justified.

The full text of this Essay can be found by clicking the PDF link to the left.

* Professor of Law, Seton Hall Law School. Thank you to the Hon. Stephanos Bibas for encouraging me to study expungement and the role of community participation after criminal adjudication and my former colleagues at Community Legal Services, who introduced me to the practice of expungement law. Thank you to Darryl Brown, Jenny Carroll, Jessica Eaglin, Brenner Fissell, Thea Johnson, Justin Murray, Jenny Roberts, participants at CrimFest 2022, the faculties at New York Law School and Notre Dame Law School, and my colleagues at Seton Hall Law School for comments on this project. Finally, thank you to my wife, Katherine, for her continuous support, and my children, Elizabeth, Eleanor, George, John, Lucy, and Anna, for their inspiring curiosity, wonder, and zealous love for life.

Introduction

Less than twenty years ago, few states permitted the expungement of convictions. 1 See Restoration Rts. Project, 50-State Comparison: Expungement, Sealing & Other Record Relief, Collateral Consequences Res. Ctr., https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside-2-2/ [https://perma.cc/6XZZ-92S4] [hereinafter Collateral Consequences Res. Ctr., 50-State Comparison] (last updated July 2024) (providing “state-by-state summaries of record relief laws, with links to more detailed analysis and legal citations”). I am grateful for the extensive work done by the Center that details the variation in state approaches to expungement. Much of Part II builds on the Center’s exceptional work. Executive pardons were the way to erase convictions, characterized by lengthy petition-based processes that traditionally culminated in a judgment by a Governor or other executive official. 2 See Rachel E. Barkow, The Politics of Forgiveness: Reconceptualizing Clemency, 21 Fed. Sent’g Rep. 153, 153–55 (2009) (referencing how the state pardon power requires gubernatorial decisionmaking); Kathleen C. Ridolfi & Seth Gordon, Gubernatorial Clemency Powers: Justice or Mercy?, 24 Crim. Just., Fall 2009, at 26, 29–30 (discussing how states historically allocated authority to executive officials to pardon). As others have highlighted, pardon processes are fraught with procedural and substantive problems, not to mention political implications. 3 See, e.g., Margaret Colgate Love, Of Pardons, Politics, and Collar Buttons: Reflections on the President’s Duty to Be Merciful, 27 Fordham Urb. L.J. 1483, 1485–87 (2000) (“[Pardons] enable [the President] to deal expeditiously with situations involving political upheavals or emergencies.”); Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169, 1193–203 (2010) (“After 1980, presidential pardoning went into a decline . . . because the retributivist theory of ‘just deserts’ and the politics of the ‘war on crime’ together made pardon seem . . . useless and dangerous.”). And even if achieved, pardons tend to be for relatively minor crimes and, overall, barely make a dent in the quantity of conviction records in individual states and nationwide. 4 See Off. of the Pardon Att’y, DOJ, Clemency Statistics, https://www.justice.gov/pardon/clemency-statistics [https://perma.cc/KW76-MALK] (last updated Aug. 7, 2024) (providing data on the number of pardons received, denied, and granted by U.S. Presidents since 1900). Meanwhile, criminal repositories maintain tens of thousands of conviction records in something close to perpetuity, permitting ongoing stigma and punitive effects that undercut cardinal and ordinal principles of proportionality by any measure. 5 See James B. Jacobs, The Eternal Criminal Record 209–19 (2015) (explaining the repercussions of a system that allows for publicly accessible criminal records and questioning its justification under theories of punishment); Sarah Esther Lageson, Digital Punishment: Privacy, Stigma, and the Harms of Data-Driven Criminal Justice 6–9 (2020) (“[D]igital punishment is an enduring form of criminal stigma that travels across mugshot websites, background check services, and Google search results.”); Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, 2015 Wis. L. Rev. 321, 326–29 (discussing quantity of arrests and records in various databases).

The punitive effects of conviction records have led to more than a decade of significant reform, with many states expanding expungement relief to convictions. 6 See Collateral Consequences Res. Ctr., 50-State Comparison, supra note 1 (providing lists of, and data on, states that authorize the expungement of convictions for different levels of felonies and misdemeanors). These legislative activities broaden the range of convictions eligible for expungement and the number of petitioners eligible for relief. 7 See id. Automated expungement, also known as “Clean Slate” relief, 8 See, e.g., Clean Slate in the States, About CSI, Clean Slate Initiative, https://www.cleanslateinitiative.org/states [https://perma.cc/HN67-6RZU] (last visited Nov. 24, 2024) (“The Clean Slate Initiative passes and implements laws that automatically clear eligible records for people who have completed their sentence and remained crime-free, and expands who is eligible for clearance.” (emphasis omitted)). promises easier expungement of convictions by eliminating the manual petitions that were traditionally required and that contributed to what Professors J.J. Prescott and Sonja Starr referred to as the expungement “uptake gap.” 9 J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2460, 2501–07 (2020) [hereinafter Prescott & Starr, Expungement of Criminal Convictions]; see also Colleen Chien, America’s Paper Prisons: The Second Chance Gap, 119 Mich. L. Rev. 519, 541–42 (2020) (noting gaps in expungement relief).

Yet these reforms have been accompanied by a large caveat: The remedy has been extended to a patchwork of lower-level convictions and only after extensive waiting periods. That is to say, the expanded relief has limits. Legislatures have erected procedural hurdles and shown a strong unwillingness to extend expungement beyond a subset of crimes.

This Essay explores the limits of conviction-based expungement enacted by states, the purported rationales underlying those limits, and the arguments that might support extending the remedy further. In doing so, it highlights how the move to allow expungement of convictions rests on two interwoven premises related to the maintenance of public criminal records: (1) the recognition that public criminal records stretch the boundaries of permissible state punishment and permit privately-inflicted punishment through collateral consequences; 10 See Alessandro Corda, More Justice and Less Harm: Reinventing Access to Criminal History Records, 60 How. L.J. 1, 15–19 (2016) (detailing the connection between public criminal records and punishment theory and punitive consequences); Brian M. Murray, Retributive Expungement, 169 U. Pa. L. Rev. 665, 673–80 (2021) [hereinafter Murray, Retributive Expungement] (describing collateral consequences for individuals with public criminal records resulting from the decisionmaking of non-state actors); Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment 15, 17–21 (Marc Mauer & Meda Chesney-Lind eds., 2002) (“In this brave new world, punishment for the original offense is no longer enough; one’s debt to society is never paid.”); see also Simone Ispa-Landa & Charles E. Loeffler, Indefinite Punishment and the Criminal Record: Stigma Reports Among Expungement-Seekers in Illinois, 54 Criminology 387, 389–91 (2016) (describing how “widely available criminal records” restrict access to a variety of privileges, including “employment opportunities, voting rights, access to public housing, student financial aid, and social service benefits”). and (2) the reality that existing legal structures do not adequately mitigate extra punishment stemming from public criminal records. 11 See Jacobs, supra note 5, at 209–19 (describing the accessibility of criminal records); Lageson, supra note 5, at 163–82 (detailing the inadequacy of various legal structures).

Enabling the expungement of arrests and lower-level convictions carries less risk of undercutting moral and social norms because the extent to which those offenses implicate such norms is more attenuated. 12 For instance, consider that an arrest may rest solely on the judgment of one lower-level executive official without prior review by a judicial officer. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”). Similarly, many lower-level convictions are the product of plea deals. See Ram Subramanian, Léon Digard, Melvin Washington II & Stephanie Sorage, In the Shadows: A Review of the Research on Plea Bargaining 6 (2020), https://www.vera.org/downloads/publications/in-the-shadows-plea-bargaining.pdf [https://perma.cc/KW2T-L8FD] (emphasizing the overwhelming amount of guilty pleas at the trial court level). Alternatively, higher-level convictions might involve lengthier investigations by multiple executive officials, perhaps implicating the judiciary due to the requirements of constitutional criminal procedure. See U.S. Const. amend. V (requiring grand jury indictment for capital or infamous crime); DOJ, Just. Manual § 9-11.120 (2020) (discussing the powers and limitations of grand juries). Add the administrative impulses driving criminal law reform more broadly and the justification for administrative record-clearing emerges. Administrative record deletion, either manually or automatically, has become the response to administrative record creation on the front end for low-level crimes. 13 See, e.g., Clean Slate Initiative, Our Strategy to Unlock Opportunity for Up to 14 Million Additional People 8 (n.d.), https://static1.squarespace.com/static/62cd94419c52
8e34ea4093ef/t/66bb5bac1fd7ca3c98cc5da3/1723554734777/CSI+Strategic+Plan.pdf [https://perma.cc/TE4C-QCMH] (last visited Sept. 21, 2024) (outlining a strategy to implement legislation across all fifty states that would make millions of Americans eligible for automatic full or partial record clearance).

Simultaneously, states have set up moderate conviction-based expungement regimes while remaining reluctant to include higher-level crimes. 14 See infra sections II.A–.B. This Essay suggests this hesitation has deep roots, stemming from the continued legislative acceptance of a simple, yet traditional, belief: that the criminal law—its scope and limits—involves the reaffirmation of community norms through the condemnation of moral and social wrongdoing. 15 See Joshua Kleinfeld, Reconstructivism: The Place of Criminal Law in Ethical Life, 129 Harv. L. Rev. 1485, 1513–18 (2016) [hereinafter Kleinfeld, Reconstructivism] (describing the function of punishment); Brian M. Murray, Restorative Retributivism, 75 U. Mia. L. Rev. 855, 882–87 (2021) [hereinafter Murray, Restorative Retributivism] (same). Put simply, the most serious crimes implicate the most serious social norms and enforcement of the criminal law—and maintenance of records showing as much—has expressive value. 16 Of course, whether the criminal law has expressive purposes for certain values is a separate question from whether the values it chooses to express are fully just. The moral and social underpinnings of many parts of the criminal law have changed due to increased understanding about the values the law purports to serve. Additionally, just because the criminal law aims to further certain values does not mean it accomplishes that task well.

The expungement of convictions potentially undercuts that purpose. Whereas criminal law arguably aims to “restitch” the social fabric, 17 Kleinfeld, Reconstructivism, supra note 15, at 1538. expungement might be thought to “unstitch” it if not accomplished carefully. 18 See Brian M. Murray, Unstitching Scarlet Letters?: Prosecutorial Discretion and Expungement, 86 Fordham L. Rev. 2821, 2852–53 (2018) (explaining that prosecutors might see the expungement as an unstitching of the social fabric if there is not significant justification that aligns with their policy objectives for the expungement). Legislatures also might conceive ongoing stigma and associated collateral consequences as deserved for higher-level offenses. 19 See Brian M. Murray, Are Collateral Consequences Deserved?, 95 Notre Dame L. Rev. 1031, 1068 (2020) (discussing desert and higher-level offenses); Travis, supra note 10, at 17–18 (discussing the history and context of these collateral consequences and punishment). Further, legislative authorization is fraught with political and social difficulties given the severity of these offenses, especially if the decision is either unilateral by a judge or automatic. In other words, legislators are reluctant to let judges or automated processes unilaterally expunge higher-level convictions, in the same way that the pardon process evolved to typically involve multiple, fragmented layers of government. 20 See Richard A. Bierschbach, Fragmentation and Democracy in the Constitutional Law of Punishment, 111 Nw. U. L. Rev. 1437, 1443 (2017) (describing how the “adjustment process involves a host of actors, each with its own strengths and perspectives on the demands of justice”).

While nearly half of the states permit expungement of convictions, almost all restrict such relief to nonviolent offenses or crimes when social harm is less immediately visible or apparent. 21 See infra sections II.A–.B. Given this legal reality, which has stalled the extension of expungement, criminal records reformers are at a crossroads: Should they recognize the limits of expungement reform and move to other pastures for criminal records reform, 22 There has been a movement in favor of reforming the criminal records apparatus on the front end, thereby reducing the need for expungement remedies on the back end. or should they push for expansion of expungement reform to even higher-level convictions? At the same time, expungement skeptics wonder if the past decade of reform has gone too far and requires pause. 23 See, e.g., Jeffrey Billman, Prosecutor Pressure Stalls Automatic Expunctions in North Carolina, Bolts Mag. (July 11, 2022), https://boltsmag.org/prosecutor-pressure-stalls-automatic-expunctions-in-north-carolina/ [https://perma.cc/GH3P-EX83] (“[T]he North Carolina Conference of District Attorneys, an influential organization that represents the state’s prosecutors and pressed for the pause, argues that the court system needs time to address the law’s ‘unintended consequences.’”). Put differently, the narrow question is whether expungement should reach higher-level offenses. The broader question is, if so, who should decide when expungement might be appropriate given the normative fabric of the criminal law.

This Essay considers a solution that recognizes the normative components of expungement law and the moral underpinnings of the criminal law in the American democratic tradition. Building from a growing literature that reemphasizes the need to reinject the community into criminal adjudication at various phases of the criminal process, 24 See Laura I. Appleman, The Plea Jury, 85 Ind. L.J. 731, 766 (2010) [hereinafter Appleman, The Plea Jury] (proposing the incorporation of the local community into the guilty-plea procedure); Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 802–16 (2012) (discussing more effective police-regulation methods); Carissa Byrne Hessick & Michael Morse, Picking Prosecutors, 105 Iowa L. Rev. 1537, 1578–87 (2020) (discussing the potential for prosecutor elections as a source of criminal justice reform); Daniel S. McConkie, Jr., Plea Bargaining for the People, 104 Marq. L. Rev. 1031, 1043–45 (2021) (emphasizing the importance of public participation in democratic processes such as jury service and advisory boards); Jed S. Rakoff, Why Prosecutors Rule the Criminal Justice System—And What Can Be Done About It, 111 Nw. U. L. Rev. 1429, 1432 (2017) (discussing the supremacy of prosecutorial power); Jocelyn Simonson, Bail Nullification, 115 Mich. L. Rev. 585, 606–11 (2017) [hereinafter Simonson, Bail Nullification] (exploring the possibility of community bail nullification); Tom R. Tyler, From Harm Reduction to Community Engagement: Redefining the Goals of American Policing in the Twenty-First Century, 111 Nw. U. L. Rev. 1537, 1560 (2017) [hereinafter Tyler, From Harm Reduction] (describing the value of policing that promotes public trust); David Alan Sklansky, Unpacking the Relationship Between Prosecutors and Democracy in the United States 1 (Stan. Pub. L. Working Paper No. 2829251, 2016), https://ssrn.com/abstract=2829251 [https://perma.cc/EB99-PEPN] (discussing the relationship between democracy and prosecutors). See generally Tracey Meares, Policing and Procedural Justice: Shaping Citizens’ Identities to Increase Democratic Participation, 111 Nw. U. L. Rev. 1525 (2017) (discussing the importance of citizen engagement in criminal law). it applies concepts relating to democratization and participatory process to the world of expungement.

Given that expungement is a judgment relating to the propriety of ongoing stigma and punishment as applied to a particular person, it is a natural forum for community involvement. In a democratic legal system, the community must have the ability to express its will about the purposes and functions of the criminal law through adjudication. The American constitutional tradition prefers community involvement in criminal matters—notions of restorative criminal justice suggest as much—and this sort of adjudication would allow communities to determine second-chance norms when they are desirable.

Put simply, as expungement reform climbs the ladder of offense seriousness, a dose of community adjudication becomes more justifiable. 25 Exempting the community from adjudication becomes increasingly problematic on political, ethical, and legal grounds as the severity of the criminal record increases. See infra Part III. The extraordinary nature of expungement means that the community’s interest in adjudication increases with the seriousness of the criminal record at issue, whereas for lower-level criminal records, the petitioner’s interest in reintegration can outweigh the preference for community involvement in adjudication. The latter justifies recent trends in expungement reform, but the former calls for coupling any additional substantive expansion with procedural incorporation of the community into expungement adjudication for serious offenses. Coupling community participation with expungement determinations would allow for threading the needle between two equally important interests: (1) reaffirmation of the utility of the criminal law and its limits more broadly, including in a democratic state, and (2) broader awareness of the effects of a conviction record in today’s digital world.

In other words, this Essay makes the case for making expungement more participatory as the stakes increase. The more serious the conviction, the more directly involved the community should be in making the decision to expunge. Participatory expungement can involve the communal adjudication of expungement petitions involving higher-level offenses. This would obviate the need for the inefficient and flawed pardon process, align with the move to “democratize” criminal justice remedies, and empower communities to make decisions relating to records erasure and the reintegration 26 See R.A. Duff, A Criminal Law to Call Our Own?, 111 Nw. U. L. Rev. 1491, 1503 (2017) [hereinafter Duff, Call Our Own?]; see also William J. Stuntz, The Collapse of American Criminal Justice 30–31 (2011) (discussing the history of progressive community involvement in the criminal justice system); Bierschbach, supra note 20, at 1437–38 (noting the balancing of bureaucratic and participatory forces to achieve democratic involvement); Alexander L. Burton, Francis T. Cullen, Justin T. Pickett, Velmer S. Burton, Jr. & Angela J. Thielo, Beyond the Eternal Criminal Record: Public Support for Expungement, 20 Criminology & Pub. Pol’y 123, 128–29 (2021) (discussing large public support of expungement in certain situations); Francis T. Cullen, Bonnie S. Fisher & Brandon K. Applegate, Public Opinion About Punishment and Corrections, 27 Crime & Just. 1, 41 (2000) (discussing the wide range of punitive and progressive policies favored by the public); Murray, Restorative Retributivism, supra note 15, at 891 (explaining how human decisionmaking can leave room for mercy and restoration); Ekow N. Yankah, The Right to Reintegration, 23 New Crim. L. Rev. 74, 75–81 (2020) (characterizing reintegration as a political right). of those who have been convicted. It would inject a dose of community-centered adjudication into the criminal process, albeit on the back end. While scholars such as Judge Stephanos Bibas, 27 See Stephanos Bibas, Political Versus Administrative Justice, in Criminal Law Conversations 677, 677 (Paul H. Robinson, Stephen P. Garvey & Kimberly Kessler Ferzan eds., 2009) [hereinafter Bibas, Political Versus Administrative] (arguing for placing criminal justice policy in the hands of laypeople given moral expertise); see also infra sections III.A–.C. and Professors Akhil Reed Amar, 28 See infra sections III.A–.B. Laura Appleman, 29 See Laura I. Appleman, The Lost Meaning of the Jury Trial Right, 84 Ind. L.J. 397, 399 (2009) [hereinafter Appleman, Lost Meaning] (exploring the historical meaning of the jury trial right to argue against continued reliance on bench trials). Josh Bowers, 30 See Josh Bowers, Blame by Proxy: Political Retributivism & Its Problems, A Response to Dan Markel, 1 Va. J. Crim. L. 135, 156–64 (2012) (discussing the problems with political retributivism); Josh Bowers, Upside-Down Juries, 111 Nw. U. L. Rev. 1655, 1666–67 (2017) (arguing that laypeople are “uniquely well suited to evaluate normative principles” that are at the center of the criminal process). Tracey Meares, 31 See Meares, supra note 24, at 1533 (“[P]rocedural justice not only implicates the relationship that individuals have with legal authorities but it also implicates how we, as members of groups, relate to one another in groups.”). Paul Robinson, 32 See Paul H. Robinson, The Proper Role of Community in Determining Criminal Liability and Punishment, in Popular Punishment: On the Normative Significance of Public Opinion 54, 73–74 (Jesper Ryberg & Julian V. Roberts eds., 2014) (arguing that community views of justice should become the basis of criminal liability and punishment). Jocelyn Simonson, 33 See Jocelyn Simonson, The Place of “The People” in Criminal Procedure, 119 Colum. L. Rev. 249, 255–56 (2019) [hereinafter Simonson, The People] (arguing in favor of abolishing the people/defendant dichotomy and embracing popular participation in criminal procedures). and others 34 See, e.g., Kyron Huigens, Virtue and Inculpation, 108 Harv. L. Rev. 1423, 1427 (1995) (referencing practical judgment and determinations of moral blameworthiness); McConkie, supra note 24, at 1034–35 (arguing for expanding popular participation in the plea bargaining system to achieve the social purposes of criminal law). have explored the historical–legal roots of community involvement in other contexts to argue for increased participation in different phases of the criminal process, this critique applies to the field of expungement.

In conducting this novel critique and proposal, this Essay proceeds as follows. Part I explains the social and legal realities that led to extending expungement to convictions. It emphasizes the negative and lasting effects of a public conviction record, how such records implicate additional public punishment and permit privately inflicted punishment, and the shortcomings of the pardon system as the traditional vehicle for the erasure of convictions. Part II then canvasses the developing law of expunging convictions, highlighting its extensions and major limits. It suggests that while reform has been widespread across the states, it generally has not proceeded beyond a certain level of conviction. Further, ample procedural hurdles exist.

Part III articulates the rationales for increased democratic participation in expungement adjudication. This argument is made from several angles: the historical and constitutional preference for democratic involvement in criminal adjudication, democratic theory, punishment theory, empirical grounds, and the practical utility of expanding the remedy. Part IV then operationalizes these arguments to propose a roadmap for states that wish to thread the needle by broadening the remedy, enhancing participation, and serving the purposes of the criminal law at the same time. It also responds to potential and likely criticisms of the proposal, some of which are frequently leveled against any efforts to democratize criminal justice. 35 See, e.g., John Rappaport, Some Doubts About “Democratizing” Criminal Justice, 87 U. Chi. L. Rev. 711, 759–73 (2020) (describing the main arguments against democratizing various parts of the criminal justice system). At the very least, it aims to elucidate the key questions for stakeholders moving forward.