Mitigating the Opportunity Costs of Criminal Convictions: Why Criminal Justice Reform Should Focus on Expungements

Despite similar rates of consumption by different racial groups, police disproportionately arrest people of color for marijuana possession and use. The disparities in arrests between white people and people of color entering the carceral system for misdemeanor charges, such as possession of marijuana, creates a social cost that should be addressed and rectified through legal measures such as expungement. Laws allowing for the expungement of criminal convictions continue to gain increasing importance in modern criminal justice reform. 

Beginning in 2013, anyone with marijuana-related convictions in the state of Rhode Island can successfully apply for expungement because of renewed decriminalization efforts. One study found that decriminalization of marijuana was associated with a 75% reduction in the rate of drug-related arrests for youth, with similar numbers among adults. In addition to decriminalization, misdemeanor offenses have also been converted to civil violations and not lead to steeper fines and potential jail time. In 2016, legislation signed into law by Gov. Gina Raimondo transitioned the criminal charge of driving with an expired license to a civil violation for the first two occurences. However, if a third conviction occurs, punishment would include criminal misdemeanor charges. By altering and reducing the number of misdemeanor charges, less people will experience the potentially life-long, negative consequences of misdemeanor convictions on their record. 

The expungement program run through the Rhode Island Attorney General’s Office has adapted to the ongoing COVID-19 pandemic. Social distancing and face masks prohibited the continuation of in-person clinics to assist applicants. Thus, the RI Attorney General’s Office created a Google form that allows anyone to apply for their RI convictions to be expunged at their convenience. Questions on the form include prior court case numbers, types,  number of charges, and past sentences. The digitalization of expunging prior convictions has made the services of the RI Attorney General’s Office more accessible. 

Since misdemeanor and felony convictions bar people from employment, housing, social integration, political involvement, and other opportunities, policymakers need to find a remedy to mitigate the difficulties in navigating or reentering society after a criminal conviction. For example, the California Department of Corrections estimated that 10% of its parolees were homeless since criminal convictions may lead to exclusion from public housing. Using expungement data in Michigan, Prescott and Starr carried out a statewide study of the effects of expungement for recipients and non-recipients. The researchers found that the uptake rate of expungement appeared incredibly low, as only 6.5 percent of all eligible individuals received an expungement within five years of the date when they qualified for one. When there are fees or substantial administrative requirements, there is a greater challenge for people successfully completing an application for expungement. Uptake of expungement also faces challenges when it is difficult for beneficiaries to learn about relevant rights and opportunities. However, these barriers could be mitigated through outreach to qualified applicants. Additionally, expungement recipients had very low recidivism rates for arrests within five years of their expungement. Data showed that the rate of recidivism fell to 7.1 percent and the rate of convictions was even lower at 4.2 percent for any crime. Though these low rates are not necessarily because of expungement, the low rates of recidivism counter any arguments against expungement as too risky. Lastly, Prescott and Starr look at subsequent employment after expungement. Controlling for previous employment and wage history as well as fluctuations in the economy, the researchers found that after one year expungement recipients on average increased their individual odds of employment by 113%, which is considerable. Also, the odds of an expungement recipient earning at least 100 dollars a week, a slightly more demanding employment measure, increased by a factor of 123%. Though we cannot necessarily draw a definitive causal conclusion, it is likely that expungement increased recipients’ likelihood of employment. 

With the potential to reduce the costs incurred that prolong the punishment of a criminal conviction, states must increase their focus on improving expungement statutes if they have not already and make applying for expungement accessible. The continuation of the COVID-19 pandemic in backlogging criminal cases and necessitating public health measures could catalyze the changes needed to make state expungement programs widely available with less hassle. 

Alexandra Herrera is a junior at Brown University, concentrating in Sociology. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at alexandra_herrera@brown.edu.