A Clean Slate for No One: The Need for Automatic Expungement Policies

by Michael Hiestand 

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In the United States, the “collateral consequences” of a criminal record extend far beyond the period of physical detention. These disadvantages fall disproportionately on the shoulders of people of color, and on Black Americans in particular. Among the numerous policy mechanisms aimed at alleviating these collateral consequences, expungement – the extraction and isolation of official criminal records from public access – stands out as particularly promising in that it promises to provide criminalized individuals a “clean slate.” However, the emerging literature on the uptake rate of expungement policies in their current, petition-based state has been far from encouraging. This paper provides a critical race perspective to this emerging literature through a comparative analysis of expungement policies in New Jersey and Alabama. This analysis reveals that existing expungement policies are not simply ineffective; they are also active contributors to the racial disparities in the impacts mass incarceration. This paper concludes by suggesting that the only equitable path forward for expungement is to follow the lead of New Jersey and other states by providing expungement automatically to those who qualify.

About the Author

Michael Hiestand is a second-year J.D. candidate at the University of Texas School of Law whose main academic interests are American racial politics and linguistics. Originally from Kentucky, he received his undergraduate education at the University of Chicago before moving to Texas. He will spend this summer working in the Houston office of Simpson Thacher & Bartlett before returning to Austin for his final year.

Project & Publications Type: Rapoport Center Working Paper Series