America’s Paper Prisons: The Second Chance Gap
Over the last decade, dozens of states and the federal government have enacted “second chance” reforms that increase the eligibility of individuals arrested, charged, or convicted of crimes to shorten their sentences, clear their criminal records, and/or regain the right to vote. While much fanfare has accompanied the increasing availability of “second chances,” little attention has been paid to their delivery. This study introduces the concept of the “second chance gap,” which it defines as the difference between eligibility and delivery of second chance relief; explores its causes; and approximates its size in connection with several second chance laws and initiatives. Using administrative and other data, it finds that among a host of petition-based second chance opportunities, to shorten sentences, restore one’s vote, and clear one’s criminal convictions, only a small fraction (less than 10 percent) of those eligible for relief actually received it. Extrapolating based on a novel analysis of around sixty thousand criminal histories of persons primarily seeking gig-economy work and of the expungement laws governing nonconvictions of all fifty states applying the nonconviction expungement laws of all fifty states to around sixty thousand criminal histories of persons primarily seeking gig-economy work, this study estimates that at least twenty to thirty million American adults, or 30–40 percent of those with criminal records, fall into the “second chance expungement gap,” living burdened with criminal records that persist despite appearing to partially or fully clearable under existing law.
These findings suggest that tens of millions of Americans are stuck in a paper prison, held back by deficiencies in the administration of second chances that have left them incarcerated, disenfranchised, or burdened by convictions beyond what the law requires. Some of the barriers to relief are structural and related to debt, overburdened bureaucracies, and the contested nature of second chance rules that unwind past judgments and policies. But others are harder to see and stem from administrative failures like unworkable standards, missing and incomplete criminal justice information (“dirty data”), a lack of awareness of second chance opportunities, and costly and complex processes. Fixing them—by moving administrative burdens from the defendant and onto the state and algorithms through automation, standardization, and ruthless iteration—can narrow the gap. Leveraging them, “Clean Slate” initiatives to automatically clear eligible criminal records can have the potential to help the millions of Americans in the second chance expungement gap. However, the ability of such second chance initiatives to improve outcomes depends on how they are implemented. Debt-related barriers and dirty data can contribute to incomplete automation, leading to “second second chance gaps.” In the realm of expungement, application of the expungement criteria to minor but not major offenses can also have the effect of exacerbating, not narrowing, existing racial disparities within the population of people with records, while improving them within the general population. Further research is needed to understand the impact of automated clearance under different scenarios, such as when the defendant is not notified of the relief received or there is a risk of statistical discrimination making things worse, not better. Overall, however, though other hurdles may remain, automation can remove the unfair collateral punishments, not steel bars, holding back tens of millions of Americans.
*Professor of Law, Santa Clara University School of Law. White House Senior Advisor, Intellectual Property and Innovation, 2013–2015. The accompanying website for this paper and project, the Second Chance Gap Initiative, can be found at paperprisons.org. Thanks to Charles Duggan, Evan Hastings, Hithesh Bathala, Zuyan Huang, Navid Shaghagi, Prajakta Pingale, Alexandra George, Marta Hafner, Katharine Lehmann, Hannah Bertrando, Raph Fritz, Ryan Corriveau, Nandini Ruparel, Chloe Morrissey, Nishtha Jolly, Katherine Rubschlager, Jonathan Liu, Terry Wong, Preethi Ranganathan, Dan Friedman, Kyle Davis, and Swaroop Sabnis for excellent research assistance; to Robert Apel, Michael Hollander, Matthew Stubenberg, Jenny Kim, Jason Tashea, Silas Horst, Sasha Post, David Ball, Sharad Goel, Ellen Kreitzberg, Maria McKee, Sharon Dietrich, Rebecca Vallas, Maurice Ensellem, Sonja Starr, J.J. Prescott, Jeff Selbin, Joshua Epstein, Alex Gudich, Serena Holthe, and audiences at Washington University at Saint Louis, the American Law Institute, SEARCH Conference, Columbia Law School, the University of Chicago Law School, Santa Clara University School of Law, and the “Harnessing Technology to Close the Second Chance Gap” workshop (hosted by the Center for American Progress in November 2018 and seeded by this Article) for their input to this project; to Checkr, Inc., a background check company that serves over ten thousand customers and whose mission is to build “a fairer future by improving understanding of the past,” for sharing data for the project; to Alex Lesman, formerly of the Council of State Governments Justice Center; to Margaret Love and David Schlussel of the Collateral Consequences Resources Center for their help with the analysis of state laws; and to the editors at the Michigan Law Review for their patience and excellent editing. This work was supported by grants from Santa Clara University School of Law, the Chan Zuckerberg Initiative, and Nicole Shanahan of the Brin Family Foundation. All errors are mine. Contact: email@example.com.