A (Tweaked) Clean Slate Bill Offers an Important Opportunity for Criminal Justice Reform

Over the past few years, the Clean Slate Initiative has picked up steam in state capitols around the country. What is Clean Slate, you ask? It’s a basket of expungement laws intended to help non-violent ex-offenders get past their previous mistakes, making it easier for them to find employment and housing by removing past qualifying crimes from their criminal records. I’m generally supportive of measured expungement efforts, as I can’t imagine the Founders intended for there to be a permanent, digital scarlet letter on every American who’s ever broken the law.

That said, there is a great deal of balancing that has to take place when considering legislation like this. After all, employers and landlords both have their own interests in having a full picture of who they’re hiring or housing. Does a bank want to hire someone convicted of fraud? Probably not. Good faith arguments about the manner and extent of expungement laws are an important part of the process, and those debates are happening in Missouri over Clean Slate. For me, a Missouri version of Clean Slate needs to ensure two things happen.

First, in contrast to Clean Slate’s “automatic expungement” proposal, why not have former offenders initiate the expungement process, after which expungement is automatic?

It’s a nuanced but important point. Supporters of model Clean Slate legislative language generally prefer the idea of “automatic expungement”—that after a certain period of time, an offense drops off criminal records without any action taken by the ex-offender. In Missouri, the existing expungement process is a petition-based system, which can be fraught, winding, and ultimately unwieldy for many former offenders to navigate. Many don’t bother, leaving expungeable offenses on their records.

But combining the offender-initiated expungement process with automated expungement offers the best of both worlds. It puts the responsibility on an offender to start the process of beginning a new chapter in their lives and strikes out the judicial bureaucracy that stops many ex-offenders from initiating expungement to begin with.

Second, the state should not impose a sort of prior restraint on background check companies.

The standard Clean Slate proposal contemplates restrictions on what background check companies can tell employers and landlords, even if what they tell them is true. There’s no denying the truth that ex-offenders broke the law, and background check companies have the right to share truthful information about an individual’s criminal record. The question is, how do you best balance the First Amendment rights of companies and the policy objectives of Clean Slate?

Well, a better way forward is to set out legal incentives for background check companies in the way they characterize past expunged offenses. The state should allow background check companies (1) to omit expunged offenses and protect them from liability for that omission, and (2) to report the expunged offense but only if its expungement is clearly included. Such an approach would not only allow background check companies a path to omit offenses without running afoul of the First Amendment, but it would also give ex-offenders a right to sue for defamation if their criminal history is mischaracterized by these companies.

Central to the issue of background checks is how those performing background checks even gain access to this criminal justice information, which at its core is a kind of transparency issue. Missouri has a robust court activity database where reams of case information are readily available to the public, and overall, that’s a good thing.

But while transparency of government is extraordinarily important, transparency of the records of individuals is a thornier policy subject. Individual income tax filings are highly protected documents not subject to public perusal; should non-violent and comparatively low-level criminal offenses be treated similarly? Perhaps. In any case, if the expungement of criminal records is ever to be properly effectuated, legislators must also assess how available these records should be in general.

As with all policy proposals, legislators should weigh out all the costs and benefits of Clean Slate, both as originally proposed and as it might be modified for Missouri. For a complex issue like criminal justice reform, the details matter, and getting those details right can take time. Clean Slate may or may not get done this year, but with a few tweaks, I think it can get done here in Missouri sooner, not later.