Scrubbing The Past To Give Those With A Criminal Record A Second Chance

Feb 21, 2019
Originally published on February 19, 2019 3:27 pm

Latosha Poston says she made a lot of mistakes in her life. Her legal troubles began in her teens after her first child was born in Indianapolis. Over the years, bad decisions led to some arrests, some convictions.

"Sometimes we get stuck in our past and let our past guide us," she says.

The 44-year-old has worked hard to straighten out her life. But her criminal records — all involving misdemeanors — continued to haunt her as she tried to find a decent job and place to live.

Then, while watching the local news, she heard about Indiana's Second Chance law, passed in 2013. It allows people to petition to remove their misdemeanor convictions and arrests from public view.

It hurts communities, it hurts counties and it hurts states if their citizens cannot be productively employed or aren't part of the tax base. - Jenny Roberts, professor, American University Washington College of Law

Indiana is among several states to change their approach to the restoration of a person's rights and status after an arrest or conviction. In the last two years, more than 20 states have expanded or added laws to help people move on from their criminal records — most involve misdemeanors. Marijuana legalization and decriminalization have played a big role in driving these reforms. Fairness is another factor, with lawmakers from both parties rethinking the long-term consequences of certain criminal records, as well as the economic impact of mass incarceration.

There are also purely economic reasons to encourage the sealing of criminal records.

"It hurts communities, it hurts counties and it hurts states if their citizens cannot be productively employed or aren't part of the tax base," says American University law professor Jenny Roberts, who has written extensively on the collateral consequences of convictions. "So there's certainly an economic incentive for allowing people to move beyond their criminal record."

The state-level reforms have helped tens of thousands of people across the United States.

Poston of Indianapolis is among them. After working in home health care for nearly 20 years and making just over $11 an hour, she landed a much better-paying job in a hospital as an operating room assistant once her records were sealed.

"I felt like something was lifted off," she says of her case. "Because now I kind of felt like a human."

With background checks ubiquitous for jobs, schools, mortgage applications and more, even one conviction — and sometimes even just one arrest — can dog people for years, critics say, relegating them to permanent second-class status.

"No one should underestimate how much even the most minor of misdemeanor convictions — including marijuana or trespassing or any kind of conviction — can affect someone's ability to get a job, to get housing and to function fully in society," says Roberts, who also co-directs the Criminal Justice Clinic at American University in Washington, D.C.

Time for change

The reform trend reflects an emerging consensus that the social and economic problems created by mass prosecution and incarceration call for a fundamental reimagining of the criminal justice system.

While reformers largely welcome the moves by states, there's concern that a patchwork of laws as well as steep legal fees, prosecutorial foot-dragging and other barriers have blunted what is otherwise seen as a rare area of bipartisan, effective reform.

The Expungement Help Desk in Indianapolis helps people with criminal records file petitions to get their records expunged or sealed.
Barbara Brosher / Indiana Public Media

"The states are really all over the map on this stuff, and they're all reinventing the wheel," says attorney Margaret Love, executive director of the Collateral Consequences Resource Center and an expert on clemency and restoration of rights.

She and others are calling on the National Conference of State Legislatures, the National Center for State Courts and the American Bar Association to study and share what reforms are showing the most promising outcomes.

"Right now it's getting harder for state legislatures to pick out a single approach," Love says. "We have to start looking at this in a more systematic way and look at what works best."

For example, there's a growing body of evidence that it undermines public safety if you don't help people move beyond their criminal records and participate in the workforce. Without that help, the chance of people returning to the criminal justice system increases.

One study estimates that the unemployment rate for formerly incarcerated people is more than 27 percent — far higher than the total U.S. unemployment rate during any historical period, including the Great Depression. The rate is even higher for African-Americans who've had run-ins with the law.

With the national jobless rate at historical lows, many companies are looking at new ways to hire additional workers. A recent survey showed that more than 80 percent of managers — and two-thirds of human resource professionals — "feel that the value workers with criminal records bring to the organization is as high as or higher than that of workers without records."

Indiana's example

As in many other states, the work of sealing and expungement in Indiana mostly falls to nonprofit legal groups and private attorneys. But in Marion County, the prosecutor's office has hired a full-time paralegal to process all requests. The county has had more than 11,500 people come through since legislators implemented the law.

While the mood nationally surrounding expungement has dramatically improved, some prosecutors and judges remain skeptical or outright opposed to records clearing. Philosophically they don't think those who've broken the law should get a clean slate.

So it helps a lot that in Marion County, which encompasses Indianapolis, Prosecutor Terry Curry fully supports the effort. He advocated for the law because he thinks people who've stayed out of trouble shouldn't carry the legal stain forever.

"If our goal is to have individuals not reoffend, then in our mind it's appropriate to remove obstacles that are going to inhibit their ability to become productive members of our community," Curry says.

While most cases in Indiana involve misdemeanors, judges have discretion with violent-felony petitions. Victims of those crimes also can give testimony. More serious felonies can be expunged eight or 10 years after the completion of the sentence.

Some crimes must have the prosecutor's written consent for expungement. Homicides and some sexual offenses are not eligible for expungement in Indiana and in most other states.

You can petition to have records for convictions expunged only once in your lifetime. If you are convicted of other charges later on, there's no chance of having them sealed.

While the process in Indiana and in other states seems simple, serious hurdles remain. Expungement can be time consuming and costly. There are filing fees for every petition — fees not everyone can afford.

In addition, the process can vary from county to county depending on cooperation from local prosecutors. Advocates in Indiana want lawmakers to make it easier for people to expunge their records — regardless of where they are in the state.

Getting the word out

Even more vexing — in Indiana and throughout the country — is the general ignorance about existing expungement laws. People just don't know they exist or how they work.

Public defenders from New York to Los Angeles say they have to do a better job of both getting the word out and pushing states to better fund these efforts.

At a recent LA-area expungement clinic, a man showed up who'd done significant prison time for a nonviolent felony. And he'd been off probation for more than five years. He still couldn't get a job. The man, who didn't want his name used, thought at first the expungement clinic was some kind of scam.

"He had no idea he could not only get it [the felony] expunged but reduced to a misdemeanor," says Los Angeles County Deputy Public Defender Lara Kislinger, who was helping him with the paperwork. "He just had no idea. And he was so grateful. And he's been having so much trouble finding a job. And we want people to be able to re-enter society and be productive members of society. And this was a case where it was so obvious it was holding up jobs — and life. And it's tragic."

Expanding public knowledge of sealing and expungement laws takes money and effort. Many public defender offices already are overwhelmed, understaffed and underresourced.

If our goal is to have individuals not reoffend, then in our mind it's appropriate to remove obstacles that are going to inhibit their ability to become productive members of our community. - Terry Curry, prosecutor, Marion County, Ind.

How long should a record last?

Across the nation, felonies are harder to expunge and involve longer waiting periods, and in many states, homicides and certain sexual offenses are almost impossible to expunge.

Jay Jordan, 33, is the director of the #TimeDone/Second Chances project for the nonprofit Californians for Safety and Justice. The clinic involves public defenders who volunteer to help people get their criminal charges or records reduced or expunged.
Philip Cheung for NPR

There's a new push in some states to clear some felony convictions, especially nonviolent ones.

California has taken the lead in reducing incarceration and prosecution of certain low-level drug crimes and nonviolent felonies following the passage of Proposition 47 and other measures. Past offenders can petition a court to reduce their crimes to misdemeanors.

Supporters say it has helped reduce the prison population and racial disparities in the justice system while saving taxpayers money. Funds are redirected, for example, into support services such as drug treatment and counseling.

Others say Proposition 47, while a good start, is inadequate. Jay Jordan of Los Angeles served seven years in prison for robbery. He has been out now for nearly eight years and says he still faces daunting obstacles to full re-entry into society.

"You know, I tried to adopt and was turned down. Tried to volunteer at school and was turned down. Tried [to] sell insurance, was turned down. Tried to sell used cars, was turned down. So, you know, every single step of the way when I try to better myself and, you know, be able to take care of myself for my family, there are these massive barriers," Jordan says. "And I'm not alone."

Indeed, there are some 8 million formerly incarcerated people in California. In the U.S., it's estimated that there are some 60 million people with a criminal record, according to federal statistics. The majority are misdemeanors. One report estimates as many people have criminal records as college diplomas.

Jordan now works for a nonprofit that advocates for rights of the formally incarcerated. In their work, Jordan and others are asking the basic question — how long should these convictions be on people's records if they've done their time and are working to become good citizens?

Not everyone wants these reforms. In California, some want to roll back parts of the state's criminal justice reforms through a proposed 2020 ballot initiative that would, among other things, reduce the number of inmates who can seek earlier parole and reclassify some theft crimes from misdemeanors to felonies.

People deserve the chance to overcome the mistakes of their past, and that road to redemption should be as smooth as possible. - Jay Jordan, #TimeDone/Second Chances campaign

"Proposition 47 was approved overwhelmingly by California voters who understood that permanently punishing people for a past mistake is not reflective of our shared American values nor is it an effective safety strategy," says Jordan, who directs Californians for Safety and Justice's #TimeDone/Second Chances campaign.

"Everyone who has an old, low-level, nonviolent felony on their record that is eligible for reduction to a misdemeanor under Prop. 47 should be able to get relief, and we want to make that as easy as we possibly can for folks," he says. "People deserve the chance to overcome the mistakes of their past, and that road to redemption should be as smooth as possible."

Some Democratic lawmakers in California are pushing back with proposed legislation that would automate the expungement process for all felonies that are eligible for reduction under the law.

Legal experts like Roberts, the American University law professor, caution that the best solution might be for prosecutors to simply take fewer minor cases to court in the first place.

"I don't think you can have an actual conversation about sealing and expungement and decriminalization until you talk about less prosecution and less funneling of low-level misdemeanors into the criminal justice system," Roberts says.

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Here's a startling figure - almost 1 in 4 American adults has a criminal record. That's according to federal statistics. People charged with or convicted of even minor offenses can face consequences long after they have paid their debts to society. A criminal record can be a barrier to finding a job, a home or getting a loan. In the past two years, though, many states and cities have been passing or expanding laws to help restore rights. NPR's Eric Westervelt has been looking into this and joins us now. Hey, Eric.


MARTIN: Can you just remind us of what the extent of the barriers are?

WESTERVELT: Yeah. Lawyers who work in this area say, look, you can't underestimate, you know, how much a conviction, even for a misdemeanor - and the vast majority of convictions in America are for misdemeanors - can have this ripple effect and relegate someone with a record to a kind of permanent second-class status as they try to get their life back in order.

I mean, take the case of Jay Jordan. Jay served seven years in prison for felony robbery when he was young. He's been out for nearly eight years. He's completed his probation. He has no offenses, not even a traffic ticket. And he told me he still faces almost daily hurdles as he tries to get his life back to normal.

JAY JORDAN: You know, I tried to adopt - right? - was turned down, tried to volunteer at school, was turned down, tried to sell insurance, was turned down, tried to sell used cars, was turned down. So, you know, every single step of the way when I try to better myself and, you know, be able to take care of myself and my family, there are these massive barriers, right? And I'm not alone.

WESTERVELT: He now works for a nonprofit, Rachel, that advocates for the rights of the formerly incarcerated. And really, the question his group is asking is how long should these convictions be on somebody's record, especially when people have done their time and want to move on and become good citizens.

MARTIN: So there are a lot of states that are trying to change this, right? I mean, my understanding, more than 20 states have passed some kind of laws or made changes to lower these barriers. Why is it happening now?

WESTERVELT: I think two things, Rachel, are driving this. More people on the right and the left agree that mass incarceration and the drug war has just clogged the courts and prisons, you know, and has hurt society and the economy. One study shows that unemployment among formerly incarcerated is 27 percent and even higher for African-Americans, over 30 percent.

Number two, I think the legalization of marijuana is a key driver here. Again, there's, you know, this bipartisan sense that it doesn't make sense that people are still paying a big price for something that's now either legal or decriminalized in many states. And one of the most progressive laws that was passed is in Indiana, a solidly Republican state.

Barbara Brosher is a reporter with our member station WFIU in Bloomington. She's part of NPR's criminal justice collaborative, a new reporting partnership with some of our member stations. And Barbara looked into how Indianapolis is helping people who want a second chance. Let's take a listen to her story.

BARBARA BROSHER, BYLINE: When Indianapolis residents with a criminal record want to turn their lives around, many of them end up in the subbasement of the downtown city county building. The long, gray corridor has concrete walls and almost resembles a jail, but people come to this underground room to escape their criminal pasts. Through one of the only open doors is a large, quiet room. Bold black letters on the back wall say, don't look back. You're not going that way. A young volunteer is helping a man fill out some paperwork.

UNIDENTIFIED VOLUNTEER: And if you don't mind signing right there, right there.


UNIDENTIFIED VOLUNTEER: Are you turning it in today or tomorrow?


BROSHER: This is the Neighborhood Christian Legal Clinic's Expungement Help Desk. They help people file petitions to expunge their records under Indiana's Second Chance law, which legislators passed a few years ago. While it's called expungement, it doesn't actually erase arrests or charges. It just hides them from public view so they won't pop up during a background check. That's what kept happening to Latosha Poston before she came here for help.

LATOSHA POSTON: Sometime we get stuck on our past and let our past guide us.

BROSHER: She's 44 now but ran into trouble shortly after she had her first daughter as a teen. She racked up a lot of arrests over the next two decades for everything from public intoxication to receiving stolen property. But long after she changed, Poston says the charges dogged her.

POSTON: I was asked to move from a low-income apartment because every year they do your re-certification. And I had, like, three theft charges and receiving stolen property, which in low income you can't have that.

BROSHER: Poston says getting her records expunged helped her land a much better job in a hospital after working in home health care for nearly 20 years. She's among thousands of people filing petitions under the Second Chance law.

The process appears pretty simple. You file a petition with the court. And for more minor offenses, it must grant the request to seal the record if it meets requirements laid out in the law. A judge has discretion with more serious felonies, and victims can give input. The prosecutor's office reviews petitions and can object to sealing records. It helps that Marion County prosecutor Terry Curry advocated for the expungement law.

TERRY CURRY: If our goal is to have individuals not reoffend, then in our mind it's appropriate to limit or remove obstacles that are going to inhibit their ability to become productive members of our community.

BROSHER: The process is time-consuming and costly. There are filing fees for every petition, and there are still plenty of people who don't even know expungement is an option. That's why Poston tries to tell everyone she knows about the help desk. It took her a couple of trips down here and 47 days of waiting before the state sealed her records.

POSTON: It felt like something was lifted off because now I feel like - kind of feel like a human.

MARTIN: Interesting to hear what a difference these so-called second chance laws can make in people's lives. If there is, as you say, Eric, a lot of bipartisan support for these kinds of changes, why isn't it everywhere?

WESTERVELT: Well, I spoke with an attorney who's worked on this issue for nearly 30 years, Margaret Love. She heads the Collateral Consequences Resource Center. And as she put it, state legislatures are all reinventing the wheel here and not talking to each other. They're not sort of sharing best practices or studying what programs have the best outcome. And defender offices that help people clear their records, they're often, you know, overworked, understaffed and underfunded.

MARTIN: NPR's Eric Westervelt. We also heard a report from Barbara Brosher of WFIU in Bloomington. She's with NPR's criminal justice reporting collaborative. Eric, thanks so much for bringing this to us.

WESTERVELT: You're welcome. Transcript provided by NPR, Copyright NPR.