Simplifying How the Courts Seal Criminal Records

New legislation in Pennsylvania would change the now-costly and time-consuming process—and mitigate the employment obstacles people face when they cannot shake their old convictions.

Steven Gottlieb / Getty Images

PHILADELPHIA—Jody, 57, checked her phone and tapped her foot as she sat in the pews of a courtroom on a recent Friday in March, waiting for the arrival of a court official who was running late to her hearing. Jody, who asked that her last name be withheld, was ready for this day to be over. “So I can get on with my life,” she explained.

The grandmother of three was convicted of welfare fraud nearly 30 years ago. She spent about a month in jail and paid a restitution fine of $1,937, which she paid off in monthly installments of $25 over the course of 17 years. Even when her dues were settled, though, the misdemeanor conviction plagued her. Most recently, Jody, who’s been a certified nursing assistant for 38 years, was rejected from a job because a prospective employer noticed her conviction in a background check. “I was furious,” she said.

Afterward, Jody sought legal help, and learned through an attorney that she would soon be eligible to have her record sealed, the legal term for restricting access to it. The process wasn’t as quick as Jody might have liked, however: After her lawyer filed an application for the sealing, and Jody paid a $132 fee, she had to wait four months for her hearing that Friday morning in court.

Soon, Pennsylvanians like Jody might not need to take so many steps to get their records sealed. A bipartisan bill that’s slated to be introduced in the state legislature would create a system for automating the process—with technology largely supplanting the extra time, money, and legal savvy that’s currently required to seal a record. Criminal-justice reformers see the legislation, dubbed the Clean Slate Act, as a potential model for other states that want to simplify their arduous processes. “The number of people who get expungements and sealings is minuscule compared to the number that are potentially eligible for it,” said Jody’s lawyer Sharon Dietrich, litigation director of Community Legal Services, a Philadelphia-based legal-aid organization.

The reform advocates, court administrators, and lawmakers who helped shape the bill essentially want to use the same technology that made background searches pervasive—the digitalization of court records—to make sealing those records simple. Background checks are a relatively recent obstacle to employment for convicted persons. Before the proliferation of the internet, it was rare—and difficult—for employers or landlords to search an applicant’s criminal history. It would require a trip to the courthouse, where a clerk would manually pull a record. As recently as the early 1990s, less than half of companies routinely ran background checks during hiring; now, nearly 90 percent do. An estimated one in three Americans has a criminal record, the same number of Americans who have a college degree.

In short, the Clean Slate Act mandates that records are automatically sealed within two months of becoming eligible and prescribes the process by which it happens. It would work like this: A court administrator at the central Administrative Office of Pennsylvania Courts, or AOPC, would run a monthly query of their electronic-record database to pull all the eligible records for sealing. Eligibility would depend on the severity of a person’s crime and how long it’s been since their last conviction; for a misdemeanor like Jody’s, 10 years would need to pass.

After pulling the records, the administrator would send them electronically to the Pennsylvania State Police, who would have 30 days to cross-reference them with their own comprehensive database, to make sure no conflicts arise. The Pennsylvanians whose records were approved would receive a letter in the mail saying their past convictions would no longer show up in background checks—no application needed. (State police would still have access to them, for law-enforcement purposes.)

“It would be a mind-boggling reform,” said Dietrich, who is one of Clean Slate’s architects.

The bill is expected to be introduced in the coming weeks by state Senator Scott Wagner, a Republican from south-central York County who’s running for governor in 2018. It’s not expected to face many political obstacles; over half of the Senate, Democrat and Republican, has signed on as co-sponsors. The Pennsylvania District Attorneys Association—which would typically be slow to get behind this kind of reform—doesn’t oppose the legislation. And the Pennsylvania State Police, who support it, have had a hand in crafting the bill, said Scott Price, director of the department’s Bureau of Records and Identification.

“All the stakeholders are involved in tweaking some final language,” he said. “It seems to me like we’re fairly well along.”

The bill was initially supposed to be introduced on March 22. Price couldn’t disclose the exact issue currently stalling its introduction, but its supporters have been working to guarantee that AOPC’s electronic records can be easily and quickly checked against those of state police. The two agencies use different record systems, so cross-referencing AOPC’s list is not as simple as it may seem. “The data in one doesn’t translate well to the other,” Price said. And a mechanism like this, Price said, “is only as good as its data.”

Technological problems have held up Clean Slate before. Last year, the state Senate Appropriations Committee halted the first iteration of the bill because of a data issue. In addition to accounting for misdemeanors, the original bill would have applied to summary records involving very minor crimes—such as disorderly conduct or loitering—that do not require the arrestee to be fingerprinted. But fingerprints—or more specifically, the state identification number that’s attached to them—are the only way to connect a record to an individual in an automated query on the state police department’s system, explained AOPC spokesman James Koval. Because they can’t rely on identification numbers to pull records for these offenders, administrators at the state police department would need to manually run each record sent over by AOPC.

The current version of the bill doesn’t bother to reckon with this obstacle. Its writers avoided it by applying Clean Slate only to those with misdemeanors and non-convictions, not lower-level crimes that will still require the standard application process. Amending the legislation to apply to more minor offenses doesn’t yet appear to be in the works.

Clean Slate is one in a wave of similar reforms around the country: Since 2013, 40 states and Washington, D.C., have enacted or expanded legislation that mitigates the effects of a criminal record. They include measures like record-sealing; providing certificates of rehabilitation, which tell employers that applicants have proven themselves by spending a certain number of years crime-free; and “ban the box” policies, which restrict employers from asking about applicants’ criminal histories until the last stage of the hiring process.

Bipartisan appetite for reform has grown in recent years, particularly when it comes to measures that save government money. Indeed, Pennsylvania Republicans were attracted to Clean Slate’s potential to shrink state spending. The Heritage Foundation, a leading conservative think tank, recently published a report condemning the restrictions placed on formerly incarcerated citizens—“perhaps the most ubiquitous and pernicious” of which are “on their ability to earn a livelihood.”

In some ways, Pennsylvania is an unexpected state to initiate such a reform. For one, until last November, misdemeanors weren’t eligible for sealing here, only summary records and non-convictions. On this front, the state is just catching up with national trends: Nearly every state has a mechanism to limit access to misdemeanor records, and a growing number are also including minor felonies.

And while Pennsylvania is led by Democrat Tom Wolf, who is among the country’s most progressive governors, criminal-justice reform has generally been slow in this swing state. One key factor is the size and nature of its government: With 253 full-time members, Pennsylvania’s quarrelsome state legislature is the largest in the country, and it is dominated by conservative Republicans who represent rural, red-leaning counties sandwiched between the blue strongholds of Philadelphia and Pittsburgh.

But when it comes to Clean Slate, Pennsylvania could open a new channel for reform. What already sets Pennsylvania apart—and what makes Clean Slate’s automated process technologically possible—is their centralized, electronic record-keeping system, which could serve as blueprint for other states.

Here, the court records from each of the 60 judicial districts are transmitted by an email-like system to AOPC. Bill Raftery, a senior analyst at the National Center for State Courts, called the Pennsylvania setup “rare,” because most states have siloed systems where the records from one court can’t be transmitted elsewhere. That’s a huge hurdle for those that want to implement an automatic sealing system, but a few are nevertheless exploring the possibility. Michigan, for example, is moving toward a centralized system, and expressed early interest in a Clean Slate-like mechanism for sealing records, said Jenna Moll, deputy director of the U.S. Justice Action Network, a bipartisan group lobbying for criminal-justice reforms that supported Clean Slate. But Michigan’s potential centralized system would also need the capacity to run a query as AOPC can.

Moll said other states are watching Pennsylvania to see just how Clean Slate will unfold. “If you can do this in a way that is effective automatically, you’re going to save a ton of government resources,” she said. In Philadelphia, the wait time for a record-sealing hearing in its overburdened courthouse is currently four months. Once approved, it takes up to two months for the sealing to go in effect.

Citing a recent poll from Moll’s group showing 81 percent of Pennsylvania voters support Clean Slate, Wagner told me that “people recognized that a criminal record should not be a life sentence.” He has hired people with criminal histories for his own waste-management company. “This isn’t about gambling—it’s about seeing the person for who they are today and what they can bring to your place of work,” he said.

In the Philadelphia courtroom last month, Jody’s lawyer, Dietrich, and a paralegal from the district attorney’s office went over her application while they waited for the trial commissioner, who serves a judge-like role, to arrive. If the paralegal didn’t contest her record’s sealing, then there was no reason that the trial commissioner would. Dietrich signaled to Jody, and said out loud: “You’re approved.” With a clap of her hands, Jody mouthed, “Yes!” She’d gotten affirmation that now, finally, she could get on with her life.