Abstract
Criminal record clearing remains an important tool to combat the overrepresentation of Black and Latinx people in unemployment and homelessness statistics that is a consequence of systemic racism. Unfortunately, the COVID-19 pandemic has exacerbated these barriers by making it harder to clear criminal records while increasing the demand for employment and housing. Specifically, the pandemic has made it difficult to access vital criminal records, access the courts, and access reentry service providers. In so doing, the COVID-19 pandemic threatens to increase the existing racial disparities in access to jobs, housing, and other important areas of life. The pandemic, however, presents an opportunity for innovation and adaptation in the provision of reentry services with a race equity lens. It is something that reentry advocates have long called for.
Introduction
Much like the COVID-19 pandemic, criminal records disproportionally plague people of color in the United States. Both are often not only more prevalent in communities of color, but also more severe in their consequences for people of color.[1] COVID-19 has compounded the barriers created by having a criminal record while reducing the ability of justice-involved individuals to attain reentry services to clear their criminal records.[2] In so doing, COVID-19 threatens to increase the existing racial disparities in access to jobs, housing, and other important areas of life.
The situation pre-COVID-19 was difficult enough for justice-involved individuals of all races. Before the pandemic, the number of people coming in contact with the criminal justice system had already snowballed such that it is now almost impossible to keep track of just how many people are justice-involved.[3] Some estimate that one in three U.S. adults have a criminal record of some kind.[4]
Recognizing the negative effects of a criminal record, states like California have taken some action towards remedying the situation. For example, California recently passed a “Ban the Box” law, which prevents certain employers from asking about an applicant’s criminal history before a conditional offer of employment.[5] However, the law does not cover all employers and still allows for criminal record checks at certain points in the process. That is why criminal record clearing remains one of the most effective tools to increase the likelihood of employment for justice-involved individuals.
Clearing a criminal record has many benefits. In some situations, clearing a criminal record lawfully allows a person to answer “no” when asked if they have ever been convicted.[6] It can also prevent private criminal background check companies from reporting a conviction. Many justice-involved individuals also express a sense of empowerment and hope after clearing their record. Research shows that clearing a criminal record can yield nearly $6000 in additional income per person per year.[7] Such an increase in income is significant for individuals like those served at Neighborhood Legal Services of Los Angeles (NLSLA) who fall at or below Federal Poverty Guidelines.
This Article aims to highlight the effects the pandemic is having on justice-involved individuals’ ability to access reentry services. Special focus is placed on the impact these changes will likely have on Black and Latinx communities. It also contemplates that the slowdown of reentry legal services may increase the disparities that exist in employment and housing for these communities. Finally, it calls for innovation in reentry legal services to increase accessibility. A pandemic is not an excuse to pause race equity advocacy. Instead, it provides a key opportunity to reimagine the processes justice-involved individuals are forced to navigate.
Pre-COVID-19
To understand how the pandemic has affected justice-involved individuals, it is necessary to understand what their situation was like before the pandemic.
A. Impacts of Having a Criminal Record
For decades before the COVID-19 pandemic, people with criminal records faced great challenges in accessing some of the most critical and basic human needs, such as employment, housing, and education. Justice-involved individuals have long experienced a depression worse than any recorded in U.S. history. The unemployment rate for people with criminal backgrounds before the pandemic was estimated to be at 27 percent.[8] In comparison, the Great Depression peaked at nearly 25 percent unemployment in 1933.[9] A contributing factor to the staggering unemployment rates among people with criminal backgrounds is that most employers depend on private background checks before making hiring decisions.[10] This is problematic because criminal records oftentimes contain incorrect information—even arrests and convictions that belong to other people.[11] It is also problematic when employers view any criminal record as an automatic basis for denial of an applicant, even if the offense is completely unrelated to the position’s duties. One study showed that most employers would not knowingly hire someone with a criminal record regardless of the offense.[12]
Justice-involved individuals encounter the same issues when searching for a place to live. Until recently, many landlords had “blanket ban” policies that automatically disqualified any prospective tenant with a criminal record. California’s Department of Fair Employment and Housing recognized that because of the overrepresentation of people of color in the criminal justice system, landlords can use criminal records as a proxy for race, and issued regulations banning blanket bans.[13] Landlords, however, can still consider an applicant’s criminal record when deciding whether to rent to them. As such, many justice-involved individuals are denied housing based on their criminal records.
B. Process of Clearing a Criminal Record
The process of clearing a criminal record has three critical stages that each present their own distinct challenge to those seeking to reenter their community. The first stage requires adequate access to information at the outset of the process. Many never learn about the remedies available to clear their criminal record until after they are denied employment, housing, a benefit, or other services. Though some may have heard of the term “expungement,” they may not be eligible for it and often never learn about other remedies that may also support effective reentry into community, such as arrest sealing, resentencing, and reducing their conviction to a lower level offense.[14] The analysis and determination of what remedy may apply is a complex process and usually requires some form of legal assistance to determine the appropriate course of action.
The next phase requires that the individual obtain a copy of their criminal record to assess their eligibility for various reentry services. The process of getting a copy of one’s criminal record can be quite daunting, as records are kept by multiple agencies each with their own costs, wait times, and processes to navigate. In Los Angeles, some records, like a criminal docket, can usually be obtained through the criminal clerk’s window in any Los Angeles County Superior Court location. This, however, has proven to be challenging for those with mobility issues, who often rely on friends and family to help obtain the relevant forms, which can delay obtaining the records for several days or weeks.
An alternative to the criminal docket is the California Department of Justice’s criminal history summary record, which provides a more complete picture of a person’s criminal history within the state of California.[15] For those with records in multiple states, they can get their criminal history from the Federal Bureau of Investigation (FBI).[16] Both methods, however, require a person to submit fingerprints from certified fingerprint rollers or qualified law enforcement personnel and pay the associated fees, which dissuades or outright prevents many people from getting those records.
After an individual has obtained all of their legal documents for review, they enter the third phase, in which they will usually seek out legal assistance to help them understand the complexities associated with determining the appropriate remedy and any procedural requirements involved in obtaining that remedy. Unfortunately, with an estimated rate of one in three adults that have a criminal record, it is virtually impossible to provide enough legal services to everyone who needs them, given the way the current system is structured. If a justice-involved individual cannot pay for an attorney to assist them, they regularly have to wait several weeks or months to obtain assistance through a free legal service provider—who themselves frequently lack sufficient capacity or resources to meet the demand. As a result, those seeking to reenter are often discouraged from ever moving forward in the process and gaining some level of economic viability.
C. Racial Disproportionality
The prevalence of criminal records and their impacts have not been shared equally across society. First, people of color have historically been overrepresented in the criminal justice system. While making up only 37 percent of the U.S. population, people of color represent 67 percent of the prison population.[17] In Los Angeles County, Black people make up just 8 percent of the population while representing 29 percent of the jail admissions between 2010 and 2016.[18] The Latinx representation in jail admissions was 50 percent compared to 49 percent of the County population.[19] By comparison, White people made up 18 percent of jail bookings and 27 percent of the County population.[20] This disproportionality is evident in the reentry work NLSLA does, for which 62 percent of all clients are Black or Latinx.
Second, though everyone is negatively impacted by having a criminal record, people of color—especially women of color—have a harder time than their White counterparts getting a job or housing. Black women experience the most drastic increase in unemployment rates—from 6.4 percent to 43.6 percent—after they have been incarcerated.[21] Latinx women are right behind them with a jump from 6.9 percent to 39.4 percent in unemployment after incarceration.[22] By comparison, White men experience an increase from 4.3 percent to 18.4 percent.[23]
The housing context presents a similar situation. Justice-involved Black and Latinx people make up the largest portion of the homeless community and are substantially more likely to end up homeless than their White counterparts.[24] The situation for Black people is especially dire; though they make up only 8 percent of Los Angeles County’s population, they comprise 34 percent of its homeless population.[25] There are various factors that contribute to homelessness, but recent studies have shown that justice-involvement and homelessness are linked, with justice-involved individuals significantly more likely to experience homelessness than their non-justice-involved counterparts.[26] It is clear that systemic racism in the criminal justice system has worsened racial inequities that persists in housing and employment.
II. Reentry During COVID-19
A. Increase in Demand While Supply Decreases
The COVID-19 pandemic has increased the need to clear criminal records by forcing many justice-involved individuals back into the job and housing markets. As of May 2020, U.S. unemployment increased by more than 14 million people.[27] Of those laid off, Black and Latinx people were most affected.[28] Thus, the small number of justice-involved individuals who were finally able to get a job may have ended up losing it during the pandemic. These justice-involved individuals will be forced to compete for work again, but this time with an inflated pool of competition. It is likely that their criminal records will present a barrier once again and reentry services will be critical to help overcome them.
Adding to the need is the surge of justice-involved individuals that were released from jail and prison because of the threat of infection in those institutions.[29] Reentry service providers have struggled to meet the needs of this unanticipated surge in reentry needs.[30] This increase is coming at a time when some of the most effective tools for reentry service providers have been compromised by the virus.
Though there are some strides being made to modernize and streamline reentry services, much of the work required to clear criminal records has traditionally required in-person interaction. For example, because of the high demand of criminal record clearing services and the low supply of providers, many organizations resorted to hosting clinics and workshops where dozens of justice-involved individuals would gather in person to meet with reentry advocates and begin the process of clearing their records. That model is almost impossible to implement while respecting social distancing requirements. As a result, some reentry service providers have been forced to shut down parts of their programming and consequently serve fewer people.
B. Access to Records and the Courts
COVID-19 has created additional barriers for people to access their records through the court. Shortly after the pandemic began, courthouses entered into partial shutdowns, which restricted the ability of justice-involved individuals to access their criminal records within the courthouse. In Los Angeles County, courthouses limited entry to people seeking emergency services, such as restraining orders, and to people with court hearings or prescheduled appointments for assistance.[31] Those who wanted to look at a case file were not permitted to do so, and those seeking their docket could not ask for it at the criminal clerk’s window like before. Some courts set up a request system via mail, but many people do not know about this option or are unable to make use of it because they lack a safe mailing address. Access to criminal records from the California Department of Justice and the FBI has also been affected by the pandemic, because the fingerprinting requirement is impossible to complete while abiding by social distancing requirements. Many justice-involved people do not want to risk infection by having someone take their fingerprints.
Some hearings related to criminal record clearing have also been delayed because of the pandemic, further increasing the time a justice-involved individual must wait to get their record cleared. Though some criminal record clearing options can be done without the individual having to go to court, some require, or could benefit from, a hearing before a judge. Yet the pandemic has forced courts to push many of these hearings back several months. Virtual, or over the phone, appearances for these hearings are also not widely available.
III. Going Forward
There is much to learn from what has happened during this pandemic. It has exposed vulnerabilities in the reentry services sector that need to be addressed to continue to provide these vital services during the remainder of this pandemic and beyond. Many industries have learned to adapt to this new world and the courts, community-based organizations, and reentry providers should be no exception. They must innovate and streamline their processes as much as possible to offer high quality services to assist litigants efficiently while remaining sensitive to the racial disparities that have been exacerbated by the pandemic.
There are several record clearing options that have long been the subject of streamlining conversations.[32] Now is a perfect opportunity to accelerate those efforts. For example, technology can be used to automate the clearing of some criminal records, such as those under Penal Code Section 1203.4, which are mandatory if the person satisfies the requirements. An innovative project is doing just that.[33] Similar concepts may be equally effective for other forms of record clearing.
Reentry advocates can also adapt their own processes and minimize the need for in-person meetings while incorporating widely available technology to conduct the required client meetings. Many legal organizations have adapted similar strategies to serve rural populations who face barriers in accessing services because of difficulties in attracting a consistent volunteer corps to rural areas.[34] For example, in response to COVID-19, NLSLA expanded its Antelope Valley Online Community Assistance Team (AVOCAT) model of using a videoconference platform to connect clients to advocates from remote locations to help them clear their criminal records.[35] This model respects social distancing requirements and provides high quality legal services to justice-involved individuals. As a result, NLSLA has been able to double the number of people served in any given month.
Regarding accessing criminal records, courts and other agencies will need to develop virtual systems to provide meaningful access to records. Courts already provide criminal case summaries and other information on their websites, so they can easily transition to a system that provides litigants complete access to their own records. The California Justice Department and the FBI could benefit from modernizing their systems as well. They could do away with fingerprint requirements or allow digital fingerprinting for those with access to that technology. Security safeguards, however, should be in place to prevent public access to private criminal records. Because many criminal records contain errors, it is also important for their information not to be available to third parties without the justice-involved individual’s consent.
Conclusion
Clearing criminal records remains an important tool to combat the overrepresentation of Black and Latinx people in unemployment and homelessness statistics caused by systemic racism. The consequences of justice-involvement were already difficult in the pre-pandemic world, but COVID-19 has exacerbated the situation. It has increased the pool of competition in the job market and created housing instability. It has also created barriers to accessing records and reentry services. However, there is much the courts and service providers can do to stem the disparities created by COVID-19. The solution is a modern approach to criminal record clearing and a focus on communities hardest hit by the problem. Advocates and justice-involved individuals have long called attention to the issues individuals face in accessing effective reentry services. The COVID-19 pandemic has highlighted the urgent need to heed those calls.
[1]. See Tiffany Ford, Sarah Reber & Richard V. Reeves, Race Gaps in COVID-19 Deaths Are Even Bigger Than They Appear, Brookings (June 16, 2020), https://www.brookings.edu/blog/up-front/2020/06/16/race-gaps-in-covid-19-deaths-are-even-bigger-than-they-appear [https://perma.cc/MFV8-VFCZ].
[2]. “Justice-involved” is a term that encompasses a broad range of people that have experienced some contact with the criminal justice system. It includes people who have been arrested without a conviction, those who have been convicted and sentenced to probation, jail, prison, and everything in between.
[3]. See Matthew Friedman, Just Facts: As Many Americans Have Criminal Records as College Diplomas, Brennan Ctr. for Just. (Nov. 17, 2015), https://www.brennancenter.org/our-work/analysis-opinion/just-facts-many-americans-have-criminal-records-college-diplomas [https://perma.cc/9KGG-E6R8].
[4]. See, e.g., id.
[5]. See A.B. 1008, 2017–2018 Reg. Sess. (Cal. 2017), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1008 [https://perma.cc/2ZDC-CFX8].
[6]. See Cal. Penal Code § 1203.4 (West 2019).
[7]. Jeffrey Selbin, Justin McCrary & Joshua Epstein, Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Crim. L. & Criminology 1 (2017); see also Meyli Chapin, Alon Elhanan, Matthew Rillera, Audrey Solomon & Tyler Woods, A Cost-Benefit Analysis of Criminal Record Expungement in Santa Clara County (2014), https://publicpolicy.stanford.edu/publications/cost-benefit-analysis-criminal-record-expungement-santa-clara-county [https://perma.cc/KRX9-95WG].
[8]. Lucius Couloute & Daniel Kopf, Out of Prison & Out of Work: Unemployment Among Formerly Incarcerated People, Prison Pol’y Initiative (July 2018), https://www.prisonpolicy.org/reports/outofwork.html [https://perma.cc/BV7C-AQRH].
[9]. Id.
[10]. See Justina Victor, Evren Esen & Mark Schmit, Soc’y for Hum. Resource Mgmt., Background Checking—The Use of Criminal Background Checks in Hiring Decisions (2012), https://www.shrm.org/hr-today/trends-and-forecasting/research-and-surveys/pages/criminalbackgroundcheck.aspx [https://perma.cc/2XJC-FXS5] (select “Download Full Report”).
[11]. Persis S. Yu & Sharon M. Dietrich, Nat’l Consumer L. Ctr., Broken Records: How Errors By Criminal Background Checking Companies Harm Workers And Businesses 15 (2012), https://www.nclc.org/images/pdf/pr-reports/broken-records-report.pdf [https://perma.cc/8E4C-KKSK].
[12]. Joan Petersilia, Nat’l Inst. of Just., U.S. Dep’t of Just., When Prisoners Return to the Community: Political, Economic, and Social Consequences (2000), https://www.ncjrs.gov/pdffiles1/nij/184253.pdf [https://perma.cc/65XB-4N6S].
[13]. See Cal. Dep’t Fair Emp. & Hous., Fair Housing and Criminal History FAQ (2020), https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/04/FairHousingCriminalHistoryFAQ_ENG.pdf [https://perma.cc/3HG8-YDTM].
[14]. See Clean Your Record, Cal. Cts., https://www.courts.ca.gov/1070.htm [https://perma.cc/7DSY-98LM] (last visited July 4, 2020).
[15]. See Criminal Records—Request Your Own, Cal. Off. Att’y Gen., https://oag.ca.gov/fingerprints/record-review [https://perma.cc/X2NZ-JVZB] (last visited July 4, 2020).
[16]. Overview, Identity Hist. Summary Checks, https://www.edo.cjis.gov/# [https://perma.cc/6LV7-YENJ] (last visited July 4, 2020).
[17]. Criminal Justice Facts, Sentencing Project, https://www.sentencingproject.org/criminal-justice-facts [https://perma.cc/J8ML-E6W8] (last visited July 5, 2020).
[18]. Danielle Dupuy, Eric Lee, Mariah Tso, Isaac Bryan & Kelly Lytle Hernández, Million Dollar Hoods, Bookings into the L.A. County Jail (2010–2016), at 2 (2019), http://milliondollarhoods.org/wp-content/uploads/2019/06/LA-County-Jail-Report-2010-2016-Final.3.pdf [https://perma.cc/T9XB-CX9M].
[19]. Id.
[20]. Id.
[21]. Couloute & Kopf, supra note 8.
[22]. Id.
[23]. Id.
[24]. See Joy Moses, New Data on Race, Ethnicity and Homelessness, Nat’l All. to End Homelessness (Aug. 2, 2019), https://endhomelessness.org/new-data-on-race-ethnicity-and-homelessness/?gclid=EAIaIQobChMIi_zOneOV6gIVNh6tBh3pTwWnEAAYAiA AEgJc5_D_BwE [https://perma.cc/D3JT-EFQG].
[25]. Anna Scott, Homelessness in Los Angeles County Rises Sharply, NPR (June 12, 2020), https://www.npr.org/2020/06/12/875888864/homelessness-in-los-angeles-county-rises-sharply [https://perma.cc/VC9K-38RF].
[26]. See, e.g., Lucius Couloute, Nowhere to Go: Homelessness Among Formerly Incarcerated People, Prison Pol’y Initiative (Aug. 2018), https://www.prisonpolicy.org/reports/housing.html [https://perma.cc/Y8W8-BS6X].
[27]. Rakesh Kochhar, Unemployment Rose Higher in Three Months of COVID-19 Than it Did in Two Years of the Great Recession, Pew Res. Ctr. (June 11, 2020), https://www.pewresearch.org/fact-tank/2020/06/11/unemployment-rose-higher-in-three-months-of-covid-19-than-it-did-in-two-years-of-the-great-recession [https://perma.cc/VAS9-6EL6].
[28]. See id.
[29]. See Responses to the COVID-19 Pandemic, Prison Pol’y Initiative (last updated Aug. 6, 2020), https://www.prisonpolicy.org/virus/virusresponse.html [https://perma.cc/UD2E-TJTQ].
[30]. See Matt Hamilton, James Queally & Alene Tchekmedyian, California’s Prisons and Jails Have Emptied Thousands Into a World Changed by Coronavirus, L.A. Times (May 17, 2020), https://www.latimes.com/california/story/2020-05-17/coronavirus-prison-jail-releases [https://perma.cc/Y8SV-849X].
[31]. Press Release, Super. Ct. of Cal., Cnty. of L.A., Presiding Judge Kevin C. Brazile Extends Order Closing Courtrooms, Delaying Trials and Non-Essential Matters Through June 10 (May 13, 2020), http://www.lacourt.org/newsmedia/uploads/1420205131740520_NR_Order5-13-2020.pdf [https://perma.cc/T9XB-CX9M].
[32]. See, e.g., Jason Tashea, Expunging Records With New Technology, ABA. J. Legal Rebels (Oct. 16, 2019), https://www.abajournal.com/legalrebels/article/rebels_podcast_episode _045 [https://perma.cc/RSG9-TQ66].
[33]. See Dave Lee, An Algorithm Wipes Clean the Criminal Pasts of Thousands, BBC News (Apr. 29, 2019), https://www.bbc.com/news/technology-48072164 [https://perma.cc/P66P-L3F9].
[34]. See generally Lisa R. Pruitt & Zachary Newman, Cal. Access to Just. Comm’n, The Role of Technology in Enhancing Rural Access to Justice (2020), https://calatj.egnyte.com/dl/IQZvsCSVyv [https://perma.cc/DFD7-NXNX].
[35]. Id. at 12.
