As mass incarceration and criminalization impact more Americans, efforts to address the impact of a criminal record on an individual have become more popular. We’ve come a long way from simply “banning the box” on employment applications. Today, states across the country are expanding access to criminal records relief for those touched by criminal law’s expanding web of enforcement. Diversion and expungement have emerged as two promising reforms to further that effort.
But how does criminal record relief work, exactly, and who benefits from it most? Amy Kimpel addresses these questions in her recent article, Paying for a Clean Record. Kimpel demonstrates that, through participation in diversion and expungement programs, defendants often incur various fees and fines that make gaining a clean record costly. This tendency disproportionately burdens poor and black and brown defendants such that these reforms threaten to entrench racial caste in the United States. Through her descriptively rich analysis of these two seemingly different practices, Kimpel help readers understand the complexity of criminal legal reform in the United States.
Diversion and expungement refer to two different forms of criminal record relief. Diversion refers to programs that identify defendants who have been arrested and charged with an offense, but they are given a “second chance” opportunity to avoid a criminal record by completing various requirements in lieu of pleading guilty and receiving a criminal sentence. For example, a defendant may enter drug treatment or domestic abuse counseling as part of a diversion program and, upon completion of that program, all charges would be dismissed with prejudice. Expungement, in contrast, refers to the process of erasing or sealing a criminal record after conviction. This includes conviction and arrest records. In recent years, many states have expanded the categories of defendants who can benefit from this process. Some have made expungement automatic.
Both forms of criminal record relief are costly. As Kimpel describes, prosecutors or legislatures impose diversion application and enrollment fees. Participants also pay separate costs for the programming and educational classes required in the diversion program. These costs accumulate on top of additional charges like court costs, supervision fees, prosecution fees, drug lab fees, and public defender fees that are increasingly imposed upon defendants throughout the criminal process. Expungement is no better. Obtaining a copy of one’s own criminal record from state law enforcement agencies is the first step to expungement, and it can cost anywhere from $30 to $550 per petition. Many states require that the defendant have paid off all fees, fines, and restitution associated with the original case before proceeding with the expungement process. Other costs included in the process range from the cost of fingerprinting, getting the application notarized, and getting a certified copy of the conviction record. Such costs can double the price of a petition in some jurisdictions. These costs impact how defendants travel through the criminal legal process. As Kimpel demonstrates through vignette, the costs shape whether one enters a diversion program and when (and if) one can access criminal record relief post-conviction.
These costs, alarming on their own, are particularly concerning when placed in social context. Criminal record relief exists on an uneven playing field within the criminal legal system and society. Black defendants are more likely to be arrested for drug offenses and less likely to be able to pay their bills if they encounter a $400 emergency. As result, the fee structure around criminal record relief is likely to amplify racial disparities, not mitigate them. Additionally, the fee structure motivates perverse financial incentives. Diversion programs can be quite profitable for prosecutors and legal administrators, which can create a greater demand for revenue and prosecutions. Further, access to a clean criminal record is even more valuable in social context. With the expansion of the criminal legal apparatus and technological advancements, criminal records shape society in profound ways. For example, criminal background checks are used to employ, educate, house, and more. Because criminal records operate as a means of social exclusion, limiting criminal record relief based on ability to pay will entrench preexisting racial inequality.
Kimpel’s article leaves little room for doubt that the financial aspects of criminal record relief is a problem. Yet it is through her solutions that Kimpel signals the complexity of criminal legal reform for the reader. On the one hand, she urges more study on the intersection of poverty and criminal record relief programs. She suggests access to diversion and expungement should be expanded and offered cost free as a default, or at least with some connection to indigency. On the other hand, she recognizes the threat that expanding these programs may legitimate the expanded criminal legal apparatus.
Interestingly, Kimpel points to emerging litigation as a potential way to thread the needle between both concerns. She identifies existing Equal Protection and Eighth Amendment challenges to diversion and expungement programs on the basis of financial need. But the promise of this litigation, according to Kimpel, lies not just in winning the cases. She explains how litigants may be “winning by losing” in the sense that the cases shape statutory and policy efforts to expand criminal record relief. Such litigation can also illuminate new ways to critique the criminal legal apparatus. It is this willingness to operate on multiple fronts when imagining a pathway forward in criminal legal reform that makes Kimpel’s article so intriguing and inspiring.
