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January 5, 2016

"Reducing Crime Through Expungements"

The title of this post is the title of this timely and interesting (and perhaps controversial) new paper by Murat Mungan now available via SSRN. Here is the abstract:

Expungements reduce the visibility of a person's criminal record, and thereby reduce the informal sanctions that may be imposed on him.  This reduction is enjoyed by the ex-convict only if he does not become a repeat offender, because otherwise he re-obtains a criminal record.  Thus, the value a person attaches to having his record expunged is inversely related to his criminal tendency.  

Therefore, by making expungements costly, the criminal justice system can sort out low criminal tendency individuals — who are unlikely to recidivate — from people who have high criminal tendencies.  Moreover, the availability of expungements does not substantially affect a first time offender's incentive to commit crime, because one incurs a cost close to the reduction in informal sanctions that he enjoys by sealing his criminal record.  On the other hand, expungements increase specific deterrence, because a person who has no visible record suffers informal sanctions if he is convicted a second time.  Thus, perhaps counter-intuitively, allowing ex-convicts to seal their records at substantial costs reduces crime.

January 5, 2016 at 10:06 AM | Permalink

Comments

After the passage of some amount of time, expungements/pardons should be freely given for those who have lived law-abiding lives after relatively minor convictions.

Posted by: federalist | Jan 5, 2016 10:19:29 AM

Federalist,

I suspect the disagreement would be over what counts as 'minor'. Even with the modern blurring of what constitutes a felony I would still argue that is a reasonably appropriate line to make such a distinction at, that indeed it would not cover many crimes that I believe are more than serious enough as to warrant execution.

Posted by: Soronel Haetir | Jan 5, 2016 10:52:07 AM

Just for purposes of comparison only, in the United Kingdom all convictions, which result in a sentence of less than 48 months (period of supervision/probation is not counted) are automatically "spent" (the US equivalent of expunged) after the passage of a certain period of time. There is an online calculator available to calculate the period. The legislation for this was introduced in 1974 and it is the Rehabilitation of Offenders Act 1974. It also is supported by the Data Protection Act 1974, which prohibits employers from discriminating on the basis of a previous conviction where it has become "spent" and also criminalizes the disclosure of a "spent" conviction by the public.

While certain professions are excluded from the protections of the ROA and the DP, it is a godsend for most because it removes the stigma, and de-politicizes the whole "rehabilitation" exercise. The one additional benefit of this process -- which can never happen in the US -- is they have a "right to be forgotten" which also compels search engines etc to remove news accounts of a "spent" conviction.

Most European countries have similar pieces of legislation, in most cases more generous than the UK, which somewhat arbitrarily caps it at 48 months.

In the US, most states that grant expungements require a court petition/application and all the attendant benefits and drawbacks of the adversarial system. But if you measure it from a recidivism perspective, there is no comparison between say for example the UK and the US, recidivism rates are lower for those who can easily re-integrate into society without being stigmatized.

The US is far far behind its European counterparts in facilitating rehabilitation or re-entry. A criminal conviction in the US reminds of the song "Hotel California." You can check out, but you never really leave.

Posted by: International Lawyer | Jan 6, 2016 12:32:16 AM

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