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February 14, 2022

"The High Cost of a Fresh Start: A State-By-State Analysis Of Court Debt As A Bar To Record Clearing"

The title of this post is the title of this new report produced by the National Consumer Law Center and the Collateral Consequences Resource Center.  The report examined how court debt — such as criminal fines, fees, costs, and restitution — serves as impediment to record clearing.  Here is the start of the report's executive summary:

For the nearly one-third of adults in the U.S. with a record of arrest or conviction, their record is not simply part of their past but a continuing condition that impacts nearly every aspect of their life.  Their record makes it hard to get a job and support a family, secure a place to live, contribute to the community, and participate fully in civic affairs.

In recent years, most states have passed laws aimed at restoring economic opportunity, personal freedoms, and human dignity to millions of these individuals by providing a path to clear their record.  But for too many, this relief remains out of reach because of monetary barriers, including not only the cost of applying for record clearing but also the requirement in many jurisdictions that applicants satisfy debt incurred as part of the underlying criminal case before they can have their record cleared.  This can be a high bar: the total amount of fines and fees can run to thousands of dollars for even minor infractions and can be considerably higher for felonies.

People prevented from clearing their record because they cannot afford to pay are usually those most in need of relief.  And, perversely, because a record significantly impairs economic opportunity, having an open record makes it harder to pay off fines and fees and therefore harder to qualify for record clearing.  This burden falls especially heavily on Black and Brown communities, which are more likely to have high concentrations of both criminal records and poverty because of structural racism in criminal law enforcement and in the economy.  Ability-to-pay tests and similar waiver approaches to reduce or eliminate monetary barriers to record clearing have been shown to be poor safeguards in many contexts.

This report explores the extent to which restricting access to record clearing based on outstanding criminal fines, fees, costs, and restitution — collectively known as “court debt” — may prevent poor and low-income people from getting a second chance.  After surveying research on the importance of record clearing and the mushrooming financial burdens imposed on criminal defendants, it analyzes the extent to which outstanding court debt is a barrier to record clearing under the laws of each of the 50 states, the District of Columbia, and the federal system.  Our study focuses in particular on generally applicable statutory authorities for clearing adult criminal convictions; it excludes record-clearing authorities available for other categories of records (e.g., non-conviction records) or for specific categories of individuals (e.g., victims of human trafficking).

February 14, 2022 at 06:28 PM | Permalink


It's a big mistake to lump together money owed the government (fines, fees, and court costs) with money owed the victim for the harm the criminal inflicted (restitution). The arguable case that the former should be scaled back is much better than the case for scaling back the latter. The victim also has a life to get back on track, and restitution plays a part in that. If there's an argument that the victimizer's interests should be placed ahead of the victim's -- which I doubt -- this article doesn't make it.

Posted by: Bill Otis | Feb 15, 2022 3:14:29 PM

@Bill: I agree with you that criminals should remain on the hook for restitution. But there's a contradiction if the collateral consequences make it harder for them to get jobs. We should *want* them to be eligible for the most lucrative jobs they can get.

Posted by: Marc Shepherd | Feb 16, 2022 5:47:37 AM

Interestingly, here in Kentucky there is only one issue that permits our Courts to extend a defendant's period of probation, and that is when restitution remains unpaid. Kentucky Courts usually extend the period of probation until restitution has been fully paid.

Posted by: Jim Gormley | Feb 16, 2022 7:12:57 AM

@Marc: I think that's a good argument for record cleaning that is reversible if the beneficiary fails to make reasonable good-faith efforts to pay restitution. They shouldn't be able to rely on this justification and then not pay restitution.

Posted by: Jason | Feb 16, 2022 9:10:14 AM

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