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May 19, 2022

"Paying for a Clean Record"

The title of this post is the title of this new paper authored by Amy Kimpel and just published in the Journal of Criminal Law & Criminology. Her is its abstract

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction.  Defendants with means, who tend to be predominantly White, can often pay for a clean record.  But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record.  Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization.  Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction.  Expungement seals or erases the defendant’s record of arrest or conviction.  Some diversion and expungement programs are cost-free, but most are not.  Yet a criminal record carries its own costs.  A criminal record can limit where an individual can live, go to school, and whether they receive public benefits.  As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth.  Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass.

This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization.  These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means.  This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste.  Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.

May 19, 2022 at 03:23 PM | Permalink


Amy... great article.. primary diversion statute in TN 40-35-313.

Posted by: david raybin | May 19, 2022 10:38:09 PM

There are large gender disparities in criminal convictions as well as large age disparities. This is not because of discrimination. It's because men commit much more crime than women, and people in their twenties and thirties commit much more crime than people in their sixties and seventies. Statistics that did NOT reflect demographic disparities in the commission of crime would be dishonest.

Same deal with race. The problem is not the statistics. The problem is actual disparities in rates of committing crime. I guess we could have dishonest statistics in the name of "equity," but I think we'd be better off, and would do better at maintaining our integrity, if statistics reflected the real world.

Posted by: Bill Otis | May 19, 2022 11:13:54 PM

Here in Kentucky, former felons and misdemeanor defendants got a nice leg up on obtaining expungement of their convictions, 5 years after they finish serving the sentences. In 2019, the Kentucky Legislature imposed a $50 filing fee (nonrefundable) for Expungement Petitions. Then, if the Expungement Petition was granted, the defendant had to pay a $250 expungement fee (who could be paid incrementally, over a period of months). These fees applied to each criminal case in which expungement was sought. Particularly for defendants who had multiple prior cases of conviction, this soon added up to significant money for most people. The Legislature specifically defined how these fees should be applied upon payment, including 40% going to the Kentucky State Police! Finally, a clever attorney in Jefferson County (Louisville), Kentucky filed an In Forma Pauperis Application for his client, with the Expungement Petition, which is a civil action like a civil lawsuit complaint. The Jefferson Circuit Judge and the Kentucky Court of Appeals denied the In Forma Pauperis Application, saying that the Legislature could not have intended for it to apply to the filing of Expungement Petitions (although there is no statutory language saying that). The Kentucky Supreme Court reversed, holding that in the absence of specific statutory language to the contrary, the In Forma Pauperis statute applies to Expungement Petitions, just like all other civil actions. See, "Jones v. Commonwealth of Kentucky", No. 2019-SC-0651-DG (Ky. Dec. 16, 2021). This idea may have application in other states, where it has not yet been tested!

Posted by: Jim Gormley | May 20, 2022 11:51:23 AM

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