Every time a person is convicted of a crime, this event is memorialized in the person’s criminal record in perpetuity, setting off thousands of potential collateral consequences, including being penalized in searches for employment, housing and volunteer opportunities. To remove these harmful consequences, Washington law allows people whose criminal records meet certain conditions to vacate their records. However, the Second Chance Gap in Washington “expungements” - the share of people who aren’t accessing the vacation remedy because of hurdles in the petition process - we suspect is large. To estimate it, we used research and practice expertise to approximately model the eligibility criteria for vacation set forth in the law and applied it to a sample of records obtained through a records request from the Administrative Office of the Courts of Washington. Importantly, to compensate for missing information relevant to eligibility, we did not account for outstanding fines, ascertained charge eligibility based on reading the code and using court guides and practice, inferred whether a person had a charge pending, and made assumptions about the estimated date of completion of the sentence based on the passage of time derived from practice. On the basis of our analysis we found that Washington's expungement laws allow for approximately 60% of those who live burdened with criminal conviction records to receive relief (around 760K adults). 40% of these could clear their records entirely of any convictions. But less than 5% of those eligible for relief, and less than 1% of the charges eligible for relief have received the remedy. At current rates of vacation, we estimate that it would take over 2,000 years to clear the backlog of eligible charges using current, petition-based methods, based on our calculations regarding the number of charges that we estimate are eligible for vacation, and the actual number of charges that were vacated last year (1,973). Existing racial disparities, which are significant in the Washington criminal justice system. would not be exacerbated but also, would not improve. Currently, African-Americans represent 4.2 % of individuals in Washington but 11% of Washingtonians with a criminal record, 15% of Washingtonians with any felony record, and 22% of Washingtonians with a Class A felony record. Automatic vacation would benefit Washingtonians across racial groups in roughly equal proportions, not widening disparities but also not narrowing them. Because of the large second chance gap, the filing of petitions by all those who are entitled to could result in a severe congestion at the courts. Washington can close the 95-99% second chance gap between eligibility and delivery of relief by automating relief, solving both problems, but only if it implements the law with some adjustments and compensates for missing and dirty data.
Colleen Chien, Zuyan Huang, Jacob Kuykendall, and Katie Rabago,
The Washington State Second Chance Expungement Gap
Available at: https://digitalcommons.law.scu.edu/facpubs/971