When the Great Recession hit in 2008, the unemployment rate among the general public stood at 6 percent. But it stood at a staggering 27 percent among the formerly incarcerated, according to a study by the Prison Policy Initiative —“higher than the overall U.S. unemployment rate during any historical period, including the Great Depression.” As the nation now grapples with the novel coronavirus and tens of millions of newly unemployed workers, individuals with criminal records—upward of 70 to 100 million Americans—are bracing for an even more severe crisis, with heightened difficulties obtaining jobs, loans, and housing.
In that context, criminal justice reform advocates in Washington State were all the more disappointed in April when Democratic Governor Jay Inslee vetoed House Bill 2793. It would have initiated the process of automatically expunging criminal records in nearly 2 million eligible cases.
Advocates have pushed for this type of reform, dubbed “Clean Slate,” around the country. Although expunged records yield major benefits, the vast majority of people who are eligible to get an expungement—over 90 percent of them, according to a University of Michigan study published in 2019—don’t even apply, for a host of reasons ranging from cost and time to legal complexity and a lack of information. Clean Slate bills propose to remedy these obstacles by requiring states to automatically expunge people’s records for eligible offenses. Though specifications vary, these bills typically involve clearing cases promptly if they did not result in a conviction, and clearing convictions after some waiting period.
The economic downturn has amplified the issue’s importance. Applicants with criminal records can be half as likely to get a callback or job offer, research has shown, and nearly nine in 10 employers use criminal background checks when hiring. Even among those who do find jobs, employees with records generally face significant earning penalties, while those with expunged records typically see their wages spike.
Still, in his formal veto letter, Inslee cited COVID-19 to explain his decision to block HB 2793. He argued that given the health and economic crisis wrought by coronavirus, Washington could not afford to move forward with the bill. Despite the research showing automatic record-clearing boosts economic opportunity for vulnerable people and ultimately saves states money, he insisted, “we must prepare for the effects of the lost revenue that will result from this pandemic.”
“To have Inslee veto our Clean Slate bill was really devastating for all of us who worked so hard and continue to make progress toward the relief that so many individuals need help with,” said Tarra Simmons, director of the Washington-based Civil Survival Project, a criminal justice organization led by formerly incarcerated individuals, and the co-chair of Washington’s Statewide Reentry Council. “Austerity is not going to help us in the economic recession.”
Simmons herself was sentenced to 30 months in prison for theft and drug crimes back in 2011. Six years later, when she graduated from Seattle University Law School, the Washington State Bar Association denied her entry into the bar exam, citing her felony record, but Simmons got the state Supreme Court to affirm her right to take the test. Simmons is now a licensed attorney and is also running for the state House.
The final version of HB 2793 was watered down from what advocates had originally proposed. It would have authorized a pilot program of automatic record-clearing in just one county, as well as a study due in December assessing how to implement the policy statewide, given Washington’s decentralized court system. The total price tag, according to the fiscal note, was $1.2 million over two years.
When the coronavirus hit, advocates pressed Inslee to sign the bill even if he couldn’t authorize the funding. Though it was limited, supporters still saw the legislation as essential to get the ball rolling in the state. Major philanthropic organizations like the W.K. Kellogg Foundation, Arnold Ventures, and the Chan Zuckerberg Initiative have supported automatic expungement efforts, and Simmons said they were confident they’d be able to secure private resources for the study if needed.
“He could have passed the policy without the funding piece, and it would have at least compelled state agencies to come to the table and collaborate with us,” Simmons told the Appeal: Political Report. “We said we can still do the report and we’ll figure it out, the cost, as a coalition.”
Nevertheless, Inslee nixed the legislation in full.
Mike Faulk, the press secretary for Inslee’s office, told the Political Report that the governor believes record-clearing is “an important issue” and “would like to see work done to move this forward when there are resources to allow for the work.” Faulk noted that Inslee vetoed many bills that he endorsed to control the budget and emphasized that the governor supports Clean Slate, “regardless of whether it got his signature this time around.”
Washington’s setback stands in stark contrast to the wave of momentum reformers have seen over the past few years when it comes to automatic record-clearing.
Pennsylvania was the first state to pass a Clean Slate bill in 2018, with polling showing over 80 percent of Pennsylvanians backed the idea. The law has had a tremendous impact in a short amount of time: Since it went into effect in June 2019, more than 34 million cases have already been sealed, including more than 80,000 misdemeanor convictions.
Unlike in Washington State, Pennsylvania has a unified court system—meaning that the data was already consolidated from all 67 counties. This aided Pennsylvania’s swift passage of its bill. “It mostly required some programming to make the concept run, and I think the fact that it wasn’t going to cost much of anything was really key,” explained Sharon Dietrich, the litigation director of the Philadelphia-based Community Legal Services.
Then, in 2019, Utah became the second state to pass a Clean Slate bill. California followed suit in October, though unlike in the prior two states, its reform does not apply retroactively. Only eligible offenses that occur after 2021 will be automatically cleared.
California went further than Pennsylvania and Utah in another way, though. Its law will apply not just to misdemeanors, as in these other states, but to some felony offenses as well.
Michigan is also advancing a Clean Slate bill, which passed the state’s House in November; the Senate may still take it up this year. If that bill passes, Michigan would have the first Clean Slate law to clear prior felony offenses. Lawmakers have also introduced bills this year in California, which may expand on its 2019 reform, and in Connecticut.
Advocates are pressing states to speed up consideration of these measures, rather than use the pandemic as a reason to slow it down. Workers with criminal records tend to be among those first fired from jobs and last hired during economic crises, they stress.
“This kind of policymaking is going to be more important—it’s not something that should be left as a COVID-19 afterthought,” said Rebecca Vallas, senior fellow at the Center for American Progress, where she works on automatic expungement. “It needs to be part and parcel of our economic recovery or else we’ll just further compound the inequities we already have.”
Simmons agrees that discriminating against those with criminal records amid the pandemic puts Americans more at risk. “As the illness continues to spread, we need to beef up our essential workforce,” she said. “Folks with criminal records would be well equipped to step into these delivery and grocery roles.”
The federal government may be paying some attention. In 2019, Representatives Lisa Blunt Rochester, a Delaware Democrat, and Guy Reschenthaler, a Pennsylvania Republican, introduced legislation to automatically seal some people’s criminal records. Vallas says she has also heard of bipartisan interest in offering federal support to states that face greater financial and technological barriers to implementing automatic record-clearing than Pennsylvania did.
Reschenthaler told the Political Report in an email that Clean Slate-like legislation is important to battling “the revolving door to prison.” He added, “As we recover from the COVID-19 outbreak, eliminating barriers to employment will ensure formerly incarcerated individuals can fully participate and contribute to their communities to help us reopen America and reignite our economy.”
So far, the federal government has only made it more difficult for people with records to benefit from its economic stimulus package, though, by restricting access to forgivable business loans.