Reconciling criminal history open data and expungement

(Photo credit: Tony Webster/Wikimedia Commons)

Inmate and arrest data will likely remain available in a variety of formats online. Unfortunately, those identified in the data may face long-term impact even after they have “paid their debt” to society.

A report by the Legal Action Center maps out in detail all of the ways that individuals identified in arrestee and inmate databases may face longstanding discrimination. Many states not only allow employers to deny opportunities to people with arrest or conviction records, but also ban some or all people with drug felony convictions from being eligible for federally funded public assistance and food stamps. Similarly, public housing authorities may deny eligibility for federally assisted housing based on an arrest that never led to a conviction. Basic rights aren’t exempt, either: All but two states restrict the right to vote in some way for people with criminal convictions. A complete record of the collateral consequences of conviction can be accessed state by state through an interactive tool developed by the American Bar Association.

So the question becomes: What recourse do individuals with arrest or conviction records have in addressing these impediments to a normal life? What is the background for why juveniles are often spared from facing the same barriers, and should similar considerations apply to adults?


One step that can be taken is to eliminate the record at the source. Also known as criminal record expungement, the option exists because those with criminal records may have trouble reintegrating into society unless they are legally able to deny that they have ever been charged with a crime or possess a criminal record. According to the Electronic Privacy Information Center’s rundown of the expungement process, 40 states allow for the expungement or sealing of arrests that don’t lead to convictions, and only 16 allow it for conviction records. In many cases, an expungement allows individuals to deny either the arrest or the conviction on a job or school application.

Barriers exist that make expungements the exception rather than the rule, though. Some crimes are not eligible for the process, and as noted before, convictions can be a dealbreaker. Such is the case in Texas, where convictions without a pardon from the governor or a successful appeal are ineligible for expunction (expungement). In Utah, only certain offenses are ineligible, including violent and first-degree felonies, automobile homicide, felony driving under the influence and registered sex offenses.

Usually, expungement cannot be granted until a post-release waiting period has expired. Typical waiting periods can range from 3-10 years. An arrest-free record throughout that waiting period may be a legal indicator to state authorities that an individual has the undergone the rehabilitation necessary to merit an expungement. If a victim or prosecutor files a statement in response to an expungement petition, a hearing may be required. Otherwise, if a petition to expunge is granted, state agencies will be required to seal the criminal record, which will remain inaccessible to the public unless a court orders the release of information about the individual.

Laws against discrimination

Despite the fact that employers are fully within their right to seek the criminal history records of potential workers, a decision not to hire based on criminal history must be related to the responsibilities of the job in question. The U.S. Equal Employment Opportunity Commission’s 1987 and 1990 policy statements outlined the possibility for unfair discrimination in hiring decisions based on an applicant’s criminal record. In 2012, it updated and consolidated those statements in its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The law prohibits disparate impact discrimination, meaning that if those decisions disproportionately exclude people of a particular race or national origin, the employer has to show that the exclusions are “job related and consistent with business necessity.”

Almost every state includes some unique statutes establishing rules for employers that use criminal history as a determining factor in employment decisions. The legal ramifications range from overtly employer friendly to fairly protective of prospective employees. An example of the latter can be found in Florida, where applicants may not be disqualified from practicing or pursuing any occupation or profession that requires a license, permit or certificate because of a prior conviction, unless that conviction was for a felony or first-degree misdemeanor and was directly related to the specific line of work. Texas, on the other hand, generally does not allow employers to obtain a criminal record older than seven years for a job expected to pay less than $75,000. (As we pointed out in the previous section, Texas’ larger decision to allow bulk downloads of inmate data effectively guarantees that private background investigations could archive and store information older than seven years.) For a complete list of state laws regarding arrest and conviction record law in regards to employments, check out the Criminal Records page at Workplace Fairness.

In a growing movement titled “Ban the Box,” 19 states and more than 100 cities and counties have taken steps to remove barriers to employment for qualified individuals with criminal records who are applying to state jobs. The movement is an effort to eliminate questions about criminal history from hiring applications. The goal? To give individuals with criminal records a chance to prove their qualifications in the initial stages of hiring without the prejudice associated with criminal history. Seven states, the District of Columbia, and 12 cities and counties also extend their governmental fair-chance hiring requirements to local private employers. Read more about the movement in the National Employment Law Project’s Fair Chance Hiring State and Local Guide.

Juvenile records

Most states treat juvenile criminal records very differently from adult records, allowing much greater opportunities for expungement. In some states, a juvenile’s age or a crime’s severity may tip the scales in the direction of disclosure, but for the most part juvenile records are not available to the public. In the case of certain offenses, expungement is mandatory, as exemplified by Delaware’s family court system. Juvenile records have generally been sealed to give them a chance at rehabilitation and help them avoid social stigmatization at a young age.

Microdata for juveniles still has relevance at the policy level even when it isn’t made public. Since research combining elements of different datasets can be particularly insightful, data on juveniles is often combined longitudinally and shared between agencies internally. A report that analyzes the rates of juvenile detention through the lens of access to social services, for instance, can reveal how many offenders in the system have a history of mental health problems by pooling data from the state health authority with information from its youth authority counterpart.

These statistics could potentially go a long way in determining the best response to mentally ill patients entering the criminal justice system; however, to link disparate datasets, there inevitably has to be a compromise in privacy. Since individual-level data must be made available for researchers to cross-reference, there are strict regulations on access to such sensitive datasets from a hierarchy of oversight authorities. For more on this subject, check out some of our previous research on the subject of microdata privacy.


Understanding the scope of criminal history microdata is vital to determining where the line between privacy and a public right to information should be drawn. The fact that many states treat pre- and post-conviction records differently — both in how they are released to the public and whether they can be altered after the fact — makes it clear that policymakers have considered their discrepancies and reacted as they saw fit accordingly. The permanence of the Internet is a factor that they will have to continue to balance as part of the equation moving forward.

It’s conceivable that what society considers a healthy equilibrium will change. Movements like Ban the Box are proof that swift reform is a very real possibility in the space — even when that means tackling the status quo one jurisdiction at a time. In the meantime, government agencies will be persuaded to let resource constraints guide policies surrounding the release of data to the public. Somewhere between the interplay of civic advocacy efforts and government, the laboratories of democracy will churn out disparate results. Perhaps then it will be time to prioritize unity on the matter.