Amy Kimpel (University of Alabama - School of Law) has published "Paying for a Clean Record" on SSRN. Here is the abstract:
One in every three adults in the United States has a criminal record — the result of decades of overly harsh criminal laws and policies which caused mass incarceration and mass criminalization. In the policy world, diversion and expungement are being turned to with increasing frequency as ways to address the American criminal record problem. These policy and legislative efforts have produced a patchwork of diversion and expungement systems operating in each state. And it’s not clear whether these efforts are mitigating or contributing further to the “New Jim Crow” described by Michelle Alexander in her landmark book.
Prosecutors and courts charge a premium for the ability to avoid or expunge a criminal conviction — costs including program application fees, court costs, diversion fees, fines, restitution, and filing fees for expungement petitions. Defendants who are willing and able — who tend to be predominantly white — can often pay for a clean record, while the indigent who are unable to pay — who are disproportionally Black and brown — are saddled with the stigma of a criminal record. As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record creates barriers to employment and the creation of wealth. If economic barriers to diversion and expungement persist, this has the potential to further calcify race and class divides. This article looks at the promises and pitfalls of diversion and expungement as a means to combat the problem of mass criminalization. It explores legal challenges to the current schemes and explains why allowing defendants to pay for a clean record is just bad policy.
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