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Economic Pulse

Inside California’s new law allowing more people to seal old criminal records

David Brancaccio and Jarrett Dang Dec 9, 2022
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Most provisions of SB 731, which was signed into law recently, will go into effect in July. David Paul Morris/Getty Images
Economic Pulse

Inside California’s new law allowing more people to seal old criminal records

David Brancaccio and Jarrett Dang Dec 9, 2022
Heard on:
Most provisions of SB 731, which was signed into law recently, will go into effect in July. David Paul Morris/Getty Images
HTML EMBED:
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An old criminal record can derail a person’s economic prospects for years. People who have served prison time often have a hard time finding jobs and qualifying for loans, while also facing higher rates of poverty.

But in California, Senate Bill 731, recently signed into law, will expand the number of people eligible to have their criminal records sealed, meaning those records can no longer be accessed by potential employers and landlords. The law will allow most convicted felons to apply for record sealing four years after leaving jail and completing community supervision if they commit no additional felonies. Most provisions of the law take effect in July.

The legislation has been opposed by some law enforcement groups, but proponents say it could be a large step toward needed criminal justice reforms. Marketplace’s David Brancaccio spoke with David Harding, professor of sociology at University of California, Berkeley, about the new law, what it could mean for people with criminal records and some challenges it could face in coming years.

Research shows that after a certain period of time, [for] someone who has a criminal conviction or criminal record, their chance of committing a new crime is no different than anybody else,” Harding said. “And so, after a period of time, that criminal record really does not actually provide the employer with any useful information.”

The following is an edited transcript of their conversation:

David Brancaccio: Help us better understand how this new approach in California regarding criminal records might help people’s well-being.

David Harding: Yeah, well, we often hear the term “do the crime, do the time.” But for many people who have criminal record convictions, they complete their sentences that they’re given by the judge, but still have their criminal records hanging over their heads for the rest of their lives. And that really interferes with their ability to find a job, to find housing, to go back to school. And so this change in the law would allow many of them to clear those records so they’re not visible to employers and to landlords.

Brancaccio: Everything or some infractions?

Harding: The new law makes a couple of different changes. One important one is that it expands automatic sealing to arrests for felonies. And that’s the case where someone has been arrested but not prosecuted. So those arrests will disappear from public records. More importantly, probably, it expands the ability of people with convictions to seal those convictions. So previously, there were a large number of exceptions, particularly more serious and violent crimes. And now, the law expands the ability to apply for sealing to a much larger group of people. The main group that’s still excluded is people who have to register on the sex offender registry.

Brancaccio: And the application process, there’s some kind of legal review of those applications?

Harding: Yes, those would have to typically go before a judge and be approved by a judge. That is one of the challenges in this, which is that it can be kind of a cumbersome process to get that review and to get approval. And we know from research in other states that many people who are eligible don’t know they’re eligible or have trouble completing the process.

Brancaccio: Now, criminal records, I don’t think, just reside on official state computers. There are private background-checking companies that may have some of this data.

Harding: Yeah, this is really a second question about what the impact of the law is going to be. Your record is not immediately sealed. And so there’s a period of time in which the commercial companies that provide many background checks to employers and landlords and others could harvest that data, and then they have their own copies of it. And the big question is going to be: Will those companies remove those records from their systems once they’re sealed? And what sort of oversight of those companies is there going to be?

Brancaccio: Have other states tried this?

Harding: There are a number of other states that have done something like this. But California’s move here is really a game changer in expanding the ability to seal convictions, really, to almost everyone with a criminal record, or at least the ability to apply. So this is a big step forward. And hopefully, other states will be watching what happens in California, and how well it work,s and what the impacts are, and follow suit.

Brancaccio: So the record of its implementation in other states has been favorable enough to persuade you that California needs this, clearly.

Harding: Yes, and California, this isn’t the first time California has moved in this direction. There’s been a series of smaller, less impactful laws that have sort of gradually ramped up the ability to seal records. And so I think the legislature has seen the impact of those and now decided to push it a lot further.

Brancaccio: Companies are obligated to perform due diligence before bringing in new people. Is it not reasonable for an employer to want to know more about people with certain kinds of violent backgrounds? Or do you subscribe to this notion that you started with, which is if you’ve done your time, it’s really no one else’s business?

Harding: Yeah, we can certainly understand why employers are concerned about who their employees are and what they’ve done in the past. However, the research shows that after a certain period of time, someone who has a criminal conviction or criminal record, their chance of committing a new crime is no different than anybody else. And so, after a period of time, that criminal record really does not actually provide the employer with any useful information. It’s very hard for employers to understand that — we don’t expect employers to keep up with academic research on these topics. And so that’s why we need to have a structure here to protect people with criminal records.

Brancaccio: It’s riveting information from the academic research that after a period of time — I assume you’re talking some years — odds of reoffending become essentially the average, and there isn’t really useful information in a criminal record.

Harding: Yeah, exactly. It depends on how long someone’s record is and what types of crimes they’ve committed. But we’re talking something like 4, 6, 7 years, and that’s encoded in the law. For those who have committed or been convicted of felonies, there is a four-year waiting period before you can apply to have your record sealed.

Brancaccio: And society has an interest in this, right? The idea is to find ways so that people can be productive. And this is a strategy that you’ve been very focused on.

Harding: Very much so. If we want people who have been involved in the criminal justice system to reintegrate back into our society, our economy, our communities and be productive members of society, be able to support themselves, to not get back involved in the criminal justice system, we need to give them the opportunities to do that, to find meaningful work that’s going to support their families, to find stable housing. If we don’t do that, then we’re just increasing the likelihood of them getting back into trouble again.

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