Roughly 1 in 3 American adults (about 80 million people) has a criminal record, and 2.7 million households receive an eviction filing each year. These court records create barriers to employment, housing, college admission, student loans, professional licenses, government benefits and services, voting rights, family reunification, and more. Not only do these collateral consequences of court records play a fundamental role in shaping people’s lives, but they can also undermine the goals of the legal system itself — by contributing to sentencing disproportionality, increasing recidivism and court caseloads, exacerbating racial disparities in justice system involvement and outcomes, and eroding public trust and confidence in the courts.
Policies designed to provide relief from collateral consequences are often introduced in the form of state legislation. However, policies that are designed to address underlying court records directly involve the state courts. In early 2024, the Blueprint for Racial Justice (BRJ) initiative of the Conference of Chief Justices, the Conference of State Court Administrators, and the National Center for State Courts, with funding from the State Justice Institute, embarked on a systematic review of the current landscape for courts on record relief, including expungement, sealing, set-asides, and judicial certificates of relief. Conceptualized and developed in close collaboration with the Systemic Change Working Group and Steering Committee of the BRJ over a period of six months, the effort culminated in a final report titled Making the Promise of Expungement a Reality: A Guide to Record Relief in the State Courts.
Designed to provide court leaders with information about what courts can do on these issues, the complete report describes five major barriers to record relief and seven types of solutions that courts can consider, depending on their role and goals in the process. A summary of key findings follows.
Common barriers
Although record relief has expanded in recent years, fewer than 10 percent of people who are eligible for relief actually receive it. There are five major barriers:
- Awareness of eligibility: Many people who are eligible to petition for some type of record-clearing relief are not aware of available opportunities. For most, the question of clearing a court record arises because the individual has already experienced collateral consequences, such as being unable to find employment or housing.
- Waiting periods: People with court records typically must wait a certain period of time before they are eligible for record relief. On average, the length of these waiting periods is not supported by the evidence on recidivism, and long waiting periods prevent many from fully reintegrating into society by providing obstacles to legal employment and housing.
- Financial barriers: Eligibility for relief often requires all fines and fees stemming from the original charges to be paid. In some jurisdictions, judges may also consider outstanding court debt as an indicator of nonrehabilitation when granting relief. Finally, the costs associated with filing a petition for relief create additional financial barriers for many.
- Availability of legal assistance: Record clearing is a complex process, and people who have legal representation are more likely to be successful. However, because legal aid organizations and expungement clinics have limited capacity, many people seeking relief do so without assistance. Existing self-help resources are not enough for many self-represented litigants.
- Effectiveness of record clearing: In criminal incidents with multiple charges, sometimes only some of the charges are cleared. Those that remain, along with any related appellate records, are still publicly accessible. Furthermore, third-party copies of court records that are used in background checks are error prone, out of date, and incomplete.
Promising solutions
The barriers above prevent expungement and other forms of record relief from achieving their policy goals. However, some courts have begun to explore creative solutions to these problems. Many of these are relatively new, so more research is needed to determine whether they are effective in reducing collateral consequences, decreasing recidivism, and/or addressing racial inequities.
- Automatic record clearing. Automatic record clearing means an individual need not petition the court; instead, the state initiates the process, and the court verifies the eligibility of each individual case. In some jurisdictions, automatic record clearing is also automated, which means that the eligible record is identified and verified using technology, rather than human labor. Early research on automatic record clearing is promising, suggesting that this approach is cost-effective for courts and results in many more records cleared for eligible individuals.
- Outreach about record relief options and eligibility. Reaching out to court users and letting them know that they are (or may be) eligible for record relief helps to address the lack-of-awareness barrier and may reduce unnecessary delays, as people will be equipped to pursue record clearing as soon as they are eligible. Because many people spend substantial time and money pursuing record relief only to find out that they are not yet eligible, this approach may also reduce costs and reduce needs for legal assistance.
- Process simplification and fee reduction. As in other case types with large numbers of self-represented litigants, it is important for courts to examine how processes and procedures can be simplified so that they are understandable and accessible to those without attorneys. Process simplification can go a long way toward making petition-based record relief accessible to more people. Plain-language guides, self-help toolkits, and well-designed forms can also make it easier to navigate those processes. Finally, fee reduction and waivers help to reduce financial barriers.
- Increased access to legal assistance. Across other areas of civil law, several approaches provide wider access to legal assistance for those who would otherwise go unrepresented. These same strategies can be used in the record relief area. The most straightforward are clinics that provide those seeking record relief with free assistance from attorneys or law students. Other approaches include limited-scope services (such as eligibility clinics), unbundled legal services, and regulatory innovation (such as allowing nonlawyer legal services in certain circumstances).
- Removal of court debt as a factor in eligibility or adjudication. When individuals are granted record relief despite the existence of outstanding court debt, they can obtain relief sooner and have more opportunities to secure employment (and this employment comes with higher wages, on average). They are then more likely to be able to fulfill their legal financial obligations. Courts can eliminate, waive, or reduce outstanding court debts as part of the record-clearing process. They can also bar the consideration of unpaid fines and fees in matters of expungement or sealing.
- Reduction of waiting periods. Recent research, such as that published by Bushway and colleagues in 2022, suggests that shortening waiting periods for record relief does not increase recidivism or public safety risks. Making waiting more consistent with the evidence on recidivism may allow for record relief for more people and, crucially, more quickly. The fewer employment, housing, and other barriers people must experience before obtaining relief, the more likely they are to successfully reenter society and remain crime-free.
- Accountability for private parties disseminating court records. External databases that house copies of court records are error prone, out of date, and incomplete. State statutes or court rules may be avenues for addressing the issue of how court data are used or disseminated by third parties, or for placing a greater burden on private entities to ensure that they are not using court records that have already been cleared. At a minimum, courts’ data governance policies should address how data users will be alerted if records that they hold copies of are later cleared and how users’ deletion of the cleared records will be verified.
For more information on record relief, including access to the complete final report and online resource hub, visit www.ncsc.org/recordrelief. For other resources from the Blueprint for Racial Justice initiative, visit www.ncsc.org/racialjustice.
Andrea Miller and Nikole Hotchkiss are senior court research associates and authors of the full record relief report. Jennifer K. Elek is a principal court research associate and manager of the Blueprint for Racial Justice projects at the National Center for State Courts.
