By: Samantha Cook, Feature Editor
“Get a clean slate!” offers the Community Legal Services of Philadelphia. “Do You Have a Criminal Record that Might Be Sealed Under Pennsylvania’s New Clean Slate Law?”[1]
Studies of the criminal justice system in recent years have addressed the issue of collateral consequences, the concept that people with criminal records face obstacles to re-entering society regarding employment opportunities, access to government benefits, housing, and many others.[2] The National Inventory of Collateral Consequences of Conviction has created an inventory of over 44,000 institutional limitations or consequences affecting those with a criminal conviction in the United States.[3] Pennsylvania accounts for eight hundred fifty of such collateral consequences.[4] Many of these apply not just to felony records, but also misdemeanors. Equally detrimental is the stigma associated with a Record of Arrests and Prosecutions, sometimes referred to as a RAP. Employers and landlords often privately discriminate against ex-convicts by denying them employment and housing opportunities on the basis of their criminal history.[5] A criminal record can follow a person for the rest of their life. Pennsylvania, however, is taking steps to mitigate these consequences.
On December 26, 2018, Pennsylvania passed a “Clean Slate” law, which will allow for many first-time convicts of certain non-violent misdemeanors to have their records sealed from the public.[6]
The Clean Slate law amends the PA Crimes Code and the Judiciary and Judicial Procedure Code to acknowledge that:
Individuals with charges not leading to convictions may be inherently harmed by the maintenance of that record and have a constitutional presumption of innocence . . . individuals convicted of crimes . . . should serve their sentences as ordered by the courts . . . ”, and “after less violent individuals convicted of crimes have served their sentences and remained crime free long enough to demonstrate rehabilitation, the individuals’ access to employment, housing, education and other necessities of life should be fully restored.[7]
The practical effect of the law is that any person with certain misdemeanors who has completed their sentence and stayed out of trouble for at least ten years can petition to have their criminal history “sealed.”[8] Sealing here means that the court may enter an order that the criminal record pertaining to an eligible misdemeanor be disseminated only to a criminal justice agency or government agency.[9] In other words, sealed records will no longer be available to public or private employers or landlords; they are only available to licensing agencies and for criminal justice agencies.[10] Expungement, where records are totally destroyed, is a more difficult bar to meet; the only opportunities for records expungement in Pennsylvania are for summary offenses after five years, for violations, for the elderly, the pardoned, and some juvenile offenses.[11]
Pennsylvania also offers some safeguards where records cannot be sealed or expunged. In 2017, Pennsylvania adopted a “Ban-the-Box” rule, which encourages public agencies to consider hiring former offenders and consider additional factors, urging them only to consider convictions that make the applicant unsuitable for the job.[12] However, this law only impacts public jobs; until the Clean Slate law, there were very few protections against private employment discrimination. Even in jurisdictions where private discrimination against convicts is proscribed, the burden still falls on the employer or landlord to evenly and coolly consider the record and make an informed, impartial decision.[13] For this reason, record sealing and expungement are more effective methods to remedy these consequences.
There will be challenges in implementing the Clean Slate law, many of which are administrative. The most immediate hurdle is that the law does not automatically take effect; it requires a petition due to the high volume of records that it will impact.[14] At this time, the Community Legal Services of Philadelphia is running an educational campaign to inform those who may be eligible, but the sealing program will not be automated until at least June of 2019.[15] Commercial background check companies may also continue to report on sealed or expunged records because those databases are maintained separately from the official PA databases.[16]
It’s estimated that 1 in 3 Americans has a criminal record.[17] Pennsylvania’s proportion amounts to 3.4 million individuals.[18] Whether you’re tough on crime or sympathetic to one-time mistakes, it’s clear that the system will need to adjust to emphasize rehabilitation and reentry into society. The bill received rare and almost unanimous bi-partisan support in the legislature, which shows a positive sign toward meaningful criminal justice reform.[19]
Sources:
[1]https://clsphila.org/mycleanslatepa
[2]https://www.nij.gov/journals/272/Pages/collateral-consequences.aspx
[3]https://niccc.csgjusticecenter.org/database/results/?title=&jurisdiction=195&consequence_category=&narrow_category=&triggering_offense_category=&consequence_type=&duration_category=&page_number=1
[4]Id.
[5]Criminal Law/Criminology: Unmarked? Criminal Record Clearing and Employent Outcomes, 108 J. Crim. L. & Criminology 1, 15 (2018); Clean Slate Brings Automated and Expanded Criminal Record Sealing to Pennsylvania, 90 PA Bar Assn. Quarterly 39, 41.
[6]https://www.governor.pa.gov/governor-wolf-my-clean-slate-program-introduced-to-help-navigate-new-law/
[7]https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2018&sessInd=0&act=56&mobile_choice=suppress
[8]18 Pa. Cons. Stat. Ann. § 9122.1(a).
[9]Id.
[10]http://restoration.ccresourcecenter.org/#pa
[11]Id.
[12]https://www.oa.pa.gov/Policies/hr/Documents/TM001.pdf
[13]Clean Slate Brings Automated and Expanded Criminal Record Sealing to Pennsylvania, 90 PA Bar Assn. Quarterly 39, 45.
[14]https://triblive.com/state/pennsylvania/14498643-74/clean-slate-law-offers-offenders-a-fresh-start-without-public-criminal-record
[15]Id.
[16]Id.
[17]Clean Slate Brings Automated and Expanded Criminal Record Sealing to Pennsylvania, 90 PA Bar Assn. Quarterly 39, 45.
[18]Id.
[19]https://www.pasenategop.com/blog/senate-approves-bipartisan-clean-slate-legislation/
