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Protesters shouldn’t be saddled with criminal records | COMMENTARY

Protesters in June take a knee for 8 minutes 45 seconds in remembrance of George Floyd, who died after being detained by police in Minnesota. Some have heads bowed in prayer.
Protesters in June take a knee for 8 minutes 45 seconds in remembrance of George Floyd, who died after being detained by police in Minnesota. Some have heads bowed in prayer. (Christina Tkacik/Baltimore Sun)

More than 10,000 protesters were arrested nationwide within a couple of weeks of the death of George Floyd, an Associated Press analysis found. Many were arrested for minor offenses like curfew violations and failing to disperse, often their first interaction with the criminal justice system. A number of these cases will likely be quietly resolved or dismissed in the coming weeks and months.

But all of these individuals now have criminal records and will pay the high cost of criminal justice system involvement. At a time when unemployment is skyrocketing, saddling these individuals with criminal records — something that can restrict a person from a good paying job — is completely counterproductive.

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Our approach needs to change, and a simple, common sense policy like the Clean Slate Initiative might hold the answer. Clean slate policies allow criminal records for certain individuals to be automatically expunged if a person stays crime free. Of course, there are restrictions to what types of crimes are included in this policy, but for many this is potentially life changing.

Criminal records, even arrest records, carry enormous collateral consequences, so grave they often equate to a life sentence in poverty. Nine out of 10 employers, four out of five landlords and many educational institutions use background checks, and immediately eliminate or discriminate against individuals who have records. In fact, those applying for a job can expect that their record will reduce their callback rate by half and decrease their annual wages by 40%, according to a 2010 Pew Charitable Trusts study.

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What is perhaps the saddest part of this story is that many individuals end up with records without committing a crime. Consider the recent protests, where many of the individuals arrested may not have committed crimes at all, but were swept up in mass arrests amid chaotic circumstances. I can personally attest to this reality. As a public defender in Baltimore the year that Freddie Grey was killed, I represented dozens of individuals in Northwest Baltimore arrested at the protests. Most were not harming public property or people, they were just there to peacefully protest. Over the next few weeks, dozens of cases would be dismissed. But those individuals still ended up with criminal records.

For these folks, and many others, realizing their American dream remains out of reach, and the stigma of a record follows them wherever they go. Making matters worse, after a number of years, a criminal record does not provide valuable, predictive information about a person’s capacity to be a hard worker or their likelihood of committing future crimes. In fact, studies show these individuals are some of the hardest working, most loyal workers. Additionally, after a few years, they are no more likely than anyone in the general population to commit crimes.

The damage caused by records reaches across generations, and the children of those with records face long-term physical and mental consequences. Take Armando Aguilar, who was featured in a story by The American Conservative. His record is about 16 years old, but he was unable to participate in his children’s school activities or field trips before clearing his record. It’s no wonder that children of those with records suffer short-term consequences like behavioral and cognitive issues in school, as well as longer-term consequences to their economic and mental well-being, according to a report by the Center for American Progress.

Expungements, which generally seal records from public viewing, are a helpful solution to the stigma that records pose. After an expungement, wages go up significantly, and individuals can improve their life outcomes. Many of the individuals who were arrested in the nationwide protests following George Floyd’s death will be eligible for expungements — both because the offenses are minor, and especially if they are found not guilty or their cases are dismissed.

But most will be unable to take advantage of expungement relief. Only 6.5% of individuals apply for expungement, likely because the process is cumbersome and difficult to navigate, and hiring an attorney to help you can cost thousands of dollars

Clean slate is a policy that can change that. Clean slate automates expungements so that those who are eligible receive the benefits of record clearing automatically after a waiting period has passed. These laws have already been enacted in Pennsylvania and Utah, and states like Michigan, Louisiana and New Jersey have introduced legislation, are studying the possibility of automating their record clearance system or are in the middle of creating such a system.

In the midst of an economic crisis, clean slate policies are more important than ever. In Pennsylvania, the first state to implement clean slate legislation, nearly 35 million cases have been sealed — more than 72 times the number of petitions that were able to be cleared in the same period of time. Incredibly, even amid the COVID-19 pandemic, eligible records in Pennsylvania have continued to be cleared, since the entire process can happen without the in-person contact required in a petition-based system.

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Protesters have already faced short-term repercussions — there is no need to saddle them with more hardship. With policies like clean slate, we have a chance to avoid the lifelong consequences of a criminal record.

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Nila Bala (Twitter: @nilabala3) is the criminal justice associate director at the R Street Institute and a former Baltimore assistant public defender.

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