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Beyond the eternal criminal record: Public support for expungement

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Abstract

Research Summary: In The Eternal Criminal Record, James Jacobs detailed how it has become increasingly difficult for ex-offenders to escape the mark of their criminal record. One way to “wipe the slate clean” is through the official expungement of criminal records. We assess public views toward this policy using a national sample of American adults (N = 1,000). Public support for expungement is high for persons convicted of property and substance-related offenses, who stay crime free for 7 to 10 years, and who “signal” their reform through stable employment and completion of a rehabilitation program. Members of the public are also concerned about unfettered public access to criminal records and want to ensure that any available criminal record information is accurate. The strongest predictor of support for expungement is a belief in redeemability. Policy Implications: There is a growing movement in the United States that seeks to curtail the effects of criminal records through their expungement. In recent years, most states have enacted bills creating, expanding, or streamlining criminal record relief. Public opinion is important in this context, because it can motivate or constrain reform efforts. Our findings show that, when the risk to public safety appears low, the American public favors providing second chances by using expungement to wipe clean the record of a criminal offense committed years previously. Further, knowledge about the public’s belief in redeemability may be key to understanding and promoting reform efforts that seek to include rather than exclude offenders back into society.
Beyond the Eternal Criminal Record:
Public Support for Expungement
Alexander L. Burton
University of Cincinnati
Francis T. Cullen
University of Cincinnati
Justin T. Pickett
University at Albany
Velmer S. Burton, Jr.
University of Arkansas at Little Rock
Angela J. Thielo
University of Louisville
Forthcoming at Criminology and Public Policy
Corresponding Author:
Alexander L. Burton, School of Criminal Justice, University of Cincinnati, Cincinnati,
OH 45221, USA.
Email: burtoar@ucmail.uc.edu
1
Abstract
Research Summary
In The Eternal Criminal Record, James Jacobs detailed how it has become increasingly difficult
for ex-offenders to escape the mark of their criminal record. One way to “wipe the slate clean” is
through the official expungement of criminal records. We assess public views toward this policy
using a national sample of American adults (N = 1,000). Public support for expungement is high
for persons convicted of property and substance-related offenses, who stay crime free for 7 to 10
years, and who “signal” their reform through stable employment and completion of a
rehabilitation program. Members of the public are also concerned about unfettered public access
to criminal records and want to ensure that any available criminal record information is accurate.
The strongest predictor of support for expungement is a belief in redeemability.
Policy Implications
There is a growing movement in the United States that seeks to curtail the effects of criminal
records through their expungement. In recent years, most states have enacted bills creating,
expanding, or streamlining criminal record relief. Public opinion is important in this context,
because it can motivate or constrain reform efforts. Our findings show that, when the risk to
public safety appears low, the American public favors providing second chances by using
expungement to wipe clean the record of a criminal offense committed years previously. Further,
knowledge about the public’s belief in redeemability may be key to understanding and promoting
reform efforts that seek to include rather than exclude offenders back into society.
2
As Jacobs (2015, p. xii) notes, scholars probing the effects of criminal records are “not
writing on a blank slate,” for “there is a long sociological tradition illuminating the consequences
of criminal labeling.” More than a century ago, a key rationale for the invention of the juvenile
court was to spare wayward youth accusations of criminal responsibility leading to the lifetime
stigma of a formal record (Feld, 2017; Jacobs, 2015). Starting in the 1960s and extending into
the 1970s, labeling theorists warned of the criminogenic effects of official reactions, prompting
proposals for “radical nonintervention” and the advice that the “basic injunction for public
policy” should be to “leave kids alone wherever possible” (Schur, 1973, p. 155, emphasis in
original; see also Cullen and Cullen, 1978). In the first few years of the current century, reentry
scholars cautioned how publicly available criminal records evoked barriers that hinder offenders’
return to society (Petersilia, 2003; Travis, 2005). Important books accentuated this very point,
such as Pager’s (2007) Marked and Alexander’s (2010) The New Jim Crow. In the field of law,
numerous reviews detailing and decrying legal disabilities attached to a criminal conviction were
published (see, e.g., Chin, 2012). In 2015, Jacobs needed nearly 400 pages to synthesize the
extant literature on criminal records into his scholarly tour de force, The Eternal Criminal
Record. Lageson’s (2020) recent book, Digital Punishment, serves as a companion volume,
elucidating the implications of technology for criminal stigma in the age of Google searches.
In this context, four factors make relief from the mark of a criminal record an ongoing
and increasingly salient public policy issue in contemporary America (Lageson, 2020; Roberts,
2015). The first is the sheer number of Americans possessing and affected by such records. More
than 20 million U.S. residents have a felony conviction (Jacobs, 2015). The total population
affected more than triples when arrests and less serious crimes are included: “Between 70 and
100 million—or as many as one in three Americans—have some type of criminal record” (The
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Sentencing Project, 2018, p. 1; see also Bureau of Justice Statistics, 2014). “As many
Americans,” observes Friedman (2015), “have criminal records as college diplomas.” And each
day, the FBI adds more than 10,000 names to its criminal records database (Murray, 2016;
Roberts, 2015).1 Chien (in press) estimates that among adults with criminal records, 30% to 40%
—or 20 to 30 million Americans—“are entitled under state laws to clean their criminal records,
partially or fully, but have not done so.” The number of those eligible for expungement would
grow as laws granting expungement became less restrictive.
The second factor is the proliferation of collateral consequences—including “civil law
sanctions, restrictions, or disqualifications”— attached to a criminal conviction (U.S.
Commission on Civil Rights, 2019, p. 1). According to the U.S. Commission on Civil Rights
(2019, pp. 1–2), “individuals with criminal histories can face barriers to voting, serving on a jury,
holding public office, securing employment, obtaining housing, receiving public assistance,
owning a firearm, getting a driver’s license, qualifying for financial aid and college admission,
qualifying for military service, and deportation (for noncitizens).” As Travis (2002, p. 18) notes,
as part of the get-tough movement, these restrictions “experienced a surge in popularity
beginning in the mid-1980s.” They have since come under attack because they are not written
into criminal codes (and thus are “hidden” or “invisible” at the time of sentencing) and can result
in the social exclusion of offenders, especially those undertaking prisoner reentry (Alexander,
2010; Burton, Fisher, Jonson, & Cullen, 2014; Chin, 2017; Kaiser, 2016; Mears & Cochran,
2015; Travis, 2002; Whittle, 2018). Despite these growing concerns, the problem persists. As of
1 As noted by Jacobs (2015), statistics on criminal records in the United States are produced by imperfect justice
agencies and thus should not be seen as finely calibrated counts. They are “ballpark” estimates. Still, the data cited
in the introduction support two conclusions. First, tens of millions of Americans have a criminal record, including
more than 20 million unique individuals with a felony conviction (Jacobs, 2015; Shannon et al. 2017). Second, there
is a clear racial disparity in those with a criminal record, with African Americans at a disadvantage.
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February 17, 2020, a national inventory placed the count of statutes and regulations imposing
collateral consequences at 44,778 (Council of State Governments, 2020). Kaiser’s (2016, p. 133)
calculations document that the majority of these restrictions (more than 60% in his analysis) “are
restrictions on employment or occupational licenses.” Another assessment showed that the
“number of collateral consequences entries across all categories and crime types ranged from
342 in Vermont to 1,831 in California” (Denver et al., 2017, p. 672).
Third, there are large racial disparities in criminal records, which means that all of the
collateral consequences of criminal justice contact fall disproportionately on Blacks (Alexander,
2010; Gottschalk, 2015; Tonry, 2011). A study of criminal histories reported that 49% of Black
males versus 39% of White males had been arrested by age 23 (Brame, Bushway, Paternoster, &
Turner, 2014). Similarly, in an analysis of justice involvement from 1948 to 2010, Shannon et al.
(2017, p. 1795) found that “people with a felony conviction account for 8% of all adults and 33%
of the African American adult male population.” This inequality matters for all manner of
reasons, not the least of which is that background checks are now part of Americans’ everyday
experience. Based on a 2016 national survey, Denver, Pickett, and Bushway (2018, p. 584)
estimated that “in the past year, over 31 million U.S. adults were asked about a criminal record
on a job application.” Having a record reduces your job prospects, but it does more than that: It
also hurts your family, both economically and socially. Fully, 45% of Americans, including 63%
of African Americans, have had a family member incarcerated as measured as having “ever been
held in jail for one night or longer”; 14%, and 31% for Blacks, have had immediate kin
incarcerated for over a year (Enns et al., 2019, p. 4). Far more still have family members with
criminal records who were not incarcerated.
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The fourth factor is the increased visibility of criminal records (Lageson, 2020), captured
in the title of Jacobs’s (2015) book, The Eternal Criminal Record. Public access to records is in
part a matter of political-legal tradition—an instance of “American criminal justice
exceptionalism” (Jacobs, 2015, p. 159). Unlike the United States, criminal history records in
Europe are not publicly available, including to “employers, landlords, and voluntary
organizations” (Jacobs, 2015, p. 160). “Fifty years ago,” notes Jacobs (2015, p. 303), access to
records was not so consequential—“practically no one, other than the police, knew anything
about anybody’s prior criminal history.” But the information technology revolution has changed
all this, for “these days, pretty much anyone can find out anything about anybody’s criminal
record” (p. 303). Accessing criminal records in a county database is usually just a few clicks of a
mouse away (Lageson, 2020). In researching this article, a Google search was greeted with a link
to “Public Information Services,” promising the following: “All you need is a name and state to
start your search. Receive a full background report in minutes.”2 Indeed, the “privatizing of
criminal records” has led to a commercial information industry with hundreds of vendors
collectively earning “annual revenue at $4 billion” (Jacobs, 2015, pp. 70–71). Once in existence,
an individual’s criminal record thus never vanishes but remains accessible universally and
eternally (Lageson, 2020).
Concern about the adverse consequences of criminal records is growing. For example, in
June 2019, the U.S. Commission on Civil Rights transmitted to President Trump, Vice President
Pence, and Speaker of the House Pelosi their 164-page report Collateral Consequences: The
Crossroads of Punishment, Redemption, and the Effects on Communities. Their key
recommendations emphasized reducing restrictions attached to a criminal record and ensuring
2 https://www.publicinfoservices.com
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that collateral consequences are “tailored to serve public safety” (2019, p. 135). More concretely,
“35 states and over 150 cities and counties have adopted what is widely known as ‘ban the box’”
policies that require employers to remove questions about criminal records from job applications
(Avery, 2019, p. 1). A similar movement, called “beyond the box,” seeks to prohibit higher
educational institutions from requiring prospective students to disclose criminal records (U.S.
Department of Education, 2016; see Stewart & Uggen, 2020). Four states now ban the box for
higher education; California is currently considering legislation to become the fifth jurisdiction
to do so (California State Senate Democratic Caucus, 2020).
More relevant to our concerns, a growing movement has emerged that seeks to curtail the
effects of criminal records through their expungement (Murray, 2016). Murray (2016, p. 362)
defines expungement as “the erasure or elimination of criminal record history information by
rendering the information inaccessible, either because it has been destroyed or sealed from view
of certain individuals.” The goal is to “wipe the slate clean” or to have society “forget” that a
criminal conviction ever occurred. Forty-one states authorize “record closure” for “at least some
adult conviction records” (Love, Gaines, & Osbourne, 2018, p. 7). Eligibility criteria for
expungement vary across states by factors such as the seriousness of the offense, prior record,
and how much time has passed since a sentence was completed (Jacobs, 2015; Love et al., 2018).
“No two states,” observe Love et al. (2018, p. 9), “are alike.” Nevada, for example, makes it
possible to expunge most felonies, whereas North Carolina and Kentucky limit record closure to
“non-violent misdemeanors and low-level felonies” (Love et al., 2018, p. 8).
Most notably, the appetite for expungement appears to be increasing. In 2018, “20 states
passed 28 bills extending eligibility for sealing or expungement to new classes of offense or
offender” (Love & Schlussel, 2019, p. 5). More laws have passed since that time, including with
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bipartisan support (CCRC Staff, 2019a; Ferretti, 2019). Love and Schlussel (2020) document
that in 2019, “31 states and the D.C. enacted no fewer than 67 bills creating, expanding, or
streamlining record relief.” One reform, spurred by states’ legalization of marijuana, is to
expunge convictions for less serious possession offenses. In Illinois, Governor J. B. Pritzker
issued 11,000 pardons for low-level marijuana convictions, effectively wiping their criminal
record clean (Associated Press, 2019). Support for the movement to conceal criminal records is
seen in the holding of the Second Annual National Expungement Week from September 21 to 28,
2019, with events taking place in 30 cities across the nation (Somerset, 2019).
These reforms reflect efforts both at the national level, where groups compile and
publicize lists of collateral consequences and policies implemented to reduce them (e.g.,
Collateral Consequences Resource Center), and at the state and local levels, where laws are
passed and executive orders issued. The fact that changes are occurring in diverse contexts
suggests that a new “sensibility” about the need for criminal record relief has taken hold (see
Tonry, 2004). Just how far these reforms can go, however, only the public can tell (Pickett,
2019). As Garland (1990, p. 62) explains, “penal reformers . . . have to address themselves
directly to popular feelings if they intend to produce real change.” To shed light on the public
dimension of criminal record reform, we use recent, nationwide survey data to explore the extent
to which Americans support expungement. We probe not only general support for expungement
but also the factors that contribute to variation in support for the closure of criminal records—
including how long people have stayed crime free, the type of conviction offense, and prosocial
conduct manifested by an offender. Additionally, we explore public views about various policies
related to expungement as well as views about the FBI’s responsibility in managing its criminal
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records database. The goal of this study is to assess whether the American public is open to the
continued expansion of expungement and, if so, under what conditions.
The Importance of Public Opinion: Why, When, and How
Public opinion is the drive wheel of criminal justice policy (Pickett, 2019), but the
relationship is as complex as it is strong (Ramirez, 2013; Shi, Lu, & Pickett, 2020); policymakers
do not simply abide by majority preferences—so called “majoritarian congruence” (Shapiro,
2011, p. 991)—but rather, at all levels of government, are dynamically responsive to trends in
popular attitudes (Erikson, Mackuen, & Stinson, 2002). The evidence of dynamic responsiveness
is overwhelming, both in general (Caughey & Warshaw, 2018; Lax & Phillips, 2012) and
specifically in the context of criminal justice policy and practice (Canes-Wrone, Clark, & Kelly,
2014; Enns, 2016; Jennings, Farrall, Gray, & Hay, 2017). What underlies dynamic
responsiveness is fear of electoral sanctions; politicians “understand that they must anticipate
where [attitude] movement is heading before it gets there, that they must act now because later is
too late” (Stimson, 2004, p. xvi).
Dynamic responsiveness, however, is not the whole story (Pickett, 2019). Even though
policymakers follow the public’s lead, the public also follows the lead of the media and certain
politicians (Ramirez, 2013; Shi et al., 2020). Even though policymakers follow the public’s lead,
they tend to do so mostly when the public is paying attention and cares—that is, when an issue is
salient to the public (Burstein, 2014; Lax & Phillips, 2012). Even though policymakers follow
the public’s lead, they do so mostly on trends—they “flow with the moving current of public
sentiment” (Stimson, 1999, p. 12)—and tend to ignore attitudes about specific policies that are
inconsistent with general attitudinal trends (Stimson, 2004). Put differently, when public
punitiveness is trending upward, policymakers are unlikely to implement non-punitive policies,
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no matter the level of public support (Pickett, 2019). Finally, even though policymakers follow
the public’s lead, they have a pro-punitive bias and it often takes supermajority public support to
motivate non-punitive reforms (Lax & Phillips, 2012). In part, this is because politicians
overestimate public support for conservative policies (Broockman & Skovron, 2018).
What does all of this mean for efforts to expunge criminal records, reduce criminal
stigma, and implement evidence-based criminal justice reforms? It means the stars have aligned
(Enns, 2016). Attitudinal trends, majority preferences, and the salience of social and economic
costs of punitive policies have all converged to create “a significant policy opportunity” that has
not existed since the Civil Rights Act was passed in 1964 (Petersilia & Cullen, 2015, p. 3).
Not least, research on public opinion is important for another reason: It provides “the
proof of the pudding” for the public’s policy positions—the scientific evidence that the U.S.
citizenry supports a proposed initiative (e.g., background checks for firearm purchases, abolition
of the death penalty). Politicians have long had interest in knowing what the public thinks about
policies, and have increasingly turned to polls to find out (Geer, 1996). Indeed, research shows
that within days of exposure to poll results, politicians alter their behavior accordingly (Hager &
Hilbig, 2020). In this context, research on whether the American public endorses expungement
can create a body of evidence—a resource—that can be used in advocacy for giving offenders
relief from an eternal criminal record.
Criminal Record Expungement at a Correctional Turning Point
The survey data reported in the current study were collected in 2017 at a time when a
historic change in American corrections was well under way. The United States experienced a
dramatic turning point in correctional policy around 2010: It took its first steps toward ending the
era of mass incarceration (Listwan, Jonson, Cullen, & Latessa, 2008; Petersilia & Cullen, 2015;
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cf. Goshe, 2019). For the first time in nearly four decades, the prison population declined in
2009–2010. Although variations exist across jurisdictions, this trend has continued. The state and
federal prison population fell 6.7% between 2007 and 2017, and the imprisonment rate for U.S.
residents in 2017 (440 per 100,000) was the lowest since 1997 (Bronson & Carson, 2019). At the
same time, rhetoric calling for increased incarceration as a solution to crime quieted, and
bipartisan calls for downsizing and alternatives to imprisonment took its place (Cohen, 2017;
The Sentencing Project, 2018; see also Sundt, Cullen, Thielo, & Jonson, 2015). The Trump
Administration signed the First Step Act into law (Cohen, 2019), and conservative governors in
Red States (e.g., Kentucky, Oklahoma) commuted the prison sentences of hundreds of offenders
(Casiano, 2019; Maxouris, 2019). Reforms, such as reentry programs for those returning from
prison, proliferated (Jonson & Cullen, 2015; Mears & Cochran, 2015), as did problem-oriented
courts designed to address the criminogenic needs of special populations (e.g., substance abuse,
mental health challenges, military veterans) (Boldt, 2017; Thielo, Cullen, Burton, Moon, &
Burton, 2019). Public support for rehabilitation and related programs increased (see, e.g., Atkin-
Plunk, 2019; Baker, Metcalfe, Berenblum, Aviv, & Gertz, 2015; Thielo et al., 2019; Thielo,
Cullen, Cohen, & Chouhy, 2016). Perhaps more salient, punitive attitudes toward criminals
declined, steadily (Enns, 2016; Pickett, 2019).
A 2017 national poll (n = 1,003), which included the following question, is instructive:
“In your opinion, how important is it to reduce the number of people who are in prison in
America today?” Fully 71%—a clear supermajority—answered either “very important (38%) or
“somewhat important” (33%). The respondents were also asked if reducing the prison population
would “harm communities because people who belong behind bars will be let out” or “help
communities” by allowing saved revenues to be “reinvested into preventing crime and
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rehabilitating people convicted of crime.” Notably, 59% thought it would help communities, and
only 33% thought it would harm them (Benenson Strategy Group, 2017).
In this context, it is perhaps unsurprising that the movement to expand the expungement
of criminal records has enjoyed success (Love & Schlussel, 2019; Murray, 2016; Roberts, 2015).
Expungement contains a clear rationale for its use: It frees ex-offenders from legal stigma and
thus restores them to the full citizenship with all attendant rights. Still, the policy of record
closure has been criticized in three ways—one progressive, one practical, and one concerned
with crime control.
First, fifty years ago, Kogon and Loughery (1970) identified a core problem with
expungement: it requires offenders to engage in what they called “the big lie,” which is that they
have not engaged in criminal conduct. “Sooner or later,” Kogon and Loughery (1970, p. 389)
asserted, “we must acknowledge that it is the society, not the record, which must be changed.”
They recommended passing statutes “outlawing discrimination against people with records”
(1970, p. 388). Contemporary scholars argue that instead of expungement, which they define as
“forgetting” records, reforms should focus on “forgiving” offenders (Maruna, 2001, 2011a).
Especially for those who merit forgiveness (e.g., stay crime free, complete a treatment program),
it would be possible to hold a “rehabilitation ceremony” or award a “certificate of rehabilitation”
(Cullen, Lee, Butler, & Thielo, 2020). “Rather than having one’s criminal past buried or ‘knifed
off,’” notes Maruna (2011a, p. 111), “such policies instead formally and legally declare the
person to be ‘rehabilitated.’” Given that criminal records exist eternally on the internet (Lageson,
2020)—including in the files of commercial vendors—and that over 30 million Americans search
for them annually (Lageson, Denver, & Pickett, 2019), escaping the past is unlikely (Jacobs,
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2015; Liptak, 2006). Better to be forgiven and publicly accepted than to hide a record and hope
that some Internet search does not disclose one’s “big lie.”
Second, the practical challenge is that it is difficult for many ex-offenders to secure an
expungement, due to the cost of hiring a lawyer or to their personal and social disabilities
(Kogon & Loughery, 1970; Western, 2018). In a study of criminal records in Michigan, Prescott
and Starr (in press) found that those who obtained an expungement had both a low rate of
reoffending and a “sharp upturn in their wage and employment trajectories” (“25% versus the
pre-expungement trajectory”). They also discovered, however, that only 6.5% of their Michigan
sample obtained an expungement within five years of eligibility.
Third, expungement risks falling into the trap of political correctness and, in so doing, of
undermining crime control. “People who have been convicted of crimes are not victims,” Jacobs
reminds us (2015, pp. 310–301); “in fact, they often are victimizers” (see also Funk, 1996). It
can be argued that employers, landlords, universities, and others should not be deprived of access
to a person’s past criminality and the risks this might entail (e.g., a college applicant whose
conviction for sexual assault is not disclosed). Although only a static as opposed to a dynamic
predictor of future offending, criminal history still has some predictive value (Bonta & Andrews,
2017; Farrington, 2019; Kyckelhahn & Cooper, 2017). It is unlikely, however, that imposing
collateral consequences of criminal convictions—and not allowing them to be mitigated—has
any general or specific deterrent effects (Jacobs, 2015; Mears & Cochran, 2015).
Public Support for Expungement: Risk and Redeemability
In sum, the policy of expungement is complex and invites competing evaluations. These
issues likely shape the conditions under which the public will support the closure of criminal
records. Although few studies have explored attitudes toward expungement specifically, research
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has shown that concerns related to public safety influence public opinion on post-release
policies. Denver and colleagues (2017), for example, found that the public was more supportive
of denying jobs on the basis of criminal records when those records were recent and violent.
DeWitt and Denver (2020) showed that the public is more supportive of hiring people with
records, even violent felony records, when they have positive credentials, such as a supportive
reference letter. Lehmann, Pickett, and Denver (2020) found that instrumental, risk-related
concerns, such as perceived recidivism risk, played a stronger role than retributive factors in
public opinion about hiring people with criminal records. And Lageson, Denver, and Pickett
(2019) found that perceived recidivism risk increased support for allowing private companies to
publicize criminal records online.
Collectively, these findings lead us to hypothesize that the public will support
expungement most when records are old, or are limited to juvenile offending, are for non-violent
offenses, and are counterbalanced by rehabilitation signals, such as positive credentials. Given
the public’s general opposition to record-based stigmatization (Lageson et al., 2019), and its
belief that employment reduces reoffending (Lehmann et al., 2020), we also expect the public
will support efforts to ensure the accuracy of any available criminal record information.
Beyond specific public-safety concerns, general beliefs about offender redeemability are
likely to matter as well. Social psychologists have identified “lay theories”—also called “implicit
theories”—that they argue are the “cornerstones for social cognition” that help members of the
public to “make sense of complex and ambiguous behavior” (Plaks, Levy, & Dweck, 2009, p.
1069). They distinguished two competing perspectives— “meaning systems”—that people use to
understand their world and to inform their social judgments (Plaks et al. 2009). The first, “entity
theory,” “refers to the belief that personality characteristics are fixed entities despite a person’s
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efforts or motivation to change them” (p. 1070). The second, “incremental theory,” “refers to the
belief that personality characteristics are malleable and can be developed with time and effort”
(p. 1070). These beliefs thus comprise “theories of a stable versus dynamic human nature” (p.
1070).
Maruna and King (2009) recognized the relevance of the entity–incremental distinction to
public judgment about offenders. The key question regarding citizens, they observed, is as
follows: “Do they believe that ‘once a criminal, always a criminal’ or do they believe that even
the most persistent offenders can redeem themselves and turn their lives around” (2009, p. 9). To
assess this issue, they included a four-item measure of “redeemability” (e.g., “Most offenders can
go on to lead productive lives with help and hard work”) in their Cambridge University Public
Opinion Project in England (n = 941). Their analysis revealed that redeemability had a strong
negative relationship with punitiveness toward offenders ( = -.398). Notably, subsequent
research examining redeemability or similar constructs, such as “malleability” or a “growth
mindset,” have generally supported this finding (see, e.g., Burton et al., 2020; Moss, Lee,
Berman, & Rung, 2019; Rade, Desmarais, & Burnette, 2018; Reich, 2017; Sloas & Atkin-Plunk,
2019; Tam, Shu, Ng, & Tong, 2013).
Although an open question at this time, these findings with regard to punitiveness suggest
that redeemability might have broader effects in other policy areas. Indeed, belief in
redeemability might be especially salient with regard to expungement because this policy is
based on the premise that criminal propensity is impermanent, and that offender change is
possible. By contrast, keeping criminal records eternal suggests that criminality is stable and thus
retaining this public label provides employers, landlords, and others with valuable information
on which to make decisions. In this regard, studies have found that redeemability-like measures
15
are positively related to inclusionary practices that extend beyond the point of conviction,
including support for restorative justice (Moss et al., 2019), the use of parole (Dodd, 2018),
expanding housing assistance programs for people returning from prison and increasing
employment opportunities (Ouelette, Applegate, & Vuk, 2017), and increasing employers’
willingness to hire persons with felony records (Lehmann et al., 2020; Reich, 2017).
In this context, the current study examines whether belief in offender redeemability
increases support for criminal record expungement. To ensure that this effect is not due to a more
global correctional ideology, controls are introduced for punitiveness and support for
rehabilitation (Lehmann et al., 2020). Controls are also introduced for political ideology and
party, which prior studies have shown influence views about publicizing criminal records online
and hiring people with them (Lageson et al., 2019; Lehmann et al., 2020). We expect that
conservatives and Republicans will tend to oppose expungement, all else equal.
Methods
Sample
To assess public views toward expungement and other related policies, we commissioned
YouGov, using an instrument we designed, to undertake a national survey of 1,000 American
adults (18 and older). The survey was conducted from March 3–7, 2017. YouGov uses a unique,
two-stage sample-matching design for model-based inference (Ansolabehere & Rivers, 2013).
Using distance matching to a synthetic sampling frame constructed from probability samples
(e.g., Current Population Survey), YouGov first selects a matched sample (based on a joint
distribution of numerous covariates) of respondents from its volunteer online panel of over 2
million U.S. adult panelists. YouGov then uses propensity score matching to apply weights to the
sample (Ansolabehere & Schaffner, 2014; Vavreck & Rivers, 2008). In doing so, the assumption
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is that sample selection biases are minimized conditional on the variables used for matching and
weighting. Evidence exists showing YouGov’s procedures produce comparable samples to
probability sampling methods.3
The purpose of this study is to examine whether the American public supports the policy
of expungement and related policies. In order to be confident that the view of our sample reflects
that of the U.S. population, it is important that our sample’s characteristics align with the national
population demographics. When compared to estimates from the U.S. Census and the American
Community Survey (in parentheses), our weighted sample looks much like the U.S. population:
non-Hispanic White, 66.8% (64.5%); male, 48.5% (48.7%); Bachelor’s degree, 26.5% (28.4%);
married, 44.1% (48.2%); Northeast, 18.7% (17.2%); Midwest, 20.1% (20.9%); South, 36.0%
(38.1%); West, 25.3% (23.8%). Politically, our sample looks similar to the U.S. population as
well. According to the Pew Research Center (2018), 42% of registered voters in the U.S. identify
as Republicans or lean Republican, and 50% identify as Democrat or lean Democrat. In our
sample, the proportions are similar: 41% and 46%. Given these similarities in major population
demographics, we have confidence that the findings will generalize to the general population of
American adults.
Descriptive Measures
Expungement Policy Questions. To first assess support for expungement globally, the
respondents were asked whether they viewed expungement as an overall good or bad policy (for
the full question wording see Table 2). The respondents were then asked how many years an
individual must remain crime free in order to be eligible to have their record expunged. The
3 YouGov’s methods have been assessed and shown to be effective at producing high quality samples (Berrens,
Bohara, Jenkins-Smith, Silva, & Weimer, 2013; Kennedy et al., 2016; Simmons & Bobo, 2015) and thus have been
shown to generalize to the U.S. population (Ansolabehere & Schaffner, 2014; Sanders, Clarke, Stewart, & Whiteley,
2007; Simmons & Bobo, 2015). Moreover, several studies have found YouGov’s rigorous sampling design may
outperform probability sampling techniques (Kennedy et al., 2016; Vavreck & Rivers, 2008).
17
response options for this question consisted of 1-year increments up to 10 years, “15 years”, or
“20 years” (see Table 3). There was also an option for the respondents to state that individuals
should never be able to have their records expunged. The incremental response categories were
used to assess if support for expungement changed at very specific points in time and to compute
a cumulative percentage on support for expungement.
To assess whether preferences for expungement policies vary by the type of crime the
offender had committed, we asked the respondents whether records for the following crimes
should be eligible for expungement: shoplifting, burglary, sex offenses involving children,
domestic battery of a spouse, white-collar crimes (e.g., tax evasion, embezzlement), and
possession of illegal drugs. The respondents were then prompted to indicate how many years of
crime free time must pass before the record can be expunged. Options included: after 3, 5, or 10
years; or never eligible for expungement. The exact question wording is listed in Table 4. Note
that YouGov randomized the order in which the types of crime items were presented to
respondents in the survey to mitigate potential priming effects.
Factors a judge might consider when deciding to expunge criminal records were also
included in the survey and presented in random order to the respondents. The list is presented in
Table 5, with respondents selecting either “yes” or “no” for each factor. We also included four
questions, again randomized, that assess whether the respondents support increasing or
decreasing the visibility of criminal records (e.g., whether or not they should be placed on the
internet for public viewing). See Table 6 for the full question wordings. Support for these items
was assessed with a 6-point Likert scale (1 = strongly disagree, 6 = strongly agree). Finally, we
explore whether the public thinks that the FBI has a responsibility to ensure criminal records are
18
kept up to date in order to prevent citizens from being hurt by incomplete/inaccurate criminal
records. Table 7 presents the full question text used for this measure.
As stated above, the respondents were asked a battery of questions to tap their attitudes
toward the policy of expungement and related policies. Two specifications regarding the
measures merit note. First, the thrust of the questions asked (e.g., time staying crime free)
implies clearly that the items are referring to the expungement of convictions. However, criminal
records could include only arrests, and expungement can apply to nonconvictions (Jacobs, 2015).
We do not assess that distinction, though future research could do so. We would expect that
support for wiping clean arrest records, which could include false to unproven accusations,
would be even more extensive than for convictions where guilt has been attached through either
a plea bargain or guilty verdict (Lageson et al., 2019). Second, technically, it is possible to make
the distinction between a “sealing of a record” (access is denied to the record) and
“expungement” (the record is destroyed). In reality, statutes employ different language to
describe the closure of criminal records, and the terms are functional equivalents (Jacobs, 2015).
We used the term “expungement” in our survey. Note that because some respondents might not
know what expungement means, the questions included a clarification: “…criminal record
expunged (that is, removed and sealed so nobody can look at it any longer).”4
Multivariate Measures
Dependent Variables. Prior research has assessed crime-related public opinion by
focusing on both global and specific attitudes (see, e.g., Applegate, Cullen, Turner, & Sundt,
44 As has been common in crime-related policy surveys, “criminal offender” or “offender” was used to describe
justice-involved individuals—a description now defined as a “crime first” as opposed to “person first” term. It is
possible that responses would differ if we used the person first term, but if anything the less stigmatizing language
should increase support for expungement (see Denver et al., 2017), so our findings are likely conservative. More
experimental research is needed to determine how descriptions of “offenders” affects the willingness of the public to
support policies such as criminal record expungement.
19
1996; Cullen, Fisher, & Applegate, 2000; Lehmann et al., 2020). In this regard, the measure
Global Support for Expungement was created using the question in Table 2. Those who reported
that expungement is a bad policy were coded as 0 and those who believe expungement is a good
policy were coded as 1. By contrast, Specific Support for Expungement relied on the items in
Table 4, which asked how long people should have to wait to have their criminal record
expunged for each of seven offenses (listed in the table). The response categories were 1 = never
eligible for expungement, 2 = 10 years crime free, 3 = 5 years crime free, and 4 = 3 years crime
free (mean index ranging from 1 to 4; α = .827). Thus, higher values on the index indicates
greater support for expunging records.
We also created an outcome measure from the items listed in Table 6. Thus, Oppose
Criminal Record Visibility is a mean index (α = .546) comprised of the four items measured on 6-
point Likert scales (1 = strongly disagree, 6 = strongly agree), with higher values signifying
greater support for reducing the visibility of criminal records.
Independent Variables. The study’s central independent variable is the respondents’
belief in redeemability, which is measured using questions from Burton et al. (2020). Similar
measures of this construct have been used in prior research (e.g., Leverentz, 2011; Maruna &
King, 2009; Ouellette et al., 2017). Thus, Redeemability is a mean index (α = .718) created from
the respondents’ opinions (1 = strongly disagree, 6 = strongly agree) to four statements,
examples including: (1) “Most offenders can go on to lead productive lives with help and hard
work,” and (2) “Some offenders are so damaged that they can never lead productive lives.” Items
were all coded in a direction such that higher values indicate greater belief in redeemability.
Two other independent variables assess correctional orientations. First, the respondents’
punitiveness was assessed using three widely used measures of this construct (see Enns, 2016):
20
support for the death penalty, support for harsher courts, and belief that the main goal of prisons
should be punitive, rather than rehabilitative. The wording for these measures was taken from
questions employed for decades by the General Social Survey (death penalty and harsher courts
questions) and by the Harris Poll (main goal of prisons question) (see Cullen, Fisher, &
Applegate, 2000; Enns, 2016). Those who supported the punitive choice for each item were
coded as 1, whereas those not supporting the punitive option(s) were coded as 0. To create the
final index, we summed together the responses to the three questions. Thus, Punitiveness is a 3-
item index that ranges from 0 to 3, where higher values correspond to greater punitiveness.
Second, a measure of supporting a rehabilitative correctional ideology was created using
questions adapted from the prior work of Applegate, Cullen, and Fisher (1997) and Cullen,
Gilbert, and Cullen (1983). Accordingly, Rehabilitation is a 5-item mean index (α = .841)
measured with questions that asked how much (1 = strongly disagree, 6 = strongly agree) the
respondents supported five statements. Examples of these items include: (1) “It is important to
try to rehabilitate adults who have committed crimes and are now in the correctional system,”
and (2) “It is a good idea to provide treatment for offenders who are supervised by the courts and
live in the community.” Items were all coded in a direction such that higher values indicated
greater support for rehabilitation.
Control Variables. Our analyses control factors that prior theory and research suggests
could confound the relationships between our independent and dependent variables. These
include the respondents’ race (1 = White), gender (1 = Male), Age (in years), marital status (1 =
Married), household composition (1 = Child in Residence), political party affiliation (1 =
Republican) and ideology (1 = Conservative), region of residence (1 = Southerner), Education (1
= no high school, 6 = graduate degree), and Income (1 = <$10K, 16 = $500K+). As is common in
21
national surveys, there was a comparatively large amount of missing data on the income variable
(13.1%). Thus, we used linear imputation for the missing income values based on the scores
from the other variables in the analysis. This procedure was not necessary for other variables in
the analysis where missing data were minimal. Finally, we control for religious beliefs using a 3-
item standardized mean index, Religiosity (α = .741), based on questions assessing the
importance of religion in the respondents’ lives, their frequency of church attendance, and their
frequency of praying.
Table 1 provides the descriptive statistics for all of the variables, and the bivariate
correlations between each independent and dependent variable included in the multivariate
analyses. In the multivariate models, VIF values ranged from 1.06 to 2.21, with a mean VIF of
1.43. Thus, multicollinearity was not a concern.
-----Insert Table 1 About Here-----
Results
Table 2 shows that overall the American public appears split on whether expungement is
a good or bad policy, with a slight majority of the respondents (54.9%) opposing the practice on
the grounds that access to criminal records “keeps communities safe.” The remainder of the
sample (45.1%), however, believes that expunging criminal records has the benefit of “giving
criminal offenders a chance to get their lives back on track.”
These results are not indicative of an insurmountable divide over expungement—one side
favoring, the other opposing—but that support for closing records is contingent on several
factors relevant to crime desistance and dangerousness. One factor is how long individuals have
remained crime free following the completion of their sentence. As Table 3 shows, only 14.3% of
the respondents believe that offenders should never be eligible for expungement. By 7 years of
22
staying crime free, a majority of the sample endorse extending eligibility, and by 10 years total
support climbs to more than three-fourths of the sample. Another factor is type of offense. As
revealed in Table 4, the only offense category listed that the public does not believe should be
eligible for expungement is sex offense involving a child (73.1% oppose). Some reluctance is
evident for persons convicted of domestic violence, with nearly 4 in 10 respondents wishing to
preclude eligibility. For the remaining five categories, which included property, white-collar, and
substance-related offenses, high majorities of the respondents support expungement. Sample
members also identify factors that judges should consider in approving expungement of a
criminal record. Employment (62.0%) and successfully completing a rehabilitation program
(69.6%) were most important, though being a community volunteer (41.1%) and having a letter
of reference from neighbors (38.8%) also garnered a measure of support (see Table 5).
-----Insert Table 2, 3, 4, and 5 About Here-----
Table 6 reports responses to broader views about the “eternal” status of criminal records.
Three in four respondents agree that if individuals never have the opportunity to expunge their
record, they may face problems that will lead them back into crime. Seven in 10 sample
members also agree that juveniles should automatically have their records expunged. Notably,
much ambivalence exists about universal access to people’s criminal records. Fewer than four in
10 favor “putting records on the Internet for anyone to see.” And almost three in four say that
only law enforcement agencies should be able to see records for non-violent crimes.
Furthermore, Table 7 shows that the American public believes that if criminal records are going
to be given out, they should be done so accurately. Fully 91.9% of the sample supports a
proposal requiring the FBI to review criminal records to ensure that they are not incomplete or
inaccurate. In their view, nobody should have an eternal criminal record that does not deserve it.
23
-----Tables 6, 7, and 8 About Here-----
Finally, Table 8 reports the results for the multivariate analyses. Model 1 shows the
results for global support for expungement, Model 2 shows those for specific support, and Model
3 shows those for opposition to criminal record visibility. Several notable findings emerge. First,
there is little evidence of division over expungement among the public based on political values
or socio-demographic factors, such as race. Indeed, the only demographic variables with
significant effects are gender and age; males express greater support than females for
expungement and older respondents are more opposed to making criminal records visible.
Second, redeemability is a consistent predictor of all three outcomes. In fact, the
standardized logistic regression coefficients (not shown) reveal that redeemability is the strongest
predictor, by far, of global support for expungement (Beta = .266). It is also the strongest
predictor of specific support for expungement (Beta = .152). Neither punitiveness nor support for
rehabilitation have such consistent and large effects. Simply put, public opinion about criminal
records mostly reflects citizens’ beliefs about whether human nature is stable or dynamic, with
those endorsing an incremental theory that emphasizes the possibility of behavioral change
wanting to expunge criminal records and reduce their visibility.
Discussion
In general, the public is open to the possibility of using expungement as one means for
offenders to escape the eternal criminal record, especially when there is evidence of desistance.
Taken as a whole, the respondents’ support for expungement depends on what might be called an
informal “risk principle”: As the public’s assessment of an offender’s risk of recidivating
decreases, their support for record closure increases. Consistent with Lehmann et al. (2020), we
find that this risk principle dominates just desert or expressive concerns, as it has a much more
24
consistent and larger effect than general punitiveness on views about expungement. The policy
and criminological implications of the study’s more specific findings are discussed below.
Policy Implications
Research suggests that public views on accepting or excluding offenders hinge on
“signals” that convey a persuasive message that such individuals do not pose a threat to citizens’
safety (Bushway & Apel, 2012; Denver et al., 2017). When given little information, the
respondents split on whether closing criminal records was a good or bad idea. Experimental
research by Denver et al. (2017) shows that willingness to exclude an offender from employment
was affected by type of offense and the time passed since release from prison. Support for
exclusion was highest for those who committed a violent versus a nonviolent property or drug
offense and who had been released “in the past year” versus “10 years ago” (2017, p. 675). The
current study is hindered by the failure to include a wider range of violent crimes (e.g., robbery,
assault, rape) in the survey. Still, the findings parallel those of Denver and colleagues.
First, opposition to expungement was highest for child sex offenders, followed by those
convicted of domestic violence. Support was robust for offenders who had committed property,
white-collar, and offenses related to substance abuse. As Denver et al. (2017) show, the public
believes that the risk of recidivism is higher among violent as opposed to nonviolent offenders—
a view that is not empirically accurate. In all likelihood, however, a related concern is the
harmfulness of a repeated offense. A burglary is upsetting, but a sex offense involving a child can
be life altering. Second, if an offender remained crime free for 7 to 10 years, the respondents
took this as evidence that the person should be eligible for record expungement. This finding is
instructive. As Denver et al. (2017, p. 682) observe, “scholars found that after approximately 7–
10 years have passed without criminal justice system involvement, individuals with criminal
25
records typically have comparable probabilities of a new arrest or conviction as those who have
never had a criminal record” (see, e.g., Blumstein & Nakamura, 2009; Bushway, Nieuwbeerta, &
Blokland, 2011). It appears then, that public preferences about expungement align well with the
existing empirical evidence.
Existing expungement statutes largely reflect the public will. In most states, expungement
is limited to those who have been convicted of nonviolent offenses and who have not had another
criminal conviction for a specified period of time (Love et al., 2018). These criteria are clear-cut
and easily measured. Still, they are “crime-based” factors and do not take into consideration
other, more dynamic and behavioral aspects of an offender’s life. Similar to recent findings for
public views about hiring people with records (DeWitt & Denver, 2020), our data suggest two
factors could be formally integrated into decisions on expungement: evidence of stable
employment and completion of a rehabilitation program.
In their work, Bushway and Apel (2012) highlight the significance of “desistance
signals”—ways offenders can announce or signal to others that they have embarked on a
prosocial life that is not reflected in their past criminal history. Their work focuses on how
completion of a reentry employment program can be used as a means of differentiating “between
individuals with the same level of involvement in the criminal justice system” (p. 22). This
accomplishment would send a signal to employers that a given offender has changed and merits
being hired for a job opening. In the same way, it might be possible to integrate formally into
expungement eligibility criteria a range of accomplishments that would “signal” that record
closure is warranted. Holding a steady job and completing a treatment program are
considerations the public endorses for judges to consider in expungement decisions. Some
support also was manifested for community standing—whether a former offender volunteered in
26
the community and would be recommended for expungement by neighbors. Signaling does not
depend on an existing belief in offender redeemability, which our data show is related to support
for record closure (see also Burton et al., 2020). Rather, it is a means of persuading others that a
person’s redeemability is a proven fact or evidence-based.
Denver’s (2020, p. 194) recent work is particularly relevant here. Similar to the concept
of signals, she focuses on the potential importance of the presentation of “positive credentials”
that provide “evidence of rehabilitation” (see also Denver & Ewald, 2018; DeWitt & Denver,
2020). In New York State, job applicants provisionally hired to work in the health care sector
receive mandatory background checks by the Department of Health. Those with criminal records
are automatically disqualified but have the option to contest the decision, which includes
submitting documentary evidence of their rehabilitation. In an analysis of 1,144 cases, Denver
found that clearance to work was increased by completion of a rehabilitation program and by a
recommendation from an employer (see also Denver & Ewald, 2018).
On a broader level, these findings are consistent with what Bazemore (1998, p. 770), in
his discussion of restorative justice, has termed “earned redemption”—a “sanctioning approach
that allows those who have harmed to earn their way back into the trust of the community.” In
his advocacy of rehabilitation rituals, Maruna (2011b, see also 2001) similarly argues that official
recognition of a person’s redemption be merited and based on achievement. Beyond staying
crime free, offenders would be expected to “make good” by actions such as “efforts to recover
from addiction, find productive work, ‘give something back’ to one’s community, or contribute
to one’s family responsibilities” (Maruna, 2011b, p. 19; see also Cullen et al., 2020). It seems
likely that Americans are more likely to support reintegration policies—from expungement to
27
rehabilitation ceremonies and restorative justice—if individuals have worked hard to improve
their character and community standing (see Butler, Cullen, Burton, Thielo, & Burton, 2020).
This line of policy analysis raises an obvious concern: Those most in need of criminal
record expungement might be least able to secure such relief. Consider an offender who has
remained crime free for an extended period of time, had previously completed a drug treatment
program and overcame addiction, holds a steady job, and is gaining respect in his or her
community. The value of closing the person’s criminal record likely decreases with time—
though, of course, the collateral consequences that attach to a conviction can be life-long
(Burton, Cullen, & Travis, 1987; Ispa-Landa & Loeffler, 2016). By contrast, persons on
community supervision or returning from prison who struggle with addiction, have few
employable skills, possess mental and physical disabilities, and are given few family supports
might benefit the most from relief from the collateral consequences of their conviction (see
Hardy, 2020; Western, 2018). They also are likely to be least able to afford petitioning for an
expungement. It is estimated that the costs include $400 to $1,000 in court fees and $1,000 to
$4,000 to retain a lawyer (CostHelper.com, 2020). Calculating all expenses, a California study
placed the bill for clearing a record at $3,747 (Chien, in press).
28
In this regard, Chien (in press) has called attention to the “second chance gap”—that is,
the difference between eligibility to have a record closed versus the “uptake” of that benefit. As
noted previously, the uptake of expungement in Michigan was estimated to be only 6.5%
(Prescott & Star, in press). One reason is that to close a criminal record, offenders must file a
petition. Research from behavioral economics shows that systems that require people to opt in
have lower participation rates than those that require people to opt out (Thaler & Sunstein,
2008). The implication for criminal records policy is clear: Once offenders have met certain
established criteria, their records should automatically be expunged. In many European nations,
this policy is already operative (Jacobs, 2015). More notable, starting with Pennsylvania’s Clean
State Law in 2018 and followed shortly thereafter by Utah, California, and New Jersey, a
national movement has emerged to automatically seal criminal records (Bala, 2020; CCRC Staff,
2019b; Office of Governor Gavin Newsom, 2019; see also Love & Schlussel, 2020). The
Pennsylvania law, which passed with near-unanimous support and will affect the lives of
millions, seals arrest records for those convicted of nonviolent crimes committed more than 10
years previously (Karimi, 2019). Implementing the automation system in Pennsylvania is
estimated to have a “one-time engineering cost of $245K” (Chien, in press). Given that “at least
2.4M Pennsylvanians will get relief under the bill,” calculates Chien (in press), “this would
translate into a cost per cleaned person based on just the non-convictions backlog of ~ $0.09.”
Investing less than a dime per case to reestablish a deserving offender’s dignity and citizenship
rights is arguably a small price to pay. The public is likely to agree. Our survey results
demonstrate that Americans are clearly supportive of expunging the records of nonviolent
offenders who have remained crime free for a decade.
29
One caveat merits consideration. If future research confirms our expectation that the
public is less supportive—and potentially oppositional—to expunging the records of persons
convicted of violent offenses, this fact need not preclude reform efforts aimed at broadening
expungement to this population. Public support is one justification for policy adoption, but it is
not the only or even the best justification, as the “qualified public input” model of criminal
justice reform makes clear (Ryberg & Roberts, 2014, p. 5). Although it would be impossible to
use opinion polls to justify expanding expungement in the context of public opposition, it might
be possible to persuade policy makers that such sentiments should be set aside. One option
would be to show empirically that a conviction for a single violent offense “years ago” is a poor
predictor of recidivism because it is a static risk factor. What matters more are dynamic risk
factors—whether an offender has stayed crime free and shown evidence of changing their
attitudes and behaviors (see Bonta & Andrews, 2017).
Finally, the data reveal that the public is concerned about unfettered access to criminal
records and recognizes that people can be hurt if background checks provide information on
criminal records that is incomplete or inaccurate. Given the nation’s legal tradition of
transparency and the free speech rights of the First Amendment, significantly restricting access to
unexpunged criminal records is unlikely to occur (Jacobs, 2015). However, increasing liability
for publicizing faulty information that spreads across the Internet is likely to earn support from
the U.S. citizenry. Errors in criminal records, including the failure to update expungements, are
present in government databases. Without more investment by justice agencies nationwide, this
source of error is likely to persist. Commercial companies that conduct background checks are
regulated, subject to the Fair Credit and Reporting Act that imposes the “duty to report accurate
information and to provide means of redress when errors are made” (Chien, in press; see also
30
Jacobs, 2015). Nonetheless, audits of such companies do not portray a comforting reality. As
Chien (in press) notes, these firms often “are at risk of reporting sealed records, misclassification
(e.g., they report a misdemeanor as a felony), or inappropriately disclosing information protected
by consumer and privacy laws.” In 2012, the Federal Trade Commission settled a path-breaking
case for $2.6 million against a company for providing “erroneous criminal records information to
its customers” (Jacobs, 2015, p. 152). Other suits have followed. Our data suggest that the public
would favor tighter scrutiny, believing that profiting from publicizing a person’s criminal record
entails the responsibility of doing so accurately.
Criminological Implications
Consistent with the entity-incremental perspective in social psychology (Plaks et al,
2009) and the growing literature within criminology (see, e.g., Burton et al., 2020; Maruna &
King, 2009), the current analysis showed that belief in redeemability is a robust predictor across
different measures of support for criminal record expungement. In other words, the tyranny of
just deserts, wherein expressive concerns drive general punitiveness (Darley, 2009), appears to
end after sentencing, with utilitarian concerns about desistance and dangerousness taking on
increased importance (Lehmann et al., 2020). This finding suggests that future public opinion
studies of crime-related policy should include redeemability as a standard independent variable,
especially when they focus on post-sentencing policies. Efforts might also be made to develop
the concept further, seeking to unpack it into different dimensions (see Burton et al., 2020). It
might also be profitable to explore sources of belief in redeemability, ranging from
characteristics of the offender (seriousness and extent of past criminal record) to characteristics
of the respondents (e.g., racial resentment, past contact with offenders).
31
On a broader level, the notion of offender redeemability might offer a promising route to
policy change and a prism through which current policy developments might be understood.
First, research shows that public beliefs about the malleability of different groups, even in
intractable intergroup conflicts, are themselves malleable, updating in response to relevant
information (Halperin, Russell, Trzesniewski, Gross, & Dweck, 2011). In this sense, it might be
possible to change public beliefs about offender redeemability by publicizing stories of
successful rehabilitation. Second, much has been written to explain the get-tough era and the
policy of mass incarceration, but one omnipresent factor during this time was what Garland
(2001, p. 136) called the “criminology of the other”—a view of offenders “as a different species
of threatening, violent individuals for whom we can have no sympathy and for whom there is no
effective help.” This view of offenders was put forth by James Q. Wilson (1975, p. 235) who
ended Thinking About Crime by asserting—quite shockingly at the time—that “Wicked people
exist. Nothing avails except to set them apart from innocent citizens.” Such pronouncements
were more normative two decades later when DiIulio (1995, p. 23) applied the term “super-
predators” to a new generation of juvenile criminals who were “hardened” and “remorseless”
and possessing “absolutely no respect for human life and no sense of the future.” And two
decades later, such thinking remained prevalent, with most criminals seen as having “a high and
unchanging potential for criminal activity” (Simon, 2014, p. 23). As Simon (2014, p. 131)
observed, “the politics of fear that produced mass incarceration relied on the image of the
prisoner as an unchanging lethal threat.”
One possible source of the current correctional turning point is a growing embrace of the
possibility of offender redeemability by both elected officials and the public (Burton et al.,
2020). As noted, public punitiveness has been declining in recent years (Enns, 2016; Pickett,
32
2019). Equally important, however, would be to document the rise in the belief that offenders
were not universally dangerous. During this time, politicians have begun to distinguish
categories of criminals, arguing more lenient treatment for the so-called non-violent drug
offender (see, e.g., Obama, 2016; Pfaff, 2017). Risk assessment is another significant
development, yielding the “low-risk offender” who can be supervised in the community (see
Bonta & Andrews, 2017). The broader point is that the social construction of offenders—as
permanently wicked or predatory versus impermanently criminal and reformable—is
consequential.5
Study Limitations
Our study is limited in four ways. First, we used an opt-in sample. Second, our data are
now a few years old, and the policy environment may have changed since. Third, we focused on
public support for expungement generally without assessing how robust that support was to
framings attempting to stigmatize people with records or cast them as dangerous. Both theory
and research suggest that how politicians frame criminal justice issues may influence public
attitudes (Ramirez, 2013; Shi et al., 2020; Wozniak, 2016), although the evidence of framing
effects is not unequivocal (Wozniak, 2019). Third, we did not explore how the record holder’s
race or socioeconomic status might influence attitudes. DeWitt and Denver (2020) found that
public support for hiring people with records does not depend on the applicant’s race. However,
they also used an opt-in sample, and they did not randomize framing. Therefore, future research
should attempt to replicate our results and those of DeWitt and Denver (2020) using data from
55 One important issue is the degree to which views of members of the public who doubt offender redeemability are
malleable. Research is needed to prove the sources of such sentiments. One possibility, which would make views
difficult to alter, is that they embrace an implicit entity theory that sees criminal propensity as fixed in immutable
individual characteristics (Plaks et al., 2009). Another possibility is that their views are based on selected
experiences with offenders (e.g., family or friends who have recidivated) that, if challenged by the presentation of
alternative evidence, might be open to change.
33
recent surveys fielded with probability samples, and should test the robustness of public attitudes
using framing experiments that also randomize the characteristics of people with criminal
records.
Conclusion
In closing, expungement should not be seen as a panacea for the negative consequences
that attach to criminal records. There are reasons for keeping some criminal records transparent,
especially given the stability of many offenders’ criminality (Farrington, 2019). Commentators
also fear that a focus on forgetting or hiding records will divert attention from pursuing reforms
that seek to forgive offenders through policies that favor redemption and restoration. It seems
that a multifaceted approach to minimizing the effects of criminal records is warranted.
Especially for those who either are barred legally or lack the resources to pursue expungement, it
is important to advocate for minimizing the disabilities attached to a criminal conviction (e.g.,
collateral consequences) and for maximizing reentry and rehabilitative services (Alexander,
2010; Mears & Cochran, 2015).
Regardless, our data suggest that Americans believe in second chances, especially for
those whose past offenses and sustained good behavior signal that they no longer pose a threat to
public safety. It is instructive that states that have expanded expungement to include wider
categories of offenders, marijuana convictions, and automatic record cleaning have done so with
bipartisan support and no voter backlash. In this era of a significant correctional turning point
where images of offenders as redeemable prevail, the American public is open to reasonable
efforts to include rather than exclude offenders from the community (Cullen et al., 2020).
34
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45
Table 1. Descriptive Statistics
Bivariate Correlations with Outcomes
Variables Mean or
%
SD Global for
Expungement
Specific Support for
Expungement
Oppose Record Visibility
Outcome Variables
Global Support for
Expungement (%)
45.1  
Specific Support for
Expungement
2.46 .70  
Record Visibility 4.19 .04  
Independent Variables
Punitiveness 1.48 1.12 -.31*** -.26*** -.36***
Rehabilitation 4.19 1.02 .35*** .27*** .46***
Redeemability 3.56 .87 .37*** .29*** .38***
Control Variables
Republicanism (%) 23.46 -.14*** -.13*** -.10*
Conservatism (%) 34.66 -.22*** -.11*** -.14***
Male (%) 48.48 .04 .12*** .03
Age 48.08 16.92 -.17*** -.07* -.01
White (%) 66.76 .07* -.08* .09**
Education 3.17 1.46 .02 .06 .14***
Income 5.28 3.38 -.09** -.01 .06
South (%) 36.00 .01 .02 -.03
Married (%) 44.10 -.10** -.03 -.01
Child in residence (%) 24.64 .03 .01 -.05
Religiosity .01 .81 -.06* -.04 -.12***
Note: The data are weighted.
*p < .05; **p < .01; ***p < .001 (two-tailed).
46
Table 2. Public Support for Expunging Criminal Records
______________________________________________________________________________
Question Percent
______________________________________________________________________________
Some people argue that expunging criminal records is a good policy because
it gives criminal offenders the opportunity to wipe their slate clean and get
their lives back on track. Other people believe that expunging criminal records
is a bad policy because public access to criminal records helps keep communities.
safe.
Which of the following statements is closest to your own opinion?
A. Expunging criminal records is a good policy because it gives criminal offenders 45.1
a chance to get their lives back on track
B. Expunging criminal records is a bad policy because public access to criminal 54.9
records help keep communities safe
______________________________________________________________________________
Note: The data are weighted.
47
Table 3. Public Support for Expunging Criminal Records, by Time Crime Free
Question Percent Cumulative
Percent
In some states, individuals who have stayed out of crime for a certain
period of time are eligible to have their criminal record expunged
(that is, removed and sealed so nobody can look at it any longer).
In your opinion, how many years must an individual stay out of crime
before they should be eligible to have their criminal record
expunged?
A. 1 year 3.5 3.5
B. 2 years 5.1 8.6
C. 3 years 6.8 15.4
D. 4 years 2.5 17.9
E. 5 years 26.4 44.3
F. 6 years 2.3 46.6
G. 7 years 5.6 52.2
H. 8 years 1.8 54.0
I. 9 years 1.3 55.3
J. 10 years 22.9 78.2
K. 15 years 2.9 81.1
L. 20 years 4.6 85.7
M. Individuals should never be eligible to have their criminal records
expunged
14.3
Note: The data are weighted.
48
Table 4. Public Support for Expunging Criminal Records, by Offense and Time Frame
(percentage reported)
______________________________________________________________________________
Preference Regarding Number of
Crime-Free Years Prior to Expungement Eligibility
__________________________________________________
3 Years 5 Years 10 Years Never Eligible
Offense Crime Free Crime Free Crime Free for Expungement
______________________________________________________________________________
1. Shoplifting 50.1 25.7 12.6 11.6
2. Burglary 18.4 34.1 26.8 20.7
3. Sex offense involving a 3.3 6.0 17.6 73.1
child
4. Domestic battery of a 12.4 24.5 23.9 39.2
spouse
5. White-collar crimes (e.g., 19.4 31.4 28.5 20.8
tax evasion, embezzlement)
6. Driving under the influence 31.1 27.7 22.3 18.9
(DUI)
7. Possession of illegal drugs 36.2 29.4 19.9 14.4
______________________________________________________________________________
Notes: The data are weighted.
Question Asked—Please consider each criminal offense listed below. For each one, indicate if
you think individuals who were convicted of that offense in the past should or should not be able
to have their criminal record expunged (that is, removed and sealed so nobody can look at it any
longer). If you think people convicted of that offense should be able to have their record
expunged, indicate how long they should have to stay out of crime (i.e. stay “crime-free”) before
they can be eligible to have their record expunged.
49
Table 5. Public Support for Expunging Criminal Records, by Factors a Judge Might Consider
______________________________________________________________________________
Question Percent Yes
Below are some factors that a judge might consider when deciding whether or
not to approve criminal offenders’ requests to expunge their criminal records,
meaning that the records would no longer be available for the public to see.
Check each factor that you think judges should consider when making decisions
about whether or not criminal records should be expunged. Please check ALL of
the factors listed below that you think judges should consider.
A. The offender has been employed full time for a year 62.0
B. The offender is married with kids 27.7
C. The offender is a community volunteer 41.1
D. The offender has a letter of support from his or her neighbors 38.8
E. The offender attends church services regularly 23.1
F. The offender has completed a rehabilitation program 69.6
G. None of these 19.8
______________________________________________________________________________
Note: The data are weighted.
50
Table 6. Public Views on for Policies Related to the Eternal Criminal Record
Items
%
Total
Agree
%
Total
Disagree
%
Strongly
Agree
%
Agree
%
Somewhat
Agree
%
Somewhat
Disagree
%
Disagree
%
Strongly
Disagree
1. If a person never has the opportunity
to expunge their criminal record, they
may face problems that lead them back
to a life of crime. (n = 987)
75.0 25.0 20.2 24.7 30.1 14.1 7.2 3.7
2. Juvenile records for non-violent
crimes should be automatically
expunged so that the public cannot see
them. (n = 984)
71.9 28.1 26.3 23.2 22.4 16.2 7.7 4.1
3. More often than not, it is a good idea
to put criminal records on the Internet
for anyone to see. (n = 984)
38.6 61.4 8.0 10.0 20.6 24.1 17.2 20.1
4. Only law enforcement agencies and
some potential employers should be
able to see adults’ record for non-
violent crimes. (n = 985)
75.1 24.9 20.7 25.1 29.3 14.6 6.5 3.9
Note: The data are weighted.
51
Table 7. Public Views on for Maintaining Accurate Criminal Records
_________________________________________________________________________
Question Percent
______________________________________________________________________________
At times, the criminal records kept on people are not accurate or kept up to date,
and if used can hurt their chances to get jobs, rent apartments, or get approved
by credit agencies. The U.S. Congress is now considering a law that would require
the FBI to review their criminal records to make sure that citizens are not hurt by
incomplete or inaccurate records that are given out in background checks.
How much, if at all, do you support this effort on the part of the federal
government?
Strongly Support 36.8
Support 28.1
Somewhat Support 27.0
Somewhat Oppose 5.4
Oppose 1.2
Strongly Oppose 1.5
______________________________________________________________________________
Total Support 91.9
Total Oppose 8.1
______________________________________________________________________________
Note: The data are weighted.
52
Abbreviations: b = unstandardized regression coefficient; (SE) = standard error; OR = odds ratio; B = standardized
regression coefficient; p < .05; ∗∗ p < .01, *** p < .001 (two-tailed).
Notes: The data are weighted. “(SE)” for the “Support for Expungement” model corresponds with b. Odds ratios are also
reported for ease of interpretation.
Table 8. Regression Analyses Predicting Support for Policies that would Mitigate the Effects of Criminal Records
Variables Model 1:
Global Support for
Expungement
Model 2:
Specific Support for
Expungement
Model 3:
Oppose Criminal Record
Visibility
b (SE) OR b(SE) B b (SE) B
View of Offenders
Redeemability .655*** (.16) 1.925 .128** (.05) .152 .159* (.07) .148
Correctional Orientations
Punitiveness -.080 (.11) .923 -.057 (.03) -.088 -.099* (.04) -.120
Rehabilitation .305* (.15) 1.356 .087* (.04) .120 .255*** (.06) .275
Controls
Republicanism .050 (.26) 1.047 -.110 (.07) -.066 .029 (.10) .014
Conservatism -.500 (.26) .606 .080 (.07) .054 .083 (.10) .044
Male .309 (.19) 1.362 .172** (.06) .122 .114 (.00) .063
Age -.008 (.01) .992 .001 (.01) .016 .006** (.00) .114
White .121 (.22) 1.129 -.081 (.07) -.054 .156 (.08) .081
Education -.088 (.07) .916 .001 (.02) .001 .015 (.02) .025
Income -.026 (.03) .975 .001 (.01) .002 .003 (.01) .014
Southerner .006 (.07) 1.006 .003 (.02) .010 -.027 (.02) -.043
Married .017 (.21) 1.017 .052 (.06) .037 .014 (.07) .008
Child in residence .225 (.15) 1.253 .061 (.07) .037 -.001 (.09) -.001
Religiosity .112 (.13) 1.119 -.024 (.04) -.027 -.046 (.04) -.048
N 976 986 985
R-squared .127 .117 .230
53
54
... There was little missing data in the baseline models, where measures of both experimental outcomes were available for 99% of respondents. Similar to prior research (e.g., Burton et al., 2021;Metcalfe & Pickett, 2022), missing values on income were imputed based on the other variables in the analysis. Because missing data in other variables was minimal, we employed listwise deletion for the remainder of the analysis. ...
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Data-driven criminal justice operations creates millions of criminal records each year in the United States. Documenting everything from a police stop to a prison sentence, these records take on a digital life of their own as they are collected and posted by police, courts, and prisons; reposted on social media, online news, and mugshot galleries; and bought and sold by data brokers as an increasingly valuable data commodity. The result is “digital punishment,” where mere suspicion or a brush with the law can have lasting consequences. This analysis describes the transformation of criminal records into millions of data points; the commodification of these data into a valuable digital resource; and the impact of this shift on people, society, and public policy. The consequences of digital punishment, as described in hundreds of interviews detailed in this book, lead people to purposefully opt out of society as they cope with privacy and due process violations.