A ‘Clean Slate’ law to make Texas’ justice system fairer would also reduce odds of future crime

As Texas lawmakers cast their gaze on crime, criminal justice, and policing, they might consider reform embraced by other states from Pennsylvania to Utah to Georgia reducing post-prison stigma to save the state more than $800 million annually, reduce family poverty and combat homelessness

An anonymous state prisoner
Photo: Damir Spanic via Unsplash

Reentry. It sounds simple enough. Once someone is released from prison, they need to reenter society. Popular culture often discusses this psychological and social predicament. One need look no further than movies like Shawshank Redemption, a thriller charged with a tough social realism.

But the reality is that the task isn’t as simple as overcoming mental issues or brushing up on employment skills. For the vast majority of prisoners, the deck is stacked against them once released as they are part of an unforgiving cycle that few manage to break. According to a special report issued by the U.S. Department of Justice, 76.6 percent of all prisoners released from state prisons in 2005 had been rearrested within five years.

Poverty as the driver of criminal behavior

There has been an abundance of academic literature on the subject and it all keeps coming back to the same root cause: poverty.

Poverty isn’t just the cause of recidivism, the tendency for a convicted criminal to reoffend is typically the root cause of crime in the first case. Yes, there are violent crimes like rapes and murders. There are truly bad people that commit truly heinous acts. But the United States imprisons the largest percentage of its population of any society in the history of mankind. That’s more than Stalin’s Russia or Pol Pot’s Cambodia. And Texas as a state accounts for 12 percent of the non-federal prison population nationwide with 891 people per 100,000 behind bars, 250,000 in total. That means Texas locks up 45 percent more of its population per capita than El Salvador, 53 percent more than Turkmenistan, and 75 percent more than Cuba, the next three countries behind the United States. To put that many people behind bars you cannot focus only on violent crimes; after all the United States is far from the most violent nation on the planet.

What it turns out that all these prisoners have in common is poverty. The median annual income of a criminal defendant is $7,000. Roughly 10 percent experienced homeless in the year before conviction. Only between one-third and two-fifths of defendants are employed at the time of arrest; one-third have received public assistance at some point in their lives.

The reasons for this painful reality are clear if one dives deeper. Some 65 percent of those entering the correctional system did not complete high school, with 14 percent having less than an 8th grade education. And 13 percent grew up in foster care.

Yet an unfortunate side effect of our penal system is that it creates, or deepens, poverty for those who go through it. A Texas-based study by Michael Mueller-Smith in 2015 found that for defendants with stable earnings pre-arrest, post-release employment drops by 24 percentage points and for those serving two years or more, 40 percent fail to reintegrate into the work force. Felony defendants, post-release, were five percentage points more likely to receive food stamps — and this was before Texas’ 2015 law change to allow drug offenders to become eligible for food stamps. In fact, Mueller-Smith found that “judges and prosecutors who rely more heavily on incarceration tend also to have caseloads that exhibit higher rates of recidivism and worse labor market outcomes.” Harsher penalties increase poverty post-release, poverty causes crime, and the cycle continues.

Both poverty and recidivism have an impact not just on the prisoner, but on the state at large. From the cost of housing a prisoner of more than $50 per day to the increased probability of that individual being on welfare and food stamps post-release, to the physical and psychological impact on both the prisoner and anyone harmed by the crime, to the likelihood of recidivism, Mueller-Smith estimates the costs of incarceration in metro Houston’s Harris County at $56,000 to $67,000 per year.

And that is before we even begin to consider the generational and family impact. Over half of all prisoners are parents and most of them are nonviolent offenders, who are 20 percent more likely to be parents than violent criminals. So those children are deeply and permanently impacted by arrests.

A justice system that actually increases the likelihood of future crime

Among the evidence that poverty has causal impact on crime rates is the fact that the odds of a family falling below the poverty line increase by 38 percent when a father is incarcerated. Whether or not linked to poverty, parental incarceration increases the odds of dropping out of high school, mental issues, and unemployment. High school dropouts have a 30 percent chance of falling below the poverty line, nearly three times that of a college graduate; they are eight times more likely to be incarcerated. Economic impacts from a parent’s arrest may be responsible for as much as 15 percent of all Texas HS dropouts each year. So arresting a parent has a very real, even if indirect, impact on children one day finding their way into the criminal justice system.

But it isn’t just actual imprisonment that increases poverty. Yes, imprisonment reduces one’s average annual earnings post-release by 51.7 percent. But a felony conviction without imprisonment reduces one’s average annual earnings by 21.7 percent and even a misdemeanor conviction reduces average earnings by 16 percent. A large part of this is due to the availability of criminal records and the prevalence of background checks for job interviews. Compared against similarly situated and qualified job applications, those with criminal records are 50 percent less likely to receive a job interview. In the chance that they are lucky enough to secure a job, salaries are 10 to 40 percent below those of their peers. In his Texas-based study, Mueller-Smith found that for “felony defendants with stable pre-charge earnings incarcerated for one or more years, post-release employment drops by at least 24 percentage points” and that each additional year spent incarcerated reduced post-release employment rate by 3.6 percentage points.  Add increased difficulty securing housing due to background checks on housing applications and a criminal record takes an already economically disadvantaged group and stacks the deck further against them.

While the criminal population is not one that regularly garners sympathy from the general public, as a society we do hold a distinctly different view of those accused of crimes compared to those convicted; innocent until proven guilty is a central tenant of our criminal justice system. But when poverty comes into play, there may not be a difference. In a shocking stat, defendants who were released from custody prior to their trial had a 24.2 percent decreased probability of being found guilty. Perhaps even more shocking is that it is due, entirely, to a 24.5 percent decrease in those defendants pleading guilty. By keeping poor defendants incarcerated pre-trial when they are unable to make bail, they are more likely to accept a guilty plea, particularly for low level crimes where they can get released on time served.

Those who were not detained prior to trial see their likelihood of post-arrest employment increase by a nearly equivalent 25 percent, along with a 17 percent increased probability they will file a tax return. Somewhat unsurprisingly given the economic impact, they are also 35 percent less likely to be arrested again in the future. Quite simply, the unintended side effect of those guilty pleas for crimes they didn’t commit can haunt them economically for years and turn the once innocent, wrongly accused into criminals. It is the opposite of how our criminal justice system is expected to work with exposure to the criminal justice system increasing, rather than decreasing, the likelihood of future crime. By forcing the innocent into extended poverty as a result of their exposure to the system, we encourage future criminal behavior.

And with 11 percent of Texas’ $3.3 billion in correctional spending going to pretrial beds, it would be a $350 million savings for the state, even before considering secondary effects like the cost of housing convicts, increased probability of welfare and food stamps post-release, and the impact to the communities and their families of the increased probabilities of future crimes by both the defendants and, in the future, their children.

Technology – the cause and the solution to the problem

As data becomes stored electronically, it becomes more accessible. About half the states in the country currently have data available electronically for non-criminal justice related searches, such as background checks for employers and landlords, with Texas conducting nearly 8 million name-based background checks against its database. According to a report commissioned by the U.S. Department of Justice, this is more than a third of the nationwide total of 23 million searches.

Technology has many advantages for society and the centralization of information around criminal justice increases the efficiency of police and the courts. But for those with criminal records, it has significant implications. During the four-year period between 2010 and 2014, there was a 29 percent increase in criminal background checks for jobs, housing, and other uses outside of the criminal justice system. Some 72 percent of employers conduct background checks.

Introducing community legal services, or CLS

Community Legal Services, referred to as CLS, is a non-profit in Philadelphia that provides legal assistance to low-income Philadelphians. Recognizing the issues involved in having any sort of criminal record on issues ranging from welfare eligibility to housing applications to employment, it has been helping low income residents of Philadelphia expunge their records for over a decade. Unfortunately, until recently expungement wasn’t available to most individuals. One was only eligible in Pennsylvania if the individual were tried, but not convicted, or had committed no more than a low-level offense like loitering or jaywalking and hadn’t been arrested again over the next five years. It was a slow, burdensome process, that took several hours of legal work for a single expungement application. Nevertheless, in 2011 CLS developed a web-based program that automated the process in the state. It reduced the time required to generate an expungement application from several hours to several minutes. By sharing the program widely with non-profit attorneys and pro-bono clinics around the state, the organization was able to generate over 30,000 expungement petitions statewide. It was a modest, but meaningful victory for those they were able to help.

In reality though, it didn’t cover even a single digit percentage of the cases eligible for expungement as it still required proactive behavior on behalf of individuals, many of whom weren’t even aware of the opportunity. What followed was a legislative push that culminated in initial legislation in 2018 and subsequently the so-called “Clean Slate Act” in 2019. Cumulatively, these bills referred to as the “Clean Slate Law” created a concept of sealing records, separate from expungement, which would allow them to be accessible by law enforcement and government entities but removed from the databases employed by background check companies. Additionally, the law automatically sealed eligible records 10 years after the date of conviction. While not as strong as expungement, the ability for law enforcement access allowed the concept of automation, a priority for CLS, to get unanimous support in a notoriously divided legislature. The result was 36 million records that got sealed upon the passing of Clean Slate; a major increase over the 10,000 expungements per year from before its passage.

Does it go far enough?

The debate amongst activist groups in Pennsylvania is similar to those in other states that have passed their own version of Clean Slate. Utah, Michigan, Georgia, and North Carolina have now followed Pennsylvania. The question is whether the Clean Slate legislation goes far enough. For Pennsylvania, being the first state to implement such an automated sealing process, the goal was simply that: automation. The belief was that automation would help the most people and that any need for proactive action to get records sealed would disproportionately impact the most disadvantaged people who would most benefit from sealing. It was a land and expand strategy with the next step being to introduce legislation to increase the scope of offenses covered from the limited low-level misdemeanors to a broader scope and to shorten the timeline from10 years. This strategy was far from universally agreed upon as many saw 10 years as too long a wait for those in need and wanted to get more offenses covered initially. But it was the strategy taken in Pennsylvania. One can see a unanimous passage as either a validation of the benefits of compromise or an indication that there was room politically for a far more aggressive approach. Michigan, for example, expanded upon Pennsylvania’s version to include felonies and the national swing state still saw 84 percent of its representatives and 76 percent of its senate vote in favor of passage.

Expungement versus sealing

The difference between expungement and sealing is far from trivial. Expungement removes the records from both the state databases and the FBI database; sealing only impacts the state database. While the Fair Credit Reporting Act, or FCRA, applies to private background check companies and causes them to comply with removals of records from the state’s database, the law’s jurisdiction does not apply to mugshot companies, a makeshift industry that has popped up based upon the easily accessible public arrest data. It also does not apply to FBI background checks so companies that rely on the FBI background checks, instead of state queries, will uncover the offenses. These are done less frequently due to higher costs, but since they would turn up these arrests, job applicants still need to exercise caution if stating that they do not have a criminal record. Laws that prevent such questions about criminal history on job applications, so-called “Ban the Box” laws, are now in place in over a dozen states, plus the District of Columbia, allowing job seekers in these states to avoid this concern when filling out a job application. Texas, however, has no such law on the books.

What About Texas?

During the 2015 legislative session, Texas passed the Second Chance bill, SB1902, introduced by Sen. Charles Perry, a Republican who founded Lubbock’s Tea Party. It passed by an overwhelming majority of 138-4, with two not voting and six absent. When it became law on Sept. 1, 2015, it changed Texas law to allow individuals with an eligible misdemeanor conviction to receive what is known as an “OND,” an order of non-disclosure, Texas’s equivalent to Pennsylvania’s sealing of records. Similar to Pennsylvania, if they have another conviction, are arrested for another crime, or have a felony on their record, they will not be eligible. Unlike Pennsylvania, it is not retroactive and therefore does not apply to crimes prior to September 2015, so the windfall received by 36 million Pennsylvanians upon the passage of Clean Slate was never felt in Texas. Had it been, an estimated 90 million people, two and half time the number in Pennsylvania, would have benefited. Automated sealing was also limited to those who completed deferred adjudication for misdemeanors, so the majority of beneficiaries will still need to take active steps to receive their OND.

As the Texas legislature begins its bi-annual convening, it is likely a further-reaching form of Clean Slate will again be on the agenda. Since SB1902, similar laws in other states have become law covering more individuals and automating the sealing process. Between Texas’s bipartisan support in 2015 and the unanimous passage in Utah, Georgia, North Carolina and Pennsylvania, the question seems to be how much automation of the current OND process Texas may be willing to embrace. With Republicans holding an 83-67 majority in the State House and a 18-13 majority in the State Senate, that might ultimately be a reflection of whether Texas Republicans are more fiscally conservative or socially conservative. Or it may be a question of how aggressive criminal justice advocates are willing to risk being on an issue with bipartisan support given Gov. Greg Abbot’s tendency to veto legislation despite his own party’s control over all branches of the state government. Despite those majorities, Abbot has nearly vetoed as many bills, 153, in three sessions as did George W. Bush and Ann Richards combined, 162, in a total of six sessions.

With 65,000 convicts re-entering society each year in Texas and a current rate of recidivism of nearly 50 percent, Texas will spend approximately $675 million annually in housing those who become repeat offenders in correctional facilities. The cost to the ex-convicts is far more, with roughly $1.7 billion in lost wages annually impacting the recently released. While it is too early to know the exact gains from increased wages or lower recidivism rates that would result from a Clean Slate bill, data indicates that most, if not all, of that $1.7 billion in lost wages would be recoverable if criminal records were fully sealed upon release. Given that most were at or below the poverty line before arrest, most of this income would be spent, meaning that this comes with a benefit of approximately $110 million in recovered state sales tax. Add to that nearly 5,000 new high school dropouts attributable to increased poverty rates from the children of these convicts at a cost to the state of $27.5 million annually. That’s over $800 million annually in costs to the state of Texas, before considering the costs to families and individuals, or the social services afforded to those individuals and families in poverty or unable to find affordable housing.

The Council of Economic Advisors has found that while a 10 percent increase in police force size results in a 3 to 10 percent decrease on crime rates, and a 10 percent increase on high school graduation rates results in a 10 percent decrease in crime rates, the biggest impact comes from improving the wages of non-college educated men. A 10 percent increase in those wages results in a 10 to 20 percent decrease in crime rates.

And sealing records has the potential for a 50 percent impact on the wages of those it impacts.

So, while we posit how to reduce crime in our cities, and allocate hundreds of millions annually to that end, the biggest impact could be from simply preventing society from punishing individuals once they have completed their sentence or are found innocent.

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