Believing in Second Chances: A University Research Team’s Efforts to Automate the Expungement of Criminal Records
“Someone you know or someone you see will do something illegal this weekend — smoke weed, exceed the speed limit. Many will not get caught, but for the Black kids that get caught by the police, there’s a good chance that they will lose their lives.” — Van Jones.
The Second Chances Gap and its Consequences
Colleen Chien, Professor of Law at Santa Clara University School of Law, began her talk by recounting this quote from a talk she had attended several years ago which has stayed with her since. This somber warning anchored the panel discussion surrounding Professor Chien’s subsequent work on closing the “Second Chance Gap” — the share of people who qualify for expungement of a criminal record but have not yet done so. Together with Bill Sundstrom (Professor of Economics), Eli Edwards (Emerging Technologies Research Librarian), Navid Shaghaghi (Lecturer of Mathematics and Engineering) and Ellen Kreitzberg (Professor of Law), she created the “Paper Prisons Initiative,” a cross-disciplinary team to study and ultimately close the Second Chance Gap, through automation (see the paperprisons.org site, still in beta).
As Professor Chien continued her presentation, she revealed a startling fact: one in three adult Americans has a criminal record. Black men are eight times more likely, and Latinx men are three times more likely to be incarcerated than are white men. A criminal record comes with a host of collateral consequences that can follow a person for life. These consequences include the loss of the right to vote, to volunteer for certain organizations or to open some types of businesses. Currently, over five million people, many of whom live in swing states, lack the right to vote. Further, arrests may serve as the basis for eviction from public housing and drug-related arrests may bar a person from receiving federal financial aid for higher education. There are a tremendous 44,000 more collateral consequences like these that can obstruct individuals from civil liberties and social benefits. Some of these consequences persist even if an arrestee’s charge was dismissed or if an accused is acquitted at trial.
As a general matter, every state allows for the clearance of unconvicted charges. And while some states have pushed for Clean Slate laws, expanding eligibility for criminal record expungement, a significant proportion of those affected have not taken advantage of this opportunity either because they are not aware that they qualify, or because they lack the financial means to file a petition or pay off outstanding fines related to bail or conviction. In her paper, Professor Chien estimates that “30–40% of people with records, or 20–30M of the 80M adult Americans with records, are eligible to clear their criminal records partially or fully but have not done so.”[1]
One of the most detrimental collateral consequences arises during the job search. Employers may look at an applicant’s criminal arrest or conviction data and decide not to hire them on this basis. While the “Ban the Box” campaign has endeavored to remove the criminal record check box in hiring applications, Professor Sundstrom warned against its unintended consequences. When employers lose the ability to inquire about criminal records, they may screen applicants based on attributes they believe to be correlated with criminality, such as race, neighborhood of residence or socioeconomic background. An attendee added in the chat box that companies often cite an amorphous “lack of cultural fit” as a reason for rejecting job applicants. Professor Sundstrom discussed a study, which found that overall, the Ban the Box movement was harmful for racial equity and that it created a statistically significant decrease in the probability of employment by 3.4 percentage points (5.1%) for young, low-skilled black men.[2]
The Cross-Disciplinary Process
After Professor Sundstrom spoke, the metaphorical mic was passed to the legal and technical teams to discuss the research process. The Second Chances project ultimately aims to transform the legal code (statutes) into computer code in order to automate the expungement process. Eligible individuals could automatically have their records expunged without undergoing an application process. This goal requires collecting criminal history data from background check companies and state repositories about the types of crimes for which people are arrested and the number of people expunged, a task carried out by Santa Clara University undergraduate Alexandra George and other students.
In the meantime, the legal team conducts a close examination of state statutes to ascertain which offenses are eligible for expungement, explained by SCU Law Librarian Eli Edwards. Her work entailed identifying and understanding the exact dates state law provisions changed and their effects on the scope of eligibility, and mentoring students to do the same.
Once the criminal history data is received (enormous data sets in the range of 500 million rows) the tech team “cleans” the data — converting it into a form that can be understood by an algorithm, as explained by Hithesh Sekhar and Jerry Huang, two master’s degree students at Santa Clara University who head up the tech team. They then communicate with the legal team to ensure they’ve understood the statutes precisely before writing Python code to transform the data into outputs like reports to be used by state lawmakers.
The Importance of Second Chances Work
My friend and colleague at Santa Clara Law, Antonio Reza, closed out the session by illustrating the importance of this Second Chances work with a striking, personal story. When he was 19 years old, Antonio was convicted of second-degree armed robbery. After his release, he was determined to turn his life around. Despite all the challenges posed by his criminal record, Antonio earned a spot at the University of San Francisco where he eventually earned every single award offered by his department, was inducted into three different honor roll societies, and graduated as the valedictorian of his class. After this profoundly inspirational journey, he succeeded in having his record expunged. Antonio earned his second chance at life but he reminds us that not every convicted person is given these same opportunities, leading to recidivism. “If you give people the opportunity to get a second chance, you don’t know what they might be able to do […] That’s why this type of work is extremely important,” concluded Antonio.
A big thank you to Santa Clara Law’s High Tech Law Institute the Markkula Center for Applied Ethics at Santa Clara University and other hosts for putting together this talk — one of many discussions on important and relevant social justice issues in the AI for Social Impact Speaker Series, curated by Professor Chien.
Phillip Yin is a 2L student at Santa Clara Law in Professor Chien’s AI Law class. He is interested in technology transactions and intellectual property litigation. Like Professor Chien, he hopes to practice in the field of IP law while working passionately on social justice projects.
[1] Chien, Colleen V., The Second Chance Gap (October 24, 2019). Michigan Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3265335
[2] Doleac, Jennifer L. and Hansen, Benjamin, The Unintended Consequences of ‘Ban the Box’: Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden (August 1, 2018). Available at SSRN: https://ssrn.com/abstract=2812811
