You say ‘Expunction’, We say ‘Rehabilitation’: questions about going forward

‘Expungement’ or ‘expunction’ are not words in the UK lawyer’s lexicon. They describe the legal process, to use a definition provided by the Legal Services Corporation, ‘that seals or removes certain criminal records through court petition’. The equivalent for us in England and Wales would be the operation of the Rehabilitation of Offenders Act. The excellent Artificial Lawyer blog (under the title ‘Pot Smokers Breath Easier …’) reported that US firm Easy Expunctions had raised $6.25m for ‘the development and commercialisation of the company’s proprietary, patented and digital technology platform that provides consumers with the most comprehensive and cost-effective tools for erasing all traces of their criminal record without an attorney’.’ There are layers to be peeled from this story. 

To start with, the whole process of expungement – which will feel natural to an American – looks odd to a Brit. If rehabilitation from a conviction is automatic then it would seem to British eyes logical to follow the way of our Rehabilitation of Offenders Act 1974. This was passed originally only after a bit of a political fight but has largely proved uncontroversial ever since. This is our Ministry of Justice on how it works: ‘Under the 1974 Act, following a specified period of time … (except those resulting in prison sentences of over four years and all public protection sentences*) may become spent. As a result the offender is regarded as rehabilitated. For most purposes, the 1974 Act treats a rehabilitated person as if he or she had never committed, or been charged with charged or prosecuted for or convicted of or sentenced for the offence and, as such, they are not required to declare their spent caution(s) or conviction(s), for example, when applying for most jobs or insurance, some educational courses and housing applications.’

The advantage of the British solution is that the process is automatic and causes no-one any additional cost. The record remains on the police database but does not (usually) need to be disclosed’. The person is rehabilitated without having further cost or trouble.

The US approach has opened a small industry to obtain the same result. The Austin Business Journal quotes a fee of around $1400 for a Texan lawyer to conduct an expungement application. On the not for profit side, the Legal Services Corporation funded 18,502 expungement cases in 2018. It records the magnitude of the problem: ‘About one in three adults has been arrested by age 23’ and ‘Nearly nine out of ten employers conduct background checks on job candidates, and an estimated four in five landlords use background checks to screen prospective tenants. Nearly two-thirds of colleges and universities collect criminal justice information as part of the admissions process.’ The relatively straightforward legal process makes expungement popular in student legal clinics, appealing for example to those like Harvard ‘The Legal Services Center of Harvard Law School (LSC ) has embarked on several recent initiatives to provide representation and direct assistance to individuals looking to have their criminal records sealed.’

So, the first question is whether an holistic approach to problem-solving the legal problems of the poor would focus on raising large sums of money for tech investment – or whether the UK provides a model whereby no-one needs to spend anything like the same amount to get a fair result. A further question for Government is whether a society really needs to arrest one third of an age cohort.

The second question is whether we should welcome commercial engagement in this issue rather than arguing for it to be assigned to the not for profit sector. This is  sometimes filed under the ‘Sleeping with Google’ debate where Google stands for any commercial interest with which a not for profit might partner, collaborate or cede. 

The EE system gives you a free national check on your record. $19.99 gets you a report on eligibility for expunction. $599 buys expunction of one eligible charge. So, the cost is less than half of that reported for individual lawyers. However, expungement is such a low hanging fruit that there have been a number of not for profit projects to deliver cheaper schemes – for example the American Bar Association used to run one in Illinois. And Louisiana Center for Children’s Rights still runs a current programme for juveniles. This appears to be free – and includes for those researching the position in New Orleans advice on getting a waiver of the usual $300 court fee.

EasyExpunctions is being written up as a legal tech success story. San Antonio is pretty pleased about having pinched the firm from Austin for its new ‘Tech Bloc’. The local paper, the San Antonio Express News, describes this enthusiastically as ‘a six-block stretch of Houston Street where two of San Antonio’s most ambitious downtown developers, Weston Urban and GrayStreet Partners, are luring tech companies near and far with Silicon Valley goodies such as high-speed fiber optic internet, common lounges, pingpong tables and bicycle storage rooms’. 

Anyone familiar with San Antonio will be sympathetic to any initiative to supplement its somewhat over-hyped Alamo heritage industry. However, is the commercialisation of expungement in this way desirable? That needs to be answered empirically. If a commercial provider can provide a better service – and through more expensive, better and national marketing in ways which can override the hotchpotch nature of many local providers (and areas of the country where there are none), the answer is obviously yes. If it comes down to making a return on investment for a process which might be done better and more cheaply by not for profit providers, the the answer is going to be different.

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