Op-Ed: How California can use technology to wipe the slate clean for millions with criminal records

Seen and unseen, algorithms are being used every day to target ads, optimize decisions, and determine which content and articles (including this one) we see.

But while much of the recent news about machine decision-making has been negative, including how it amplifies racial bias, California now has the opportunity to use algorithms to restore economic opportunity and dignity to millions of Californians by making it easier to seal or clear their old criminal records.

California law currently includes approximately 4,800 legal restrictions on people with criminal records even after they have completed their sentences. These barriers prevent the estimated 8 million Californians with criminal records from participating fully in and contributing to society by limiting their access to jobs, housing, education and other opportunities. They haunt individuals with records that are decades-old and apply even when the underlying activity that has been decriminalized, like marijuana possession.

Turning the tide on mass incarceration and mass criminalization requires helping individuals with criminal records get a fresh start. California’s Proposition 47, which enables reclassification of some felonies into misdemeanors, and Proposition 64, which authorizes removal of marijuana charges in light of California’s legalization of adult marijuana, use provide ways to do so.

These and other provisions provide a path for millions of Californians to get a true second chance. Those who successfully apply to clear their records do substantially better. They are more employable and their incomes increase, on average by one-third, or $6,000, a recent study from UC Berkeley found. Crime does not increase after record clearing is made available.

The problem is that far too few people actually apply to have their records cleared. Less than 10% of those eligible for relief under Proposition 47 and Proposition 64 have applied for it, according to data from the California Judicial Council and the counties. Low public awareness and an expensive and time-consuming process — which involves petitioning a court by preparing and filing an application at an approximate cost of $3,500 — contribute to this problem. I estimate that tens of millions of Americans nationally may fall into the “second chance gap,” the difference between eligibility and actually getting a record sealed.

Assembly Bill 1076, the Criminal Records Automatic Relief Act, offers a smart way to narrow the gap. It would automatically seal the records associated with arrests that do not turn into convictions. It would also seal records involving completed misdemeanor and felony sentences for eligible people after a waiting period.

Rather than rely on individuals to file petitions, an automated system using algorithms would sort through millions of criminal records and flag the eligible ones. Absent the prosecuting attorney’s objection, the record would be cleaned in the state records repository and courts would be notified and prohibited from disclosing the sealed or dismissed information.

Pennsylvania, which passed its “clean slate” law last year, began automatically sealing 30 million criminal records in late June, at an estimated cost of less than 10 cents per clearance. A similar new law in Utah will begin expunging eligible cases without the need for a petition starting next year.

A significant problem that has plagued second chance efforts around the country is missing or dirty data preventing accurate eligibility determinations. For example, dismissed or non-convicted criminal charges can be cleared in many jurisdictions, but many cases lack clear disposition information. Likewise, many expungement rules require sentence completion but whether this condition has been fulfilled often cannot be determined from the record.

AB 1076 provides some novel ways of dealing with uncertain criminal records. For example, the bill allows for the identification of a non-conviction record based on either time (one to three years from the date of the arrest with no conviction) or an official disposition (acquittal). It provides a simplified way to determine sentence completion based on looking at the disposition date and the sentence. It would require a waiting period after a felony sentence is completed before clearance is allowed, and relief would only be granted only “if relevant information is present.”

Creating the computerized system will require an initial upfront investment followed by ongoing maintenance costs that should be relatively modest. But the dividends to eligible Californians, their families, and their communities should continue to pay off for years, making AB 1076 a good investment. Up to now, the pace of petitions to clear marijuana convictions has been so slow it would have taken over 50 years to clear 218,094 eligible cases. The use of automated methods under AB 1076 would not only clear past cases but prevent more people from falling into the second chance gap in the future.

This good bill could be made even better by requiring and supporting rigorous evaluation of the economic and public safety impacts of the policy (e.g. through randomization). By passing AB 1076, California lawmakers can remove the unjust hurdles, not steel bars, holding back millions of Californians.

Colleen V. Chien is a professor at Santa Clara Law School and a fellow at the Stanford Computational Policy Lab.