Expungement backlogs swamp courts

As applications for expungement of criminal records pile up in Multnomah County, Oregon, a reliance on manual processes is contributing to a growing backlog.

Since Senate Bill 397 took effect in the state on Jan. 1, 2022, individuals with criminal convictions who meet new criteria for expungement can apply to have their records cleared. Before long, the number of applications went from about 50 per month to more than 800 per month, said Rachel McCarthy, public information officer at Multnomah Circuit Court. Now the county is looking at a 15,000-case backlog.

“The process for an expungement used to rely heavily upon the district attorney’s office to do all the pre-work,” McCarthy said. When someone files a motion to have charges expunged, the DA’s office reviews the paperwork to verify the applicant’s identity, determine they have completed the sentence and are eligible for relief and ensure the appropriate amount of time has passed and that the charges are eligible for expungement. That process includes a full criminal history background check. “So that started the backlog issue.”

To help, the circuit court took on more of the review work. Now, it gets a list from the district attorney’s office of charges that they do not object to being expunged. “They send that to us, and it’s just your basic [Microsoft] Excel merge situation,” McCarthy said. 

Currently, the circuit court processes 300 to 400 orders a week, with one judge reviewing about 50 cases a day, she said. “It’s not something that can be done automatically. A judge goes through and reviews everything carefully to make sure that when they’re signing off on an expungement that it is legal for them to do so.”

The court is adding another judge and began emailing electronically certified copies of the expungement order to other agencies, such as the corrections departments and the law enforcement agencies that initiated charges. “We have to communicate with them and send them information so that they can expunge that from their records as well,” McCarthy said.

Multnomah County is not alone in its struggle. In Michigan, the Jackson County Board of Commissioners in June approved a motion to accept a $64,000 grant from the State Court Administrator’s Office to help with an expungement backlog resulting from the Automatic Clean Slate law of 2020 that went into effect April 11. 

In New Jersey, the Office of the Public Defender filed a class-action lawsuit Oct. 23 against the New Jersey State Police to require it to process expungement orders and seal individuals’ criminal records in a timely manner. The agency has a backlog of 50,000 cases, which leads to petitioners sometimes waiting years for their records to be cleared. 

Part of New Jersey’s problem is that the volume of filings has increased since 2018, when the the state legislature passed Bill 3307, relaxing some expungement requirements. Another reason is that many records are still paper-based, said Meredith Schalick, a law professor at Rutgers University and director of its Expungement Law Project, which helped bring the lawsuit. In 2019, the police received $15 million to automate and modernize recordkeeping, but that has not happened, she said.

“Our hope is that the state police become transparent about this issue and explain to the public what happened to their tax dollars and how close, if at all, they are to actually creating a modernized data system that will allow them to process orders in a reasonable timeframe of 60 days or 90 days,” Schalick said. “A lot of people talk about the focus on reentry and people having an opportunity to rebuild their lives. Well, they can’t do that with a criminal record in a meaningful, self-sufficient way that allows them to actually provide for themselves and their family financially.”

More than 20 states have designed or implemented expungement policies, “and we’re not seeing a slowing down in momentum,” said Alia Toran-Burrell, director of Code for America’s Clear My Record program, which works with governments on automatic expungement solutions. 

Utah, Michigan and California were early policy adopters that Code for America worked with. The team helped Utah’s Administrative Office of the Courts build technology that has so far cleared 350,000 records. In Michigan, Code for America was part of the policy-design stage, and in California, it helped implement an automatic record-clearance policy.

“We developed an application that would help district attorneys identify who was eligible in their counties by developing a technology that would read criminal history records in bulk and determine eligibility in just a matter of seconds,” Toran-Burrell said.

Out of these and other efforts, Code for America has developed 11 best practices for creating automatic expungement policies. One is to identify a government agency with the most comprehensive dataset that will be used to determine eligibility. “In an ideal world, we don’t want government to have to look in multiple data sources to determine eligibility because that increases complexity and increases cost,” she said.

When a specific data point in a person’s criminal history is unavailable or inconsistent from agency to agency, Toran-Burrell recommended modifying or adapting the eligibility criteria or using a proxy in place of a missing data point. 

Ultimately, the top recommendation is to increase automation wherever possible.

Toran-Burrell said she understands hesitations about automation, but added that part of the issue is the need for a culture shift.

“In Utah, as part of implementation, there was an audit that helped to ensure that technology was accurate, and in fact, it found that technology was more accurate than people,” she said. Agencies need to make a cultural shift so that staff understand that “technology can do this work that people have been doing, and we can trust it in all of the same ways that we would historically trust people,” Toran-Burrel said. “That’s a workable challenge.”