Wiping the Slate Clean: A Proposal to Expand Ohio's Expungement Statutes to Promote Effective Offender Reintegration

WIPING THE SLATE CLEAN: A PROPOSAL TO EXPAND OHIO’S EXPUNGEMENT STATUTES TO PROMOTE EFFECTIVE OFFENDER REINTEGRATION SARA C. SCHIAVONE * I. ! I NTRODUCTION The practice of expunging criminal records has received much attention over the past several years and for good reason. “An estimated twenty million Americans, about 8.6 percent of the total adult U.S. population, have recorded felony convictions.” 1 Estimates indicate that the number of Americans with misdemeanor convictions is several times greater than that. 2 In total, an estimated 70 to 100 million Americans have criminal records. 3 Of those persons, 65 million “face significant barriers to basic social and economic opportunities” as a result of having a criminal record. 4 “Today, a criminal record . . . acts like an indelible scarlet letter.” 5 It is this labeling that “creates a [sharp] social divide between ‘law-abiding citizens’ and ‘criminals’” and hinders reintegration efforts. 6 Copyright © 2017, Sara C. Schiavone. * Capital University Law School, Juris Doctor candidate 2017; The Ohio State University, summa cum laude , B.A. in Sociology and Criminology, Minor in Legal Foundations of Society. This paper would not have been possible without the invaluable guidance of Professor Scott A. Anderson of Capital University Law School. I would not be the student or person I am today without your unwavering support. Thank you. 1 JAMES B. JACOBS, THE ETERNAL CRIMINAL RECORD 1 (2015) (emphasis omitted). 2 Id. 3 Rebecca Vallas & Sharon Dietrich, One Strike and You’re Out , CTR. FOR AM. PROGRESS 1 (Dec. 2014), https://cdn.americanprogress.org/wp-content/ uploads/2014/12/VallasCriminalRecordsReport.pdf [https://perma.cc/7ZM9-3STY]. On January 1, 2016, the United States population was approximately 322.7 million. Robert Schlesinger, The Size of the U.S. and the World in 2016 , U.S. NEWS & WORLD REP. (Jan. 6, 2016, 4:05 PM), http://www.usnews.com/opinion/blogs/robert-schlesinger/articles/2016-01-05/us-population-in-2016-according-to-census-estimates-322-762-018 [https://perma.cc/ FTM3-NM43]. 4 Jeffrey Selbin et al., Unmarked? Criminal Record Clearing and Employment Outcomes 2 (Nov. 10, 2016) (unpublished manuscript), http://ssrn.com/abstract=2486867. 5 Id. Keramet Reiter et al., Should a Shoplifting Conviction Be an Indelible Scarlet Letter? Not in California , L.A. TIMES (Dec. 28, 2014, 4:00 PM), http://www.latimes.com/ opinion/op-ed/la-oe-selbin-prop-47-criminal-records-20141229-story.html [https://perma.cc /DJX6-4V9D]. 6 JACOBS, supra note 1, at 2. 510 CAPITAL UNIVERSITY LAW REVIEW [45:509 In the United States, 2.3 million people are currently incarcerated— more than any other country in the world. 7 Of those 2.3 million, over 95 percent will return to their communities someday. 8 Each year 636,000 of the inmates in federal and state prisons are released, while 11 million inmates cycle in and out of local jails each year. 9 Of the 636,000 inmates who will be released this year, two-thirds of them will be rearrested and sent back to prison within three years, while three-quarters will be rearrested and sent back to prison within five years. 10 With the recidivism rate being this high, policies that decrease recidivism rates and, in turn, increase reintegration rates are highly sought-after. 11 This Comment proposes one such policy. This Comment will first discuss the changing purposes of the criminal justice system within discussing Ohio’s “reentry plan,” which examines Ohio’s purpose for its own criminal justice system. 12 Subsequently, this Comment examines nationwide strategies, other than expungement, that attempt to promote successful reintegration. 13 This section focuses on “certificates of rehabilitation” and “executive pardons” and explores why these programs are ineffective when it comes to promoting ex-offender reintegration. 14 This Comment will then discuss expungement in depth. 15 Part IV analyzes the history of expungement, policy arguments against and in support of expungement, and how expungement effectively promotes reintegration. 16 Further, this section will discuss the overwhelming collateral sanctions ex-offenders experience when living with a criminal record. 17 7 Peter Wagner & Bernadette Rabuy, Mass Incarceration: The Whole Pie 2015 , PRISON POL’Y INITIATIVE (Dec. 8, 2015), http://www.prisonpolicy.org/reports/pie2015.html [https:// perma.cc/LJN4-R9MQ]. 8 Alex Friedmann, Lowering Recidivism Through Family Communication , PRISON LEGAL NEWS (Apr. 15, 2014), https://www.prisonlegalnews.org/news/2014/apr/15/lowering-recidivism-through-family-communication [http://perma.cc/GE38-KYLR]. 9 Wagner & Rabuy, supra note 7. 10 Press Release, Bureau of Justice Statistics, 3 in 4 Former Prisoners in 30 States Arrested Within 5 Years of Release (Apr. 22, 2014), http://www.bjs.gov/content/pub/press/ rprts05p0510pr.cfm [https://perma.cc/7H86-ELSC]. 11 NATHAN JAMES, CONG. RESEARCH SERV., RL34287, OFFENDER REENTRY: CORRECTIONAL STATISTICS, REINTEGRATION INTO THE COMMUNITY, AND RECIDIVISM 24 (June 1, 2011), http://www.nationalcia.org/wp-content/uploads/Correctional-Statistics-Reintegration -into-the-Community.pdf [https://perma.cc/KTT6-N75L]. 12 See infra Part II. 13 See infra Part III. 14 See infra Part III. 15 See infra Part IV. 16 See infra Part IV. 17 See infra Section IV.D. 2017] WIPING THE SLATE CLEAN 511 This Comment then analyzes Ohio’s expungement laws in relation to national expungement law trends. 18 The analysis is based on a fifty-state survey of state expungement statutes and discusses the most prominent trends in expungement legislation today. 19 These trends include those affecting the eligibility criteria of persons eligible for expungement and those affecting the due process protections of persons obtaining expungement. 20 Finally, this Comment will propose revisions to Ohio’s current expungement statute that the Ohio legislature should adopt to further promote reintegration efforts. 21 In sum, this Comment will demonstrate that expungement is the most effective, yet the most undervalued, strategy in promoting successful ex-offender reintegration. Even though the Ohio legislature revised its expungement statute in 2012 and 2014, the statute needs further revision for expungement to serve as an effective strategy in Ohio’s mission to promote the successful reentry of ex-offenders back into society. 22 II. ! R EINTEGRATION H AS B ECOME A P RIMARY P URPOSE OF THE C RIMINAL J USTICE S YSTEM A. ! General History The purpose of the criminal justice system has varied over time. In the 1950s and 1960s, rehabilitation was the central goal of criminal punishment. 23 Most judges in this era imposed sentences they supposed would “maximize the likelihood that the defendant [would] voluntarily desist from future criminal conduct.” 24 Although many programs were used to achieve this goal, “educational, vocational, and psychologically based programs” were the predominant means used to successfully rehabilitate prisoners at the end of this era. 25 18 See infra Part V. 19 See infra Part V. 20 See infra Part V. 21 See infra Part VI. 22 OHIO REV. CODE ANN. § 2953.32 (West 2012). Revisions made in 2014 and 2016 were relatively insignificant. The 2014 revision clarified that persons who were convicted of two misdemeanors of the same offense were still able to apply for expungement. See S.B. 143, 130th Gen. Assemb., Reg. Sess. (Ohio 2014). The 2016 revision concerned the handling of the applicant’s fingerprints. See S.B. 227, 131st Gen. Assemb., Reg. Sess. (Ohio 2017). 23 JACOBS, supra note 1, at 220–21. 24 Id. at 221. 25 2 ENCYCLOPEDIA OF PRISONS & CORRECTIONAL FACILITIES 831 (Mary Bosworth ed., 2012). 512 CAPITAL UNIVERSITY LAW REVIEW [45:509 Rehabilitation strategies lost popularity as retributive strategies gained popularity in the mid-1970s. 26 While rehabilitation strategies focused on the future by attempting to better prisoners, retributive strategies looked backward to the crime committed. 27 The retributive theory of punishment maintained that punishment should coincide with the severity of the crime: the more serious the crime, the more serious the punishment. 28 In recent years, retributive theories have fallen by the wayside 29 as reintegration has emerged as a primary purpose of the criminal justice system. 30 Reintegration strategies attempt to assist individuals in their “reentry” into society after being released from correctional institutions. 31 Commonly, “reentry” refers to “all activities and programming conducted to prepare ex-convicts to return safely to the community and to live as law abiding citizens.” 32 Reentry involves everything—from vocational training, to electronic monitoring, to literacy training, to substance abuse counseling— that is intended to increase public safety and reduce recidivism rates. 33 Modern reintegration theories recognize that reentry efforts must begin long before the offender is released. 34 Typically, the earlier the criminal justice system begins to prepare offenders for release, the greater chance they will successfully reintegrate back into their communities. 35 “Ever since prisons were built, individuals have faced the challenges of moving from confinement in correctional institutions to liberty on the street.” 36 Today, the challenges that exist for returning inmates are more pervasive than in the past. 37 The individuals who are reentering society today are doing so after spending longer times behind bars than their predecessors, exacerbating the already significant challenges ex-offenders 26 JACOBS, supra note 1, at 210. 27 DAVID BOONIN, THE PROBLEM OF PUNISHMENT 155 (2008). 28 JACOBS, supra note 1, at 211. 29 See Doug Brown, Ohio Officials Encourage Re-Entry Programs for Felons , PLAIN DEALER (June 26, 2012, 7:30 AM), http://www.cleveland.com/metro/ index.ssf/2012/06/ohio_officials_encourage_reent.html [https://perma.cc/PD86-J2GT]. 30 See id. 31 Id. 32 JOAN PETERSILIA, WHEN PRISONERS COME HOME...