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Orszag and Sunstein: Some crimes can be forgotten

The U.S. is supposed to be a nation of second chances, but for the 70 million Americans with a criminal record, we’re not doing such a great job. Even among those whose crimes were nonviolent and committed long ago, too many still bear a scarlet letter. So it’s encouraging to see many states now moving to expunge or seal the records of nonviolent crimes that aren’t repeated.

The stigma from a drug or other offense, even one committed in young adulthood, can linger for decades. In one recent experiment, job applicants randomly assigned a criminal record were half as likely as other applicants to get an offer of employment or even an interview request.

People with actual records who are able to get jobs end up being paid 10 percent to 40 percent less than otherwise similar people, and those with records are less likely to move up the pay scale, research shows. That remains true no matter how many years former criminals stay on the straight and narrow – even though the longer it’s been since their offense, the less likely they are to commit another one.

And the former offenders themselves aren’t the only ones who pay: More than 5 million American children have parents who have been incarcerated. The family effect, furthermore, has a substantial racial aspect: Parental incarceration rates are two-to-seven times as high among black and Hispanic children as they are among white children.

To limit these costs, many states are expanding former criminals’ ability to seal or expunge their records. In February, Pennsylvania Gov. Tom Wolf signed legislation that will seal the records of most second- and third-degree misdemeanors if the offender has not broken the law for a decade.

To put this in perspective, third-degree misdemeanors in Pennsylvania include offenses such as disorderly conduct and loitering. Do we really want someone who loitered in his early 20s to continue to bear the costs of that bad decision in his 40s and even 50s?

The Reporters Committee for Freedom of the Press apparently believes so, citing its “strong interest in preserving the presumptive right of access to criminal court proceedings and documents afforded by the First Amendment.” (The committee makes the same argument in many settings, including, in the interest of full disclosure, a family law case involving Orszag.) But when it comes to criminal records, permanent full transparency has costs as well as benefits.

A long history

Yes, the First Amendment is understood to create a presumptive right of access to certain judicial proceedings, and criminal court records should not be sealed without good reason. But in the U.S., both sealing and expungement have a long history – expungement reaches back at least 50 years. Given the states’ strong interest in preventing severe damage to people’s lives, the constitutional objection to expunging long-ago nonviolent transgressions is weak.

More and more states are coming to recognize the value of a second chance. From 2009 to 2014, more than 30 states expanded programs to seal or expunge former criminal records, according to the Vera Institute of Justice – by allowing the process to apply to nonviolent felonies in addition to misdemeanors (Wyoming), by reducing the waiting time before the option is available (Colorado), by making it illegal to deny employment or an occupational license on the basis of an expunged record (Indiana), and by expunging juvenile records (North Carolina). (A bill that would have allowed people in Maryland to expunge online evidence of crimes that didn’t result in convictions did not pass in the recent General Assembly session.)

We strongly support these efforts, though we would stop short of allowing sealing or expunging for serious violent crimes (e.g., murder or rape) or for professionals who should know better (e.g., people in the financial services industry who commit fraud or related transgressions).

Some employers – including Facebook, Starbucks and Walmart – have taken the complementary step of removing the box on application forms that asks about former criminal activity. The federal government should do the same, except in the case of law enforcement jobs, as the Brennan Center for Justice has recommended.

As Arthur Brooks of the American Enterprise Institute said earlier this week at a White House conference on the economics of the criminal justice system, America cannot afford to waste so many lives. One good way to save them is to allow nonviolent criminals to seal or expunge their records after a period of good behavior.

Peter R. Orszag and Cass R. Sunstein write for Bloomberg View.