This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters here.
Last weekend a gust of wind sent a large patio umbrella crashing onto the roof of Bridgette Simpson’s car outside an Atlanta restaurant. No one was hurt, and the damage was fairly minor, but the car’s sentimental value sent Simpson into tears. “I used to live in my car — it was my safe haven,” she said.
After spending 10 years in prison, Simpson struggled to find housing where she was welcome and could afford it. For four months after her release she lived under a highway overpass while she saved wages from her work at a chicken plant — about $5,000 — to buy a road-worn Lexus with over 200,000 miles on it.
Simpson is one of an estimated 70 million to 100 million people in this country with a criminal record. The number is hard to pin down because of differences in how states keep records. Simpson’s record has placed a laundry list of barriers in her path to fully rejoining society.
But this past fall Simpson and other organizers convinced the Atlanta city council to pass an ordinance banning discrimination based on a person’s criminal history. By making formerly incarcerated people a legally “protected class,” it’s their hope that they can pull down some of the collateral consequences that hamper life for those who completed their sentences, but who remain second-class citizens in myriad ways.
“We're asking for an opportunity literally to just live, and to just be able to grow as people and to really participate in society,” Simpson told me recently.
Most barriers after prison are employment-related. In a 2021 report, the Council of State Governments’ Justice Center — a nonprofit, nonpartisan think tank — found that 72 percent of all post-release restrictions impact job opportunities. For example, people seeking work in trades bound by occupational licenses, like cosmetology or addiction counseling, are subject to stringent background checks — though some states have loosened these rules in recent years.
There have also been some changes around hiring for jobs without licensing. According to the National Conference of State Legislatures, more than half of states in the U.S. have passed some version of “ban the box” legislation. These laws aim to remove conviction and arrest history questions from job applications, and to delay background checks until after a job interview. The hot labor market in recent years has also helped somewhat, as businesses desperate for workers have warmed to hiring people with criminal records. Despite all of that, formerly incarcerated people have much higher rates of joblessness than the general public.
Once people find work, housing is often the most challenging barrier, a topic Marshall Project contributor John J. Lennon covered in The New York Times last week. Riverside, California resident Terrance Stewart told me how after he got out of prison for a drug conviction, he spent time homeless or in one roach-infested apartment after another. Stewart said that at the type of complexes that allow people with criminal records, landlords charge high rents for poorly maintained units because many residents there have nowhere else to go — and they fear retribution if they demand better conditions.
Various forms of civic and social exclusion also take a destabilizing toll. Many formerly incarcerated people are barred from voting, but that’s not where the prohibitions end. “You can’t be a bingo caller, you can’t join the PTA, you can’t go on field trips with your child,” Stewart said. In many cases, people with criminal records are kept off of dating apps too.
Stewart said his record even kept him and his wife from adopting her nephew when the child needed a guardian. “Every time I try to do something better, my criminal record is my biggest nemesis,” he said.
Stewart is a member of TimeDone, a California organization that recently advocated the passage of a state law that dramatically expands the number of people eligible to have their criminal records sealed. It’s common to hear people speak about record “sealing” or “expungement” interchangeably. States vary widely on this question, but generally speaking expungement means the destruction of a record, and sealing limits who may see the record.
The new California law is broadly considered to be the most sweeping of its kind in the nation. Once fully implemented, conviction and arrest records for most felonies will be automatically sealed for people “who are not convicted of another felony for four years after completing their sentences and any parole or probation.” Those convicted of serious felonies won’t have their records sealed automatically, but can petition a judge to have it done. The law excludes registered sex offenders. Records of arrests that don’t bring convictions will also be automatically sealed.
The California law passed over the objections of the state’s Peace Officers Research Association, which argued that the measure put communities at risk. Objections to record-clearing bills are usually framed around questions of public safety, but there's some evidence that collateral consequences — like former prisoners being unable to find employment — can actually drive crime. Other research suggests that if a person does not commit a new crime within four to seven years of release from prison, their likelihood of doing so at all drops to a rate comparable with people without a criminal record.
Other states, including Nevada, Oregon and Arizona are also considering record-sealing bills — frequently referred to as “clean slate” legislation. Last month a bipartisan group in the U.S. congress formed a task force to work on similar federal legislation.
Jay Jordan, who leads TimeDone, said a benefit of these kinds of laws is that it puts the onus on the state, rather than on individual landlords, employers or organizations, not to discriminate against people with criminal records.
“It is literally this system saying this person is rehabilitated, go on and live your life,” Jordan said, before asking me to note the period at the end of his organization’s logo. “It signifies that when your time is done your sentence should be complete. The sentence isn't complete without a period.”
