Millions of Californians with criminal records would get a second chance at normal lives if Gov. Gavin Newsom signs an historic bill that seals their criminal convictions from the eyes of potential employers, landlords, and licensing agencies.
The legislation, which eliminates certain felony convictions from background checks, could be revolutionary for California’s Black communities, which have a disproportionate number of previously incarcerated residents, contributing to high rates of unemployment and homelessness.
Nationwide, about 1 in 3 Black men have a felony conviction, affecting their access to jobs and housing and restricting their rights to vote and serve on juries. Those “collateral consequences” disproportionately affect people of color and low-income folks in ways that can follow them for their entire lives, said Jay Jordan, who spearheaded the push for the landmark legislation.
“There’s a huge epidemic right now of formerly incarcerated men dying from cardiac arrest and other health problems — high stress — because of this mountain of barriers,” said Jordan, who was incarcerated for robbery 18 years ago. Today he is CEO of TimeDone, a nationwide nonprofit organization that provides free resources for individuals with past arrests and convictions.
“We’re suffering in silence because we did harm in our community, and so we take and take and take all the punishment until the day we die.”
The legislation, passed by the California Senate in August, would shield certain records for those who have not re-entered the criminal justice system within four years of completing their sentences, parole, or probation. The bill does not automatically seal murder or other high-level felony convictions, and excludes sex offenders, who are mandated to update their location to law enforcement and the national sex offender registry.
Under this bill, a background check would still reveal an applicant’s criminal history to agencies connected to education, government, and law enforcement. But other agencies, such as the housing industry, would be barred from seeing those sealed convictions, though it wouldn’t prohibit them from asking an applicant about their criminal history upfront.
The policy would make California the first state to provide such a sweeping level of protection from discrimination for millions of individuals with felony convictions. Some states have enacted versions of “Clean Slate” laws — including Arizona, Michigan and New York — but their expungement programs are more limited in scope, focusing on low-level and nonviolent convictions.
Advocates for the California bill, SB 731, say they’re confident that Newsom will sign it because of his track record on criminal justice reform. In September 2020, for instance, Newsom signed a bill that allows trained incarcerated firefighters to expunge their criminal records after completing their sentence.
If signed, SB 731 would take effect in July 2023.
But the bill has faced criticism. Opponents say that preventing potential employers and landlords from accessing applicants’ criminal histories is a dangerous move. Law enforcement groups have been particularly vocal, raising concerns that the bill will encourage more repeat offenders.
“By expanding the relief of penalties for all felonies, we are placing our communities at risk,” the Peace Officers Research Association of California said in a statement, according to The Associated Press. “By allowing violent criminals back on the street, with their record dismissed, they will have less deterrent to commit another crime.”
Struggling to rebuild
Advocates argue that the legislation would reduce recidivism, giving formerly incarcerated people more opportunities to succeed through legal means.
Ingrid Archie, who works with Jordan as organizing director for TimeDone, says her own story is an example of how the current system fuels a cycle of crime. As an adolescent in California’s foster care system, Archie was taken into custody for skipping school, she says — the beginning of a criminal record that would include gun possession, theft, and gang-related charges.
Archie struggled to find employment and housing in a safe neighborhood because of her felony charges. She fell into debt while also being ineligible for financial government assistance because of her record.
“I stayed unemployed for a very long time. I worked in call centers for years because that was the only job I could get,” said Archie, 41. A year after she disclosed her felony record on an application for a major telecom company, the company fired her, she said. “They decided they didn’t want to employ those with a felony record anymore,” she said.
Desperate to provide for her child, she ended up back in jail on theft and drug sale charges.
Archie compares this system to The Black Codes, laws that limited the freedom of formerly enslaved Black Americans in the decades following the Civil War. For example, she noted that employment is often a requirement of probation — similar to the work requirement for formerly enslaved people, at the risk of going to jail.
“We face all of these collateral consequences for having a conviction, and it’s just another way to keep a collective crowd of people from being able to really re-enter into society for the rest of your life,” Archie said. “Some of these barriers are lifelong.”
Jordan had a similar experience. While serving more than seven years in prison, he dreamed up a plan to start a nonprofit “to teach the kids about the system” through school assemblies.
“The day before we were going to do the first assembly, the school district said I couldn’t do it because I have a felony. I had to tell 70 parents this wasn’t going to happen,” said Jordan, adding, “That was the first time I cried.”
Clearing the record
The ghost of Jordan’s felony conviction continued to haunt him whenever he applied for housing or inquired about obtaining a professional license. Background checks conducted by employers and licensing agencies show every contact an individual has had with the criminal justice system, sometimes without notation of how the cases were resolved.
This failure to report the outcomes of charges — from felonies to traffic infractions — has caused millions of Californians to lose out on opportunities such as housing, employment, health care and other essentials to be a productive citizen, said Jordan.
Arrests and charges can turn up in background checks even when they don’t result in a conviction or when a case is dismissed or pardoned by the governor. Even more concerning, a wrongful conviction – which has affected nearly 200 Black and Latinx men and women in the state since 1989, according to the National Registry of Exonerations — can also remain on the record books.
To address this issue, Jordan says he got the attention of lawmakers including then-Assemblyman Rob Bonta, who authored a bill that created a program that ensures the outcome of a case is recorded on an individual’s record and reported to the state’s Department of Justice. That bill, AB 1331, passed in 2019.
Now California’s attorney general, Bonta has begun retroactively granting relief to people who have completed sentences for misdemeanor convictions and to those who were arrested but not convicted of a crime.
Going back to Jan. 1, 1973, “we reviewed approximately 12.6 million subject records with roughly 55 million case records. Of those 55 million case records, about 11 million were granted relief and, of that, 3.8 million records were also provided directly to the courts,” according to the attorney general’s spokesperson.
Ensuring that the outcomes of these cases are properly reported in the state’s system is critical to ensuring that SB 731 is effective, Jordan said. If state records aren’t updated, people who are eligible to have their record sealed might be overlooked.
“If you look at other Clean Slate policies that automate the process like in Michigan, there was a very slim group of people that were eligible, because they didn’t fix the actual system,” Jordan said. “The system needs to get fixed first to make it possible for everyone to be eligible.”