Would ‘Clean Slate’ laws backfire?

In praise of ‘Clean Slate’ laws

In our 2019 report ‘Minnesota’s Workforce to 2050,’ I suggested that a “Clean Slate” law, such as those enacted in Pennsylvania and Utah, might help get people back into the labor force. As the Center for American Progress explains:

Under Pennsylvania’s clean slate law, nonviolent misdemeanors are automatically sealed after 10 years if an individual remains conviction-free. A record query is then conducted through computer technology and any qualifying records are automatically sealed, meaning that those records will no longer come up in third-party background checks and are also shielded from public view—including from employers, housing officials, and educational institutions. The automatic sealing also releases an individual from going through the arduous and costly process of filing a court petition.

In Utah, the:

…clean slate law automates the preexisting process of court petitions and automatically seals low-level criminal records as long as the record holder has committed no additional crimes in the past 5 to 7 years, depending on the offense.

Such laws, it is hoped, would help people with relevant convictions get back into the labor force and rebuild their lives. That is their intent. But we should judge policy on outcomes, not intentions, and here there is reason to think again.

For the Niskanen Center, economists Jennifer Doleac and Sarah Lageson explain that:

Unfortunately, the evidence we have suggests these policies will not work. In fact, record-sealing could increase discrimination based on race when criminal records are not visible. 

The experience of ‘Ban the Box’ laws

“This is not the first time that advocates have tried to reduce discrimination against people with criminal records by hiding those records” they note, in reference to so called ‘Ban the Box’ laws which prevent employers from asking about applicants’ criminal records until late in the hiring process. Minnesota enacted such a law in 2013, but the results are mixed. The Urban Institute writes that

Research on ban the box has shown that it increases callback rates for people with criminal records (Agan and Starr 2016). Agan and Starr (2016) find that ban-the-box policies “effectively eliminate” the effect of having a criminal record on receiving a callback. Case studies from specific cities support these results, showing that hiring rates for people with criminal records increased after ban the box was implemented (Atkinson and Lockwood 2014; Berracasa et al. 2016).

But the majority of the consequences of any action are unintended. It turns out that when employers are stopped by law from asking about criminal history, they don’t disregard it as factor in hiring, instead they look for proxies. The Urban Institute writes that

…recent research has concluded that ban the box also reduces the likelihood that employers call back or hire young black and Latino men (Agan and Starr 2016; Doleac and Hansen 2016). These findings suggest that when information about a person’s criminal history is not present, employers may make hiring decisions based on their perception of the likelihood that the applicant has a criminal history.

In other words, the “increase[d] callback rates for people with criminal records” have been bought at the expense of a “reduce[d]…likelihood that employers call back or hire young black and Latino men”. This is consistent with other research which finds that such laws “decrease the probability of employment…for young, low-skilled black men” in return for “negligible impacts on ex-offenders’ labor market outcomes.”

Doleac and Lageson explain that because such laws:

…don’t directly address employers’ concerns about safety and fit for the job, not being able to ask about criminal records upfront simply leaves employers to guess. In the United States, young men of color are more likely to have recent criminal convictions. Because of this, Ban the Box incentivizes employers to discriminate against applicants from this group. 

“The motivation behind Clean Slate is similar,” Doleac and Lageson write:

Once criminal records are sealed, advocates hope that employers who do not want to hire people with records will simply not discriminate. But as the case of Ban the Box shows, this policy might broaden discrimination rather than reduce it.

The prospects for ‘Clean Slate’ laws

Doleac and Lageson arue that:

The effects of Clean Slate will hinge largely on why employers discriminate against people with records in the first place. Clean Slate could reduce legal liability concerns for the subset of applicants whose records are sealed, since an employee’s sealed record cannot be held against an employer in court. However, if employers are worried about something else—such as reliability or productivity—we probably will not see such benefits. Because Clean Slate targets minor and older offenses, it could simply have no effect at all. Research shows that these types of records already result in less discrimination than more serious and recent offenses do.

To the extent that Clean Slate seals records that employers care about, it could leave them guessing, just as Ban the Box did. Employers who want to avoid hiring people with a criminal past may then discriminate against applicants from groups where criminal records are more common. Once again, this would most likely harm young men of color who never had a criminal record.

Again, whatever the intention of the law, this is a very serious point which policymakers have to take into consideration: what are its effects likely to be? I have argued before that Minnesota should ditch its Ban the Box law precisely because of these unintended consequences. And we must be guided by the evidence. I must also, it seems, rethink my support for ‘Clean Slate’ laws.