Article Title

Insider Expungement


Like many phases of the criminal justice system, insiders dominate the practice of expungement and there is little to no involvement of the broader community. Recently, scholars in favor of democratization in criminal justice have called for enhanced public involvement during policing, charging, bail determinations, plea-bargaining, and sentencing to improve accountability, transparency, and democratic participation. This Article is the first to extend this critique to decision-making during the expungement process. It conveys how expungement always has been the province of insiders and how recent expungement reforms, while broadening some substantive expungement remedies, double down on this paradigm. Procedures are implemented by judicial staff, prosecutors and defense attorneys filter petitions, the ultimate decision usually rests with a single judge, and bureaucrats are tasked with making expungement efficacious. The move towards tech-based, automatic expungement is merely insider expungement by another name.

After documenting insider expungement in its past and present forms, this Article explains why insider expungement adjudication is the norm. First, expungement processes were conceived, designed, and reformed in a system characterized by increased bureaucratization. In this sense, expungement law is a product of its environment. Second, the expungement remedy implicates the maintenance of public criminal records, which are connected to policy preferences for deterrence, incapacitation, and rehabilitation, all of which involve complicated costbenefit analyses. In the same vein, expungement adjudication is about the assignment of risk to individuals, which traditionally has been understood as the province of criminal justice experts. Finally, insider expungement is built on the premise that the public is too punitive. In sum, insider-based expungement is a product of forces for criminal justice professionalization that are larger than the field of expungement, as well as a belief that the public cannot be trusted to address stigma-based harm or foster reentry. Finally, while there is no question that the ability to obtain formal expungement relief has become easier over the past two decades, this Article notes several possible concerns with an exclusively insider-based expungement regime, including how secrecy and insider adjudication might undercut the purpose of expungement in the long run: full reintegration by the community and for more individuals. The absence of the community from expungement adjudication raises procedural justice, democratic, and legitimacy issues.



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