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Amy F. Kimpel

Abstract

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction. Expungement seals or erases the defendant’s record of arrest or conviction. Some diversion and expungement programs are cost-free, but most are not. Yet a criminal record carries its own costs. A criminal record can limit where an individual can live, go to school, and whether they receive public benefits. As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth. Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass. This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization. These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means. This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste. Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.

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