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New Publication on Balancing Discretion and Uniformity in Clean Slate Policies to Advance Racial Equity
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Criminal records have long served as a barrier to employment, housing, education, and full civic participation, often for decades after individuals have completed their sentences. With over 42,000 legal restrictions tied to a criminal record in the U.S., the long-term consequences of even minor convictions are staggering. For Black Americans, who make up a disproportionate share of individuals with records, these barriers are a direct extension of racial inequities embedded in the criminal legal system.
In Discretion and Uniformity in Criminal Record Clearance: Maximizing Impact and Racial Equity, recently published in the Ohio State Journal of Criminal Law, the authors, Jesse Kelley, Sam Sinyangwe, and Dr. Laura Chavez explore the urgent need for a more just, efficient, and equitable approach to record sealing, and the importance of designing policies that strike the right balance between two often competing forces: discretion and uniformity.
Discretion vs. Uniformity: A Core Tension in Record Sealing
Discretion in record sealing refers to the ability of judges and prosecutors to evaluate sealing cases individually. On one hand, it allows for a nuanced understanding of each person’s rehabilitation journey. But on the other hand, discretion can lead to discrimination and inconsistency, particularly when influenced by racial biases, jurisdictional politics, or lack of oversight.
Uniformity, by contrast, promises consistency. Automatic record sealing through Clean Slate laws ensures that relief is applied fairly and predictably for all those with eligible records. By minimizing the role of human judgment in sealing eligible records, automated systems can reduce disparities and streamline relief for people who have completed their sentences and meet established legal criteria.
The tension between these two approaches is not easily resolved, but understanding when and how each should be applied is key to maximizing the reach, impact, and equity of Clean Slate laws.
Using Data to Inform Equitable Clean Slate Policies
The Clean Slate Initiative’s national data model shows that nearly half of all Black adults in the U.S. have a criminal record. Yet, many state laws impose arbitrary caps on the number of convictions that can be cleared or blanket exclusions of certain types of offenses, limitations that disproportionately block access to relief for people of color. For example, in Delaware, eliminating caps on the number of convictions eligible for sealing would nearly double the number of Black residents eligible for full record relief. In Utah, removing caps on misdemeanor convictions would increase the number of eligible Black individuals by 50%.
These disparities highlight the importance of not only expanding eligibility criteria but also addressing how discretion is exercised within record sealing systems. Without safeguards, prosecutorial discretion can reinforce racial disparities through inconsistent challenges, delays, or denials that disproportionately harm Black individuals and other marginalized groups.
However, when guided by clear, transparent criteria and focused on individualized review of serious convictions, prosecutorial discretion can be a powerful tool for racial justice, especially in cases where strict eligibility rules might otherwise exclude deserving individuals.
That’s why designing Clean Slate policies that automate routine decisions and include fair, accessible petition-based processes for complex cases is critical to ensuring equitable access to second chances.
