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Indiana Law Journal

Document Type

Article

Publication Date

2025

Publication Citation

100 Indiana Law Journal 999

Abstract

Expungement has an uptake problem. A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only one to six percent of eligible people avail themselves of the remedy. Expungement is a powerful policy tool that promotes social and economic reintegration. It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes. One might assume people would rush to court to clear their records. That the opposite is occurring—and new laws are idling on the books—suggests that rights-creation in this space has not been efficacious. This demands a hard look at the mechanics of expungement to ferret out possible reasons for the stagnation of the most sprawling and ambitious policy attempt in recent history to address the collateral consequences of mass criminalization.

This Article tackles the uptake puzzle in expungement of criminal records. Employing an access-to-justice framework, the Article presents findings from a study that identifies uptake barriers embedded in the workings of formal law and institutions. We systematically analyzed the law and procedure governing expungement of felony convictions in all thirty-two states that allow for it. We then developed six metrics to study, all within the control of the formal institutions responsible for creating or administering expungement policy. These metrics investigated access to the expungement remedy in light of the unique legal regime in each state and allowed us to create a state-by-state comparison of whether and to what extent courts and legislatures developed the conditions necessary for a person seeking felony expungement to complete the process successfully. Our study uncovered access barriers to expungement uptake across three domains: informational, procedural, and financial. These barriers reflect governmental decisions to shift uptake burdens to ordinary people and enshrine those burdens in formal law. The Article provides rich qualitative analysis of these access barriers as one way to account for the uptake puzzle. With these findings, we elevate access challenges as both central to the efficacy of expungement policy and as eminently avoidable.

In addition, the Article offers three broad implications from our research that point the road forward on reform. First, we find that legislatures play a dominant role in restricting access to the expungement remedy. State expungement statutes are laden with access barriers, which create downstream impacts on courts and agencies charged with implementing the expungement remedy. Second, we suggest that, in each state, the institutions responsible for effectuating expungement relief have developed de facto “access policies” that serve an adjunctive role to substantive expungement policy. Without exception, we find that states’ access policies are internally inconsistent and work at cross-purposes with the stated goals of expungement. Third, we point to the limits of automatic expungement in overcoming the access barriers we describe. What is commonly depicted as automatic expungement in fact is a state-initiated process that is plagued by informational deficits in access to criminal record data, making it difficult to match eligible records against state legislative eligibility criteria. We call on legislatures to leverage their substantial convening power to study the real-world circumstances of expungement applicants and revise their expungement laws to increase uptake.

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