“Participatory Expungement”

The title of this post is the title of this paper authored by Brian Murray recently posted to SSRN.  Here is its abstract:

Most jurisdictions that permit expungement draw the line at certain crimes — usually those implicating one or more victims, serious risks to public safety, corruption, or breach of the public trust.  This is unsurprising given how these crimes relate to the moral underpinnings of the criminal law in a democratic society.  This Essay explores, given the overall direction of expungement reform, whether expungement should reach more offenses and by what procedural means.

More specifically, it suggests the community’s interest in adjudicating expungement increases with the seriousness of the criminal record, whereas for lower-level criminal records, the petitioner’s interest in reintegration can outweigh the preference for community involvement.  As expungement reform climbs the ladder of offense seriousness, a dose of community involvement becomes more justifiable.

Given that expungement relates to the propriety of ongoing stigma and punishment, exempting the community from adjudication becomes increasingly problematic on political, ethical, and legal grounds as the severity of the criminal record increases.  In a democratic legal system, the community must have the ability to express its will about the purposes and functions of the criminal law through adjudication.  Second, the American constitutional tradition prefers community involvement in criminal matters.  Third, communities should be involved in shaping and creating second-chance norms when they are desirable.  “Participatory expungement” is warranted when the most significant normative questions relating to the criminal law are present, leaving room for development of a culture of second chances when the community thinks it is justified.