by guest contributor Mitchell Berger, MPH
In recent years, federal agencies have increasingly emphasized supporting those in recovery from substance use disorders (SUDs). The Substance Abuse and Mental Health Services Administration (SAMHSA), for instance, formed in 2021 an Office of Recovery to “forge partnerships to support all people, families and communities impacted by mental health and/or substance use conditions to pursue recovery, build resilience and achieve wellness.” The Office of National Drug Control Policy’s in its 2024 National Drug Control Strategy includes a separate chapter on “Building a Recovery Ready Nation.” Yet little emphasis (in my view) has been placed on one important tool in supporting those in recovery: expungements of SUD-related criminal convictions (mentioned only once in ONDCP’s 2024 strategy).
Each year according to the nonprofit National Center for Drug Abuse Statistics, roughly 1.1 million people are arrested for drug-related offenses and 244000 are sentenced to prison. Significant racial and other disparities (e.g., age) with respect to arrests and incarceration persist. Prisons and jails generally remain ill-equipped to provide treatment services. Long after someone is arrested and, if incarcerated, eventually released from jails or prisons what are often referred to as “collateral consequences” linger in their lives. Indeed, the Council of State Government’s National Inventory of Collateral Consequences of Conviction (NICCC) has compiled roughly 40000 consequences of arrests and convictions ranging from limitations on licensing for certain occupations to restrictions on driver’s licenses. It also doesn’t help that many tenant and employment background check services appear to contain glaring inaccuracies about criminal and other history.
For those with substance-use disorder related convictions, general collateral consequences may be even harsher than those punished for other crimes or allegations. While subsequent changes permit flexibility at the state level, about half of states continue to adhere to 1996 restrictions limiting access to federal Temporary Assistance for Needy Families (TANF) and Supplemental Nutrition Assistance Program support for those with felony drug convictions. Federal public housing authorities and private landlords may evict those with drug-related arrests and convictions. Those using marijuana and other substances, even if decriminalized at the state level, still may be barred or dismissed from federal employment and military service. Student loan and scholarship eligibility may be jeopardized for those with drug-related offenses.
Both the federal and governments have taken steps to support ‘reentry’ for incarcerated persons and mitigate consequences of arrests and convictions, which, even for misdemeanors, such as are often questionable in the first place (such as arrests or convictions based on faulty drug test kits). Some states and even the federal government have implemented various forms of ‘ban the box’ requirements that limit use of criminal history in hiring decisions and federal agencies support programs to support access to health care, employment and education.
But another important solution may be to expunge these arrests and convictions entirely. The meaning and impact of ‘expungement’ may vary as the nonpartisan Congressional Research Service notes in its 2020 review. It may not necessarily mean the literal physical removal/destruction of records but, put simply, does as a rule restore to individuals their previous legal status and potentially restore eligibility for services and opportunities previously denied them. In some cases, records may be sealed, meaning they cannot be disclosed to employers or others. State expungement laws vary; some states, for instance, may not permit drug-related crimes or felonies or even certain misdemeanors to be expunged or significant limit eligibility. At the federal level, expungement generally is limited to certain first time drug possession for those under 21 at the time of the alleged offense.
Express federal support for expungement remains muted. A recent announcement about the Administration’s Second Chance reeentry efforts for instance does not mention expungement. The Department of Justice has supported the National Clean Slate Clearinghouse to “catalo[g] the state policies that provide individuals with a criminal or juvenile record the opportunity to clear that record as well as resources focused on records clearance.” However, in practice expungement may be difficult to obtain even in those states that provide a process for expunging records of a particular type of crime. Highlighting these challenges, a Harvard Law Review 2020 study found in Michigan “among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility.” Barriers noted by the authors include reluctance by those eligible to engage again with the legal system, lack of legal assistance, cumbersome and expensive processes and lack of awareness. A few states such as Pennsylvania have made efforts to make the expungement process automatic for certain offenses such as misdemeanors not involving violence. With bipartisan support, Pennsylvania recently extended policies that automatically seal criminal records related to certain nonviolent drug felony offenses.
In the past, the White House Legal Aid Interagency Roundtable (LAIR), a coalition of 28 agencies focused on legal aid and access to legal advice, has noted the importance of expungements and studied the collateral consequences of arrests and convictions. Some legislation also has been introduced at times that would support expungements of certain drug-related convictions, at the federal or state levels.
Yet, there are several steps federal, state, local, tribal and territorial governmental agencies, along with nonprofit organizations, academia and private sector partners could take to enhance use of expungements by and for those in recovery from SUD. First, LAIR members can focus their individual and collective efforts on supporting expungements at the federal and state levels, including recommending judicious and appropriate changes to existing programs to support federal and state efforts. Second, federal agencies and grantees can develop learning communities, affinity groups and similar efforts to support sharing of best practices by states, tribes, territories and providers. Third, agencies can consider offering trainings and easy-to-use resources about expungement for those exiting the criminal justice system, health providers, parole and probation officers, community nonprofits, employers and others. Fourth, SAMHSA and the Department of Justice could consider convening and supporting states, tribes and others in assessing and implementing use of expungements specifically for those with behavioral health conditions. Fifth, the federal government can support further study of collateral consequences and expungement for specific populations such as those with mental health conditions and SUDs. While good general resources exist, such as those cited above, these tools usually are not specifically focused on collateral consequences and use of expungements for those with mental health conditions and SUDs.
Expungement can be one important tool for helping persons in recovery from SUDs access education, employment and other opportunities and its use is consistent with both this Administration’s policies and bipartisan efforts to support those in recovery and mitigate long-term damaging impacts of incarceration. Government agencies and their partners should recommit to educating those they serve about this important approach.
Mitchell Berger, MPH, has worked on public health and behavioral health programs at the federal and local levels. The opinions expressed are solely those of the author and should not be imputed to any public or private entities
(image source: Alpha Photo)
Recovery Review 