The First Step Act, signed into law in 2018 under the first Trump administration, was a massive victory for federal criminal justice reform. Before the passage of the First Step Act, the last major federal criminal law changes were the Violent Crime Control and Law Enforcement Act of 1994, the Second Chance Act of 2007, and the Fair Sentencing Act of 2010—all dealing with sentencing or reentry programs. The second Trump administration has a unique opportunity to build on this legislation to further improve President Donald Trump’s record on criminal justice reforms.
The First Step Act included a host of reforms, most notably reducing mandatory minimums for certain drug offenses and retroactively applying the Fair Sentencing Act of 2010 to past sentencing discrepancies between crack cocaine and powdered cocaine convictions. Additionally, the First Step Act expanded the number of individuals who could receive lower than mandatory minimum sentences, and it ended sentence enhancements for gun possession in concurrent offenses.
After these various criminal justice reforms over the late 2000s and 2010s, a Council on Criminal Justice study found that the recidivism rate of those who received relief under the First Step Act was 55% lower than those released before the act with similar risk profiles.
Additionally, there have not been noticeable federal crime rate increases since the passage of the First Step Act. While there have been fluctuations in the overall crime rate over the past five years because of the COVID-19 pandemic and other factors, the general effect of the First Step Act is positive on recidivism and, at worst, is neutral on overall crime.
Despite these positive reforms, people who had their sentences reduced under the First Step Act continue to suffer collateral consequences, including barriers to employment, housing, and financial services. While the First Step Act made much-needed improvements to sentencing policy, more work remains to ensure that individuals with criminal convictions can successfully reintegrate into society.
Right now, a criminal record, even for minor offenses, remains a barrier to jobs, housing, and other things long after someone has served their time. Every crime should not come with an automatic life sentence where one continues to be punished in various ways.
A powerful next step would be to expunge or seal the records of low-risk, nonviolent offenders. Expungement effectively erases a conviction record or seals it from public disclosure, eliminating many legal and social obstacles associated with a criminal record.
A recent study published in the Harvard Law Review found that expungement recipients in Michigan were between 13% and 23% more likely to be employed within a year of receiving expungement. Wages also increased by approximately 23% among people who received expungement.
Reintroducing two bills from the previous Congress would be a good starting point for federal expungement reform. The Clean Slate Act would automatically seal records for simple drug possession and certain nonviolent marijuana offenses and establish a petition process for sealing additional nonviolent offenses. Research indicates that individuals who obtain petition-based expungements are very unlikely to re-offend.
Additionally, the Fresh Start Act would provide states with grants to update their legal justice data systems to enable automated record sealing and expungement.
There is no federal statute creating an expungement process, and federal courts have no inherent expungement power. Pennsylvania, Michigan, Virginia, New York, New Jersey, and 40 other states have some form of automatic or petition-based expungement or record sealing program. All these programs have recently been instituted within the last five to 10 years.
An automatic expungement framework would be more efficient than petition-based expungements, which have a notoriously low application rate because of a lack of knowledge of the process and other barriers to entry.
The number of people who would be eligible for expungement under the federal Clean Slate Act is relatively small because most crimes are prosecuted at the state level. However, the Fresh Start Act offers an opportunity for the Trump administration to help improve the state criminal record systems to allow for more efficient state-level expungement processes. Many states continue to have antiquated record-keeping systems where individuals’ criminal records are held at different levels of government, whether it be state, county, or municipality. The system of disparate record-keeping has led to some absurd results.
For example, scattered court records in Florida have created confusion over voter eligibility and complicated election enforcement efforts. In 2018, Florida voters passed Amendment 4 to the Florida Constitution by an overwhelming majority. Amendment 4 restored voting rights for convicted felons (except those convicted of murder or a sexual offense) upon the completion of their sentence, including the payment of fines and fees.
The implementation of Amendment 4 has been complicated by the fact that the records related to fines and fees are held by counties and municipalities, not the state. This reality means that many individuals lack the resources to discover all the fines and fees they owe across different counties and cities in Florida.
In 2020, an inmate named John Boyd Rivers registered to vote but was not informed of the requirement to pay all his fines and fees before doing so, nor was he given an account of what he owed. He was eventually charged with election crimes for failure to pay his fines and fees before voting, along with nine other felons with similar failures to pay. The Fresh Start Act could solve this issue of scattered recordkeeping in the states by issuing grants to states to modernize their recordkeeping system through digitization and centralization.
The First Step Act was a landmark reform that addressed sentencing disparities and excessive mandatory minimums. The second Trump administration should build upon this common-sense criminal justice reform by pursuing expungement reforms to ease individuals’ reintegration into society.