My Criminal Record Somehow Vanished

Sixteen years ago, during my last semester of law school, I caused a drunk-driving crash that killed my girlfriend. I pleaded guilty to negligent manslaughter and faced up to a decade in prison, but thanks to my girlfriend’s family’s forgiveness and whatever unearned sympathy I received as a middle-class white man, my sentence amounted to a few months in jail followed by several years on probation. Considering the sentences faced by many, I’d been very lucky.

Ever since, I’ve been among the 80 million Americans living with a criminal record and all its consequences. I’ve fantasized about what my life would be like if my record simply vanished. Not long ago, it sort of did—one more instance of a system that’s not just unjust but also capricious and poorly administered.

Given how common plea bargains are, a criminal record is not an especially accurate indicator of guilt, nor is it necessarily an indicator of what kind of person someone is, particularly years after what may have been the worst deed of their life. Collateral consequences—legal and regulatory restrictions and discrimination that apply to people with criminal histories—persist even after a person has completed their sentence, sometimes for life. And although some of the consequences people like me face make sense, especially when they’re related to specific safety concerns connected to specific types of crimes, these penalties have become so pervasive that we are practically living under a different legal system than everyone else.

The National Inventory of Collateral Consequences of Conviction has identified more than 40,000 federal and state laws cutting us off from employment and professional licenses, education, housing, public benefits, and even constitutional rights such as those to vote or to bear arms. Outside of the United States, other countries may forbid us from visiting. And even when we’re not legally barred, those of us with records often find ourselves excluded from basic parts of life most people take for granted.

After I got out of jail, in 2009, my criminal record seemed to close every door I tried to open. Looking for a job? Have you ever been convicted of a felony? Applying for bar membership? Out of the question. Purchasing life insurance? You’re too risky. I was able, eventually, to get a job helping people find work and navigate the complexities of life after incarceration, which grew into a career working on criminal-justice reform, addiction policy, and trauma-informed care. I’ve dedicated myself to honoring my girlfriend’s memory and making amends for what I did through work that saves and rebuilds lives, helping dozens of communities come together to address recidivism, addiction, and overdose. Even now, I’m routinely asked to explain my history. In just the past few years, I’ve been asked about my criminal record as part of applying to graduate school, filling out health screenings and discussing my health history with my doctor, seeking a home-improvement loan, and volunteering at my children’s elementary and middle schools: One allows me to chaperone, and the other says I can accompany my own children on field trips but can’t be trusted to supervise other people’s children.

[Conor Friedersdorf: Why second chances for prisoners are so hard to come by]

Think of the most shameful, painful experience you’ve ever had. Now imagine having to explain it to strangers over and over for the rest of your life to convince them you’re more than your worst mistake: That’s what it’s like to have a criminal record.

Those frequent reminders have meant that, for the past 15 years, the fact of my felony criminal record has never been far from my mind. While I’ve wished every day that I hadn’t made the horrible decision to get behind the wheel that night, I’ve also known that the permanent punishments I faced weren’t going to give my girlfriend’s parents their daughter back.

Then, in the spring of 2023, the impossible happened. I was getting fingerprinted for an FBI criminal-background check, part of a 100-page application to visit Canada for a work conference. Canada typically doesn’t allow Americans with criminal records in, but I’d been invited to present my research on post-traumatic growth, the topic of my recent memoir and an area of professional focus inspired by the pain of the car crash I caused. Knowing I would need special permission to enter the country, I’d compiled volumes of documentation showing my rehabilitation, hoping to overcome the stigma of the past that would be revealed by my background check.

Moments after having my fingers scanned, I was shocked by the email from the FBI that arrived in my inbox: “No criminal history record.” I read it more closely, searching for the part I must have missed or the error in the information they used to identify me. How could neither the FBI nor Maryland, the state that convicted and incarcerated me, know I was guilty of homicide? But they’d searched all the potential variations of my name, even using alternate spellings, and found nothing.

A few days later, when the official report arrived in the mail, I figured it would be updated and corrected. After all, these are the records used for professional licenses, to work in hospitals and schools, for gun background checks, and in law enforcement. But when I opened the envelope, the information was the same: no criminal record. I looked on the state’s publicly available online case search, and sure enough, my conviction was still there. I couldn’t fathom why the FBI would fail to report it. But I also knew from my work that the records are poorly kept.

It was as though I was suddenly transported to a different planet, a different life. I couldn’t help thinking, What would life be like for tens of millions of us if our criminal records just disappeared?

Quite obviously, those now held back by their criminal records would be much better off. We’d be able to pursue careers without our past holding us back. We would benefit economically, many of us obtaining financial security that is currently impossible. Even if we fell on hard times, we wouldn’t have to worry that society’s meager safety net could be pulled out from underneath us.

Society could benefit more broadly too. Having more people engaged, involved, and invested in the success of our communities would be a good thing. According to the Center for Economic and Policy Research, the employment consequences of a criminal record alone account for $87 billion in annual economic losses. Some of those losses would be recouped. The potential to reduce poverty, homelessness, trauma, and all their intergenerational effects would be significant.

Of course, we must balance this policy of erasure against possible risks to public safety. It’s true that people recently convicted of crimes are more likely to reoffend. But over time, people with criminal records are no more likely to commit a crime than the general population. Research suggests that after seven to 10 years, a past crime is not a good indicator of future risk. Using people’s criminal records appropriately but not excessively is the right balance to strike: For example, a person with a history of defrauding Medicaid is likely not suited to work in a hospital’s billing department, at least for a while, but if he wants to work in the same hospital’s public-relations department, that doesn’t raise the same concerns. Under current law, he’d be excluded from either job for at least five years, and in many cases, forever.

Appropriately using criminal records to manage risk might increase public safety, but we also have to be careful not to make living crime-free harder. Criminal-record barriers meant to promote safety often have the perverse effect of preventing people from accessing employment, education, housing, and financial security, all of which have been shown to decrease recidivism. Eliminating barriers that aren’t tailored to real risks would promote safety by supporting reentry and rehabilitation.

To the extent that criminal-history information is useful for reducing risk, that utility depends on accurate and complete records. Yet estimates suggest that at least 25 percent of felonies are never reported to the FBI and won’t show up on background checks for employment or firearms purchases. Moreover, for more than a decade, half of these records have been incomplete in ways that unjustly harm people, including those who may not have been guilty of any crime. The U.S. Government Accountability Office states that omissions often arise because prosecutors fail to report when charges are dropped or when defendants are acquitted. The problems of incompleteness are compounded by a private background-screening industry that too frequently reports single incidents as multiple crimes, misclassifies the seriousness of offenses, or attributes criminal-history information to the wrong person.

Safety isn’t the only factor to consider; fairness matters too. Because of substantial racial disparities in every phase of the criminal-justice process, criminal-record barriers in effect are discriminatory against Black and brown people, reinforcing systemic inequality and intergenerational poverty. Fairness requires that punishments should be proportional to crimes, but our current system turns every punishment, for every offense, into endless sanctioning. And in many cases punishes less serious crimes with more severe penalties: Under federal law, for instance, a person with a drug conviction may lose access to federal nutrition assistance (SNAP, formerly known as food stamps) whereas a person with an armed robbery conviction would not. Except in circumstances where the risk of recidivism or serious harm is exceptionally high, justice demands that once someone has paid their debt to society and time has erased the safety concerns associated with their record, they should be able to move on with their life. For serious crimes, that window should be seven to 10 years; for less serious crimes, the look-back period should be shorter, and we should let people get on with their lives as soon as they’ve completed their sentence.

[Neil Gorsuch: America has too many laws]

It took many years for me to forgive myself for what I did, and I don’t think people should be punished forever for the mistakes they’ve made. But that doesn’t mean I’ve stopped taking responsibility for my actions, or stopped believing in the values of honesty and transparency, even when I could probably get away with denying my past. I sent a letter to Canada’s immigration authorities stating, essentially, “Don’t believe the FBI. I really do have a criminal record, which I’ve explained in this application. I hope that with what I’ve shared, you’ll let me in anyway.” Unfortunately, I got a letter back saying that the review would take six to 12 months.

It’s now been more than a year since I submitted the application. The conference is long over, but I finally received a response. In the envelope, I found a blank copy of the exact same application I previously submitted, along with instructions to complete it if I want to be considered for admission to Canada.

Mark O’Brien is the executive director of Trauma Informed and the author of Crashing: I Love You. Forgive Me.