Sealing felony records is integral to a bill sitting on Gov. Gavin Newsom’s desk.
Encounters with the criminal justice system, no matter how long ago or for what reason, can ruin a person’s life. California is on the verge of an ambitious attempt to change that.
An estimated 70 million to 100 million Americans have a criminal record, a history with law enforcement that turns up on background checks and sometimes Google searches. Applicants with criminal records can be half as likely as those without them to get a callback or job offer. Nearly 9 in 10 employers use criminal background checks; so do 4 in 5 landlords, and 3 in 5 colleges and universities. These practical realities make it harder to successfully reintegrate into society, in what researchers call “collateral consequences” of mass incarceration.
Most states have laws allowing for some form of criminal record clearing. Eligible individuals — generally those with no convictions, or who were convicted of a low-level offense — are typically required to petition a judge or state agency for clearance. Most don’t, whether because of the cost, complexity, or simply from lack of information. One University of Michigan study published in 2019 found over 90 percent of those eligible didn’t apply.
As a result, the “Clean Slate” movement was born — a recent push by criminal justice reformers to automatically clear, or seal from public view, records for eligible offenses.
Pennsylvania was the first state to enact automatic record clearing in 2018, followed by Utah, California, Michigan, Virginia, Delaware, and Colorado. Michigan’s law — passed in 2020 — was the first state to automatically clear some prior felony offenses.
A new bill, SB 731, recently passed by the California legislature and now sitting on Gov. Gavin Newsom’s desk, would go further.
If signed, SB 731 would significantly expand automatic sealing eligibility for people who served time in prison. And while people with violent, serious felony records would not be offered the automatic “clean slate,” they could, for the first time, petition to have their records sealed. Virtually all ex-offenders, except registered sex offenders, would now be eligible for relief.
“Clean slate automates the current process, but what we said is, the current process sucks,” said Jay Jordan, CEO at Alliance for Safety and Justice, the criminal justice group that has led the charge for SB 731. Jordan said they’ve been focused on making the petition process easier for individuals with records, so that everyone could have their fair day in court.
Two decades ago Jordan was sentenced to prison for a gun robbery charge. “I did eight years in prison and when I got out at 26 and tried to navigate the world, I realized I couldn’t,” he told Vox. He was rejected from various jobs and he and his wife are still facing barriers to adopting a child. “I’ve dedicated my life to trying to change this,” he said. “If I can get free, then everyone else can get free.”
How SB 731 would work
The bill’s author, state Sen. Maria Elena Durazo, wanted to help ex-offenders have an easier time transitioning out of prison. “About 75 percent of formerly incarcerated individuals are still unemployed after a year of their release,” Durazo told the Los Angeles Times. “So something’s wrong there. We expect them to get back on their feet, but we’re not allowing them the resources to get jobs and [have] careers.”
Under SB 731, while landlords and most employers would not be able to view expunged records, public and private schools would still be able to review them during job background checks. Law enforcement, courts, and the state justice department would also still have access to the sealed records, and individuals would be required to disclose their criminal history if asked about it when applying to serve in a public office, among other exceptions. And the law would not apply to sex offenders.
“This is not an über-progressive bill,” acknowledged Jordan. “We worked heavily with folks who don’t necessarily share our vision, the licensing agencies, the DOJ, it went through the rings of fire. But because of that, we’ve got the ‘mod squad’ on board,” he said, referring to the more centrist lawmakers in the state legislature.
If signed into law, record relief would become available for most defendants convicted of a felony on or after January 1, 2005, if they had completed their sentence and any remaining parole and probation, and had not been convicted of a new felony offense for four years. Advocates originally wanted records sealed after two years, but that version failed to clear the state assembly a year ago.
Californians for Safety and Justice estimates at least 250,000 people would be eligible for automatic record sealing under SB 731, and possibly as many as 400,000. Will Matthews, a spokesperson for the group, told Vox they believe at least 1 million more individuals would gain the right to petition courts for record clearance.
What we know — and don’t know — about record clearing’s effects
Criminal justice researchers caution that even if automated record clearing expands to millions more people nationwide, it might not inevitably make it easier for people with criminal records to find jobs or places to live. While some research is in the works, not much is yet known about how these record-clearing policies work in practice.
Beginning in 2004, some criminal justice reformers pushed to pass “ban the box” policies, a bipartisan reform that effectively barred employers from asking about a job applicant’s criminal history until at least after an interview. The majority of states ultimately did it for public-sector employment and at least 12 did so for private employers as well.
But the success came with some unintended consequences. Research published in 2016 found employers were actually more likely to discriminate based on race following the passage of “ban the box” policies, thus increasing racial disparities in job interviews. More recent research suggests the reforms have done little to increase employment for ex-offenders in the private sector.
Last month, three California academics published a new analysis showing that the eligibility criteria for automatic record clearing can also exacerbate racial disparities. California’s record clearing laws — passed in 2016, 2018, 2019, and 2021 — have disproportionately benefited white Californians over Black Californians, the scholars found. “It is easy to see how racial disparities in criminal record relief might emerge, as a range of discretionary decisions by criminal justice actors from the time of arrest through to sentence completion can affect subsequent eligibility,” they wrote.
“Policies don’t start from nowhere,” Amy Lerman, one of the study’s co-authors, told Vox. “We know that Black Americans have historically been much more likely to live in heavily policed neighborhoods, to be stopped and questioned by police, and to be sentenced to prison or jail. That means when you pass a law that limits criminal record clearance to only people who have committed some types of crimes, or who have some types of criminal records, it is going to have a different impact across racial groups.”
SB 731 would be an improvement over the status quo, the California scholars told Vox, but racial disparities would likely persist until offenses classified as serious or violent, such as robbery, are included for automatic eligibility. They pointed to empirical research published in 2009 that found among people arrested at age 18, the risk that they would be arrested again eventually declined to match people of the same age who had not been arrested. It took 7.7 years after a robbery arrest, 3.8 years after a burglary arrest, and 4.3 years after an aggravated assault arrest.
The impact of SB 731 would also likely come down to implementation. New notification systems may be needed so that eligible candidates become aware of their new rights; also needed are clear agency guidelines regarding missing data and timely communication between state agencies and commercial background companies.
Data collection and quality have been an issue for criminal justice reformers in the past, and the challenges are exacerbated by the rise of digitized records online. Every year, digital records of over 10 million arrests, 4.5 million mug shots, and 14.7 million court proceedings are digitally released nationwide. Often, outdated or false paper trails create additional barriers for those looking to seal their records.
Tiffany Lewis, a San Francisco-based consultant who advises tech employees on their job applications, predicted that SB 731 would do little to remove the kind of criminal information an employer routinely finds online. Private companies also aggregate, scrape, and share criminal record data. To prevent this, Sarah Esther Lageson, a professor of criminal justice at Rutgers University-Newark, said states need to issue stronger regulatory standards and limit employer and landlord uses of unregulated background checks.
Lageson told Vox that the best thing states could do is centralize their criminal record disclosure policies. “For instance,” she said, “police departments might disclose pre-conviction mug shots, while courts release a different set of criminal case information online, while the office in charge of releasing rap sheets might only disclose convictions from seven years ago.”
Such disclosure patchworks can cause harm and undermine automatic record-sealing efforts. “States might also consider ending the bulk release of pre-conviction records altogether, reserving the release of some mug shots and arrest or charging information on a case-by-case basis or through more traditional transparency law requests,” she said.
There’s new federal momentum for record relief
While there’s always a risk with criminal justice reform that advocates will pass incremental measures that leave too many behind, early experience with clean slate policies suggest activists are not looking at passing record-clearing legislation as a one-and-done activity.
California is not the only state pushing to expand eligibility from its initial reforms. Following the passage of Pennsylvania’s clean slate bill in 2018, a provision requiring payment of fines and fees for clearance emerged as a major barrier to relief. One analysis found that half of otherwise eligible misdemeanor convictions statewide and 75 percent of otherwise eligible misdemeanor convictions in Philadelphia would be disqualified due to relatively small amounts of outstanding debt. Two years later activists succeeded in removing the fines and fees requirement in Pennsylvania.
On the federal level, two bipartisan bills to aid automatic record clearing have also picked up momentum and are scheduled for their first Senate Judiciary Committee markups later this month. One bill, the Clean Slate Act, would automatically seal federal arrest records for individuals who weren’t convicted, and records for individuals convicted of low-level, nonviolent drug offenses after successfully completing their sentence.
A second bill, the Fresh Start Act, would create a federal grant program to help states build the infrastructure necessary to implement automatic record clearing. President Joe Biden had floated this latter idea while on the campaign trail in 2020.
“Historic levels of bipartisan momentum have continued to trickle up from the states to Congress,” said Rebecca Vallas, a senior fellow at the Century Foundation who helped develop the clean slate model.
For now, Jordan and other advocates in California remain optimistic that Newsom will sign SB 731 into law, even though the governor vetoed a bill last month to establish new supervised drug-injection sites. With rumors of presidential ambitions, some critics believe Newsom ducked signing the bill out of fear it would be used against him on a national campaign trail. A spokesperson for the governor, Omar Rodriguez, declined to comment on SB 731, but said “the bill will be evaluated on its merits.”
The musician’s (probable) quest for a short-film Academy Award, explained.
Say you are an extremely famous and/or wealthy person, and you decide you would like to have an Oscar. You could have just bought the Oscar that cinematographer Clyde De Vinna won at the second ceremony ever when it was auctioned earlier this year, but maybe you were busy that month. Or maybe what you want, more than anything, is to win a competitive Oscar, despite not being primarily known to this point for your film career.
Now imagine that you are a specific extremely famous and/or wealthy person. Imagine you are Taylor Swift, acclaimed pop star, celebrated songwriter, and director of All Too Well: The Short Film. And if you want to win an Oscar, those two words “short film” are your ticket to the stars. Increasingly, the live-action and animated short film categories are ways for famous people to win Oscars in far less competitive categories.
The Oscars are famously one of the more difficult competitive awards to win, but there are categories that are … less contested, let’s say, and categories where the rules to qualify are less stringent than in others. If you have access to the resources required to first get a film to qualify and then to mount a campaign for it to be nominated and eventually win — well, you’ll have a real leg up over the other nominees in a historically under-the-radar category.
As such, it makes sense for you, Taylor Swift, to mount an Oscar run in the live-action short category for your 15-minute, music-video-adjacent expansion of your 10-minute song expansion of your already pretty perfect five-and-a-half minute song “All Too Well.” (More on the relationships between all of that here.)
You aren’t breaking new ground here. You are following in a tradition several decades old, one that has benefited everyone from Kobe Bryant to Christine Lahti. You’re just arguably the most famous person to ever tread this path, and as such, you’re probably going to draw a lot more attention to this occasionally traveled Academy Awards byway.
How to win an Academy Award for your short film
The Academy Awards for animated and live-action short film have long been afterthoughts in the endless Oscar ceremony. Short films used to be shown before the main feature, back in the days when you would go to a movie theater for an evening’s entertainment that would often feature, among other things, a cartoon, a newsreel, a short, and at least one feature film. Now they exist primarily as a way for interesting young writers and directors to create calling cards that will get them noticed in the industry.
Sometimes, those promising young writers and directors create something that garners so much notice it launches their career and wins them a major prize. Directors like Taylor Hackford (Ray), Andrea Arnold (American Honey), and Martin McDonagh (Three Billboards Outside Ebbing, Missouri) won Oscars for live-action short film — Oscars that helped launch their feature-film directing careers.
The short film categories are unusually susceptible to interlopers, however, because they play by their own set of rules. Most categories at the Oscars require a movie to screen for a week in theaters in LA, New York, Chicago, the Bay Area, Atlanta, or Miami to be eligible. But the short film categories offer three different paths to Oscar glory, since so few short films are screened in American theaters anymore. Those three paths are:
- Screen your short film in a theater in Los Angeles, New York, Chicago, the Bay Area, Miami, or Atlanta for at least one showing per day for one week. The public has to be able to buy tickets to those screenings, and at least one of those screenings has to precede the release of your short film in a medium other than a movie theater, such as television or streaming. This path is similar to most other Oscar categories’.
- Win an award for your short film at a film festival the Academy has deemed worthy of qualifying you for a run at an Oscar. The list of eligible film festivals is 14 pages long and includes everything from winning the Palme d’Or for short film at the Cannes Film Festival, the most prestigious in the world, to winning the “Golden Starfish Award for Best Short Film” at the Hamptons International Film Festival. You have options!
- If you’re a film student, you can qualify by having your film win a Gold, Silver, or Bronze prize in the Academy’s Student Academy Awards.
For her part, Taylor Swift (sorry, you’re not her anymore, unless you literally are, in which case, hi) screened All Too Well: The Short Film for one week at the AMC Lincoln Square in New York last November. While that timing would qualify her for the 2021 Oscars in most other categories, which run on a January 1 to December 31 qualifying calendar, the short film categories follow the festival calendar more closely and run on an October 1 to September 30 calendar. Therefore, a short film from November 2021 is eligible for the 2022 Oscars.
Swift took the short to the Tribeca Festival in June, and she will also screen it at the Toronto International Film Festival, complete with a Friday, September 9, conversation with the festival’s CEO, Cameron Bailey.
The Tribeca and TIFF appearances aren’t really for Oscar-qualifying purposes as much as they’re designed to keep the film in the public eye (since TIFF is one of the major Oscar precursor festivals) and to establish Swift’s bona fides as a director. A Tribeca conversation with filmmaker Mike Mills dug into Swift’s filmmaking influences, her potential desire to direct a feature someday, and her increasing ability to step outside of her songwriting comfort zone.
It is worth noting here that Taylor Swift is extremely rich and famous. She can afford to not only make a short film, but also book a movie theater to screen it at a time when most theaters aren’t making a habit of showing short films. That’s a path not every filmmaker can take, and it gives her an advantage in a category that historically favors up-and-coming directors. That said, Swift is technically an up-and-coming director, one whose short film bears a sophisticated visual eye while also falling prey to the common young director pitfall of moving the camera way, way too much.
Finally, Swift is Oscar-eligible in a different category this year, one where you’d more likely predict her to be nominated: Best Original Song. “Carolina,” a song she wrote for the film Where the Crawdads Sing, will be eligible for that category. Whether “Carolina” will be nominated or suffer the same fate as her non-nominated song from Cats remains to be seen. She’s also in the movie Amsterdam, from Oscar-favorite director David O. Russell, but that’s a small supporting part and unlikely to garner awards attention.
Taylor Swift might be the most notable famous person to use the different rules of the short-film category as a sneak attack on the Oscars, but she’s far from the only one. She’s not even the only famous person to attempt an Oscar run like this in this year.
Why did Kobe Bryant win an Oscar? He made a short film.
In 2018, basketball legend Kobe Bryant won an Oscar for animated short film for the film Dear Basketball. Bryant was not an animator, and he did not direct the film. (Legendary animator Glen Keane handled that job, thus winning his own first Oscar.) Because the film was based on his script, however, Bryant shared in the prize. It was the first time many Oscar watchers became aware that, hey, a short-film Oscar seems to be much easier to win than an Oscar in a more competitive category.
The very next year, actress Jaime Ray Newman, best known for her work on TV, shared the live-action short film prize with director Guy Nattiv for the film Skin. Earlier this year, actor Riz Ahmed (previously an Oscar nominee for Best Actor for The Sound of Metal) won his own Oscar in the live-action short film category for The Long Goodbye, directed by co-winner Aneil Karia and based on Ahmed’s album.
Dig around in Oscar history and you’ll find all sorts of examples of the short-film categories’ relatively looser restrictions allowing interesting things to happen. Character actors like Christine Lahti and Ray McKinnon have won Oscars for shorts they directed and starred in, and the categories have also seen failed TV pilots and animated TV specials triumph. (The Academy quickly closed up the loopholes that allowed those wins to happen.)
This year, the recent prominence of Bryant and Ahmed’s wins has raised the profile of this path to Oscar glory, and other famous people are availing themselves of it. The Hollywood Reporter’s Scott Feinberg says that musician Kendrick Lamar’s short film We Cry Together screened for a week in Los Angeles in June and thus will be Oscar-eligible this year.
I want to be careful not to be too cynical here. All of the short films listed here stemmed from places more pure than simply longing to win an Oscar. Swift’s reclamation and reinvention of one of her most famous songs, Ahmed’s exploration of his fears around racism in Britain, Bryant’s ode to a sport he loved — they’re all best understood as artistic expressions first and awards plays second. Yet they are all awards plays, too. Why would any of these people go to the trouble of booking a theatrical run if not to qualify for an Oscar?
Which brings me to my final question: Do you think Taylor Swift cares if she EGOTs?
Do our celebrities feel the looming specter of the EGOT, or do they not care?
The EGOT — winning a competitive Emmy, Grammy, Oscar, and Tony — is one of those weird little bits of celebrity trivia that has slipped into the public consciousness. Though the term was invented by Miami Vice star Philip Michael Thomas, who stated it was his career ambition (he’s won none of the awards), it has taken off in the public consciousness. That’s thanks to some combination of 30 Rock, the way the internet makes it much easier to collect this sort of trivia, and how fun EGOT is to say.
Just 17 people have won an EGOT, with Jennifer Hudson joining the list in June, making her the most recent addition. Lots and lots of people have won two or three of the prizes; few have won all four. Even illustrious names like Stephen Sondheim and John Williams have only won three out of four. (Barack Obama, the only president to win more than one of these awards, has two out of four, thanks to a long-ago Grammy win and an Emmy win earlier this month. We can only hope he’s mounting a Tony-eligible revival of Urinetown even as we speak.)
/cdn.vox-cdn.com/uploads/chorus_asset/file/24005555/1402558501.jpg)
Theo Wargo/Getty Images for Tony Awards Productions
Swift has an Emmy and a Grammy, but the Oscar and Tony are historically the trickiest of the four awards to win. What’s more, her rough contemporary Adele just added an Emmy to her Grammy and Oscar last Saturday, when her special Adele One Night Only picked up a prize for the best prerecorded special. When it comes to other woman pop stars of the moment, Billie Eilish has several Grammys and an Oscar, and one can only assume an Emmy will follow whenever she decides she wants to write a song for Euphoria or something. If we expand to include men making music at the moment, John Legend already has his EGOT. Swift is falling behind!
(A musician who doesn’t yet have the awards recognition you’d expect is Beyoncé, who has won several Grammys but lost her first Oscar nomination to Eilish earlier this year. She received two Emmy nominations for her stunning 2016 video album Lemonade, but she lost a directing bid to Grease Live! and the variety special prize to a Carpool Karaoke special. Icons are often not recognized by awards bodies until later on, but I’m going to go out on a limb and say Lemonade probably should have won an Emmy over fucking Carpool Karaoke.)
I’m just not sure how much these celebrities actually think about EGOTing. If a legend like Stephen Sondheim gave a shit about whether he won an Emmy Award, allowing him to EGOT before he died, he surely would have cranked out a theme song for some forgettable sitcom or something. Lots of famous people probably enjoy winning awards but don’t think as hard about whether they will EGOT as those of us who follow “the industry” might.
So does Swift spend all her time strategizing how to win an EGOT? God, I hope not. If I were Taylor Swift, I would think about lots of other things before I thought about getting added to the Wikipedia page “List of EGOT Winners.” I must admit, however, that if I had an Emmy and a Grammy, I would definitely think all the time about how to get the Oscar and Tony, so maybe I’m wrong.
Regardless of motives, regardless of intent, winning an Oscar would be a feather in anyone’s cap. If Taylor Swift is able to win the Oscar for live-action short film, it wouldn’t be the category you’d most expect her to win in, but it would be an Oscar. For the rest of us, Swift winning a short-film Oscar would make for a fun trivia question years down the line. So see? We all win!
The Justice Department files an extraordinarily savvy response to the Trump judge’s “special master” order.
On Monday, Judge Aileen Cannon — a Trump appointee to the federal bench — issued a surprising order that effectively halted much of the Justice Department’s criminal investigation into classified records it recovered last month from former President Donald Trump. Cannon’s legal reasoning has been widely mocked by lawyers from across the political spectrum.
Today, the Justice Department made its first attempt to regain control over the classified documents.
In a motion asking Cannon to stay parts of her order, the Justice Department warns that the order risks “irreparable harm to our national security and intelligence interests” by sabotaging the intelligence community’s efforts to determine whether any of the sensitive information contained in the seized records has leaked beyond Trump. To understand why, you have to understand a bit about what makes Cannon’s order odd.
In her Monday order, Cannon ruled that she would appoint an official known as a “special master” to comb through the several boxes of documents the FBI seized from Trump’s Florida residence, and determine if any of those documents might be protected by attorney-client privilege or executive privilege. The FBI says it seized these documents from Mar-a-Lago as part of a criminal investigation into potential violations of several statutes prohibiting unauthorized retention of national security documents, including the Espionage Act. (Trump denies any wrongdoing.)
But that investigation hit a huge roadblock Monday, because Cannon also prohibited the Justice Department “from further review and use of any of the materials seized from Plaintiff’s residence … for criminal investigative purposes” until the special master’s review is complete.
The DOJ’s motion seeks a partial stay of this order. It seeks permission to continue using the classified documents in its criminal investigation, as well as a ruling that the special master will not review the classified documents themselves.
Under the process that typically governs stays of a federal district court’s decisions, the DOJ must first ask Cannon to suspend parts of her order before it may ask a higher court for a stay. The DOJ indicated in its motion that it will seek such a stay from an appeals court “if the Court does not grant a stay by Thursday, September 15.” The government also formally announced on Thursday that it will appeal Cannon’s order.
The FBI says Cannon’s order undermines US national security
The FBI took several boxes of documents from Mar-a-Lago, Trump’s Florida residence, 103 of which had classified markings. According to the Washington Post, these papers include “a document describing a foreign government’s military defenses, including its nuclear capabilities.”
According to the Justice Department’s motion, assessing the “potential damage to our national security and intelligence interests” of having these documents remain insecure for so long is of “vital importance.”
Technically, Cannon’s order permitted the intelligence community to continue its investigation into whether Trump’s alleged theft of these classified documents harmed national security. But, as the Justice Department explains in its Thursday motion, “the ongoing Intelligence Community (‘IC’) classification review and assessment are closely interconnected with—and cannot be readily separated from—areas of inquiry of DOJ’s and the FBI’s ongoing criminal investigation.”
The FBI is both a law enforcement body and “part of the Intelligence Community,” the DOJ explains. Indeed, the FBI is the intelligence agency with primary responsibility for conducting intelligence investigations within the United States. For this reason, “the same personnel from the FBI involved in the criminal investigation were coordinating appropriately with the IC in its review and assessment.” And the FBI often relies on criminal investigative tools, such as grand jury subpoenas or search warrants, to conduct intelligence investigations.
Thus, the DOJ argues, preventing the FBI from conducting a criminal investigation into the classified documents also frustrates its intelligence investigation. As the DOJ explains, “any FBI agent or analyst who investigated whether the classified records were improperly accessed, for instance, would by definition be gathering information highly relevant to —and thus in furtherance of — ‘criminal investigative purposes.’”
The DOJ makes several very savvy concessions in its motion
In her Monday decision, Cannon gave several reasons why she believed that Trump should be able to seek the return of some of the seized documents, and then referred to these reasons as justification for appointing a special master. Cannon claimed, for example, that “at least a portion” of the seized records include “medical documents, correspondence related to taxes,” “accounting information,” and “material potentially subject to attorney-client privilege” that Trump may need for his personal business.
The Justice Department’s motion announces that it will make several concessions to Trump, in an apparent effort to take some of Cannon’s objections off the table. Specifically, the DOJ reveals that it “plans to make available to [Trump] copies of all unclassified documents recovered during the search — both personal records and government records — and that the government will return [Trump]’s personal items that were not commingled with classified records and thus are of likely diminished evidentiary value.”
Thus, Cannon will no longer be able to argue that the FBI has deprived Trump of access to his personal documents. And, by returning at least some of the non-classified documents, the DOJ will also reduce the number of records that a special master could review.
Cannon’s Monday order was highly unusual and rested on extraordinarily dubious legal reasoning. Among other things, Cannon argued that Trump is entitled to special protections that are not ordinarily afforded to other criminal suspects because he used to be president. So it remains to be seen whether any concessions by the DOJ — or any warnings that Cannon is endangering national security — could move this judge to reconsider her earlier approach.
If Cannon does not reconsider, the next move will be to the United States Court of Appeals for the Eleventh Circuit, where Trump appointees hold six of the court’s 11 active judgeships.