There is nothing automatic about automatic criminal record relief

A marijuana plant in a flowering room, August 17, 2023, at PharmaCann, Inc.’s cultivation and processing facility in Buckeye Lake, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original story.)

Views expressed are our own, and do not represent the views of The Ohio State University or the Moritz College of Law. For more information on Ohio record relief options, please visit our website.

In November 2023, Ohio voted to legalize recreational marijuana for adult use. Like other states that have taken similar steps, the Ohio General Assembly is now considering two bills that call for automatic record relief, whereby the government works to identify and remove certain criminal records, as opposed to requiring an individual to petition the court for relief. One bill, not yet introduced, focuses narrowly on minor marijuana offenses while the other is broader in scope and encompasses all offenses currently eligible for sealing or expungement. 

Many supporters of record relief advocate for so-called automatic approaches given the long-lasting impact of a criminal record on one’s employment, housing, and educational opportunities, and the fact that only a very small percentage of eligible individuals apply. Unfortunately, there is nothing automatic about automatic record relief. 

This past Second Chance Month, the Drug Enforcement and Policy Center published recommendations for how the General Assembly could craft policy for automatic record relief to maximize the number of people who benefit, while at the same time ensuring efficient and timely implementation given the complexity of Ohio’s non-unified court system. In a non-unified system, each court uses different record keeping methods and processes making standardization of record relief across more than 240 courts challenging, as shown in our previous research. Additionally, Ohio lacks a centralized repository for all criminal justice data, making the task of identifying criminal records very complex; Ohio Bureau of Criminal Investigation, clerks of courts, and prosecutors are limited in their ability to produce a list of eligible cases that is both complete and accurate.

Given the large number of cases that Ohio processes annually (over half a million in 2021 alone according to the Court Statistics Project), policymakers must consider whether relief should be applied retroactively, which offenses should be eligible, and what, if any, mandatory waiting periods should be imposed. To make implementation easier and less costly, policymakers could consider enacting different levels of relief depending on the severity of the offense, eliminate or redefine waiting periods, limit prosecutor and judicial discretion for certain types of cases, and have different agencies share the responsibility of identifying cases eligible for automatic relief. All these policy decisions require careful and deliberate consideration.

Regardless of the particulars, implementation will require a significant and ongoing investment of resources to make automatic record relief a reality. This funding could come from future marijuana tax revenue, which should also be used to bolster participation in Ohio’s current sealing and expungement petition process, the need for which will not disappear with automatic record relief. Also, a concerted effort must be made to publicize the existence of record relief so people whose records were sealed automatically are aware of the change in their status, and people who are eligible for petition-based relief can take advantage of what is available to them. 

Policymakers should also require regular reporting requirements for all entities involved and invest resources to improve data collection capabilities. This could be achieved by tasking a state agency as a data and policy clearing house, or it could entail leveraging Ohio’s universities. Either way, allowing sufficient time and resources for compliance, coordination, and course correction is crucial to ensure effective implementation and to avoid inequitable application of the law.  

The Ohio General Assembly will have to contend with difficult policy choices, but Ohio has a unique opportunity to learn from the experience of others when it comes to writing its own automatic record relief story. Good intentions alone are not enough. If automatic record relief is to succeed in Ohio, we must take the time to do it right.

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