A Cautionary Success Story

Anyone who has been around the Access to Justice space for more than a few months has likely run into one or more efforts to help people with criminal records expungement. And with good reason — even a decades-old criminal conviction on a person's record can create substantial barriers to finding housing, employment, and a range of other services and privileges.

Here in Oregon, we're fortunate that a host of factors has combined to make records expungement easier than ever. I won't get the order of events quite right, but they include:

  • Then-new lawyer Michael Zhang (himself a software coder) combined forces with Code for PDX's Jordan Whitte, Kent Shikama, and a number of other volunteers to create RecordSponge Oregon, which bills itself as "software that helps community organizations quickly analyze an individual’s criminal history to determine if they qualify to have their records expunged." For their efforts, they received the Oregon State Bar's 2020 Technology and Innovation Award (disclosure: I was an unofficial advisor on this project).
  • Leveraging his experience working for Metropolitan Public Defenders, Michael started working with local organizations around the state to hold expungement clinics at local libraries and other public spaces. This helped better understand the needs of people who need expungement help, and also provided a way to provide feedback to RecordSponge's development team to dial-in the software.
  • Soon Leni Tupper and her team at Portland Community College's Clear Clinic adopted the software to power their criminal expungement efforts, and were able to significantly improve their throughput as a result. For this and other reasons, Leni received the Oregon Bar's 2022 Technology & Innovation Award.
  • There are a ton of other groups and individuals that have been focusing on records expungement in Oregon; I don't mean to exclude anyone. RecordSponge has at least a partial list here.  
  • In 2021, in an effort spearheaded by Metropolitan Public Defender, the Oregon Legislature passed SB 0397 which overhauled and simplified the process for obtaining records expungement in Oregon. Lohrke Law in Springfield has a good write-up of the new rules.

As a result of these changes, more than 10,000 people in Multnomah County alone (Oregon's most populous county) were able to get their criminal records expunged in 2022.

That's the success story part of this post. Here's the cautionary part:

Willamette Week is reporting today that the backlog of expungement cases in Multnomah county has ballooned from under a thousand in December 2021 to over 15,000 today. And (as we would expect from Little's Law) processing times have exploded as well, with applicants reporting wait times exceeding 14 months to finalize their expungements. The statute requires review within 120 days, . (My guess, with the backlog continuing to grow, is that someone filing a new expungement today should expect to wait significantly longer).

Why the delay? According to the article, SB 0397's proponents expected expungement applications to increase by around 60% once the new rules went live. The actual increase has been 27 times higher than anticipated, from an average of around 50 applications/month in 2021 to over 800/month today (1600% growth).

Because each expungement request must be reviewed by the Multnomah District Attorney's office, and because the DA didn't allocate any additional resources for processing expungement applications, the lone clerk tasked with reviewing expungements was quickly overwhelmed and eventually left the job entirely. Sign-off is also needed from the Oregon State Police, and any objections to the expungement must then be heard in Multnomah County Court. None of them was expecting such a large increase in volume, and all are contributing to the delay.

This is a real-world example of an objection I raised several times at this year's Stanford CodeX conference. Multiple presenters there were touting the power of generative AI to simplify the intake process for various legal needs; immigration, trademark, and some others that I can't recall. "Improving intake is foolish," I argued, "if the matters just wind up getting stuck at some downstream processing stage of the legal workflow."

In other words, it is not really access to justice to simply help people get their cases started if you don't have the capacity to also get those cases resolved in a timely manner. In fact, the Theory of Contraints tells us that improving the flow of work upstream of your actuall system bottleneck is likely to make your throughput rate and cycle time worse.

What can we learn from this?

If you're making an access to justice improvement, you really need to ensure that all parts of the system can handle the additional volume, not just the intake process. While the success of Oregon's expungement changes seem to have caught everyone by surprise, we still did nothing to prepare the DA's Offices, the Oregon State Police, or the Courts for even the anticipated additional volume; we just assumed that existing systems would be able to absorb the additional load.

(FWIW, we saw something similar happen in the early days of the pandemic, where many courts became gridlocked because they continued to accept new filings but stopped the hearings and trials that helped cases move forward. More intake with less output inevitably leads to bigger backlogs.)

If you're in private practice, the moral is to be really careful about beefing up your intake processes (or, upstream of that, your marketing efforts) to levels that are higher than your delivery workflows can handle. If you're interested in learning more, check out my office hours session from earlier this year on finding and fixing your law practice bottlenecks.

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