Criminal Records in 2026: The Half-Sealed System

The 2026 paradox

Two things are simultaneously true about criminal records in 2026. First: between 70 million and 100 million Americans — as many as one in three — "now have some type of criminal record," according to the Sentencing Project's foundational profile, with NELP's "65 Million 'Need Not Apply'" report providing the lower-bound estimate (Sentencing Project — Americans with Criminal Records) (NELP — 65 Million Need Not Apply) (Brennan Center — Just Facts) (Center for American Progress — Criminal Record Shouldn't Be a Life Sentence).

Second: the legal-and-administrative apparatus for clearing those records is the most active it has been in any year since digitization began. The Clean Slate Initiative documents that 13 states and Washington, D.C. now have automatic-record-sealing laws meeting its policy criteria (Clean Slate Initiative — states) (Clean Slate Initiative — research data) (Brookings).

The paradox is that more records exist, and more sealing infrastructure exists, simultaneously. Whether a particular American with a record can practically get past it in 2026 depends on which state they live in, which agency they're trying to clear it from, and whether a commercial background-check vendor has already indexed it before the seal lands.

What "criminal record" actually means

"Criminal record" is a category that, on close inspection, collapses into at least seven distinct record layers, each governed by a different legal regime:

• Arrest records, held by the arresting agency (typically a county sheriff or municipal PD), subject to state sunshine laws and to the new wave of mugshot-removal statutes.
• Court records, held by the trial court, governed by state-court access rules and federal FRCP 5.2 for redaction.
• Prosecutor files (charging decisions, declination memos), often shielded from FOIA.
• Conviction records, held by the state's criminal-history repository (the state-police-equivalent agency) and by the FBI's NCIC, governed by the FCRA when accessed by background-check vendors.
• Corrections records, held by the state DOC or BOP, with parallel transparency obligations.
• Probation and parole records, governed by separate state regimes.
• The aggregated commercial copy, held by background-screening companies that scraped or licensed the underlying records — the layer that lives outside the state's sealing reach.

The Center for American Progress's analysis frames the structural problem: criminal records function as "a life sentence to poverty" because the commercial-data layer doesn't honor most state sealing orders (Center for American Progress). The Sentencing Project's Re-Punished for the Past documents how the same record can reappear at sentencing for an unrelated offense decades later (Sentencing Project — Re-Punished for the Past). The Council of State Governments' Collateral Consequences Resource Center catalogs the federal regulation of criminal background checking (CCRC).

The rap-sheet error pandemic

The structural fact that drives most of the regulatory action in 2026 is that background-check reports are inaccurate at scale. NELP's analysis estimates that "1.8 million workers a year are subject to FBI background checks that include faulty or incomplete information, and 600,000" face an adverse action based on those errors (NELP — Wanted: Accurate FBI Background Checks).

The CFPB's largest single enforcement action in the background-screening category remains its Sterling Infosystems consent order. The Bureau filed a stipulated final judgment with Sterling in November 2019 requiring $6 million in monetary relief (CFPB — Sterling Infosystems enforcement page) (CFPB newsroom — Bureau Settles with Employment Background Screening Company) (CFPB — Sterling stipulated order PDF). The CFPB's own background-screening framework analysis collects parallel enforcement actions in one place (CFPB — Fair Credit Reporting; Background Screening, Jan. 2024).

The class-action overlay matters because the FCRA's private right of action is the principal enforcement mechanism in this category. Settlements in the FCRA-class-action category have run into the hundreds of millions in aggregate across the last several years, with individual settlements ranging from the high six figures (small-vendor cases) to the low eight figures (cases against the largest CRAs). The CFPB framework PDF lists representative actions; the Council of State Governments' federal-regulation summary aggregates the litigation history (CCRC — Federal regulation of criminal background checking).

The Clean Slate sweep, state by state

The Clean Slate Initiative — the nonprofit advocating for automatic record-sealing laws — frames its threshold as: "laws that automatically clear eligible records for people who have completed their sentence." The Initiative's states-map tracks the count: 13 states plus the District of Columbia have now passed laws meeting that threshold (Clean Slate Initiative) (Clean Slate Initiative — states). Brookings' policy analysis quantifies the economic effects: clean-slate laws "boost the economy and public safety" by removing barriers to employment, housing, and credit (Brookings). The New York City Comptroller's economic-benefits analysis frames the local-impact case (NYC Comptroller — Economic Benefits of the Clean Slate Act).

Pennsylvania was first, in 2018. Within its first year the program had "erased 35 million" criminal-record entries, per the North Dakota Law Review's analysis citing the original Pennsylvania media coverage (North Dakota Law Review — Criminal Justice Record Clearing). NELP's Clean Slate Advocacy Toolkit is the leading practitioner resource (NELP — Clean Slate Advocacy Toolkit).

Michigan followed. Automatic expungement under Michigan's Clean Slate package took effect on April 11, 2023, with the Michigan State Police database queried by an algorithm-driven "Rules Engine" (Michigan Courts — Clean Slate) (Safe & Just Michigan). Detroit's 2025 program assessment is the first comprehensive empirical look at how Michigan's algorithm has performed in practice (Detroit — Michigan Automatic Expungement Program Assessment, May 2025).

New York's Clean Slate Act took effect November 16, 2024, providing the Unified Court System "up to three years from that date (until November" 2027) to build the automatic sealing infrastructure (New York Courts — Clean Slate Act page) (NY Attorney General — Sealing your criminal record) (NY AG — Marijuana legalization and record expungement) (Legal Action Center — Clean Slate NY) (Legal Aid NYC — Record clearance).

The federal layer is the Clean Slate Act of 2023 (H.R. 2930 and its companion bills). The Center for American Progress' parallel Bipartisan Momentum piece tracks its status: "If passed, the Clean Slate Act would implement the first federal record-sealing mechanism for low-level conviction records" (Center for American Progress).

The Fair Chance Act and ban-the-box, 2026 edition

The federal Fair Chance to Compete for Jobs Act took effect for federal agencies and contractors in December 2021. The statute "prohibits federal agencies and federal contractors from requesting that applicants for employment disclose criminal history record" information until after a conditional job offer (Congress.gov — S. 387, Fair Chance Act) (Federal Register — Fair Chance to Compete for Jobs) (House FAQ on FCA — PDF) (NELP FAQ — Fair Chance to Compete for Jobs Act).

At the state and local level, NELP's ban-the-box guide documents that "37 states and over 150 cities and counties have adopted what is widely known as 'ban the box'" (NELP — Ban the Box guide). California's Fair Chance Act on the state level applies to employers with five or more employees (California Civil Rights Department — Fair Chance Act).

The 2026 update from Philadelphia is the most consequential local-level change of the year. On October 8, 2025, Philadelphia enacted amendments to its Fair Criminal Records Screening Standards Ordinance (FCRSSO). The amendments became effective January 6, 2026. The City's own official PDF documents the substantive changes: shortened lookback period for misdemeanors (from seven to four years), exclusion of summary convictions, a 10-day window for adverse-action notices, and a 90-day retaliation presumption (Philadelphia — FCRSSO amendments PDF) (Philadelphia Commission on Human Relations) (Philadelphia Fair Chance Hiring law poster) (Philadelphia Workforce Development Annual Report 2025).

The EEOC's 2012 enforcement guidance on the consideration of arrest and conviction records — the foundational federal-level framework — remains the operative anchor for Title VII disparate-impact analysis in this area (EEOC — Enforcement Guidance, Arrest and Conviction Records) (EEOC Q&A) (NELP — 2012 EEOC Guidance analysis).

The AI in the room

The single most consequential ongoing case at the intersection of criminal records, hiring, and AI is Mobley v. Workday, Inc., Case No. 3:23-cv-00770-RFL, in the U.S. District Court for the Northern District of California. Derek Mobley brought the action in 2023 "for employment discrimination against Workday, Inc., alleging that Workday's artificial intelligence" screening tools systematically disadvantage older applicants (GovInfo — court order on motion to dismiss PDF) (GovInfo — additional order PDF) (GovInfo — March 2026 order PDF). The court denied Workday's motion to dismiss; the case has since cleared additional procedural hurdles including conditional collective certification on the ADEA claim.

The companion case is Kistler v. Eightfold AI, Inc., Case No. 4:2026-cv-01768 in the Northern District of California — filed January 20, 2026 in Superior Court of California, Contra Costa County, and removed to federal court. The complaint alleges that Eightfold's AI-screening platform functions as a consumer reporting agency without complying with the FCRA's certification and accuracy obligations (Kistler v. Eightfold AI — N.D. Cal. (court information)).

The EEOC's parallel framework guidance addresses AI in hiring directly: "While AI and other technology may offer benefits, there is potential to violate the laws against discrimination when used in employment" (EEOC — What is the EEOC's role in AI?, PDF) (EEOC — AI & algorithmic fairness initiative) (EEOC — AI and the ADA). The FTC, EEOC, CFPB, and DOJ issued a joint statement in April 2023 confirming "there is no AI exemption to the laws on the books" (FTC — Joint Statement on AI press release) (FTC — Joint statement legal library). The FTC's background-check primer for employers covers the FCRA framework that applies to AI-screened reports (FTC — Background Checks: What Employers Need to Know).

The federal questions in front of SCOTUS: Esteras and Fernandez

Two Supreme Court cases this term affect how criminal records function in federal sentencing.

Esteras v. United States, No. 23-7483, decided June 20, 2025, by a 7-2 vote in an opinion by Justice Amy Coney Barrett: "A district court" may consider only certain 18 U.S.C. §3553(a) factors when revoking supervised release — narrowing the role of retribution (§3553(a)(2)(A)) in the revocation calculus. The Sixth Circuit's contrary holding was vacated and remanded (Supreme Court — Esteras v. United States opinion PDF).

Fernandez v. United States, No. 24-556, was argued on November 12, 2025 (Supreme Court — Fernandez oral argument audio) (Supreme Court — Fernandez docket) (Supreme Court — Fernandez oral argument transcript). The question is the scope of "extraordinary and compelling reasons" for sentence reduction under the First Step Act / 18 U.S.C. §3582(c)(1)(A). A decision is expected by the end of the current Supreme Court term. The Court's slip-opinion index is the canonical source for the eventual ruling (Supreme Court — 2025 slip opinions).

Youthful-offender records and the diversion track

State juvenile-record regimes vary widely, but the NCSL's summary captures the dominant model: in most states, youthful-offender records are sealed automatically upon adjudication, with the underlying records held by the court or police agency but shielded from public access (NCSL — Automatic Expungement of Juvenile Records).

New York's youthful-offender ("YO") status provides automatic sealing of records related to that designation, complementing the Clean Slate Act's adult-record sealing infrastructure (NY AG — Sealing your criminal record).

Diversion programs — pretrial diversion, drug court, mental-health court — produce a parallel record layer that, depending on the state, may or may not become a permanent public conviction record on successful completion. The Sentencing Project's mass-incarceration trends report captures how these programs interact with the broader record system (Sentencing Project — Mass Incarceration Trends).

Marsy's Law — the victim-rights ballot initiative that has now been adopted via constitutional amendment in many states — adds a parallel record layer focused on victim notifications and access. California's implementation is documented at the state AG's office (California AG — Victims' Bill of Rights, Marsy's Law).

The data-broker afterlife

The most important regulatory shift in 2026 is the California Privacy Protection Agency's first enforcement actions under the Delete Act / SB 361 framework.

On February 27, 2025, the CPPA announced its enforcement action against Background Alert, a California-based data broker, requiring the company to "shut down its operations through 2028 or face a $50,000 fine" (CPPA — Background Alert announcement) (CPPA — Background Alert stipulated final order PDF). A parallel administrative action filed in February 2025 against Jerico Pictures, Inc. (doing business as National Public Data) sought "a $46,000 fine" (CPPA — Jerico Pictures action, Feb. 20, 2025) (CPPA — Jerico Pictures fine order).

California's broader framework — SB 361 — expanded the disclosure requirements for data brokers registering with the state (California Senate Judiciary — SB 361 analysis PDF) (EPIC — Testimony in support of SB 361). The CPPA's Data Broker Registry and Delete Request and Opt-Out Platform (DROP) operationalize the Delete Act (CPPA — Data Broker Registry) (privacy.ca.gov — About DROP).

The federal-level picture was reframed by the Joint Economic Committee. On February 27, 2026, JEC Ranking Member Maggie Hassan released the results of her year-long investigation: "data broker breaches cost U.S. consumers more than $20 billion", finding that the industry's loose-data practices have caused consumer-protection harm at the eleven-figure scale (JEC — Hassan press release) (JEC — Opt-Out Obstacles report PDF).

Three scenarios

Scenario A: You have an old record and want it sealed

Check your state. If you live in a Clean Slate state — Pennsylvania, Michigan, Utah, Connecticut, Delaware, New Jersey, Oklahoma, Colorado, California, New York, Illinois, Minnesota, Virginia (after July 1, 2026), or D.C. — your eligible records may be auto-sealed without an application (Clean Slate Initiative — states). In New York specifically, the Clean Slate Act framework took effect November 16, 2024 (NY Courts — Clean Slate). For petition-based sealing in states without auto-sealing, NELP's advocacy toolkit is the standard practitioner reference (NELP — Clean Slate Advocacy Toolkit).

Scenario B: You were rejected based on an inaccurate background check

First, request a copy of the report. Under the FCRA, the employer is required to give it to you and an FCRA "Summary of Rights" before adverse action. If the report contains errors, dispute them in writing with the consumer reporting agency, which has 30 days to reinvestigate (FTC — Background Checks: What Employers Need to Know). The CFPB's Sterling consent order is the leading example of the kind of enforcement action that follows systematic FCRA non-compliance (CFPB — Sterling consent order). For inaccurate FBI background checks specifically, NELP's analysis of the federal-database error rate is the standard cite (NELP — Wanted: Accurate FBI Background Checks).

Scenario C: You're a landlord or employer running screens

Comply with the FCRA, the EEOC's 2012 guidance (Title VII / disparate-impact framework), any state ban-the-box statute, and (if applicable) Philadelphia's FCRSSO (EEOC — Enforcement Guidance) (Philadelphia — FCRSSO amendments). For AI-screened reports, the EEOC's AI guidance and the FTC/EEOC/CFPB/DOJ joint statement frame the disparate-impact analysis (EEOC AI PDF) (FTC AI joint statement).

What's next

Fernandez v. United States decision expected by end of the current Supreme Court term (SCOTUS slip opinions).

Mobley v. Workday advancing through discovery on a conditionally-certified ADEA collective (GovInfo — Mobley March 2026 order).

Kistler v. Eightfold in early stages in N.D. Cal. (Kistler docket).

NY Clean Slate Unified Court System has until November 2027 to complete sealing-infrastructure buildout (NY Courts).

Federal Clean Slate Act reintroduction tracking by Center for American Progress (CAP).

The structural through-line: criminal records in 2026 are simultaneously more comprehensive and more contested than they have ever been. The legal infrastructure that produces, indexes, and seals those records is being rebuilt under pressure — and the publication question (who can see what, on what timeline, at what cost) is being re-answered case-by-case, statute-by-statute, and (in the FCRA-class-action category) settlement-by-settlement.