Louisiana’s new expungement law: How does it stack up?
Louisiana has far and away the largest prison population of any state in the country (847 per 100,000 people — Mississippi is second with 692 per), but until last year there was little that those returning home after serving felony sentences could do to unshackle themselves from their criminal records and the collateral consequences that accompany them. While Louisiana has for years authorized expungement of misdemeanor convictions and non-conviction records, the only relief available to convicted felony offenders was a governor’s pardon — very few of which have been granted in Louisiana in recent years. Most people convicted of a felony in the state, no matter how long ago and no matter how serious the conduct, were stuck with it.* That’s why we were interested to learn that in 2014 Louisiana enacted a brand new freestanding Chapter 34 of its Code of Criminal Procedure to consolidate and extend the law governing record expungement to many felonies.
We decided to find out what the new law offers to those with felony records, and how it stacks up against the three other new comprehensive expungement schemes in Arkansas, Indiana, and Minnesota. We found that while a relatively large number of people with felony convictions are newly eligible for expungement relief, the law’s effectiveness is hampered by 1) unreasonably long waiting periods and 2) limited effectiveness in mitigating collateral consequences related to employment and licensure.
According to its preamble, the ostensible purpose of the new Louisiana law is to “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.” See Art. 971. The law states an aim to provide relief from post-9/11 restrictions on TWIC credentials necessary to work in ports or on vessels under the federal Maritime Transportation Security Act of 2002. Id.
However, its eligibility waiting period seem inconsistent with these purposes: A felony record may not be expunged until ten years after completion of sentence, which itself may be many years after leaving prison. Such a long waiting period is not likely to do much to “break the cycle of recidivism” or address the issues facing those “reentering the community” from prison. Even misdemeanants have to wait five years after completion of sentence to apply.
Moreover, because the federal MTSA only restricts eligibility for TWIC credentials only for a ten-year period for most offenses, the new law does nothing to ease restrictions on maritime employment. By the time a person with a felony conviction becomes eligible for expungement, their TWIC eligibility has already been restored.
The waiting periods for felony expungement under the three other comprehensive new expungement laws are shorter — though still long enough to make us question their utility in reducing recidivism or assisting reentry. Eligibility for felony expungement in Indiana is three to five years years from completion of sentence or eight years after conviction (unless the prosecutor agrees to a shorter period) and five years after conviction for a misdemeanor. In Minnesota the waiting period for expungement of all eligible felonies is five years after completion of sentence (two years for misdemeanors). Arkansas allows “sealing” of felonies five years after completion of sentence, though misdemeanors are eligible for sealing as soon as the sentence is completed. (Compare the relief available as early as sentencing under the Vermont Uniform Act and Colorado’s new drug expungement laws.)
A Louisiana record may not be expunged if the person has been convicted of a crime during the waiting period, or has charges pending. The same is true in Indiana and Minnesota.
Like Minnesota, Louisiana places no limit on the number of felonies that may be expunged during a person’s lifetime, though in Louisiana a felony may only be expunged once every 15 years. In Indiana, a person may seek expungement of multiple offenses through one expungement petition, but only one petition may be granted in a person’s lifetime. In Arkansas, an individual may only “seal” one felony conviction.
Unreasonable waiting periods aside, the Louisiana law takes a relatively expansive approach to eligibility, especially compared to the limits Arkansas and Minnesota place on the types of felonies that are eligible for relief. Under Louisiana’s law, the only felonies that cannot be expunged are those for violent offenses, sex offenses, crimes against minors, and drug trafficking offenses (mere possession with intent to distribute is eligible for expungement). The only other jurisdiction with comparable scope is Indiana, which has similar limitations on violent offenses and sex offenses, but places no limit on the types of drug convictions that may be expunged and does not bar expungement of crimes against minors. Minnesota allows expungement of a list of enumerated minor non-violent felony offenses, and only minor drug distribution offenses may be expunged (most possession-only offenses are eligible). Arkansas limits sealing to Level C and D felonies.
Under Louisiana’s new law, expungement is mandatory if a person meets all of the eligibility requirements. This is also the case in Indiana for misdemeanors and minor felonies, though not for more serious crimes. Minnesota and Arkansas require a judicial finding based on a balancing test. In Minnesota, a felony can only be expunged if the court determines that the benefits of an expungement to the person seeking it are commensurate with concerns of the public and public safety, and with the burden on courts and public authorities to issue, enforce, and monitor an expungement order. In Arkansas, an order to seal records depends on a court’s determination that it is “in the interest of justice” based on consideration of a menu of factors.
The fact that an expungement is mandatory in Louisiana if the eligibility requirements are met also means that expungement may be granted without a hearing. A hearing must be held only if the prosecutor or law enforcement objects to the expungement request on grounds of ineligibility. A hearing is generally required in Minnesota and Arkansas.
Use of expunged records
Where Louisiana’s law looks most different from the other three laws is in its relatively limited legal and practical effect insofar as employment and licensing is concerned. Expungement of a felony conviction record in Louisiana essentially does two things: 1) It prohibits the state from disclosing records to the general public (as in almost all other states, the record remains available to law enforcement, prosecutors and courts); and 2) it relieves a person of any obligation to disclose the record, or the fact of the record’s expungement. The Louisiana law does not have a restorative effect on any rights lost (most basic civil rights are otherwise restored automatically upon completion of sentence), nor does it restrict the use of expunged records by licensing authorities or employers. It has no effect on sex offender registration and does not restore handgun rights (long gun rights are not lost) — except, surprisingly, in domestic violence offenses.
Though Louisiana’s law generally prohibits the state from releasing expunged records to the public, the law provides some significant exceptions. Most notably, it specifically allows disclosure of expunged records to a number of specified licensing boards, including those governing health care, the insurance industry, social work, and the bar, all of which are authorized to consider criminal records when making licensing determinations. It also allows disclosure for the purpose of screening applicants for licenses and employment involving the care or supervision of children. Accordingly, while Louisiana’s law permits individuals whose records have been expunged to deny that they have been convicted, the range of permissible disclosures by the state qualifies this benefit.
The other three states also allow expunged records to be used as predicate offenses, and for sentencing and sex offender registration purposes. However, all three states restrict how an expunged record may be used by private and public entities in evaluating eligibility for employment, licensure, and other opportunities. Indiana’s law is by far the most expansive, prohibiting employers, licensing boards, and anyone else from discriminating against a person based on a record that has been expunged, and even from asking about such a record. Minnesota takes a similar approach by prohibiting discrimination, but only as it applies to public employment and licensing (with a large and growing list of excepted employers and licensing boards). Under Arkansas’s Criminal Offender Rehabilitation Act, a licensing board may not disqualify a person based on an “expunged” record — though, since Arkansas’ new law now styles what was once known as an “expungement” a “sealing,” it is unclear what affect this provision currently has. Indiana and Minnesota additionally encourage hiring of those with expunged records by prohibiting admission of expunged convictions as evidence of negligence in negligent hiring actions. The Louisiana law contains no analogous provisions.
Third party providers of records
The Louisiana law does make some attempt attempt to addresses the problem posed by third party dissemination of expunged records, but it does so in a way that is likely to be ineffective in practice. The law prohibits private providers of criminal records (other than news organizations) from disseminating expunged records, but only if they have been put on notice by the subject of the expunged record. This notice must be sent by certified mail and contain a certified copy of the expungement order. Until a particular provider receives notice from the recipient of an expungement, the provider is entirely free (at least under state law) to disseminate the record to anyone, even if they have other notice it has been expunged. To ensure that expunged records do not reach a potential employer, a person would have to give notice to each and every private provider out there. This a practical impossibility, of course, but, even if it could be done, it would be ineffective because the only providers obligated by receiving notice are those that are not governed by the federal Fair Credit Reporting Act (FCRA). Considering that a vast majority of private providers of criminal records are subject to FCRA, it is hard to see why this provision was included at all.
The Indiana and Minnesota laws offer significantly greater protection against irresponsible private providers. Here again, Indiana’s law is the stronger, placing a blanket prohibition on dissemination of expunged records by “criminal history providers.” This prohibition is unqualified: Dissemination is prohibited whether the provider has notice of it or not, putting the onus on the provider rather the individual. The Minnesota law occupies a middle ground, prohibiting dissemination by a “business screening service” if the service has notice of the expungement from any source. Arkansas’s law does not address the issue of third party providers of records.
Louisiana’s new expungement law represents a significant and commendable move toward giving those with criminal records a chance to regain opportunities lost as a result of conviction. However, although it expands eligibility for expungment to a relatively large number of people, and makes relief mandatory upon a determination of eligibility, its benefits are limited by long waiting periods and limited legal effect. If Louisiana is serious about expanding employment opportunities to those with felony convictions, it would do well to enact measures limiting dissemination and use of expunged records by employers and other third parties, as Indiana, Minnesota, and (to a more limited extent) Arkansas have done. Until expungement in Louisiana is more than a mechanism to limit official disclosure of records, those who might otherwise be eligible to apply for it may wonder whether it is worth the trouble and expense.
* Louisiana does have a quirky law from 1981 that permits the Bureau of Criminal Identification and Information to remove the records of anyone over the age of 60 “from active dissemination to eligible agencies” so long as the person hasn’t been arrested for 15 years. The removal isn’t mandatory, though, so it offers little comfort to anyone young or old.
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