Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
Pennsylvania has been active in recent years in expanding its judicial relief mechanisms, though it still has a long way to go to catch up to states like Kentucky, Missouri, and New Jersey, which have in the past 12 months extended their expungement laws to some felonies and/or reduced waiting periods. No one has been more active and effective in the effort to increase the availability of “clean slate” judicial remedies than Sharon Dietrich, Litigation Director for Community Legal Services of Philadelphia. Sharon has written a comprehensive guide to existing authorities on expungement and sealing in her state, which also discusses pending bills that would extend these laws. The abstract follows:
On September 15, 2016, the Indiana Court of Appeals reversed a lower court’s denial of expungement to a woman convicted 13 years before of forgery and drug-dealing, holding that the court abused its discretion in denying relief where the case fully met the statutory standards. The decision provides a window into how one of the Nation’s most expansive new expungement laws is being interpreted and enforced by the courts of the state. Judging by this decision, the approach to restoration of rights in this otherwise-conservative state remains encouraging.
Here is Olivia Covington’s article from the Indiana Lawyer reporting on the decision, with a link to its full text.
In an eagerly awaited decision, a panel of the Second Circuit Court of Appeals has ruled that federal courts have no authority to expunge the records of a valid conviction. As Joe Palazzolo at the Wall Street Journal noted, this effectively “put an end to an experiment by a Brooklyn judge that drew attention to the challenges people with criminal records face trying to find and keep jobs.” In reversing Judge John Gleeson’s May 2015 expungement order in the case of a woman he had sentenced more than a decade before, the court distinguished its precedent upholding a court’s power to expunge arrest records following dismissal of charges. The panel pointed out that
a motion to expunge records of a valid conviction on equitable grounds will ordinarily be premised on events that are unrelated to the sentencing and that transpire long after the conviction itself. For example, in this case the facts underlying the District Court’s sentencing were clearly independent of the facts developed in Doe’s motion filed years later. Conversely, the District Court granted Doe’s motion based on facts and events (her repeated efforts to obtain employment) that transpired years after her sentencing and term of probation.
A new article in the Harvard Law & Policy Review evaluates some of the recent legislative efforts to deliver relief from the burden of collateral consequences through new or expanded expungement laws. In “A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels,” Brian Murray argues that many of the newer record-closing laws are far too modest in scope and effect to have much of an impact on the problem of reintegration, citing Louisiana and Maryland enactments as examples of relief that is both too little and too late. He admires Indiana’s broad new expungement scheme, which limits use of records as well as access to them, regarding it (as do we) as an enlightened exception to a general legislative aversion to risk. He considers recent legislation in Minnesota to fall into a middle category — and we could add Arkansas as another state to have recently augmented and clarified older record-closing laws. Our round-up of new expungement laws enacted just this year finds very little consistency from state to state, with Kentucky, Tennessee, Missouri and New Jersey all experimenting with different approaches.
Murray appreciates the need for a multifaceted approach to the problem of criminal records, and recognizes the doctrinal and practical shortcomings of a reform agenda that depends primarily on concealment. His bottom line, with which we agree, is that “[s]kepticism regarding the benefits of expungement in the information age, coupled with the incremental nature of legislative reform, leads to the conclusion that expungement law must continue to develop as one piece in a larger puzzle.”
Last week Missouri Governor Jay Nixon signed a bill that will dramatically expand the availability of expungement for people convicted of state crimes. The new law (SB-588), which will go into effect in 2018, extends expungement relief to a broad range of felonies and misdemeanors, and reduces the waiting period for expungeable felonies from 20 years to only 7 years following completion of sentence, and the waiting period for misdemeanors from 10 to 3 years. On the other hand, it will limit the number of times that a person may seek expungement during their lifetime and limit the effect of expungement. In particular, it will allow certain employers and licensing agencies to consider expunged convictions as a basis for disqualification, and in a few cases to disqualify automatically based on an expunged conviction.
Under current law, only a handful of misdemeanors and a single felony (passing bad checks) are eligible for expungement. When the new law takes effect, all misdemeanors and all non-Class A felonies will be eligible, subject to a long list of excepted offenses. The list of exceptions includes more serious offenses such as “dangerous” and violent felonies, sexual offenses, and a number of weapons and corruption offenses. As the Riverfront Times reported last week,
How much is a clean slate worth? That’s the question many people with criminal records are asking in Kentucky, Louisiana, and Tennessee, where the cost of filing for expungement is (or will soon be) between $450 and $550. To put that into perspective: In Kentucky, the $500 fee required to expunge an eligible felony conviction under a new law that takes effect in July will equal nearly half of the monthly wages of a full-time worker earning the state’s $7.25 minimum wage. The relative cost will be even higher for the many people who have difficulty securing steady full-time employment because of their criminal record. The high filing fee puts relief effectively out of reach for most of those it was intended to benefit, even if they elect to file without retaining a lawyer.
There is a major disconnect between these exorbitant fees and the policy rationale that has led many states to create or expand expungement opportunities in recent years. Expungement improves the employment prospects of people with criminal records, allowing them to achieve a degree of economic stability that in turn discourages further criminal behavior. People held back from economic stability by their criminal records are the people that are likely to benefit most from expungement, and the social advantages of expungement are most keenly experienced among this population. But these are the very people least likely to be able to afford to pay high application fees.
According to an article by Maura Ewing published by the Marshall Project earlier this week that takes a closer look at the issue, Kentucky, Louisiana, and Tennessee are outliers among states that allow for expungement in charging such high fees:
Many states charge $150 or less to apply for expungement … and some states offer a waiver if the applicant is too poor to pay.
In the 17 states that allow for expungement of low-level felonies, “the application fee is generally in line with standard court fees.”
So why are the application fees in those three states so high, and where does that money go? Ewing found that while Louisiana’s fees were considered necessary to cover the costs of an inefficient and underfunded justice system, the fees in Kentucky and Tennessee were driven solely by the prospect of generating general revenue. From the article:
More and more states are enacting new expungement and sealing laws, or expanding existing ones, some covering convictions for the first time. The first four months of 2016 alone saw courts given significant new authority to limit access to criminal records in four states, and bills have been introduced in several others that promise more new laws in months to come.
In April, Kentucky authorized expungement of felonies for the first time, while New Jersey reduced waiting periods for some offenses and made expungement automatic for some others. Also in April, Maryland’s Governor Hogan signed that state’s Justice Reinvestment Act, permitting expungement of misdemeanor convictions for the first time. Beginning in November, Pennsylvania courts will have new authority to seal misdemeanor offenses, and follow-up bills have been introduced in both houses to make sealing automatic for most non-felony records after a waiting period. There are also several pending proposals to significantly expand existing expungement laws in Oklahoma, Missouri, and Rhode Island.
We take a closer look at each of these new expungement authorities below.
The new laws evidence the growing momentum behind second-chance reforms. They also show how expansion of expungement and sealing mechanisms can be an incremental process. For example, the legislatures in Maryland and Pennsylvania first tested the waters by giving courts new authority to mitigate low-level conviction records in relatively limited ways, with both following up shortly after with proposals to increase both the availability and effectiveness of those mechanisms. Meanwhile, states with fairly robust expungement mechanisms already in place, like New Jersey, Missouri, and Kentucky, have taken steps to make relief available sooner and to more people. Relatedly, in the first four months of 2016, six more states enacted or expanded state-wide ban-the-box laws limiting inquiry about criminal records at early stages of the hiring process, bringing the total to 23.
On Wednesday Kentucky Governor Matt Bevin signed a bill giving state courts authority for the first time to expunge felony convictions. The new law, HB 40, allows people convicted of specified non-violent class D felonies who have been crime-free for 5 years to petition to have their conviction vacated, charges dismissed, and record expunged. Expunged records are deleted from official databases (including law enforcement), will not show up in background checks, and need not be acknowledged. The court and other agencies “shall reply to any inquiry that no record exists on the matter.”
Democrats in the Kentucky House had worked for years to pass similar legislation, but were unsuccessful until one man’s moving testimony before the Senate Judiciary Committee galvanized bipartisan support for the bill. According to the AP,
At least 62,000 convicted felons in Kentucky will have the opportunity to wipe their records clean in part because a 45-year-old man convicted of stealing car radios 27 years ago convinced a powerful Republican lawmaker to change his mind.
West Powell, who has not had a run-in with law enforcement in 27 years, told the Committee:
On April 7 a panel of the Court of Appeals for the Second Circuit heard argument in United States v. Jane Doe (Jane Doe I). At issue in that case is whether U.S. District Judge John Gleeson acted within his authority when he expunged the conviction of a woman he had sentenced some 14 years earlier, based on his finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified. Judge Gleeson directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.” The government appealed, arguing that a federal court has no authority to expunge or seal a conviction record, particularly the record of a valid conviction. Briefs in the case can be viewed here.
The panel did not appear persuaded by the government’s argument that the Supreme Court’s 1994 decision in Kokkonen v. Guardian Life, 511 U.S. 375 (1994)(refusing ancillary jurisdiction to enforce state law civil claims), meant that federal courts have no jurisdiction to expunge the record of a federal criminal case. The import of the government’s argument would be to overrule the Circuit’s leading expungement case from the 1970s, United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977), which held that federal courts have ancillary jurisdiction to grant expungement on equitable grounds in extraordinary circumstances. No judge on the panel expressed any support for overruling Schnitzer, and the government seemed reluctant to ask for it. At the same time, Schnitzer involved expungement of an arrest that the government did not pursue, not a valid conviction. That distinction seemed to have some appeal for one judge on the panel, who suggested that the holding in Schnitzer might not apply where conviction as opposed to arrest is at issue.