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.
The New York Law Journal published an article over the weekend about the “novel relief” provided by the federal certificate of rehabilitation
issued by former Judge John Gleeson on March 7, just days before he stepped down from the bench. A reproduction of the certificate reveals its official appearance, complete with court seal and signatures of Judge Gleeson and the Chief U.S. Probation Officer.
The government has until April 7 to appeal – the very day its appeal of Judge Gleeson’s expungement order in his first Jane Doe case will be argued in the Second Circuit. The jurisdictional issues presented by the certificate order may be similar, if only because the certificate has some effect under state law. See N.Y. Correct. Law §§ 703(7), 752, both cited in Judge Gleeson’s opinion. It is likely that others similarly situated will apply for similar relief.
In his final week on the bench, in an opinion that may in time prove among his most influential, U.S. District Judge John Gleeson issued a “certificate of rehabilitation” to a woman he had sentenced 13 years before. See Jane Doe v. United States, No. 15-MC-1174 (E.D.N.Y., March 7, 2016) (Jane Doe II). The opinion breaks new ground in holding that federal courts have authority to mitigate the adverse effects of a criminal record short of complete expungement. Along the way, it confirms that a district court may use its inherent equitable powers to expunge convictions in “extreme circumstances,” an issue now on appeal to the Second Circuit in Judge Gleeson’s earlier expungement case. (Jane Doe I has been calendared for argument on April 7.) The opinion also finds a role for federal probation to play, including under New York State’s “robust” certificate system, which lifts mandatory state law bars to employment and other opportunities. It does all of this in a manner that should make it hard for the government to appeal, since “this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.”
Joe Palazzolo at the Wall Street Journal blog noted that
More than a dozen states and the District of Columbia issue certificates to certain ex-offenders who have shown their days of crime are behind them, usually by remaining offense-free for a long stretch. . . . .
There is no equivalent federal certificate. So Judge Gleeson invented his own.
The 50-state chart of judicial relief mechanisms from the NACDL Restoration of Rights Resource, which is also posted on this site, is a comprehensive survey of all authorities for judicial relief in the states and federal system. We wanted to bring it to our readers’ attention in light of the new federal interest in helping individuals with a criminal record overcome barriers to employment and licensing through clearing their records.
The National Clean Slate Clearinghouse, recently announced as part of President Obama’s reentry initiative, will “provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” This joint project of the Labor and Justice Departments will doubtless make it a first priority to survey the laws providing judicial and other relief in different states, to determine what sort of assistance lawyers will need to neutralize the adverse employment consequences of conviction, though the courts or otherwise. We hope these resources will prove useful in that effort.