Editor’s note: We are pleased to publish this fascinating account of how one state transformed its record relief system in little more than a year from a standing start, written by a person who had a central role in the transformation.     

In March of 2019, Utah Governor Gary Herbert signed HB 431, Utah’s Clean Slate law.  At the time, this made Utah the third state in the nation to pass a law automating the criminal record expungement process.  That law went into effect on May 1, 2020, but due to COVID-19, implementation efforts were delayed.  Several months later, implementation is back on track, and it is now anticipated that Utah’s state agencies will begin clearing court and repository records of non-convictions and qualifying misdemeanor convictions by the end of March. Preliminary estimates suggest that hundreds of thousands of people across the state will have their records expunged automatically.

What follows is a story about how Utah, one of the reddest states in the nation, came to adopt such a generous and efficient record relief system. As someone who was involved in that process from the beginning, I hope it will be helpful to others seeking to push their own states in that direction.

The Case for Clean Slate

Perhaps the most tragic thing about the number of people struggling with the collateral consequences of a criminal record is that, in many states, so many are eligible to clear their records but so few ever make it through the process.  The petition-based systems that exist in most states are costly, confusing, and cumbersome.  Utah is no exception.

While Utah’s eligibility criteria for expungement are quite generous (allowing for multiple felony and misdemeanor records to be expunged), the expungement process is expensive and time-consuming.  In most cases, individuals must hire an attorney to understand the complex eligibility criteria and procedural requirements. Then they must apply for and obtain from the Utah Bureau of Criminal Identification (BCI), a “certificate of eligibility,” which expires after 90 days and involves additional cost. Then they must travel to several municipal courthouses across the state to file their paperwork in person, and potentially go back to court later for a full hearing before a judge if either the prosecutor or the victim objects. From start to finish, the process can take more than a year to complete.  As a result, only around 2,000 expungement petitions are filed statewide each year, which represents a small percentage of those who are eligible.

The Path to Clean Slate

Utah’s Clean Slate story starts with jobs.  In 2018, Utah’s unemployment rate was under 3%, one of the lowest rates in the nation.  I remember sitting in the back of courtroom, listening to a judge ask a defendant whether he worked.  The individual said no, and the judge said, “Well why not?  In this economy, if you can breathe, you can find a job.”  But that wasn’t quite true.  While jobs were plentiful, one thing was still keeping people out of the work force: criminal records.

In December 2017, I was working as the Criminal Justice Advisory Council Director for Salt Lake County.  I received a phone call from the Department of Workforce Services, with a request to put on a criminal record expungement workshop for job seekers.  The Department explained that while Utah’s economy was one of the best in the nation, criminal records continued to be a huge barrier to employment.

In my former life, I was a public defender, and had some experience with criminal record expungement work, since Utah has offered expungement on a fairly broad basis for several decades. I told the Department that I did not think that a workshop telling people how to navigate Utah’s complicated petition-based expungement process was going to be very effective, nor did I think that the target audience was likely to have the resources necessary to navigate it. But I was excited about the interest and wanted to do something.  Instead, I asked whether the Department would be interested in trying to do something different: putting on an “Expungement Day” event.  Unlike other expungement clinics, the goal of “Expungement Day,” would be to bring the lawyers, courts, criminal repository, and community partners into one room, and work together to try to streamline the criminal record expungement process into a single day, allowing anyone who showed up to leave with a clean record.

This turned out to be an ambitious goal.  Representatives from the administrative agencies, defense attorneys, prosecutors, judges, and people with records, gathered around one table.  While they worked in different parts of the same system, many of these people had not met before.  We talked about what barriers we would need to overcome to clear a person’s record in one day.  We’d need money.  Lots of attorneys.  Pre-screening.  Prosecutors.  Judges.  BCI on site.  Fingerprint pads.  Printers.

We decided to do it.  With the help of the Utah Bar Foundation and a lot of private law firms, we raised almost $20,000, so we could provide eligible individuals with expungements that were totally free of charge.  We recruited volunteer attorneys and rented a big warehouse.

Our goal was to get 50 clients to sign up.  I worked with the Mayor’s Communications Director to publish this story in our local paper.  “Call [this number] to sign up,” it said.  It was my office number.  A few hours later, my phone started ringing.  It didn’t stop for close to a month, and I couldn’t keep my voicemail empty.  In total, we received close to 500 phone calls from people across the state wanting help clearing their criminal records.

I knew there weren’t enough legal aid resources in our state, but the need was eye-opening to me.  We registered dozens of people for the event and somewhat reluctantly, told people we would also try to accommodate walk-ins—anyone who wanted to come wait in line in case of a no-show or in case the volunteer attorneys finished early with a registered participant and had extra capacity.

Expungement Day was on April 5, 2018.  It will probably continue to be one of the most impactful days of my professional career.  Hundreds of people lined up to receive services.  It takes about 6 hours to drive the length of our state, and some people had driven all night to attend.   Some people were able to leave with clear records that day, but a lot of people weren’t.  We had to turn hundreds of people away.

There was so much momentum coming out of the event, that we wanted to do more.  By working together to examine the petition-based process from start to finish, we realized just how broken our system was.  I did a google search to try to figure out what else people were doing across the country.  That is how I learned about Sharon Dietrich, and Pennsylvania’s Clean Slate effort to automate the process.  Their bill hadn’t passed yet, but it looked likely.  I thought we should do it in Utah.  I asked Representative Eric Hutchings, who served on our County’s Criminal Justice Advisory Council, whether he would run the bill.  He said we would.  We took the issue to the rest of the Council, and there was overwhelming support.

After a lot of meetings with the key agencies and several months of work, we built a coalition of advocacy groups on the right, center, and left.  With the help of the Crime and Justice Institute, and the newly formed National Clean Slate Initiative, we engaged our statewide Chamber of Commerce, which became a key supporter and champion for the bill as a way to increase our talent pool.  We worked with prosecutors and law enforcement officers all across the state, many of whom testified in support of the bill.  People with records showed up to share their stories.

And Clean Slate passed.  Unanimously.

Utah’s Clean Slate Law

In a nutshell, Utah’s Clean Slate law automates the criminal record expungement process, meaning that an individual with a qualifying record will no longer have to petition the court for relief.  Instead, two government agencies—the Utah Administrative Office of the Courts and the Utah Department of Public Safety, will work together to identify eligible records, and expunge them automatically.  What this means in practical terms is that the record will no longer be available to the public, or to most state employers, and the person may respond to inquiries about their criminal history as if the conviction had never occurred.

Utah’s Clean Slate law applies to non-conviction records, most class B and class C misdemeanor offenses, and class A drug possession offenses.  Individuals with these offenses will be eligible to have their records automatically expunged after a waiting period of 5-7 years, depending on the severity level of the offense.  In other words, individuals who qualify for Clean Slate relief will not have to pay or do anything.  The government will identify their criminal records and expunge them.  People with ineligible convictions, including any felonies, will still have to go through the petition process.

Implementation Efforts and Challenges

Our law isn’t perfect and is the product of lots of compromise.  One of the most heart-breaking compromises we had to make is that individuals with outstanding legal financial obligations in connection with the eligible case are not eligible for relief.  The numbers are not in yet, but I think this will disqualify thousands of people.  Pennsylvania just eliminated this requirement, and I’m hoping we will eliminate ours in the future.

People ask me all the time how implementation is going.  It hasn’t always been easy.  For starters, we weren’t expecting a global pandemic to hit us in the middle of our implementation period.  As in other places, COVID-19 slammed the court system, slashed budgets, and overwhelmed a technology team that was faced with the challenge of turning a largely in-person process into a virtual one.  In the midst of this crisis, it’s sometimes been hard to keep Clean Slate a priority.

We’ve also encountered challenges with court records.  In Utah, as in many other places, court records are case-based, not person based, so you have to match the cases to a person before you can determine whether someone is eligible for relief.  And we’re struggling with data integrity issues (old records, missing birth dates or dispositions, social security numbers or names that don’t quite match, or are off) that sometimes make it challenging to determine whether a case is eligible for automatic clearance.

So, we have work still left to do.  But it’s possible.

Code for America is helping the courts identify eligible records, and we are launching a website and public education campaign to raise awareness about the law and help people determine whether they have qualified.

Having been through this journey from the beginning, I am a Clean Slate believer.  Utah is one of the reddest states in the nation, and support for this law was unanimous.  Our country is so divided, but this was an issue that everyone could get behind, because belief in second chances exists across ideologies and political party lines.

Clean Slate is the product of a broken petition-based process that denies opportunity to millions nationwide.  It’s broken everywhere and record clearance processes won’t truly be meaningful and accessible to people until they are fixed.  So, if you’re thinking about making changes to your expungement law, you should think about Clean Slate.

Resources:

Click here for a detailed report on Utah’s Expungement Day and how it led to our Clean Slate legislative campaign.

Click here to see a short video about Utah’s Clean Slate law.

Click here for more information about the National Clean Slate Initiative.

About the Author

Noella Sudbury is a lawyer, former public defender, and policy advisor.  She is the owner and founder of Sudbury Consulting, LLC.  She works in Utah and nationally on policy issues, and offers technical assistance, research, and campaign support on criminal justice reform and access to justice issues.