Currently, 39 states authorize expungement or sealing of at least some felony convictions.[i]  Recent research shows that only a small percentage of eligible individuals actually complete the court petition process required to obtain such relief, which is frequently hard to understand and usually burdensome, costly, and time-consuming.[ii]

Ideally, the most efficient way to overcome these barriers would be to make sealing automatic, dispensing with the requirement of individual application entirely.  However, the move toward automatic sealing is still in its early stages, and we anticipate that in many states, at least in the near future, petition-based sealing will remain a primary method for clearing certain records, particularly felony convictions.  Accordingly, it is important to identify and minimize barriers to petition-based relief wherever possible.  That is the purpose of this project.

In February 2021, we published an analysis of strengths and weakness of the felony record clearance process in Illinois by Beth Johnson and her partners in the Rights and Restoration Law Group (RRLG).  We are now pleased to present the second study in this series, a review of Utah’s felony expungement scheme by Noella Sudbury.

The study seems particularly relevant at this time because Utah is about to begin automated sealing for many non-conviction and misdemeanor conviction records.  Having mastered the technological and logistical challenges of automating record relief, Utah will be in a good position to weigh the costs and benefits of reducing access barriers for felony offenses or, alternatively, expanding automatic record clearance to include them.

Noella completed the survey instrument developed by RRLG, and her analysis and recommendations are organized into the same four domains as the Illinois study: (1) resource and knowledge; (2) eligibility; (3) process; and (4) effectiveness.  The survey responses are included at the end.

The Utah report is available as a PDF here, and included below in this post.

Additional information about CCRC’s access barriers study and the survey instrument are available here. This report was made possible by a generous grant from Arnold Ventures.

Margaret Love, Executive Director
David Schlussel, Deputy Director
Collateral Consequences Resource Center

Access Barriers to Expungement of Felony Records in Utah
By Noella Sudbury
July 2021

Summary of Strengths and Weaknesses

Resource & Knowledge Barriers

What resources are available and what systems are in place to ensure that people know about and can access the process for obtaining record relief? Utah has a centralized court system, approved standardized forms, and step-by-step instructions for self-represented parties.  These resources make it easy for individuals to access their court records and receive free guidance on the expungement process.  However, courts are not required to inform defendants about the availability of expungement, and many individuals with records don’t know where to start.  In addition, access to legal aid for criminal record expungement services is under-funded and extremely limited, particularly in rural areas, where there is a lack of knowledge about available resources.

Eligibility Barriers

What policies and practices prevent people from qualifying for sealing or expungement relief? Utah law broadly allows for most types of felony conviction records to be expunged, though some offenses are categorically excluded.  Unfortunately, Utah’s eligibility criteria can be confusing, and numerical limits prevent individuals with multiple felony records from obtaining full record relief in the majority of cases.

Process Barriers

What procedural requirements discourage eligible individuals from following through with the process? Before filing a petition for expungement in court individuals must first apply for and obtain a certificate of eligibility from Utah’s Department of Public Safety for each offense sought to be expunged.  These certificates can be costly and there is no fee waiver available for individuals who lack resources.  Also, expungement of records depends on the petitioner’s successful delivery of certified copies of the court’s order to multiple government agencies that may have records.  This multi-step process is costly, complicated, and time-consuming, and prevents many eligible individuals from completing the process.

Effectiveness Barriers

What limitations on the effect of sealing or expungement diminish the potential benefits of this type of record relief? When an individual receives an expungement order from the court, they are permitted by state law to represent that the conduct never occurred.  While this offers broad protection to many Utahns, certain state agencies continue to have access to expunged records, and Utah’s courts, like many others, sell their records in bulk to third parties, including background check companies.  Utah’s contracts require third parties to update their data monthly to reflect expunged records, but there is no private right of action for unlawful disclosure of expunged records.

Discussion

In its recent national report on restoration of rights and record relief mechanisms, the Collateral Consequences Resource Center ranked Utah third in the nation for its record relief laws and practices.^[3]  Utah has long been a leader in the country for its expansive expungement criteria, which extend eligibility to individuals with both felony and misdemeanor conviction records.

Utah has also been a leader in eliminating process barriers to criminal record expungement.  In 2019, Utah became the third state in the nation to automate its criminal record expungement process for non-convictions and certain qualifying misdemeanor conviction records.  Under Utah’s “Clean Slate” law, state agencies will begin automatically clearing eligible non-conviction records, and qualifying misdemeanor conviction records in mid to late 2021.  This important legislation eliminates the petition-based process barriers for eligible records, shifting the burden of record-clearing from the individual to the government.^[4]

Despite Utah’s high overall ranking and recent advances in automated clearance, there is room for improvement, when it comes to relief for records which are not currently eligible for automatic clearance, notably felony conviction records.  The discussion that follows is organized into the four petition-based process barrier domains described above. For each domain, we discuss strengths and weaknesses, and make suggestions for improvement.

This analysis focuses on Utah’s Expungement Act, found in Utah Code Section 77-401-101 to 116.  Attached as an Appendix is a detailed survey form and narrative responses that form the basis of this report.

Resource & Knowledge Barriers

STRENGTHS of Resources & Knowledge in Utah

One of Utah’s greatest strengths is that its centralized court record system makes it relatively easy for individuals to obtain their full criminal history from almost anywhere in the state.  While there is a charge for printing, access to court records is free from any courthouse^[5] or by calling Utah’s Self Help Center. And individuals can obtain their criminal history report from the Department of Public Safety for only $15, in person or by mail.

In addition to providing quick, easy, and inexpensive access to records, Utah’s courts, lawmakers, and government agencies have worked diligently to improve the level of information and forms available to members of the public seeking to expunge their criminal records.

Finally, through a relatively new program started in Salt Lake County, Utah has created a robust volunteer lawyer network that provides free legal expungement assistance to individuals statewide. More information about these services is included below.

Services Provided by State Agencies 

Utah’s courts have developed an expungement-specific web page for self-represented parties that includes a detailed explanation of the expungement process, step-by-step instructions, and access to forms.  The forms have been adapted for statewide use and ensure that deficient content is rarely the reason for denying a petition for expungement.   In addition to the webpage and forms, Utah’s Administrative Office of the Courts has established a Self-Help Center that provides free expungement navigation services to anyone who calls, texts, or emails.  The Self-Help Center is staffed with a team of attorneys who work for the Utah courts.  This team can help answer questions about the law, provide information about the expungement process, look up an individual’s court records, send copies of records by email, provide help completing forms, and answer questions about case status and next steps.

On the Department of Public Safety’s side, the Bureau of Criminal Identification (BCI) is the agency responsible for removing court cases from a person’s criminal history upon receiving an order to do so from the courts.  Similar to the courts, BCI’s website provides free information about the eligibility and process for obtaining a criminal record expungement.  This website includes videos about who is eligible for expungement and an overview of the expungement process.  It also contains additional information and process flow charts for self-represented parties.

Services Provided by Local Government

In 2019, the Salt Lake County Mayor’s Office started its Expungement Navigator Project. As part of this program, the County puts on regular Expungement Day events where volunteer attorneys assist participants in determining their eligibility for an expungement and provide options for those not immediately eligible.^[6]  These events serve individuals statewide and have continued virtually during COVID-19. They include access to virtual courtrooms where justice and district court judges can hold court hearings on expungement matters, grant fee waivers, or case reductions.^[7]  In addition, the Project provides funding for BCI application and certificate fees for those who cannot afford them, and funds a full-time “expungement navigator” who can provide ongoing expungement assistance to self-represented parties throughout the year.  The county’s website also includes an expungement toolkit with a free screening tool, fillable forms, and other resources.

Other Legal Services

Outside of the work of state and local government agencies, Utah Legal Services (ULS) is the main source of legal aid for individuals seeking to expunge their felony records.  To qualify for free legal aid from ULS, individuals must be United States Citizens or legal permanent residents and meet income criteria (household income must be 125% FPL or less).

Individuals who do not qualify for legal assistance through ULS may qualify for low-cost assistance through the Utah State Bar’s Modest Means program or take advantage of free monthly clinics put on by the University of Utah law school.

WEAKNESSES of Resources & Knowledge in Utah

Despite its centralized records system and online resources available to assist individual applicants, Utah’s petition-based expungement process is long, cumbersome, and frequently misunderstood.  As a result, few Utahns eligible to expunge their records make it through the process in its entirety.

Individuals wanting to expunge their records often don’t know where to start.  There is no obligation for courts to inform individuals of expungement eligibility or process, and this information is not routinely provided by corrections.  Many individuals mistakenly believe that their record drops off after a period of time, or that so long as their criminal history is really old, they will be able to clear it.

Another weakness of Utah’s petition-based process is that it is hard to determine if someone is eligible. The statutory criteria are confusing, and even attorneys who have been trained on determining eligibility make errors.^[8]  Common mistakes include miscalculating waiting periods and misunderstanding the different rules for drug and non-drug related cases.  As a result of this confusion, many individuals pay the $65 non-waivable fee to apply for an expungement only to be told they are not eligible.

Even if someone is eligible, they often do not know how to complete the process. While step-by-step instructions are available, and forms are free and approved statewide, the volume of paperwork needed to expunge a case can be daunting.  Free and low-cost legal services are extremely limited and under-funded. Utah Legal Services has funding for only one full-time expungement attorney and one part-time expungement attorney who serve the entire state.  While ULS works with a network of private volunteer lawyers, there are not nearly enough legal resources to meet the state’s expungement needs.  Non-U.S. citizens and individuals who do not meet ULS’ income requirements are left with limited options.

Key Improvements to Mitigate Resource and Knowledge Barriers

A number of improvements could be made to mitigate the petition-based knowledge and resource barriers that exist throughout the state:

• To raise awareness of Utah’s Expungement Act, Utah should require courts to inform individuals at the time of plea or sentencing about the expungement process. The Department of Corrections, local jails, and probation departments could provide similar information when someone is released from incarceration or completes probation.
• Utah’s statutory criteria for expungement should be simplified, making it easier for individuals to determine their eligibility and use the free resources provided online.
• Utah should provide state funding for legal aid organizations and public defender offices to provide expungement legal services to individuals throughout the state.

Eligibility Barriers

STRENGTHS of Expungement Eligibility in Utah

Utah’s criminal record expungement criteria are set forth in Utah’s Expungement Act.  Compared to many other states, Utah has broad eligibility criteria, allowing most types of felony conviction records to be cleared after a 7-year waiting period. The only categories of convictions that are ineligible for expungement include capital and first-degree felonies, certain violent felonies specifically defined in statute, registrable sex offenses, registrable child abuse offenses, and felony DUI and automobile homicide cases.^[9]

While Utah has numerical limits on the total number of records that can be expunged, in determining those limits Utah has a “per criminal incident” rule, meaning all charges arising out of the same criminal incident are counted as only one case for purposes of an expungement.  This often allows for a large number of total cases to be expunged.

Utah’s 402 reduction process is also a strength. Individuals who have more than the allowable single felony conviction can seek, and are often granted, 402 reductions.  A 402 reduction is a common process under Utah law that allows individuals to ask the court to reduce the degree of their conviction if they meet certain requirements. This legal process has become a common tool to convert ineligible felony records into misdemeanor records, enabling a person to become eligible for an expungement.^[10] In addition, some local district attorneys have exercised their discretion to do bulk 402 conviction reductions, changing large volumes of older felony offense records to misdemeanor ones, greatly expanding those eligible for felony expungement relief.^[11]

Individuals who are not eligible for felony record expungement, can apply for a pardon, which results in expungement, and a high number of pardons are granted.  However, there are limited resources to assist individuals with the pardon process and because pardons are within the discretion of the Utah Board of Pardons and Parole, success is less predictable than in an expungement proceeding.^[12]

WEAKNESSES of Expungement Eligibility in Utah

While Utah has broad-based eligibility, one of its biggest weaknesses is its numerical limits.  An individual with more than one non-drug related felony, or more than two drug-related felonies, is ineligible for an expungement.^[13]  In addition, too many misdemeanor offenses can also make someone ineligible to expunge a felony from their record.

According to experienced practitioners in Utah, most applicants are ineligible for felony record expungement not due to the number of felonies on their record, but due to the number of misdemeanors.  Individuals with more than 4 total non-drug related misdemeanor offenses are ineligible for felony record expungement. Applicants are often shocked to learn that even after 10 or 20 years of living outside the criminal justice system, they are ineligible for an expungement due to the number of old convictions that occurred in their early adulthood. Many cases preventing eligibility are so old or minor that the individual may not even remember that they occurred.

Another weakness in Utah’s eligibility criteria is that an individual must have the right type and combination of offenses in order to be eligible, which causes confusion in determining eligibility and often leads to counterintuitive results. For example, someone with two felony drug possession cases and one class A non-drug possession conviction would be eligible for an expungement, while someone with one felony and three non-drug related class B misdemeanors would not.  These rules are frustrating and confusing to individuals and practitioners alike.

Finally, outstanding legal financial obligations continue to be a barrier to full criminal record expungement. While outstanding debt in one case does not bar expungement in another eligible case, the case with outstanding fines or fees owed will not be eligible until the amounts are paid. Interest charged on small debts can climb over time, making it impossible for individuals to afford the total amount.  And while individuals can file a motion with the court seeking a reduction or waiver of unpaid fines and fees based on inability to pay, granting these motions is at the discretion of the court, and creates the need for multiple proceedings, as this request cannot be included in the expungement petition.

Key Improvements to Mitigate ELIGIBILITY Barriers

• Increase the total number of felony offenses that are eligible for an expungement.
• Adjust or eliminate the numerical limits on misdemeanor offenses (i.e., allow for an unlimited number of misdemeanor B and C offenses), or increase the total number of permitted offenses after a certain period of time.
• Make more types of conviction records eligible for relief. Courts have discretion to deny an expungement petition if granting it would be contrary to the public interest. Thus, eligibility criteria could be broadened without jeopardizing public safety or harming the public.
• If an expungement filing fee is waived because a person is found indigent, eliminate the requirement that court fines and fees be paid before that person can expunge their record. Allowing someone to expunge their felony record increases the likelihood that they will be able to find employment, which increases the likelihood that unpaid court debt will eventually be satisfied.

Process Barriers

STRENGTHS of Utah’s Petition-Based Expungement Process

Utah has uniform documents available free of charge and easily accessible to all petitioners through the Utah State Courts website (more information about these resources is included in the Resource and Knowledge section above).  These forms do not require notarization.  Both the courts and BCI provide step-by-step guides to the expungement process.

While court filing fees are required for each expungement petition, individuals who cannot afford to pay them may file a motion with the court for a fee waiver or reduction in the amount due, which are frequently granted.

WEAKNESSES of Utah’s Petition-Based Expungement Process

Although Utah courts are centralized, Utah’s expungement process is not.  As a result, petitioners must file separate petitions in each jurisdiction where a conviction occurred, requiring some petitioners to file paperwork across multiple cities and counties throughout the state.  The burden of filing in and traveling to multiple jurisdictions is compounded by the following additional requirements:

Certificates of Eligibility.  Utah is one of only three states in the nation that require individuals seeking to expunge a criminal record to apply for and obtain from the Department of Public Safety a “certificate of eligibility,” certifying that they are eligible for an expungement under Utah law.^[14]  The cost to apply for certificates is set by statute, and is currently $65.  If a person is eligible to expunge their record, they are sent a letter from BCI that contains a list of cases that can be expunged, and an option to purchase a certificate for each case they want to expunge.  These certificates cost an additional $65 each, and expire within 90 days.  If an individual does not timely file the certificate alongside their petition, their expungement will not be granted and they will have to start the process over.  Application and certificate fees are non-waivable and must be paid in order to expunge a record.

Identification and Service of Prosecutor.  Utah law requires the petitioner to deliver a copy of the petition and certificate of eligibility to the prosecuting entity that handled the case.  While this information is often listed on the certificate of eligibility, it is not always included, and can sometimes be difficult to determine where to send the petition.

E-filing.  E-filing is not available to those filing an expungement petition. This means individuals must either deliver court paperwork in person or send it by mail to each court where the individual has a conviction record.

Costs.  In addition to paying for eligibility certificates, every expungement petition requires the individual to pay a court filing fee.  Court filing fees typically cost between $135-$150.  While court filing fees can be waived and frequently are, the lack of a centralized filing process means that judges may not be aware that multiple petitions are pending, each with its own filing fee.  On top of filing fees, petitioners are also responsible for copy and mailing fees.

Delay.  Wait times from point of application to the point of decision vary.  When a person applies for an expungement, they may have to wait up to 3 months to obtain an eligibility letter and certificates of eligibility.  Once a petition is filed, state law requires prosecutors to object within 35 days.  If a prosecutor objects, the court holds a hearing.  But if a prosecutor does not respond, the petitioner must wait an additional 25 days before he or she can ask the court to decide the matter.  Once the matter is submitted for decision, judges usually rule relatively quickly.

Post-Hearing Delivery Requirements.  Once an expungement petition is granted, the petitioner must deliver or mail certified copies of the court’s order to any government agency or official that might have records of the case.  This typically includes the prosecutor, BCI, any local police departments, and any applicable corrections agencies, such as local jails and prison.  If this step is not completed, the record does not get expunged.

Key Improvements to Mitigate PROCESS Barriers

• Consider eliminating the certificate requirement, or at least limiting the types of cases where individuals must first obtain a certificate of eligibility from the Department of Public Safety in order to expunge their criminal records. The vast majority of states do not have this requirement, and the time,  cost, multiple steps, and expiration of the certificate present major barriers for individuals seeking to clear their criminal records.
• Require the Department of Public Safety to transmit an electronic copy of the certificate to the courts, eliminating the requirement that the petitioner file the certificate with the court, and reducing the chances that the certificate will expire.
• Create a process to allow individuals to e-file expungement petitions with the court.^[15]
• Add expungement petitions to the many types of actions offered by the Online Court Assistance Program (OCAP). The Online Court Assistance Program was created to assist individuals who do not have an attorney to help prepare legal documents.  This program aids petitioners in filling out forms and generating court paperwork.  It allows individuals to create an account so they can log in and save documents that can later be printed and filed with the court.
• Shift the requirements to serve prosecutors with a copy of the expungement petition from the petitioner to the court. Similarly, the court could deliver certified copies of expungement orders to government agencies.  This infrastructure is already being built for Clean Slate eligible cases, so it should be relatively easy to adjust these requirements for the petition-based process as well.

Effectiveness Barriers

STRENGTHS of Utah’s Petition-Based Process

Utah’s Expungement Act provides that when a record is expunged, the individual “may respond to any inquiry as though the arrest or conviction did not occur.”^[16] This provides broad protection to individuals with criminal records seeking employment, housing, or other opportunities.  State agencies are required to seal all records related to expunged cases (if the petitioner serves them with the expungement order).  They are prohibited from disclosing those records to any person or agency without a court order or specific statutory authority.^[17]  Once a record is expunged, any person or agency “who knowingly or intentionally discloses” information about the expunged record can be charged with a class A misdemeanor.

While the Expungement Act prohibits state agencies from disclosing information about expunged records, Utah’s courts—like many others around the country—sell bulk data to third parties, including private background check companies.  Utah’s contracts require those third parties to regularly update their dataset to reflect expunged records and provide the court with audit authority to ensure compliance.^[18]

There is not a specific law prohibiting landlords and employers from asking about expunged records, but when a record is legally expunged, Utah’s Expungement Act allows an individual to deny that the conduct ever occurred.

WEAKNESSES of Utah’s Petition-Based Process

As in many other states, certain state agencies can request and obtain information about expunged records for specific purposes.^[19]  While the list of agencies with access is fairly narrow, and statutorily defined, individuals with a record who want to enter certain fields, such as law enforcement or public education, will continue to experience the barrier of a felony record.  Although it is “very rare,” the Division of Professional Licensing (DOPL) may be able to obtain access to expunged records in some cases.^[20]

In addition, orders to expunge felony records do not extend to any third parties who have otherwise obtained the criminal history information, i.e., local newspapers, and web-based companies like “mugshot.com.”  This leads to the most common problem reported by clients in Utah—a permanent digital footprint of their record, even after felony expungement.  While some companies will remove the record with proof of the expungement order, others will not.  While individuals may have certain rights under the federal Fair Credit Reporting Act, this remedy is time consuming, expensive, very rarely pursued, and only applies to certain entities.

Key Improvements to Mitigate EFFECTIVENESS Barriers

• Require the Administrative Office of the Courts to conduct regular audits to determine compliance with contracts requiring private background check companies to update their records.
• Require the Department of Public Safety to provide more detailed statistics about expungement orders entered throughout the state, breaking down that information by county, and including demographic information about recipients.
• Establish a private right of action against third parties that unlawfully release expunged record information.
• Develop and distribute a one-page document to be distributed along with expungement orders, outlining rights and how to enforce them after a record is expunged.
• Make explicit a prohibition on private employers and landlords asking about expunged records.
• Statutorily define and limit the circumstances under which the Division of Professional Licensing is allowed to request and access expunged records.

Appendix (Utah survey responses)

See PDF.

NOTES

[i] This number includes five states that only authorize relief or pardoned felonies. See https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/.

[ii] See David Schlussel, Study measures gap between availability and delivery of “second chance” relief, Collateral Consequences Res. Ctr. (March 19, 2021), https://ccresourcecenter.org/2021/03/19/study-measures-gap-between-availability-and-delivery-of-second-chance-relief/.

[1] See Margaret Love & David Schlussel, The Many Roads to Reintegration: A 50-State Report on Laws Restoring Rights and Opportunities after Arrest or Conviction, Collateral Consequences Resource Center (2020), retrievable at:  https://ccresourcecenter.org/the-many-roads-to-reintegration/.

[2] For more background on Utah’s automatic expungement law, see Noella Sudbury, How Utah Got Automatic Expungement, Collateral Consequences Res. Ctr. (Jan. 1, 2021), https://ccresourcecenter.org/2021/01/15/how-utah-got-automatic-expungement/.

[3] In 2021, new legislation was passed to allow members of the public to access Xchange without a subscription, on a fee for search basis.  When this law goes into effect, this will make it even easier for people to obtain a copy of their court records.

[4] Prior to the event, a legal aid lawyer puts on a 2.5 hour CLE on the expungement process, specifically focused on the types of services that will be offered at the event.  This training involves a few case studies to help volunteer attorneys obtain the hands-on experience needed to help clients during the event.  In addition, a team of legal expungement experts provides assistance to any lawyer who encounters questions while helping clients determine their eligibility.  To ensure no one is turned away due to inability to pay, grant money, and private firm donations are utilized to help cover BCI application and certificate fees.

[5] A full explanation of 402 case reductions is included later in this piece.  See Section II.a.

[6] See next section for a description of criteria.

[7] See Utah Code Section 77-40-105(2), and the description of Utah’s eligibility criteria in the CCRC Restoration of Rights Project.

[8] This legal process is governed by Utah Code Section 76-3-402.  Utah’s Self-Center also provides information and guidance about this process and explains it is a common tool that can help individuals become eligible for an expungement.

[9] See, e.g., Salt Lake County is Reducing the Penalties in 13,929 Drug Cases, S.L. Tribune (September 24, 2019), retrievable here.

[10] Under Utah’s Expungement Act, the court must grant a petition if it finds “by clear and convincing evidence” that the statutory criteria have been met, the certificate of eligibility is sufficient, and “it is not contrary to the interests of the public to grant the expungement.” Utah Code 77-40-107(8). While “clear and convincing evidence” is a high standard, data from the Administrative Office of the Courts shows that the vast majority of expungement petitions filed are granted by Utah courts.

[11] If it has been 10 years since the petitioner was convicted or released from incarceration, probation, or parole, these numerical limits are increased by one.  See Utah Code § 77-40-105(8).

[12] Utah Code Section 77-40-103(1).  The other two states with this requirement are Florida and Kentucky.

[13] For more information about New Jersey’s electronic filing system, see: https://ccresourcecenter.org/2021/01/28/new-jersey-launches-electronic-filing-system-for-expungements/.

[14] Utah Code Section 77-40-107(2).

[15] Utah Code Section 77-40-109(1).

[16] The Administrative Office of the Courts is currently working to amend their third-party contracts to include a requirement that criminal record data recipients provide the court with access to their database, and allow the court to periodically audit those databases to ensure compliance with the contractual obligation to remove expunged records.

[17] The list of agencies with access to this information includes the following agencies: the Board of Pardons and Parole, Peace Officer Standards and Training (POST), federal authorities as required by federal law; the Department of Commerce, the Department of Insurance, the State Board of Education, and the Commission on Criminal and Juvenile Justice “for the purpose of investigating applicants for judicial office.”  Utah Code Section 77-20-109(2)(b).

[18] For more information, see DOPL’s criminal history FAQ, which can be found here.