How Utah Got Automatic Expungement
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.