Tag: Sharon Dietrich

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. 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. Read more

Model law proposes automatic expungement of non-conviction records

An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction.  Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law.  It is available in PDF and HTML formats. “Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project.  “Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs.” In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record.  Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction.  The group regards its model as the first step in a broader law reform initiative that will address conviction records as well. Law enforcement officials make over 10 million arrests each year, a substantial percentage of which do not lead to charges or conviction.  Records of these arrests have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation.  These checks often turn up an “open” arrest or charges without any final disposition, which may seem to an employer or landlord more ominous than a closed case. Very few states have taken steps to deal with the high percentage of records in repositories and court systems with no final disposition indicated.  Paul McDonnell, Deputy Counsel for New York’s Office of Court Administration and a project advisor, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.” Current state and federal laws restricting access to and use of non-conviction records have limited application and are hard to enforce.  Eligibility criteria tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating.  In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of non-convictions, leading some states to simplify and broaden eligibility for relief, reduce procedural and financial barriers to access, and in a handful of states to make relief automatic. Rep. Mike Weissman, a Colorado State Representative and model law project advisor, noted that Colorado has recently overhauled its laws on criminal records with broad bipartisan support.  “It is heartening to see similar reforms underway in other states, both red and blue, as well.  I commend the practitioners and researchers who helped formulate the model law for illustrating avenues for further progress in reducing collateral consequences.” The model law would take this wave of criminal record reforms to a new level.  It recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused.  Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction.  Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending. The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies.  It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them. David LaBahn, President of the national Association of Prosecuting Attorneys, indicated that organization’s support for the model law, stating that the collateral consequences of non-convictions “do not serve to make the community safer,” and that “the current structures in place to expunge a non-conviction record can be confusing and difficult for the layperson to navigate alone.” This model law sets the stage for jurisdictions to address record relief for convictions more generally, and its structure and principles can be brought to bear on that important work. The Collateral Consequences Resource Center organized this model law project.  An early draft of the model law was discussed at an August 2019 Roundtable conference at the University of Michigan that was supported by the Charles Koch Foundation.  The model law report was supported by Arnold Ventures. Read the model law in PDF or HTML. Read more

“Ants under the refrigerator”

The following post is republished, with permission, from the National Clean Slate Clearinghouse listserv.  In it Sharon Dietrich points out that even after criminal records have been expunged or sealed, they may still be reported by commercial criminal record providers in violation of the Fair Credit Reporting Act.   (See our recent 50-state survey of record-closing laws, with their intended effect.)   You probably are wondering, “What is she talking about, with a subject line like that?”  The answer to your thought is that I use this phrase when giving clients an important warning about the effect of their expungement orders.  I am illustrating for them the idea that I can’t guarantee removal of their expunged cases from every possible background check, especially those prepared by commercial screener such as Sterling, HireRight, First Advantage and countless others. As you doubtlessly know, “criminal records” are not a single, monolithic document.  Criminal record data about a single case exists in numerous databases.  Public sources of criminal record information include court records, local law enforcement, state police or other “central repositories,” and FBI records.  Criminal record information is also maintained in privately owned databases, consisting of information obtained from the public sources (most often court records).  The majority of criminal background checks are done by the commercial background screeners, using the private databases. The general idea of record sealing is to suppress the case from public view, so that employers, landlords and others who use background checks don’t make decisions based on these cases.  For expungement or sealing of a case to be effective, then, it must be removed at least from all of the sources used in background screening.  That is usually not too difficult in the public record sources (except possibly FBI records – which could be a subject for another post).  But the same is not true of the private databases.  The private data brokers often take the position that they report expunged cases because they don’t know that cases in their data have been expunged. The result?  Expunged or sealed cases are often still reported by commercial screeners.  Compromising the whole idea of expungement (and public policies to expand it).  And violating the Fair Credit Reporting Act (the FCRA).  And resulting in the “ants under the refrigerator” – you think you managed to expunge the case everywhere, but then here comes a background check with the expunged case unexpectedly reported from a source that missed the order. This is a difficult problem.  But do not despair.  There are things that can be done to improve the situation for your clients.  Here are a few. Advocate for your state’s public record sources that sell their data to private companies to provide a list of expunged cases to be removed from the private data.  This is an elegantly simple solution, pioneered by the Pennsylvania courts, that usually works. Take affirmative steps to provide the expungement or sealing orders to the commercial vendors.  One way of doing that is to register with the Expungement Clearinghouse (www.expungementclearinghouse.org). Use the FCRA.  Tell your clients to return if the expunged case is reported.  File a dispute of a background check reporting a case that should have been removed.  Even better, sue the company! We must demand better of the commercial screeners that make their money from using public data, but aren’t adequately motivated to remove expunged or sealed cases!  Of course, if they were double-checking their results as they should under the FCRA (my opinion, which only some of the screeners share), they would learn that a case was expunged, and they would not potentially cost our clients jobs.   Read Sharon Dietrich’s full article on these issues, which appeared in the Winter 2016 edition of Criminal Justice magazine, here.  Sharon Dietrich is the Litigation Director at Community Legal Services of Philadelphia, a partner in the National Clean Slate Clearinghouse. Read more

“One Strike and You’re Out:” Center for American Progress reports on criminal records policy

Earlier this week, the Center for American Progress published a new report on the effect of the proliferation of criminal records in a nation of mass incarceration and criminalization. The report (“One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records”) explores the debilitating effect that a criminal record – including records for relatively minor offenses and for arrests that did not result in a conviction – can have on an individual’s access to housing, public assistance, education, family stability, and, in turn, their prospects for economic stability. The report’s authors are Rebecca Vallas of the Center for American Progress’s Poverty and Prosperity Program, and Sharon Dietrich of Community Legal Services of Philadelphia (and of our own CCRC Board). The report makes the point that the proliferation of criminal records, and the ease with which they can be accessed, harms not only individuals but society as a whole. The collateral consequences of a criminal record result in employment losses of $65 billion a year in GDP according to one study cited. Another study estimates that the national poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the accompanying criminal record crisis. The report notes that the war on drugs and the “criminalization of poverty” has resulted in a disproportionately high incidence of justice system contact in communities of color. Criminal records are thus both a cause of poverty and a consequence of poverty. “Failure to address the barriers associated with having a record as part of a larger antipoverty strategy risks missing a huge piece of the puzzle,” Vallas told me shortly after the report’s publication. “On the flip side, enacting policies to remove those barriers and provide a second chance has the potential to make a huge dent in our nation’s poverty rate.” To this end, the report recommends broadening access to expungement and record sealing, expanding fair employment and housing protections, and requiring accuracy in criminal background checks. Some of the recommendations target specific collateral consequences like the felony drug ban for federal nutrition assistance, and for federal financial aid for those with drug convictions. The report also gives examples of laws and policies already on the books that can serve as models for reform. I also asked Vallas about the prospects for meaningful reform in the current political climate. This is what she had to say: Bipartisan momentum in support of criminal justice reform — including second-chance policies — has been growing for the past several years. We seem to have moved past the “tough-on-crime” era and into a new “smart-on-crime” era with increased support for criminal justice policies that avoid needless incarceration. This shift appears to have happened in part because of the enormous costs of incarceration — the U.S. spends more than $80 billion per year on locking people up, and more than $270 billion per year if you count the costs of law enforcement, policing, etc. — and because of increased interest in evidence-based policies that support reentry, reduce recidivism, and increase public safety and spend law enforcement resources more effectively. There’s also a strong faith-based argument, that we’re a society that practices and values redemption. Additionally, the impact on the national economy has begun to get people’s attention. A study by the Center for Economic and Policy Research, or CEPR, which we cite in the report, finds that the cost of employment losses from people with records being shut out of the labor market is as high as $65 billion per year in GDP terms. That’s a big hit to our nation’s bottom line. In researching the report, I pulled together a bunch of quotes from prominent elected officials and thought leaders across the political spectrum, calling for criminal justice reform and second-chance policies—and I realized that when you take away the names of who said them, it’s nearly impossible to tell whether each came from a Democrat or a Republican. It’s extremely encouraging, especially at a time when the word “bipartisan” doesn’t apply to too many issues. There’s a lot of hope and optimism that we’ll see real progress on these issues in the next Congress, as well as continued positive steps at the state and local levels. Editor’s note: We think it is particularly hopeful that the Center for American Progress, generally considered the think tank of the Democratic Party, is now taking an interest in issues that for many years have been considered a third rail by progressive candidates for office. Perhaps a constructive practical approach to criminal justice issues will replace fear-mongering and stereotypes in the 2016 election cycle. Perhaps we can finally abandon the unfortunate phrase “soft on crime” without needing to be reassured that we are being smart about it.  —  Read more