Category: Uncategorized

Oregon ramps up its clemency, record relief, and resentencing programs

Note: This is the second post in a series on state pardoning. The first discussed Governor Tony Evers’ reinvigoration of clemency in Wisconsin. Oregon Governor Kate Brown, along with the state legislature, have reimagined how Oregon grants executive clemency, early release, and record relief. Brown has issued more pardons and commutations than any Oregon governor in recent history, according to Aliza Kaplan, the Director of the Criminal Justice Reform Clinic at Lewis and Clark University. In addition, Brown signed two bills into law this year that will significantly improve access to judicial remedies for people with a conviction record, thereby reducing the need for executive pardons. The bills, discussed in greater detail below, reduce barriers to record clearance via set-aside and sealing, and create a mechanism for prosecutors to agree to vacate a conviction or reduce a person’s sentence when it no longer serves the interests of justice. In the first five years of her tenure, Governor Brown granted 20 pardons. From March 9, 2020, through November 2021, Governor Brown has granted 35 pardons. (This letter from the Governor to the state legislature covers the period from March 9, 2020 to June 25, 2021; according to Kaplan, Brown granted two more pardons between June and November.) Governor Brown pardoned people with a wide range of offenses, from murder, to DUI, narcotics possession, and other offenses. In at least one case pardon was granted based on a determination of innocence. After granting just six conditional commutations in her first five years in office, Brown granted a total of 985 conditional commutations from March 9, 2020 through June 2020. (Unlike commutations in many other states, commutations in Oregon have typically included a term of supervised release and a condition allowing a return to prison in the event of additional criminal activity.) Of these 985 commutations, the Governor granted 32 in response to applications, 41 to individuals who were deployed to fight historic wildfires in the state and who met other criteria, and the rest to individuals identified by the Department of Corrections as appropriate for release on grounds related to COVID-19 (see detailed description below). In addition, in October 2021, Brown commuted lengthy sentences of 74 people who committed crimes before they had turned 18 but were excluded from a 2019 juvenile sentencing reform bill, making them eligible to petition for release after 15 years in custody. Kaplan commented “we’re seeing that as we rethink a lot of the tough on crime philosophy, and laws of the eighties and nineties, we are questioning those policies…and asking what role rehabilitation and remorse should play…We’re also acknowledging that people can change and we show mercy, and we’re reuniting families and communities. All of this is behind the governor’s use of clemency, any governor’s use of clemency, to correct those injustices.” Governor Brown’s use of clemency, and recent legislative reforms, reflect a growing political interest in forgiveness, reintegration, and record relief in Oregon. The rest of this post will discuss Oregon’s recent record clearing and resentencing reforms as well as specific categories of commutations (COVID-19-related, prisoners convicted as children, and firefighters). Expungement Reforms Before 2021, Oregon’s complicated record clearance statute excluded many from the benefits of record relief, with only 5.5% of eligible individuals obtaining relief. “The impact of Oregon’s dysfunctional system [has been] felt most severely by its BIPOC community who are more likely to be arrested, charged and convicted,” according to Mary VanderWeele and Nikki Thompson, who worked to secure passage of the record reforms. “Black Oregonians are almost four times as likely to have a criminal record as their white counterparts.” Bipartisan reform legislation, signed by Governor Brown in August 2021, will align Oregon’s waiting period for record clearance with other states and public safety data. The bill also eliminates filing fees, limits the time for prosecutor objection to 120 days, and eliminates prior convictions as a bar to clearance of non-convictions. In 2019, Oregon also enacted a law expanding the effect of pardons as a rights restoration tool. Previously, a pardon in Oregon forgave the person for their prior convictions, and restored access to various fundamental rights. However, the pardon did not remove the conviction from their record. Now, pardons in Oregon result in an automatic clearance of the underlying conviction (those pardoned earlier than 2014 can petition to have their conviction cleared). Resentencing Law Also in 2021, Oregon enacted a new law that authorizes a person convicted of a felony and the district attorney to jointly petition a court to reconsider a sentence and/or conviction if it “no longer advances the interests of justice.” (Aggravated murder offenses are excluded as are cases where a conviction is eligible to be set aside and sealed under ORS 137.225.) See SB 819 (as yet uncodified).  A joint petition may seek dismissal, the vacating of convictions, a plea to a new alternative offense, resentencing for the original conviction, and/or sentencing on a new offense. Certain offenses with a mandatory minimum require vacating the original conviction and a plea (and resentencing) to a new offense. In deciding whether to grant a petition, the court must hold a hearing and give victims an opportunity to make a statement, and may consider various post-conviction factors, including rehabilitation, risk of future violence, safety of the victim, the amount of time already served, and changed circumstances. COVID-19-related Commutations In June 2020, Governor Brown asked the Department of Corrections to perform a “case by case analysis” of prisoners particularly vulnerable to COVID-19 and those whose release date did not exceed two months. In December of 2020, Governor Brown adjusted the criteria on the latter program to include adults whose remaining sentences did not surpass six months. She had granted 912 commutations to prisoners as of June 2021, 567 of whom were deemed particularly vulnerable to COVID, and 345 of whom were nearing the end of their sentences and who met other criteria. Despite this seemingly high number, criminal justice advocates have criticized Governor Brown for failing to release prisoners en masse in order to protect them from the pandemic. Nonetheless, Kaplan believes that the governor should be credited for her commutations, noting that the pandemic has injected some urgency into her use of her constitutional power. Commutations For Prisoners Convicted as Children In November 2021, Governor Brown commuted the sentences of 74 people who committed crimes before they had turned 18 and are serving sentences of at least 15 years. They will now be able to petition the Board of Parole and Post-Prison Supervision for release after 15 years in custody. They had been excluded from a 2019 bill that drastically improved how Oregon sentences young people. The bill includes provisions to establish a “second look” which allows for review of rehabilitation status halfway through the sentence of juveniles convicted in adult court (allowing for the remainder of a term to be served on community supervision), presumes adjudication in the juvenile system absent a judicial determination otherwise, allows opportunities for judges to release youth before they are transferred to adult prisons, and eliminates life without parole for youth. The clemency order does not apply to individuals whose sentences extend beyond 2050. According to the Huffington Post, this parameter appears to be designed to exclude a specific person serving 112 years in prison for a high profile juvenile murder case, though it also impacts several other people. In December, Governor Brown took additional action to accomplish the immediate release of three individuals convicted of murder while juveniles, whose cases had been erroneously included among the November grants, “in recognition of their extraordinary rehabilitation and after receiving input from prosecutors and victim family members.” Elizabeth Mera, the Governor’s press secretary, commented that “youth should be held accountable for their actions, but the fact is that adolescent brains are still growing and developing, especially in skills such as reasoning, planning, and self-regulation. Yet, too often our criminal justice responses do not take this into account.” Firefighter Commutations Governor Brown has also utilized commutations as a reward for prisoners who have volunteered to fight against wildfires, a growing threat in western states. In June, the Governor commuted the sentences of 43 prisoners who helped fight off historic wildfires in Oregon. California has also  recognized the firefighting efforts of those serving time in prison, enacting a law that facilitates access to record clearance for former prisoner firefighters. Read more

CCRC’s collection of scholarship on collateral consequences updated

Scholars, practitioners, and those affected by the criminal system can now more easily access relevant and timely scholarship related to collateral consequences. CCRC has updated the Books and Academic Articles page of its resources section to facilitate quicker retrieval of relevant content. Specifically, CCRC has organized the relevant books and academic articles by category. These categories offer a wide array of academic perspectives on collateral consequences, restoration of rights, and record relief. CCRC has similarly updated the books and academic articles section with new and potent scholarship, and expanded the coverage of restoration of voting rights. New scholarship since 2020 runs the gamut of collateral consequences, and includes work on expungement and record relief, executive clemency, drug related issues, and issues of inequity. The page has also been updated to include the most recent edition of the Federal Sentencing Reporter on the past, present, and future of the Federal pardon power, guest-edited by our Executive Director Margaret Love and featuring our Board Chair Gabriel J. Chin and our Deputy Director David Schlussel. CCRC hopes that the resource section will continue to offer an array of insightful academic pieces for scholars, practitioners, and those seeking to restore their own rights. Read more

Arizona enacts its very first sealing law – and it’s impressive!

In July 2021, in an unheralded action in the final days of its legislative session, Arizona enacted a law that authorized its courts for the first time to seal conviction records. See SB1294, enacting Ariz. Rev. Stat. § 13-911. The same law authorized sealing of uncharged arrests and dismissed and acquitted charges, also for the first time. Prior to this enactment, Arizona was one of a handful of states whose legislature had made no provision for limiting public access to conviction records, and was literally the only state in the country whose courts and records repository had no authority to seal non-conviction records. Now the state will have one of the broadest sealing laws in the country when it becomes effective on January 1, 2023. (In the November 2020 election, Arizona voters approved a proposition to legalize marijuana, which included a provision for expungement of certain marijuana-related records.  But until now no general sealing authority had been enacted by the Arizona legislature.) As described below, the law makes all but the most serious offenses eligible for sealing after completion of sentence (including payment of court debt) and a graduated waiting period.  It also appears that 1) multiple eligible convictions may be sealed, in a single proceeding or sequentially; 2) the prior conviction of a felony (even if ineligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period; 3) a conviction during the waiting period restarts the waiting period; and 4) there is no limit on the number of occasions on which sealing may be sought. The applicable procedures are fairly straightforward, with no hearing necessary unless the prosecutor requests it, and the court required to grant relief if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” Many of the obligations to acquire and serve documents that burden petitioners in other jurisdictions and act as barriers to access are assigned by law to the court.  Hopefully, in preparing to implement the law over the next 18 months until it becomes effective, Arizona practitioners can develop educational resources and training programs to facilitate applications by pro se petitioners, and Arizona courts can develop standardized forms and an efficient e-filing system to further enhance the new system’s efficiency. Inaugurating a brand new system at a time when other jurisdictions are recognizing the access-to-justice flaws in existing ones may give Arizona certain advantages. The law is described in greater detail below. Sealing of felony and misdemeanor convictions The new law makes all convictions except Class 1 felonies, and certain violent and sexual offenses, eligible for sealing. § 13-911(O). By its terms, the law does not limit the number of convictions that may be sealed; nor does it limit the number of times a person may request sealing. As such, it is one of the broadest sealing authorities in the country. Its eligibility provisions are logical but somewhat complex in operation because relief may extend in the same proceeding to multiple differing convictions. Eligibility:  At the time of sentencing, the court must inform the defendant, on the record and in writing, that he or she may be eligible to petition the court for an order sealing all case records. § 13-911(E). If the person “has not subsequently been convicted of any other offense except a misdemeanor [traffic violation other than a DUI],” the person may petition the court to seal the record after completion of all terms of the sentence, including payment of all fines, fees and restitution ordered by the court.  A waiting period after completion of sentence and discharge applies, whose length depends on the seriousness of the offense: 10 years after discharge for Class 2 and 3 felonies, five years for Class 4, 5 and 6 felonies, three years for a Class 1 misdemeanor, and two years for lower grade misdemeanors. Id. If the person has “a prior historical felony conviction,” an additional five years is tacked on to the specified waiting period. § 13-911(F). A person who “is convicted of two or more offenses may not petition the court to seal the person’s case records until the period of time prescribed in subsection E of this section has passed for each conviction.” § 13-911(G). While the language of these sections could be clearer, read together (both for what they say and what they don’t say) we think they are most reasonably understood as follows: Multiple eligible convictions may be sealed, in a single proceeding or sequentially; The prior conviction of a felony (whether or not eligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period for an additional five years; A conviction during the waiting period (other than a non-DUI traffic misdemeanor) restarts the waiting period; and There is no limit on the number of occasions on which sealing may be sought. A variety of mix-and-match scenarios may be imagined in which sealing of several convictions is sought, whether in the same proceeding or sequentially, extending the waiting period because of a prior felony conviction or restarting it where a new conviction occurs midway through it. Procedure:  After the petition has been filed, it is the responsibility of the court clerk to provide the prosecutor with a copy, and the prosecutor must notify a victim who has previously requested such notice. The court may not act on the petition for 30 days after its receipt unless the prosecutor and victim indicate that they have no objection. § 13-911(D). The court must request the Department of Public Safety (DPS) to prepare a report that includes the petitioner’s entire federal and state arrests and prosecutions, and “any other information that the court requests or that the Department believes will assist the court in making its determination. § 13-911(H). Unless the prosecutor or victim request a hearing, the court “shall grant” the petition if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” § 13-911(D). In cases where sealing of a conviction is sought, the Director may charge the petitioner a fee for the investigation, and for the actual sealing if the petition is granted, unless the petition is indigent. §§ 13-911(D) and (H). If the petition is charged with an offense after the petition is filed, the court may not dispose of the sealing petition until that new matter is resolved. § 13-911(N). If the court denies a request for sealing, the petition may not apply again for three years. § 13-911(L). Appeal of a denial of sealing is permitted based only on an error in determining eligibility. § 13-4033(5). The effect of a sealing order is set forth in § 13-911(B) and (I). The DPS is responsible for informing all appropriate state and federal law enforcement agencies that the record has been sealed. § 13-911(I). While a sealed record may be used variously in a subsequent prosecution, a person whose record has been sealed may state that they have never been arrested in response to questions on most applications for employment, housing, financial aid or loan applications.  A lengthy list of employments related to specific types of offenses are excepted (e.g., a sealed burglary or residential theft conviction must be disclosed in an application for employment that involves entering a dwelling.)  § 13-911(I)(5)(a) through (k). The sealed record is generally available to the subject of the record, to the victim (if they have exercised victim’s rights), to enforcement agencies and the courts, and to corrections agencies and child protective agencies, for their official duties. § 13-911(J). Sealing of non-conviction records Until enactment of the 2021 law, Arizona was the only state in the country that made no provision for limiting public access to non-conviction records (with a limited exception for wrongful official action described below).  When the law becomes effective in 2023, Ariz. Rev. Stat. § 13-911(A)(2) and (3) will authorize petitions to seal uncharged arrests and dismissed and acquitted charges. The process applicable to sealing non-conviction records is essentially the same as the process that applies to conviction records, including the possibility that the prosecutor or victim may request a hearing. The same standards apply as apply to convictions: the court “shall grant” the petition if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” § 13-911(D). One difference is that no fees may be charged by DPS for preparation of the record or for sealing of non-conviction records. Until January 1, 2023, non-conviction records may be sealed only if a person was “wrongfully arrested, indicted or otherwise charged for any crime,” meaning that there was “no legal basis for the arrest, or no legal or factual basis for the charge, or where the parties so stipulate.” State v. Mohajerin, 226 Ariz. 103, 109 (App. 2010), quoting from State v. Franco, 153 Ariz. 424, 426 (App. 1987). Read more

Access Barriers to Felony Expungement in Utah

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. Read more

Study reveals potential for racial bias in presidential pardon process

Last week the RAND Corporation published its long-awaited Statistical Analysis of Presidential Pardons, commissioned in 2012 by the Bureau of Justice Statistics to determine whether the Justice Department process for deciding who to recommend for a presidential pardon is tainted with “systematic” racial bias. The RAND study appears to have been a direct response to an investigative report published jointly in December 2011 by ProPublica and the Washington Post, which concluded based on an examination of pardon cases granted and denied during the administration of George W. Bush, that race was “one of the strongest predictors of a pardon.” Specifically, the ProPublica study concluded that “White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities” while “Blacks have had the poorest chance” of receiving a pardon. In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.)  At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.” The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both. To this point, the RAND researchers appeared troubled by the extent to which subjective lifestyle criteria influence the evaluation of pardon petitions under governing policies: “There may well be specific instances, both within our study time frame and without, where conscious or unconscious bias on the part of a member of OPA’s staff influenced the ultimate outcome of a petition, either for or against a grant of pardon.” This would appear to be an understatement. The composite profile of a successful pardon applicant that RAND describes, based on its examination of hundreds of OPA casefiles, is a U.S.-born white man in his mid-50s, who committed a white-collar crime in his late 20s and had no criminal activity before or after the conviction, who pled guilty and was sentenced to probation, and who applied for a pardon more than 20 years after he was sentenced. Steady employment, stable family life, charitable activity, military service, recommendations from public officials, and assistance by legal counsel were also found to be statistically valid predictors of success. The least successful composite petitioner was “a non-Hispanic black female who was not a U.S. citizen by birth and was in her late thirties when the underlying offense (a firearms-related crime) was committed,” who (inter alia) had “indications in her case file of criminal activity both before and after the conviction,” who had experienced financial and employment instability, who “was likely seeking clemency for the purpose of obtaining or restoring a professional license,” and whose character references came predominantly from family members. The RAND researchers conclude the following about what sort of person was most likely to get a favorable recommendation from OPA during the period 2001-2012: [T]he takeaway here is that a petition has the best chance for success when the petitioner has led a fairly ordinary life other than in regard to a single brush with the law, received only modest sanctions when sentenced and served it without incident, never experienced financial or behavioral troubles, had a stable family and employment history, waited decades before seeking executive clemency, and had a criminal justice experience benign enough so that those who prosecuted his case or were responsible for his pretrial evaluation had little concern over a grant of pardon. To be fair, the subjective criteria applied by OPA are all but dictated by the standards for consideration of pardon applications set forth in the Justice Manual, which have not changed for many years. They require an assessment of “post-conviction conduct, character, and reputation,” as well as “seriousness and relative recentness of the offense,” and “acceptance of responsibility, remorse, and atonement.”  “Need for relief” is described in the standards in terms of mandatory restrictions like those in statutes applicable to bonding and licensing. The degree to which “conscious or unconscious bias” might influence application of these standards in particular cases would be particularly hard for an outsider to gauge given the highly opaque and even secretive OPA process, which the report says “mirrors to some degree the inquisitorial system utilized in civil law countries.” But in this case the statistics don’t lie. Other interesting (though not surprising) statistics gleaned from the RAND report are: Fully a third of petitioners were seeking pardon to regain their firearms rights Only 5.6% of petitioners deemed eligible after OPA’s initial winnowing process were ultimately recommended favorably for pardon The U.S. Attorney supported pardon in only 9.5% of the cases in which that official’s views were sought, an investigative step that occurred late in the review process after the applicant had survived all earlier stages, and this official’s recommendation was given “great weight” in OPA’s final recommendation (confirming concerns about the negative influence of federal prosecutors on pardon recommendations) It took an average of more than four years to produce a favorable Justice Department recommendation, and more than half of this time was consumed by requests to OPA from officials in the Deputy Attorney General’s office for more information or a different recommendation (confirming concerns about heavy-handed oversight by political appointees) A favorable pardon decision was more likely during the eight years of the George W. Bush administration than during the first four years of the Obama administration. The RAND researchers attribute “the difference in the findings between our study and ProPublica’s . . . to the fact that both studies utilized relatively small samples of pardons granted.”  They acknowledge that their small sample size may have skewed the results in other ways, noting that the review they had initially planned of 1500 case files had to be reduced to fewer than 300 cases as a result of the announcement of the Obama Clemency Initiative in 2014, which forced an end to its review of pardon casefiles and halted all processing of pardon applications for 18 months. The RAND report acknowledges the overrepresentation of white petitioners in absolute numbers compared to Black and Hispanic pardon seekers, and cites the possible deterrent effect of so much detailed instructional information on the OPA website. While the report opines that the application form itself should be relatively easy to fill out, its authors may have had in mind the profile of the successful pardon applicant, rather than someone with a lot of potentially damaging and dated information to disclose, such as prior and subsequent criminal record, employment history, drug use and treatment, mental health consultations, financial issues, etc. In any event, it recommends encouraging criminal defense attorneys to inform their clients about the possibility of petitioning for a pardon, and assisting petitioners through providing free clemency clinics and expanding programs like Obama’s 2014 clemency initiative to address this racial imbalance. Finally, in what may be the most disturbing finding for the Biden Administration, the RAND report observes that OPA appears to be struggling to manage a growing case backlog despite having had its attorney staff augmented during the Obama years. OPA appears to be having increased difficulty in keeping up with the incoming pardon caseload. As of the beginning of June 2018, over 2,000 pardon petitions were classified as pending, but for most years prior to 2016, the pending caseload was no more than half that amount. Since June 2018, in part because of President Trump’s deliberate neglect of the regular pardon process, the backlog of pending pardon petitions has grown to more than 3,000 cases, some of which have been pending for more than a decade, while the commutation caseload now exceeds 12,000 cases. The RAND report expresses concern that this overwhelming caseload may increase the time it takes to process a pardon application, which it characterizes as already “long and drawn-out.” Indeed, it suggests that an intractable backlog could continue to grow given the hundreds of thousands of individuals who are eligible to apply for pardon, particularly if they are “motivated to apply under the belief that a more receptive ear currently resides in the White House.”  The report does not suggest alternative ways of dealing with the caseload, such as shortcutting the investigative process or increasing administrative case closures, as much as conceding that such efficiency measures would have racially skewed results. But in accepting a backlog of pardon cases as inevitable and likely to grow larger, particularly if the president stirs up interest by granting pardons, the RAND report fails to recognize that the primary problem with the pardon process today is not structural racism or a slow-moving bureaucracy or even antagonistic federal prosecutors (though all three contribute to the dysfunction of that process). The primary problem is that the federal criminal legal system relies too heavily on an extraordinary power of the presidency to perform tasks that are essentially routine. While the states have been busy expanding their courts’ authority to restore rights and opportunities to people with state convictions, Congress has done nothing to provide alternative statutory relief mechanisms to people with federal convictions. This has left the president solely responsible for implementing the important public policy of facilitating reintegration, armed only with a personal constitutional power that is notoriously unfair and that cannot be delegated. It also leaves a great deal of power in the hands of unaccountable staffers. Addressing this untenable situation must be the work of the Biden Administration and Congress in the next few years. Happily, if past is prologue, it is likely to have an unusual degree of bipartisan support. A forthcoming issue of the Federal Sentencing Reporter, which I had the privilege of guest editing, contains essays discussing the impact on the regular pardon process of Donald Trump’s irregular use of the pardon power, proposing ways in which the president’s power can be used more fairly and efficiently, and suggesting how it may be supplemented by statutory remedies. The issue will be described in this space when it is published at the end of this month. The RAND report can be accessed here.       Read more