I’ve spent a lot of time on this blog talking about the mechanics of expungement in Kentucky, and how it might end up working, but I don’t think I’ve addressed some of the fundamental reasons that expungement is so important right now. While convicted felons and their loved ones are well aware of the crippling effect that a felony record can have on a persons job prospect, many people still don’t understand.

“Go get a job at McDonald’s,” some would reply. But McDonald’s isn’t necessarily taking felons. Especially not in the tough labor market we have been in since the financial crisis. And higher paying jobs are almost certainly out of the question. According to a 2013 article in the Nation, former felons are banned from more than 800 occupations because of laws and licensing rules. Ninety-two percent of employers now run background checks. Because of the potential for being sued for negligent hiring, many business owners who would otherwise be willing to take a chance on hiring a felon chose not to, due to the risk of a law suit.

And the effect of these policies have a staggeringly racial disproportionate effect in minority communities. While only one in thirteen Americans has a felony record, the Department of Justice has projected that a third of black men and one fifth of Latino men born in 2001 will go to prison at some point in their life. Destroying the ability of someone to get a job because of a mistake they made when they were young, and doing so in a staggeringly racially disproportionate amount is a recipe for disaster.

We can do better. And a good start is erasing those mistakes, from those records, where people have shown that they can change. By bringing former felons back into the workforce, we can lower recidivism, and take baby steps toward correcting just one of the many racial injustices in our society.

 

On January 6th, 2016, Senate Bill 77 was filed in the Kentucky Senate. SB 77 is the Senate’s approach to felony expungement in Kentucky. It is notably different from the bill that passed the House last week. In some ways, the Senate Bill is superior, but in many ways, it makes expungement more onerous and more expensive. If business leaders and citizens are to reap the rewards of an increased workforce, the fewer financial barriers to expungement, the better.

Differences between the bill passed by the House and the proposed Senate bill include:

• The Senate Bill creates a new and entirely separate law to handle felony expungement, rather than adding felonies to the current procedure for expunging misdemeanors.
• The Senate Bill would impose a $280 filing fee for a felony expungement. The House bill would impose only a $100 filing fee. While it is not 100% clear from the language of the Senate Bill, this would seem to be in addition to the $40 fee charged by the Administrative Office of the Courts and the Kentucky State Police for the records check required under KRS 431.079.
• This would bring the total cost of an expungement under the Senate Bill to $320, as opposed to $140 under the House Bill. Those are just the costs of filing the petition. Hiring an attorney to argue the petition would cost substantially more. And while an attorney isn’t required to seek an expungement, it may become advisable in light of the other changes in SB 77, listed below.
• SB 77 creates a requirement that the person requesting an expungement make an effort locate the victim of the case. While it is not required that the petitioner find the person, this could prove difficult in some cases for a person petitioning for an expungement on their own.
• SB 77 greatly increases the burden on overworked Commonwealth’s Attorneys. SB 77 requires that each petition have a response from the Commonwealth’s Attorney made after consulting with the victim. The Commonwealth’s Attorney will then recommend whether the person seeking expungement should be granted the expungement.
• While SB 77 seems to make it mandatory that the expungement be granted if the requirements are met, this procedure with the Commonwealth’s Attorney seems to invite a weighing of the merits of the expungement. While the language of SB 77 seems mandatory, there is little question that some prosecutors, would enjoy recommending against every expungement. See Com. v. Holloway. This will lead to more argument in the courtroom, and litigants with attorneys will definitely have an advantage.
• SB 77 would further limit the Class D felonies that are eligible for expungement. In particular, it removes from consideration offenses under KRS 507 and KRS 508–the homicide and assault/wanton endangerment offenses. I actually think this is a reasonable compromise. I expect that some arguing over which Class D felonies should be expunged, and this approach seems pretty commonsense.
• SB 77 does nothing to address expungement for cases dismissed by the grand jury. The 12 month waiting period contemplated by HB 40 makes sense. The senate should adopt it.
• SB 77 leaves in the five year prior requirement for expungement of misdemeanors. This is a somewhat complex issue that I want to leave for another post later, but I believe that this is a commonsense change. If we are going to allow felonies to be expunged after waiting five years, regardless of the criminal record prior to the felony, we should afford misdemeanor convictions the same leeway.
• SB 77 does change the waiting period for seeking an expungement to be shorter. Rather than having to wait five years after the completion of the sentence or probation, the petitioner can seek expungement five years after the judgment is entered. I’m not sure that this language doesn’t have some unintended consequences, but it seems fair.

I’m going to be thinking about these differences over the next few days, and will be back to offer my view on what compromises we can find between the two approaches to create the best bill.

So as reported in the Herald-Leader,  HB40, the version of the expungement bill I talked about last week has passed in the House. The vote is promising, as were the comments from our legislators.  My very unscientific scan of social media for the articles about this bill show that the public overwhelmingly supports Class D expungement.  This bill will make its way to the Senate in the next few weeks, but there is also a Senate Bill that has been filed that would also allow for felony expungement. I plan on looking at the difference in that bill (SB77) and HB40 and will make some predictions about what the final bill ends up looking like.

So far, we have looked at the prefiled felony expungement bill in its entirety. I want to take a minute tonight to break down the mechanics of how this bill will work, and what possible compromises we might expect out of a final bill. The bill that was filed in the house contains the following major changes from our current expungement statute:

1. Cases that are not indicted by the grand jury (no true bill) will now be eligible for expungement twelve months after the case is bound to the grand jury.
2. The bill allows someone to expunge a Class D felony, or a series of Class D felonies arising from a single incident.
   1. However, the victim cannot be a child, the offense a sex offense (as defined in KRS 17), or an offense under KRS 209 (elder abuse).
3. The person seeking an expungement will have to wait five years after either serving out their sentence, paying their fine, or completing probation.
4. The requirement that the person have had no offenses in the five years preceding the offense to be expunged has been removed.
5. Felons who receive an expungement will be eligible to possess firearms.

Overall, this opens up a huge category of Kentuckians who will become eligible for expungements if this version of the bill passes. Some drug trafficking cases, all drug possession cases, theft under $10,000, burglary of a building.

I think the most likely changes we can expect to see, if there is a compromise on this bill, is to see the five years preceding the offense requirement stay in place, or, a ten year waiting period for felony expungement. I hope I’m wrong, but it seems possible. Another concern that was previously voiced by Republicans in the Senate was making theft and financial crime convictions available to banks for the purpose of setting credit scores. In today’s information age, it’s almost certain they have this information already. And this version of the bill doesn’t seem to run into the creation of a protected class problem that prior ones had.

All in all, I’m optimistic that we will see felony expungement in Kentucky this year.

New governor Matt Bevin spoke today in front of the Kentucky legislature in support of felony expungement. The Herald-Leader republished the details from an Associated Press report. Prior versions of the bill had been passed by the Democrat led house, but stalled out in the Republican led senate. The blessing of the Republican Governor should hopefully push this bill into reality. Senate Majority leader Damon Thayer said: “there is a general bipartisan feeling that we ought to do something on expungement,” but noted “I’m not going to commit to being for an expungement bill until I get a chance to read it.”

I personally spoke to someone closely involved in the legislative process on this particular bill. She made it clear that supporters are optimistic that some type of felony expungement bill will pass, but aren’t sure what the particulars will be. In the past, Senate Republicans had suggested a ten year, instead of five year waiting period before someone could apply for expungement.

To those Senators, I leave the words of our governor, Matt Bevin: “I would challenge our senators to remember there is no time when an individual is more vulnerable, no period when there is greater likelihood of recidivism than during that immediate window after which a person has served their (prison) term.”