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.”

Click here for a Word document version of the proposed expungement bill.

Below is the language of the revised expungement bill that contains the provision for Class D felony expungement. I am posting its language in its entirety tonight with the plan to come back tomorrow to offer my opinion on it and break down what I believe the changes will be if this bill is enacted as written:

KRS 431.076 is amended to read as follows:

(1) A person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice[,] and not in exchange for a guilty plea to another offense, or against whom felony charges originally filed in the District Court have not resulted in an indictment by the grand jury, may make a motion, in the District or Circuit Court in which the charges were filed, to expunge all records.

(2) The expungement motion shall be filed no sooner than sixty (60) days following the order of acquittal or dismissal by the court or twelve (12) months following the date of the District Court decision to hold the matter to the grand jury.

(3) Following the filing of the motion, the court may set a date for a hearing. If the court does so, it shall notify the county or Commonwealth’s attorney, as appropriate, of an opportunity for a response to the expungement motion. In addition, if the criminal charge relates to the abuse or neglect of a child, the court shall also notify the Office of General Counsel of the Cabinet for Health and Family Services of an opportunity for a response to the expungement motion. The counsel for the Cabinet for Health and Family Services shall respond to the expungement motion, within twenty (20) days of receipt of the notice, which period of time shall not be extended by the court, if the Cabinet for Health and Family Services has custody of records reflecting that the person charged with the criminal offense has been determined by the cabinet or by a court under KRS Chapter 620 to be a substantiated perpetrator of child abuse or neglect. If the cabinet fails to respond to the expungement motion or if the cabinet fails to prevail, the order of expungement shall extend to the cabinet’s records. If the cabinet prevails, the order of expungement shall not extend to the cabinet’s records.

(4) If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the motion and order the expunging of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records. The court shall order the expunging on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required expunging action has been completed. All orders enforcing the expungement procedure shall also be expunged.

(5) After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state-performed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application, unless required by federal or state law or regulation.

(6) This section shall be retroactive.

Section 2.   KRS 431.078 is amended to read as follows:

(1) Any person who has been convicted of a Class D felony, a misdemeanor, a violation, or a traffic infraction not otherwise classified as a misdemeanor or violation, or a series of Class D felonies, misdemeanors, violations, or traffic infractions arising from a single incident, may petition the court in which he was convicted for expungement of his or her felony, misdemeanor, or violation record, including a record of any charges [for misdemeanors or violations ]that were dismissed, voided, or amended in the criminal action. The person shall be informed of the right at the time of adjudication.

(2) Except as provided in KRS 218A.275(8) and 218A.276(8), the petition shall be filed no sooner than five (5) years after the completion of the person’s sentence or five (5) years after the successful completion of the person’s probation, whichever occurs later.

(3) Upon the filing of a petition, the court shall set a date for a hearing and shall notify the office of the Commonwealth’s attorney or county attorney that prosecuted the case; the victim of the crime, if there was an identified victim; and any other person whom the person filing the petition has reason to believe may have relevant information related to the expungement of the record. Inability to locate the victim shall not delay the proceedings in the case or preclude the holding of a hearing or the issuance of an order of expungement.

(4) The court shall order expunged all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, if at the hearing the court finds that:

(a) The offense was not a sex offense, a felony offense in KRS Chapter 209, or an offense committed against a child;

(b) The person had no previous felony conviction;

(c)[ The person had not been convicted of any other misdemeanor or violation offense in the five (5) years prior to the conviction sought to be expunged;

(d)] The person had not since the time of the conviction sought to be expunged been convicted of a felony, a misdemeanor, or a violation;

(d)[(e)] No proceeding concerning a felony, misdemeanor, or violation is pending or being instituted against him or her; and

(e)[(f)] The offense was an offense against the Commonwealth of Kentucky.

(5) Upon the entry of an order to expunge the records, and payment to the circuit clerk of one hundred dollars ($100), the proceedings in the case shall be deemed never to have occurred; the court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; [and ]the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. The first fifty dollars ($50) of each fee collected pursuant to this subsection shall be deposited into the general fund, and the remainder shall be deposited into a trust and agency account for deputy clerks.

(6) Copies of the order shall be sent to each agency or official named therein, and [.

(7) ]inspection of the records included in the order by persons who are not court, law enforcement, prosecutorial, or defense personnel may thereafter be permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.

(7)[(8)] This section shall be deemed to be retroactive, and any person who has been convicted of an offense expungeable under subsection (1) of this section prior to the effective date of this Act[a misdemeanor prior to July 14, 1992], may petition the court in which he was convicted, or if he or she was convicted of a nonfelony offense prior to the inception of the District Court to the District Court in the county where he now resides, for an expungement as allowed by this section[of the record of one (1) misdemeanor offense or violation or a series of misdemeanor offenses or violations arising from a single incident, provided that the offense was not one specified in subsection (4) and that the offense was not the precursor offense of a felony offense for which he was subsequently convicted. This section shall apply only to offenses against the Commonwealth of Kentucky].

(8)[(9)] As used in this section, “violation” has the same meaning as in KRS 500.080.

(9)[(10)] Any person denied an expungement prior to June 25, 2013, due to the presence of a traffic infraction on his or her record may file a new petition for expungement of the previously petitioned offenses, which the court shall hear and decide under the terms of this section. No court costs or other fees, from the court or any other agency, shall be required of a person filing a new petition under this subsection.

Section 3.   KRS 527.040 is amended to read as follows:

(1) A person is guilty of possession of a firearm by a convicted felon when he or she possesses, manufactures, or transports a firearm when he or she has been convicted of a felony, as defined by the laws of the jurisdiction in which he or she was convicted, in any state or federal court and has not:

(a) Been granted a full pardon by the Governor or by the President of the United States;

(b) Been granted relief by the United States Secretary of the Treasury pursuant to the Federal Gun Control Act of 1968, as amended; or

(c) Had his or her record expunged by any court of the Commonwealth of Kentucky.

(2) Possession of a firearm by a convicted felon is a Class D felony unless the firearm possessed is a handgun in which case it is a Class C felony.

(3) The provisions of this section shall apply to any youthful offender convicted of a felony offense under the laws of this Commonwealth. The exceptions contained in KRS 527.100 prohibiting possession of a handgun by a minor shall not apply to this section.

(4) The provisions of this section with respect to handguns, shall apply only to persons convicted after January 1, 1975, and with respect to other firearms, to persons convicted after July 15, 1994.

SECTION 4.   A NEW SECTION OF KRS CHAPTER 413 IS CREATED TO READ AS FOLLOWS:

In any judicial or administrative proceeding alleging negligence or other fault in the hiring, retaining, licensing, certifying, admitting to a school or program, or otherwise transacting business or engaging in activity with a person, no information relating to a criminal charge against or conviction of that person that has been expunged before the occurrence of the act giving rise to the judicial or administrative proceeding may be introduced.