Good and bad news on expungement

Published 9:30 pm Tuesday, April 9, 2019


Contributing columnist

The new and improved Kentucky legislation on expungement of criminal records should be good news for people seeking to overcome barriers to employment, housing and education that can persist for decades after they have served their time. However, these laws can also be bad news for people facing these barriers, according to a newly released study.  

Email newsletter signup

The first major empirical study of expungement laws was released in mid-March by J.J. Prescott and Sonja B. Starr, professors at the University of Michigan Law School. It is based on analysis of the effects of Michigan’s expungement laws. It spells out both the good news and the bad.  

At least 36 states have expungement laws, but they tend to be narrow in scope, require a long waiting period (Kentucky just dropped from 10 years to five), and involve an elaborate and complicated process. They are far from automatic.

Pennsylvania was the first to pass an automatic expungement law last summer. Utah has passed such a law, which awaits the governor’s signature, and California is considering legislation allowing automatic expungement of misdemeanors and minor felonies. Resistance to such simplification often comes from concern for public safety by landlords and employers.

Prescott and Starr believe that the data compiled by their study strongly supports expanding the availability of expungement. Beneficiaries of expungement tend to do “very well” at getting employment, getting steadier employment, and receiving better pay. These beneficial effects happen despite the difficulty of erasing all evidence of a criminal record from the internet.

People with expunged records also seldom break the law again. Their crime rates were lower than those of the general adult population. The five–year waiting period could be a factor because research shows that people who go several years without another offense are less likely to offend again. Cutting down waiting periods could conceivably bring a higher baseline crime risk, but access to jobs, housing, and other benefits should still serve to reduce levels of crime.

All of these points are the good news. There is also bad news in the Michigan data. Far too few people get expungements. Michigan grants about 2,500 a year, and there are an estimated hundreds of thousands of arrests annually. Under the 2016 Kentucky law, with its 10-year waiting period, 2,000 expungements have been granted and 300 denied. Another drop in the bucket!

The research in Michigan found that few people with records meet the legal requirements.  Among those who qualified, only 6.5 percent received expungements within five years of becoming eligible. Judges’ discretion can’t explain such a low rate because 90 percent of those eligible don’t apply.

Why don’t people apply? According to Prescott and Starr, “Most people don’t know they can get an expungement, or don’t know how to do it, and don’t have lawyers to advise them.” The complicated process requires visits to police stations and courthouses, and past experience with the criminal justice system may make that prospect daunting.  

Then there is the cost. In Michigan, the estimated cost of close to $100, not including transportation and missed work time, is a discouragement to people in poverty. In Kentucky, new legislation drops the fee from $500 to $250, still a barrier to people in poverty. Sen. Jimmy Higdon, who proposed Senate Bill 57, tried for a price tag of $150, but it failed.

The researchers recommend that expungement should be made as simple as possible (preferably automatic, once legal requirements are met). They conclude: “Expungement is a powerful tool for improving outcomes for people with records, without risk (and possibly with benefits) to public safety.”

Our Kentucky legislature should be commended for steps to make it easier for people to receive expungement. The scope of the new law expands eligibility to additional non-violent, non-sexual Class D felonies and increases the number of people eligible from 91,000 to 126,000. Beyond the lowered fee and the shortened waiting period mentioned earlier, the new law removes the charge of interest on the expungement fee after 12 months, allows 18 months to pay for the criminal procedure and stipulates no jailing for non-payment of the expungement fee. Expungement also makes one eligible to have voting rights restored.   

Nevertheless, the bad news provided from the Michigan study along with the good news should warn us that the improved legislation may not make much difference. People have to know what to do and how to do it. And money matters. One highly regarded law firm that says it helped write the new legislation offers help with misdemeanor expungement at $390 and with general felony expungement at $1,590. Let’s hope that there is professional help available for less.

As Senator Higdon urged, a felony conviction can amount to a life sentence when it comes to escape from second-class citizenship. Even dismissed and diverted cases and arrest records (even speeding tickets) can hurt getting jobs.

If individuals with records and society as a whole are to get the benefits of expungement, some people who know the ropes are going to need to help out. And the task of improving expungement laws is not over.