Senate expungement bill includes a too-long wait, too-high fees

At a time of bitter partisan divide in our country, a large majority of both Republicans and Democrats in Kentucky support removing barriers that make it difficult for former criminal offenders who have paid their debts to society find jobs.

A survey conducted in January by the Tarrance Group confirms what the new Kentucky Smart on Crime coalition already understands: Kentuckians of all stripes are ready for common-sense reforms that will save tax dollars, help our economy and actually make our communities safer. And that’s why this strange-bedfellows coalition banded together at the beginning of this legislative session to push for a measure to allow former offenders to seek expungement of certain felonies after a reasonable crime-free waiting period.

The coalition supported House Bill 40, which passed the House in mid-January, but understood that the Senate wanted to craft a version that addressed some of its members’ concerns. We applaud the Senate’s attention to this issue, but encourage it to evaluate the impact of some of the key components of their version of the expungement measure, Senate Bill 298.

Chief among our concerns is that the bill would require former offenders to wait 10 years before they can even pursue a costly process that excludes dozens of Class D offenses and is left to a judge’s discretion. Class D is the lowest class of felonies in our system as deemed by Kentuckians through their representatives in the General Assembly.

Most states are moving away from 10-year waiting periods, according to an analysis of expungement laws by the non-partisan Council of State Governments. Two-thirds of the states afford former offenders some sort of process to clear convictions from their records. Among our neighboring states, Ohio requires a three-year wait and Tennessee requires a five-year wait. Understanding that many offenders have already served five years probation after conviction, we believe limiting the additional waiting period to five years is reasonable, evidence-based and would help former offenders start a new chapter in their lives more quickly.

Equally concerning about the Senate bill is a $500 filing fee former offenders would have to pay just to initiate a discretionary process for which they could meet all the requirements in the bill and still be rejected. Currently, the fee to expunge a misdemeanor conviction in Kentucky is $100 and it does not appear that the new procedure for expungement described in Senate Bill 289 would be any more onerous on the courts.

To be blunt: This creates a process that only privileged individuals could afford to pursue. It’s unfair and frankly makes little sense when you consider that the problem we are trying to solve here is that these individuals struggle to find jobs. We want to incentivize former offenders to join the legal economy and contribute to our commonwealth, not return to the always-available criminal economy.

Kentucky Smart on Crime members have other concerns about the Senate measure, including some of the felony offenses that are ineligible for expungement. We understand that these are serious crimes and we don’t diminish the negative consequences they have on communities and victims. But we also know that the status quo isn’t working: We haven’t managed to move the needle on a 40-percent rate at which criminals return to prison in Kentucky.

The formal term for this return to crime is “recidivism,” but Kentucky Smart on Crime calls it what it really is: failure by state government and ourselves to achieve a better outcome. When these individuals can’t get jobs or reintegrate into their communities, they very often return to crime, return to harming victims, return to prison and become a burden on taxpayers.

That’s why we join the majority of Kentuckians in advocating for a new approach, one that saves tax dollars, keeps our communities safe and helps our economy. We encourage the state Senate to amend SB 298 to include a more reasonable and fair waiting period and fee and to understand what this effort is really about — being smart on crime.

Kentucky Smart on Crime coalition includes the Kentucky Chamber of Commerce, ACLU of Kentucky, Catholic Conference of Kentucky, Kentucky Council of Churches, Bluegrass Institute for Public Policy Solutions, Kentucky Center for Economic Policy and Kentucky Association of Criminal Defense Lawyers.