Reformers Push to Expand and Automate Expungement

Utah legislation would automate expungement process, Delaware bill would effectively create one.

Daniel Nichanian   |    March 21, 2019

A bill signing ceremony in Utah (Governor Cox/Facebook)

This article originally appeared on The Appeal, which hosted The Political Report project.

Utah legislation would automate expungement process, Delaware bill would effectively create one

Criminal convictions have ramifications far beyond the explicit sentences imposed on individuals, impeding their access to housing and blocking them from jobs for the decades that follow. Different states open the door to varying degrees for people to have their records cleared, but even for eligible individuals, the process is so difficult—and costly—that few people take advantage of it.

Reform advocates have had recent success targeting both sides of that problem. Last year, Pennsylvania expanded who is eligible to have their records sealed, and made the process automatic for some. (The latter step is in the implementation phase.) The state may soon have company.

Earlier this month, the Utah Legislature passed a “Clean Slate” bill, similar to Pennsylvania’s, to automate some of its expungement process. And reformers in Delaware are working to increase people’s eligibility for expungement in the first place; state law currently provides adults no opportunity short of a pardon to have past convictions expunged.

“If you address mandatory minimums, and sentencing reform, and prison conditions but neglect to address barriers of re-entry, then people are going to be trapped in cycles of incarceration and reincarceration where they don’t have job opportunities on the other side,” said Rebecca Vallas, the vice president for the Poverty to Prosperity Program at the Center for American Progress, a liberal think tank.

Delaware’s proposed legislation (Senate Bill 37) would delineate cases in which expungement petitions must be granted (arrests where there was no conviction and some lower-level convictions). It would also delineate other situations, including some felony convictions, where expungement is at the discretion of courts. SB 37 intends to “protect persons from unwarranted damage which may occur when the existence of a criminal history continues indefinitely,” according to a draft provided to the Political Report.

State Senator Darius Brown, a sponsor of the bill, told me that removing the “barriers and impediments” that people with convictions will promote “economic opportunity and economic justice,” and provide “opportunity for upward mobility.” “I don’t think that someone’s criminal record should be a life sentence,” Brown said. A new study conducted at the University of Michigan found that Michiganders who received an expungement saw their wages go up by more than 20 percent within a year, boosted by an easier time navigating the job market.

This bill is part of a larger package of proposals announced last week by a coalition of legal, legislative, and associative actors. Proposals include lowering charges for drug offenses, limiting the treatment of minors as adults, and constraining the stacking of charges. Some would codify into law Attorney General Kathleen Jennings’s new guidelines for state prosecutors.

SB 37 would expand eligibility for expungement in Delaware, but individuals would have to take action to benefit. Brown told me that the coalition pushing the bill would need to continue its work to ensure “that people are informed and educated” and organize events to promote access.

Unlike Delaware, Utah already allows adults with misdemeanor or felony convictions to petition for expungement after a set period of time.

But people hoping for expungement must file petitions and face multiple fees and filing requirements. In Utah, as elsewhere, many people do not apply or face obstacles when they do. The University of Michigan study found that 90 percent of eligible Michiganders do not apply for reasons ranging from cost and bureaucratic complexity to insufficient information. These are issues in Utah as well. Noella Sudbury, director of the Salt Lake County’s Criminal Justice Advisory Council, asked impacted individuals why they had yet to apply during an “expungement day” her office organized last year. “The two top reasons were that it’s too overwhelming and complicated, and it’s too expensive,” she said.

Vallas, who helped develop the original Clean Slate bill in Pennsylvania, emphasized the procedural maze that individuals need to surmount to benefit from expungement in nonautomated systems. The point of an “automatic clearing of criminal records,” she said, is for people to not “have to go through that one-off process of having to figure out a bunch of complicated legal documents, going in front of a judge, filling court dockets.”

Utah’s Clean Slate legislation (House Bill 431) would create such an automatic process. It would apply to people who were acquitted and to people who were convicted of some misdemeanor offenses after waiting periods of up to seven years after sentencing. The bill “shifts the burden away from the individual to the government,” said Sudbury, who advocated for the legislation alongside its sponsor, state Representative Eric Hutchings, and a coalition of Utah groups.

“It just says we have the technological tools to identify who you are and give notice to all those agencies that your record is expunged, and if after a period of time, you would have your record expunged anyway, then we will expunge it for you,” Sudbury said.

The bill has passed both legislative chambers unanimously and is now on the governor’s desk.

Major avenues for further reform remain. Pennsylvania’s Clean Slate bill automated the process to seal rather than expunge records, which would still be accessible by some parties such as local law enforcement. Access to Utah’s expunged records would be more restricted. Utah’s legislature also adopted House Bill 212, which bars employers from asking about expunged convictions. In addition, Sudbury said Utah should revisit the connection between debt and expungement. “If you have open debt you wouldn’t be eligible,” she said. Paying off court fines and fees hinges on an ability to gain a stable income, and this is hindered as long as people retain a record.

Clean Slate bills that would automate existing expungement processes have been introduced in a number of other states, including in California, where it is championed by San Francisco District Attorney George Gascón. In January, California began implementing a law that automates the initiation of the expungement process for marijuana-related convictions.

Update: The original article has been corrected to reflect that the Utah legislature passed House Bill 212.