LOUISVILLE, Ky. (WDRB) – Thousands of Kentuckians could have their criminal records wiped clean under two proposed laws that would require courts to automatically erase certain past charges or convictions without a person having to pay a fee or even make a request.
The proposals – one of which is making headway in the 2020 legislative session – are aimed at helping people who have had run-ins with the law get jobs and support their families, as years-old convictions and even unproven charges still show up on employer background checks.
"It’s a huge barrier to the workforce," said Iris Wilbur Glick, vice president of government and affairs and public policy for Greater Louisville Inc., the metro-area chamber of commerce, which has expressed support for one of the two expungement-related bills.
"Once a state adopts expungement friendly policies, the ability for workers to return to the work force … is significant," she said, adding the studies show it has reduced recidivism. "Many Kentuckians want to lead productive lives. They want a paycheck. They want to pay for health insurance. … We need to empower these individuals."
House Bill 222, proposed by state Rep. Charles Booker, a Louisville Democrat who is running for the party's U.S. Senate nomination, would make Kentucky one of the most progressive states in automatically erasing minor criminal convictions.
Booker’s bill is a longshot in the Republican-dominated legislature, but a more modest measure calling for the erasure of unsuccessful criminal charges – those that resulted in an acquittal or dismissal with prejudice – passed the state House in February without a dissenting vote.
Kentucky in recent years has made it easier for criminal records to be erased, but critics on both sides of the political aisle say the process is still too time-consuming, costly and subject to the arbitrary whims of local judges.
Under current state law, expunging a criminal conviction requires a person go to the county courthouse, pay $100 to $250 in fees, plus other costs; file an application and seek a judge’s approval – with the possibility that county prosecutors might object.
That process must be followed to erase even criminal charges for which the person was exonerated or otherwise not convicted, though no fee is required for those expungements.
Some lawmakers want to make expungements automatic, removing the onus from the person with the criminal record.
"Once you complete your sentence … we are supposed to be ensuring Kentuckians have a chance to get back on their feet," Booker said in a recent interview. "How do they lead a gainful life afterwards? That should be our goal. It should be free and it should be automatic."
Once a case is expunged, the file, court videotape, fingerprint cards and all other records are supposed to be sealed forever – not only from the public, but from police, prosecutors and the judge. The cases are sealed and removed from public files.
If asked about the case, court clerks are required to say it does not exist.
Booker’s bill has not made much headway because it would automatically expunge felony convictions, which is controversial because prosecutors would not be given a chance to object.
Henderson Commonwealth’s Attorney Shane Young, past president of the Commonwealth’s Attorney’s Association, argued victims should be notified if the cases are expunged.
"They are entitled to know," he said in an interview.
Booker's bill would also require the already cash-strapped court system to find thousands upon thousands of past cases that would be eligible for expungement, raising concerns about funding.
Meanwhile, the more modest House Bill 327 is awaiting action in the Senate after passing the House 91-0 in February.
That bill, filed by Rep. Kevin Bratcher, a Louisville Republican, would require the courts to automatically expunge criminal cases in which a person has been acquitted or the charges have been dismissed with prejudice, meaning prosecutors can't retry the case.
Currently, these charges often remain on a person’s criminal background check, even though there was never a conviction, and they may not realize it until they interview for a job.
"I was surprised and I’m sure that most of the people that live in your district are surprised that if they are charged, taken to court and found not guilty, acquitted or dismissed with prejudice, that remains on their record forever," Bratcher told members of the House on Feb. 10. "This is a simple fairness bill."
One of the bill’s aims is to apply uniform standards instead of leaving expungement decisions to judges. In the current system, winning an expungement often depends on the views of the judge.
Bratcher's bill would require the charges be automatically expunged at no cost within 30 days of dismissal or acquittal without the person having to make a request. The bill, which has several co-sponsors and bipartisan support, does not include traffic violations.
Kentucky opens doors to expungement
Kentucky has, especially in recent years, been very proactive in making it easier to expunge criminal cases.
In the last few years, the fee was lowered for felony expungements, from $500 to $250.
Statistics from the Administrative Office of the Courts show that since the legislature passed bills expanding expungement to those convicted of several non-violent Class D felonies 2016, more than 2,300 felony convictions have been erased.
But Booker’s bill is an even more radical expungement proposal, adopted by only a couple of other states so far. It would require court officials to automatically expunge misdemeanor and some non-violent felony charges and convictions when eligible, without prosecutors or judges having a say.
"It takes out the question of (judicial) discretion, which adds more equity," Booker said.
A conviction would be eligible to be expunged five years after it was disposed of, meaning after any jail or probation sentence is served or restitution is paid. It would apply to non-violent felony cases with prison sentences of three years or less. Cases involving sex offenses or child abuse would not be eligible.
In an interview, Booker said the current expungement fees are too high for many people to pay and "the process itself is a barrier for a lot of people."
The bill would require the state Administrative Office of the Courts every month to send to each circuit court clerk the misdemeanor and felony cases eligible for expungement - both convictions and charges that were dismissed. The clerks then would have 30 days to expunge the records, with police and other agencies required to do the same, according to the bill.
In addition, the bill would be retroactive, meaning the court administrators would need to go back years and find cases that are eligible to be wiped from records.
A spokeswoman for the Administrative Office of the Courts declined to comment on the bill.
Booker acknowledged that funding might be needed to retroactively expunge records, but called that an investment that would pay off as more people would be able to find jobs and "be taxpaying, fully contributing citizens" and "help us all."
"A lot of Kentuckians are suffering, struggling to make ends meet," he said. "This type of legislation would be the chance to say, 'We see that, we honor that you have completed your sentence, you’ve done what you needed to do and here’s a chance to get back on your feet.'"
A 2019 study conducted at the University of Michigan Law School found people who received expungements saw their wages increase on average by 25% within two years.
A recent report from the League of Women Voters of Kentucky found that the number of people in the state disenfranchised because of felony convictions increased to 312,046 from 186,348 in 2006.
Last June, Pennsylvania became the first state to automatically begin sealing eligible criminal cases, calling it the Clean Slate law. The records are not completely expunged, but only law enforcement officials can access them.
Thirty million records were expected to be erased, according to a Philadelphia Inquirer article. A similar law has since passed in Utah.
With no GOP co-sponsors, Booker’s bill has languished without a hearing in the House Judiciary Committee.
Opponents have said in the past that employers and others need to know if a person has been convicted of a crime, especially for jobs such as a teacher or law enforcement. Some say it’s not a good idea to erase felony convictions or charges without involvement of prosecutors.
In addition, Herb Mckee, the Circuit Court clerk in Henderson County and co-chair of the legislative committee for the Kentucky Circuit Court Clerk’s Association, said the state doesn’t have the technology or manpower needed to realize Booker’s proposal, which would make millions of cases eligible for expungement.
But, Mckee added, when the state courts go fully electronic in the next five to ten years, the proposal could be revisited.
On the other hand, the Circuit Court Clerk’s Association supports Bratcher’s bill, with Mckee saying people should not have to navigate the court system to expunge records of criminal charges that did not result in conviction.
A third expungement bill was filed last week. House Bill 486 would reduce the waiting period to expunge misdemeanor and low-level felony convictions from 5 years to one. And the fee would be waived for people determined not to be able to afford it, according to the bill.
Even indigent people must pay fees to get expungements under current Kentucky law.
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