High fees, long waits cast shadow over new criminal expungement laws

By: - November 28, 2023 6:40 am

Lawmakers across the political spectrum say clearing or sealing criminal records will help people find jobs and housing. (Dana DiFilippo | New Jersey Monitor)

More states are making it easier for residents to clear or seal their criminal records.

The effort has drawn bipartisan support, as lawmakers across the political spectrum say it will help people find jobs and housing, in turn boosting local economies and reducing reliance on social services.

“Folks that get out of jail or prison with criminal records, it’s like getting out with the handcuffs still on,” Keith Wallington, the director of advocacy with the Justice Policy Institute, a nonprofit criminal justice research and advocacy group, told Stateline.

But the shift has created some new concerns. The surge in applications after lawmakers eased rules created a major backlog in several states. Some residents struggle to pay the required fees. And some prosecutors and legislators worry that people who commit additional crimes after their records are expunged may not be held fully accountable.

At least four states — Louisiana, Maryland, Minnesota and New York — passed legislation this year that would make clearing or sealing one’s criminal record easier. Michigan and Ohio also had similar laws go into effect this year.

Expungement removes arrests and convictions from a criminal record as if they never existed, while record sealing hides records from the public but allows access by court officials and some law enforcement agencies. Almost every state has some form of expungement or record sealing policy. Though they can vary widely, most policies require individuals to be crime-free for a set amount of time, usually tied to how serious their conviction was.

Folks that get out of jail or prison with criminal records, it’s like getting out with the handcuffs still on.

– Keith Wallington, director of advocacy with the Justice Policy Institute

Over the past five years, more states have moved to offer automatic expungement or sealing, which generally uses a computer system to wipe or shield people’s criminal records when they become eligible. At least 26 states and the District of Columbia have an automatic system already in place or in the works.

“More lawmakers recognize the barriers that come with having a criminal record,” said Lauren Krisai, deputy director of the Justice Action Network, a bipartisan criminal justice advocacy group. “They recognize that this is actually bad for employers. It’s bad for employment. It’s bad for the workforce and the economy.”

Some state Republicans have “abandoned this mentality of tough on crime,” according to Nino Marchese, the director of criminal justice and civil justice at the American Legislative Exchange Council, a conservative nonprofit membership organization that drafts model legislation. Marchese said state legislators in the group are increasingly inclined toward evidence-based policymaking, which typically involves analyzing research and data, to draft criminal justice policies.

But some residents haven’t been able to get their records expunged because of the fees and large backlogs.

Backlogs and accessibility

In 2021, Oregon passed a law eliminating fees and expanding expungement eligibility to include non-conviction records, such as arrests, dismissals and acquittals. The law also removed filing fees and adjusted waiting periods for specific offenses. The surge in applications created a backlog of approximately 15,000 cases in Multnomah County, which includes Portland, and a 16-month waiting period for application reviews, the Willamette Week reported.

In Utah, expungement application fees quadrupled in July after the legislature failed to pass a bill to extend its pilot program, which previously lowered fees to $65. The state also is facing a backlog of automatic expungements and of petition-based applications, which are expected to take several months, according to Nicole Borgeson, the assistant director of the Utah Bureau of Criminal Identification, the agency tasked with handling applications.

A staffing shortage and an influx of applications just before the pilot program shut down contributed to the state’s backlog, Borgeson said in an interview. The bureau hired new employees in August who are undergoing training, and aims to review applications within 30 days, she said.

“It’s very important to us to make sure that we’re doing these in a timely manner — not only for us, but also for the applicants,” Borgeson said. “We know that this can be an impact on their lives and livelihoods. … We are concerned about that. We are trying to get caught up.”

 

Republican state Rep. Jim Dunnigan, who designed the pilot program, introduced legislation earlier this year to continue offering reduced fees, but withdrew his bill after receiving pushback from other lawmakers. Dunnigan said that some legislators who opposed the bill believe people seeking expungements should pay their own filing fees because they made the decision to commit a crime. Now, Dunnigan is negotiating with concerned colleagues before the state’s upcoming legislative session.

“We’re still working on it, and I don’t know where we’re going to end up. We’ve tried to come to a compromise — probably a little farther than some legislators want to go. It’s not as far as I want to go,” Dunnigan told Stateline. “I’m hopeful, I think we’ll see something that will pass.”

Many Utahns with records can’t afford the increase in fees, according to Noella Sudbury, founder and CEO of Rasa Legal Public Benefit Corporation, also known as Rasa, a company that aims to make expungement more accessible by offering low-cost legal services.

“A just society is one in which access to justice is available to not just those who have money, but to all members of the society,” Sudbury wrote in an email to Stateline.

The New Jersey State Police, facing a backlog of approximately 46,000 expungement applications, has fallen up to two years behind in processing, according to a class-action lawsuit filed by the New Jersey Office of the Public Defender against the state police in October.

The lawsuit alleges that this delay has led to the illegal disclosure of sealed criminal histories to potential employers, landlords and others conducting background checks. Residents have suffered job losses, housing denials and missed professional opportunities because of the state police’s failure to adhere to judges’ orders, the lawsuit alleges.

“Every day that passes is a day that these people who are entitled to the relief and the benefit of their expungement order can’t actually benefit from the expungement statute that was passed to help them,” Michael Noveck, assistant deputy public defender with the New Jersey Office of the Public Defender, said in an interview.

 

Spokespeople from the state police and the New Jersey Office of the Attorney General, which oversees the state police, declined to comment on pending litigation. New Jersey’s expungement statute does not specify a time frame for the state police to process expungement orders.

In 2019, the state police received $15 million to improve and modernize its expungement processing systems, but it is unclear whether it has made changes to handle the increase in expungement orders. The state police also declined to answer questions about the funding and any upgrades to its systems.

To address processing delays, the legislature should amend the statute to include a specific time frame, such as 60 or 90 days, during which the New Jersey State Police must process granted expungement orders, said Meredith Schalick, the director of the Expungement Law Project at Rutgers Law School, which has helped hundreds of people since 2018 get criminal expungements.

Broadening eligibility

Some critics argue that broadening eligibility for expungements or the sealing of criminal records will put the public at risk by cloaking violent crimes.

In Wisconsin, a bipartisan bill failed earlier this year because of objections from Republican senators. Despite being introduced multiple times over the past few years and successfully passing the Assembly, the bill has consistently faltered in the Senate.

During a public hearing on the bill in April, Republican state Sen. Andre Jacque suggested the bill’s proposed one-year waiting period was too short compared with neighboring states such as Illinois, Iowa, Michigan and Minnesota, whose waiting periods range from two to eight years. “It’s a pretty stark difference,” he said. Jacque also expressed concerns about overloading the court system and withholding criminal records from employers.

Wisconsin is the only state where past and closed cases are ineligible for expungement, according to the Wisconsin Policy Forum, a nonpartisan policy research organization.

 

Wisconsinites must apply for expungement at the time of their sentencing. Wisconsin also is among a few states that restrict expungement eligibility solely to young offenders, with the state’s age cap set at 25.

The bill would eliminate the age cap and shift the expungement application process to after the sentence has been served.

“I’m optimistic that this is the session that we finally get it across the goal line … and make some forward progress that’s hugely needed in Wisconsin,” state Rep. Evan Goyke, a Democrat and former public defender, told Stateline.

Prosecutors in Maryland worry that under the state’s new law, they may not be able to consider the past crimes of someone who commits another crime after having their record expunged, Baltimore County State’s Attorney Scott Shellenberger said. The REDEEM Act, which went into effect in October, halves the waiting period for filing a petition to expunge criminal records for certain offenses.

Someone who gets their record expunged can legally say they have no criminal record, which can complicate decision-making for prosecutors and court officials alike, said Shellenberger, a Democrat.

“We make our current decisions based upon what your background is,” Shellenberger said in an interview. “If we don’t know the truth about your background, then it’s hard to make a reasoned decision.”

In response to these concerns, the law’s lead author and sponsor, state Sen. Jeff Waldstreicher, a Democrat, said that if someone were to reoffend after having their record expunged, they still face criminal penalties.

“They will still be held accountable for their criminal offense and it’s important that we continue to hold them accountable,” Waldstreicher said in an interview.

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Amanda Hernández
Amanda Hernández

Amanda Hernández covers criminal justice for Stateline. She has reported for both national and local outlets, including ABC News, USA Today and NBC4 Washington.

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