By James Mayse
The felony expungement bill that was signed into law by Gov. Matt Bevin earlier this month will clear the criminal records of some felons, but only after they’ve served their sentences and met certain qualifications.
Bevin signed House Bill 40, which contains provisions from both the original House bill and from another expungement bill, Senate Bill 298. The original House bill was sponsored by Rep. Darryl Owens, a Louisville Democrat and chairman of the House Judiciary Committee. The Senate version was sponsored by Sen. Robert Stivers, a Manchester Republican and the Senate’s president.
A felony record can be a barrier to finding employment and housing. J. Michael Brown, former secretary to the state Justice and Public Safety Cabinet, previously called a felony “economic capital punishment,” because of the difficulty felons face when trying to get hired.
“There are so many people who have Class D felonies, and they do have difficulty getting a job,” said Daviess Circuit Judge Joe Castlen. While people with specialized trades and a felony have an easier time finding jobs, others struggle and some try to avoid disclosing a felony conviction on job applications, he said.
“Many of them don’t mention it,” Castlen said. “… They’ll work two or three months and then get fired.”
Supporters of expungement included the Kentucky Chamber of Commerce. Chamber President David Adkisson told a Senate committee during the General Assembly session that Kentucky faces a challenge of not having enough skilled workers.
“I definitely think one of the great things about the Kentucky law is that business was on the side” of passing the law, said Madeline Neighly, senior policy adviser for the Council of State Governments Justice Center.
The new law allows people convicted of certain Class D felonies to have those felonies removed form their records. Class D felonies are the lowest level of felonies in the criminal system. Only nonviolent and nonsexual offenses can be expunged.
In all, there are 61 felonies expungeable felonies included in the law. Some of those felonies include theft of a legend drug, first-degree possession of a controlled substance, cultivation of marijuana (five or more plants), forgery of a prescription, flagrant nonsupport, receiving stolen property over $500, second-degree criminal possession of a forged instrument, second-degree forgery, theft by unlawful taking over $500 and tampering with physical evidence.
But the law will only expunge one Class D felony, or multiple Class D felonies stemming from a single incident.
Although many of the provisions of Stivers’ bill were included in House Bill 40 as Senate amendments, the original Senate bill called for a person to wait 10 years after completing his or her sentence before applying for expungement.
The bill Bevin signed allows a person to apply to have their felony expunged five years after completing a sentence.
Neighly said people who are five years beyond the end of their sentence have likely been in the work force. The expungement law would provide them with a way to improve their economic circumstances.
“We’re not exactly talking about re-entry,” Neighly said. “When you’re talking about re-entry, we’re talking zero to three years” after the end of a person’s sentence. “We’re seeing, once you get past the re-entry period … you’re still seeing the impact of having a criminal record.”
The expungement law “is not about re-entry. It’s about moving up,” Neighly said.
There is a $500 application fee that Russell Coleman, spokesman for Kentucky Smart on Crime, said is higher than many surrounding states, but is not as high as places like Louisiana, which charges $550 for expungements. Kentucky Smart on Crime is an organization made up of agencies that supported the expungement bills, including the state Chamber of Commerce, the Council of Churches, the Catholic Conference and the ACLU.
“It is on the high end,” Coleman said. For example, Indiana has a $150 fee, Illinois and Ohio have $50 fees, and Tennessee has a $350 fee.
“There was some concern about the economic impact on the state police, the Administrative Office of the Courts and the Department of Libraries and Archives,” Coleman said.
“Maybe in excess of 90,000 Kentuckians are eligible” for expungement, Coleman said. With the fee, “the Senate wanted to take a position where the cost to the commonwealth would be covered.
“Our stance is Senate leaders wanted to be deliberate and thoughtful,” Coleman said.
People such as Owens have raised the possibility of amending the fee in next year’s session. There is also the possibility of creating a waiver for people who can’t afford the fee, he said.
A person whose felony is on the list, waits five years and pays the fee will request a hearing in front of the judge who originally heard the case. The prosecutor and the victims will be notified of the hearing.
If the victim or prosecutor chooses not to protest the motion, the judge can order the felony expunged without a hearing. If there is a hearing and the application is denied, the applicant receives a $450 refund.
Kate Miller, program director for the American Civil Liberties Union of Kentucky, called the expungement law “a first step.”
“…But it’s a big step, and we’re ready to keep working on it to make it as successful as possible to people who have earned a second chance,” Miller said. ” … We know recidivism is a huge problem across Kentucky and across the country. The data shows when people are able to re-enter into society (through employment and by obtaining housing), everyone benefits.”