Felony Expungement in Kentucky
Posted on Friday, April 22nd, 2016 at 10:18 am
The following post is part of our Law Student Blog Writing Project, and is authored by James Haney, a Juris Doctor student at NKU Chase College of Law, Northern Kentucky University.
Felony Expungement in Kentucky:
The Pros and Cons of the New Bill
As both an introduction and a caveat, felony expungement is a thing I am very much a proponent of. It is my personal belief that the expungement of felonies is a far greater idea than the expungement of rights. The tone of this post is somewhat more personal, but I think that is an appropriate tone for a subject that may well affect such a vast number of people, either directly or indirectly. Criminal law is fascinating to me, mostly because of the ramifications of every case. Each decision has far reaching effects, be they on the lives on the side of the defendant or those on the side of the aggrieved. Regardless of one’s stance on felony expungement, it should not be a reaching statement to say that not all felonies are equal. Murder is quite obviously a more serious crime in the eyes of society than possession of marijuana.
The goal of felony expungement is to allow former felons a chance at regaining some normality in life. Felons are regularly turned away from jobs, are not allowed to vote, and are banned from possessing firearms, among other limitations. Aside from the legal implications, the inability to find a job, in many instances, creates a virtual necessity for crime, in the eyes of some, especially those affected. Expungement, then, works much the same way for felonies as it does for juveniles, with somewhat different requirements. Typically, expungement based on minority takes place automatically when the violator reaches the age of majority. Felony expungement normally requires a person act in a certain manner for a certain amount of time, and is often limited as to what felonies may be expunged. Once a felony is expunged, that person is gifted a second chance in the form of a clean (in regards to the felony in question) record.
It would seem that the Kentucky Legislature has also taken the stance that felony expungement is a good idea. House Bill 40 was passed, earlier this month, by the General Assembly in an 80-11 vote. In the world of partisan politics, it is rare that such a prominent bill gets passed with so much support.
Governor Bevin ran with the promise that he would support the bill, and has followed through. The bill applies to sixty-one (61) Class D felonies. These include possession of a controlled substance, theft, felony speeding, and failure to pay child support, among others. Anyone who the bill applies to will have to go five (5) years without a conviction, and pay a $500 fine. The bill works by allowing the justice system to basically reopen the case of an offender, vacate the conviction, then expunge in entirely from the record, making it as if the felony never existed.
Republican senator, and president of the Kentucky Senate, Robert Stivers, states the bill will allow applicants to jobs to say that they have never been convicted of a felony, and do so honestly.
Much of the debate took place back in January, when the bill passed the Kentucky House of Representatives. One of the major concerns was how vague the term “non-violent crime” can be. As the bill stood, the only Class-D felonies not applicable for expungement were sex trafficking, elder abuse, child pornography, prostitution, and abuse of public trust. One can see why these, though technically non-violent, would not be able to be expunged under the bill. Rep. Stan Lee, of Lexington, contended that reckless homicide, terroristic threatening, animal abuse, and staking are all omitted from the list, though most would likely consider these all to be violent crimes. Kenton County Commonwealth Attorney Rob Sanders made the case for judicial discretion. This would give a judge the ability to decide whether or not to allow for expungement of a particular felony. Kentucky basketball is something of a religion in the state, and Sanders made the point that burning down Rupp Arena would be a Class-D felony as 3rd degree arson. This is the sort of thing that might not be quite so simply expunged as setting fire to a public dumpster. It is easy to see where judicial review would be a useful tool in the hands of the legal system.
Representative Lee also argued that the bill fails to allow judges to take into account the circumstances surrounding the crime. This does, in effect, make all crimes of the same name equal, which they are not, as evidenced above. Another concern lies in the fact that there is no way for the state to keep track of expungements across jurisdictions. Therefore, judges would have no way to know if a person was to have multiple felonies expunged over multiple hearings years apart.
Proponents of the bill, however, have argued many of the same points listed earlier in this article. Most notably, this bill allows people to put themselves back into the workforce. Another complaint of the bill is the cost it will levy on the courts. The rebuttal to this is that working citizens pay taxes. These same taxes go toward paying for the courts, and the rest of the justice system. In some sense, at least, successful petitioners will be paying for their own expungement. Senator Whitney Westerfield, of Hopkinsville, was swayed by this same argument made by a former convict. West Powell testified before the legislature, and described how difficult it was for him to keep, much less find, work, after being convicted of a felony. His crime was stealing car radios. This is exactly the sort of thing that has the ability to ruin a person’s life, but has no reason to.
It does seem to be important to allow for judicial review of each situation. No two cases are the same, and it is ridiculous to assume as much. Giving a judge the ability to hear each case, look at the circumstances, and make a decision based on the findings is a much better idea than a blanket policy.
In all, it is my opinion that this bill is, at least, a step in the right direction. People make mistakes, and what a society considers legal or illegal, moral or immoral, changes constantly. To deprive a person of the ability to exist as a contributor to society for minute crimes is a travesty. Consider voting. Voting is one of the most sacred rights in the culture of the United States. However, being convicted of a felony deprives a person of this very right. Such a hallowed right can be taken away, forever, for something so trivial as stealing a radio. The new bill allows a person to earn this right back, and rejoin the greater public. The bill has passed, so now the game becomes one of waiting and watching, as we see exactly how the policy will unfold. Hopefully, it is for the best.