by Michael Dean Thompson

The majority of states across the U.S. now allow people who have been convicted of some felonies to have the record of their conviction removed. The complete expungement of felony records allows the convicted person to live as if the conviction never occurred. However, very few people seem to be taking advantage of this process. Instead, only between one and six percent of people eligible to clean their records of their felony conviction do so. A recent study in the Indiana Law Journal examined expungement laws and practices across the country in an attempt to discover why that might be.

The immediate consequence of a felony conviction is obvious. But beyond the sentence, there exist a significant number of collateral consequences that extend the effective punishment well beyond the sentence. For many, it can mean the explicit loss of voting rights, diminished access to federal benefits like SNAP, and restricted access to occupational licenses. Furthermore, a felony record permits employers to legally discriminate against a person. By one estimate, these systemic hurdles prevent up to 1.7 million people from joining the workforce.

Rather than creating laws that bar discrimination against the formerly incarcerated, legislatures have taken a more haphazard approach. States that allow felony expungement may not restore voting rights or the right to own a gun. They may eliminate the open record of the conviction but leave the arrest record visible. And while they may prevent the government’s dissemination of the information, they may do nothing to stop private data brokers from doing so. Furthermore, the states vary on which felonies are eligible for expungement.

States also tend to take the stance that expungement is an affirmative right. Rather than taking place automatically after the successful completion of the sentence and its associated waiting period, expungement requires that the affected individuals actively seek out the remedy. That also means that to achieve expungement, the individual must enter into the often adversarial systems in which a prosecutor may challenge the expungement. Most of the people eligible for expungement who attempt to clear their felonies will do so without representation. The pro se applicants must clear significant hurdles that can challenge even practicing attorneys. As a result, the pro se petitioner can find the entire process both emotionally and financially daunting.

Statute Complexity

The study first examined the statutes of the states that allow expungement of felony records. The goal was to determine the complexity of the law itself and the language used to express it. In effect, whether the law would be comprehensible to the person seeking to clear their record such that they can perform the necessary steps to achieve it. They found that the vast majority of statutes were not comprehensible to both lay people and even law students.

The team examined the readability of statutes using the Flesch-Kincaid Grade Level Formula. The formula works by measuring the length of the sentences as well as the length of the words. The assumption is that longer sentences are more difficult to parse and longer words tend to be less common. As the average American reads at the seventh or eighth grade level, statutes with higher grade level assessments can become unreadable. The study targeted statutes written at the twelfth-grade reading level.

The study also judged the complexity of the language itself. They did this by asking law students to review the statutes and identify the number of readings it took to understand the text. A statute that was able to be understood in fewer than five readings was deemed readable. That is a bit more permissive than the federal Plain Writing Act, which defines plain writing as “communication your audience can understand the first time they read or hear it.”

The study found that the statutes were not comprehensible. Eleven of the 32 states that allow for some felony expungement scored at grade 18 or higher—the equivalent of a graduate degree. Only eight states scored below a twelfth-grade level. In addition, seven states required eight or more readings by the law students to understand them. New York took nine reads by a student and scored at grade level 20, making it one of the least comprehensible statutes in existence. Interestingly, Rhode Island scored a reading level of 22 while it was parsed by the students in just five passes. The researchers believed its high score on the reading level was likely due to its reliance on lengthy sentences. One such sentence was 157 words long that described what a successful expungement might do. North Dakota, on the other hand, scored as the most readable in terms of both grade level and complexity. It therefore illustrated how expungement statutes do not need to be overly complex as expungements generally deal with binary conditions (if this is true, then X) and numbers (e.g., five years).

Self-Help Tools

The study followed up by looking at how much instruction is available to an applicant. They specifically looked for material generated by the courts rather than legal-aid offices and private attorneys, as well as forms that an applicant could understand and fill out. Much like the statutes, they looked to determine complexity by evaluating grade level and readability of the self-help instructions and forms. Of particular interest was whether the documents simply regurgitate the complex statute language or whether they had re-phrase it to be easier to read and understand.

More than two-thirds of the 32 states offer online self-help instructions. Twenty-one states provide forms to facilitate the process, 11 of which are readable at an eighth-grade level or lower. Two states find it useful to offer a form without self-help instructions while three states offer self-help but fail to offer forms.

With regard to the most accessible self-help, Michigan stands out to the study authors. The form petition is clear and uses plain language at a seventh-grade level, including simple, understandable check boxes. The authors highlighted one such check box: “I am requesting only one felony to be set aside. At least five years have passed since sentence was imposed or discharge from imprisonment, probation, or parole for the conviction, whichever is later. I have not been convicted of any offense during that time.”

Colorado likewise merits praise with its short sentences presenting Yes/No questions that are easy enough to understand. New Hampshire, in contrast, provides a form that has a reading level of grade 14 that is difficult to parse.

There are seven states that offer no form or self-help. Among those is North Dakota, the state with the most readable statute. For the formerly incarcerated seeking to expunge their criminal records, the path forward is unclear. They will likely struggle with determining how to format the request as well as exactly how to present the pertinent facts.

Criminal Records

The applicant’s criminal record is key among the facts that any form or request requires. These data are often scattered across a variety of agencies. The typical petition includes information like the qualifying offense; whether the waiting period has been met; whether there have been more arrests since then; and whether all offense-related restitutions, fines, and fees have been paid.

The FBI record of arrests and prosecutions (“FBI RAP”) report is considered to be “the most comprehensive picture of one’s criminal history,” according to the study’s authors. Sadly, beyond the FBI RAP and commercial third-party background checking organizations, there are no other centralized resources for gathering the information across the various jurisdictions. Most of the self-help tools provided by the states also recommend using FBI RAP, even to the point of requiring it as part of the request.

FBI RAP has problems, though. It turns out that states do not always share the appropriate data. A VERA study in 2023 found significant differences between state and FBI Uniform Crime Report data. It turns out that only 8 in 10 agencies actually submit to the Uniform Crime Report. A higher percentage, 93.5%, of agencies in 2022 submitted to the National Incident-Based Reporting System and Summary Reporting System, upon which the RAP also relies. Nevertheless, FBI RAP does not provide any information necessary for completing two of the four data requirements (whether the waiting period has expired and whether the associated fines and fees have been paid), leaving the applicant to search for the data they need to complete the request. The National Crime Center Information Center sometimes reports on sentence completion, satisfying the wait period requirement, but the reports are unavailable to private lawyers and pro se applicants.

Procedures and Applicants

It is not enough to submit a form and all the associated documentation to obtain an expungement. Challenges can arise in knowing to whom the petition should be served, how the hearing might progress, and how much the effort will cost. These unknowns can often be inscrutable to applicants, providing further hurdles that seem insurmountable.

The typical procedure for expungement petitions—in about two-thirds of the states—the petitioner must serve the prosecution. In some states, the petitioner is also required to serve the appropriate law enforcement agencies. In Minnesota, the petitioner is required to serve any agency and jurisdiction with records that would be affected by the order. In New Jersey, seven separate agencies must be served.

It may not always be clear what an petitioner should expect at a hearing. The rules affecting who can participate, what types of evidence are admissible, and who is allowed to speak can vary considerably. Sadly, the majority of states do not mention the hearing proceedings within the governing law. No state has published a comprehensive set of hearing rules. That can result in a haphazard approach to hearings that differs by county in a single state. Even the burden of proof can vary by state—from a “clear and convincing” standard in North Dakota to one that is completely undefined in New Mexico. It would be of little consequence if hearings were rarely held, but that is not the case. All but six states mandate a hearing in all cases or when prosecutors object.

Hearing procedures can vary dramatically. Each court can differ in the evidence it accepts and in what order the procedures run. Some judges require the petitioner to testify in court, which may run afoul of the petitioner’s Fifth Amendment rights. Others may allow prosecutors to submit evidence that the petitioner has not seen and may not be prepared to address. In Nevada, for example, the legislature made no effort to standardize the procedural or evidentiary rules for the hearing.  

A petitioner who has surmounted these challenges must then find a way to pay the fees associated with the expungement. These fees serve only to block otherwise eligible petitioners from receiving an expungement order. This is the reason the study found that income serves as a barrier, blocking the very purpose of expungement—to improve access to better wages.

A separate fee sometimes arises once an expungement has been granted. This is at least somewhat more reasonable, as the petitioner pays that fee only if they are successful. For example, in the case of Rhode Island, there is no filing fee, but there is a processing fee of $100 upon a successful expungement. Other states require both fees to be paid with neither fee being insubstantial.

Implications of the Uptake Gap

The barriers to successful expungement often originate from legislatures that have created laws without regard to how they will be implemented. This leaves the courts and agencies to administer statutes that are vague or unreasonably difficult to implement. Additionally, the statutes do not seem to consider that most of those who wish to take advantage of the expungement policies will do so pro se. These statutes are often difficult to understand, even for law students, because they require a reading-proficiency level well above that of the average American. And those applicants who somehow manage to successfully navigate their way through the statutes and self-help forms (if even offered), gather the requisite information and reports, corral the necessary witnesses, and pay the associated fees may still find themselves in a hearing without defined rules and procedures and facing a hostile prosecutor without the benefit of an attorney. It’s little wonder that the expungement rate is so abysmally low.

The intent of the expungement laws is to enable those who qualify to throw off the yoke of their previous failures. As Delaware’s expungement law aptly puts it: “The General Assembly finds that a criminal history is a hindrance to a person’s present and future ability to obtain employment, housing, education, or credit. This subchapter is intended to protect persons from unwarranted damage which may occur when the existence of a criminal history continues indefinitely.”

It is great that states are taking this seriously and expanding the list of offenses that can be expunged. However, if they desire to see the statutes actually help fulfill their stated purpose, more attention must be paid to the pro se petitioner. Better still, make expungement an automatic process, requiring no action from the individual beyond meeting the statutory criteria. That would ensure a 100% success rate.  

Source: Indiana Law Journal

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