A Fresh Start: What’s the Court’s Role?

by  Peter C. Kiefer

It was a hot, muggy summer evening in 2010 that lead 19-year-old Peyton to the home of a schoolmate.1 Adding bored friends to a summer weekend with parents away at the Gulf meant the kids had the perfect ingredients for a party. Dozens of kids arrived, many of whom Peyton did not know. In a party mood, Peyton bought two small baggies of marijuana from a fellow partygoer. Hours later, Peyton was arrested, charged, and eventually pled guilty to possession with intent to sell. She received two years of probation, was ordered to serve 40 hours of community service, and required to pay $10,000 in fines and costs.

The experience prompts a painful life reassessment; Peyton decides to “clean up her act.” She serves her community service, pays off her fines and fees, completes her probation, and (most importantly) stays away from drugs. She enrolls in college, then a nursing program, and graduates with a 3.8 GPA. Thinking she has paid her debt to society, she ignores her career counselor’s advice to set realistic expectations. But now it is 2018, and 26-year-old Peyton faces the state nursing board, which asks the question: Has she ever been convicted of a felony?  Does Peyton deserve to have her record wiped clean and get a fresh start?

Clearing the Record

Different states have enacted different paths for defendants to clear their criminal records and obtain a fresh start. The paths to clearing records in different states include:

  • Expungement: The process by which legal records are destroyed by all administrative offices that hold them (e.g., courts and law-enforcement agencies).
  • Sealing: The process by which records are ordered removed from public access though they can still be unsealed, usually upon a court order.
  • Setting Aside the Judgment: The process by which a judge orders a defendant’s conviction to be set aside. The conviction is still public, but the defendant can show potential employers that it has been legally vacated by the court. As an example, if Peyton obtained a set aside, the nursing board would still likely uncover the conviction if it did its due diligence. Peyton would probably have to argue with the board over the legal implication of a vacated conviction.    
  • Pardon: The process by which the U.S. president, a state governor, a state board of pardons, or occasionally the parole board grants the defendant a reprieve. The process has much the same effect as setting aside a judgment. The conviction is still public, but the defendant is absolved of the original court judgment.

A Fresh Start

Courts are now engaged in a multifaceted national discussion. Advocacy groups are urging to give convicted felons (particularly those convicted of nonviolent felonies) an opportunity to step away from their pasts and get a fresh start.2 The most recent illustration of this was Kim Kardashian’s successful, high-profile lobbying of the president to pardon Alice Marie Johnson (convicted 22 years ago of drug trafficking and money laundering). The president signed the pardon saying, “Those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance.”3 Although we may be focused on some of the high-profile advocates, it is important to acknowledge the diverse support for providing a fresh start. Convicted felons are sometimes being assisted by prosecutors.4 

Some advocacy groups see jailing over two million individuals (over a third are people of color) as racially motivated mass incarceration, which must be reversed.5 A 2017 Washington Post article discusses the long prison terms handed down to African-Americans, often for nonviolent drug offenses.6 A report from the Economic Policy Institute implies that nonviolent felony drug arrests (e.g., crack cocaine) are often racially motivated.7 Michelle Alexander, in her book The New Jim Crow, contends that mass incarceration is the next iteration of an oppressive culture that dates back to Reconstruction.8

Reviewing the different paths offered to clear criminal records, one can see the potentially massive disconnect. Advocates talk of clearing felony drug records; state legal processes often offer ways to clear just minor misdemeanors or unadjudicated charges. Even when the discussion turns to felonies, questions arise over what should be eligible, just drug possession, other “nonviolent” felonies, or victimless crimes? For example, identity theft is usually considered nonviolent although it is not victimless. It cannot be ignored that some see the distinction between violent and nonviolent crime as irrelevant. Even those convicted of violent felonies (e.g., committing a crime while using a weapon) as entitled to a fresh start.9

Should Clearing Records Be Easy?

The opposing argument states that those who are guilty of serious crimes (even nonviolent crimes) should not be allowed to simply make their pasts “disappear.” Felonies are serious, and felony convictions are aimed at keeping the community safe. Over two-thirds of those convicted of nonviolent felonies will be rearrested within three years of release.10 This argument gained support last year when a self-driving Uber vehicle killed a pedestrian in Tempe, Arizona. It was later learned that the driver who was monitoring the vehicle had a felony conviction.11 Simply making a felony conviction “disappear” should not be easy.

This article discusses some of the tools or programs and issues surrounding the concept of record clearing and the mechanisms in which courts are engaged with these tools or programs.

Tools, Programs, and Movements Incorporating Courts in the Record-Clearing Conversation

“Ban the Box”
One facet of the discussion centers on “Ban the Box.” It seeks to prevent employers from asking job applicants about their criminal histories until the applicants have been deemed qualified for the job in all other respects. Only then should a potential employer determine that a troubled criminal history is so overwhelming as to thwart an applicant’s chances of being hired.12 This argument is bolstered by currently low unemployment rates, resulting in something of a labor shortage and encouraging a more lenient view of applicants with criminal histories.13

Expungement Events
Another facet can be seen in “expungement events,” which often take the form of clinics that bring together criminal justice agencies to assist individuals with sealing, destroying, or setting aside their criminal records.14 For example, in January 2018, Fayetteville, North Carolina held a clinic sponsored by Legal Aid of North Carolina.15 On April 5, 2018, Salt Lake City held an “Expungement Day,” which brought together public defenders, prosecutors, law enforcement, community-service workers, state employment agencies, and judges who assisted convicted felons in getting their records cleared.16

While these events do not have a set format, they typically occur on a single day at a specific location where attorneys and other legal professionals assist individuals with possibly clearing their records. Eligible defendants receive aid with completing petitions and required paperwork, so the long process can be started.

No Easy Process

Whatever the path and legal procedure, clearing one’s record is not easy. In most states, the laws and local procedures are complicated and multipronged. Often, a defendant must petition the court in which he or she was first charged and include his or her name; aliases; address; date of birth; Social Security number; the name of the judge who heard the original case; the original case number; the offense tracking number; the arrest date; original charges; the sentence, fines, costs, and restitution amounts both paid and still due; complete criminal history; and the reason for the request. A defendant must serve a copy of the petition on the prosecutor, and even then, a judge could deny the request.17 Finally, a defendant could fulfill all the requirements and have his or her records “cleared,” yet private background-check services, such as BeenVerified, Truthfinder, or Checkmate, could still uncover that person’s criminal history.

The discussion over clearing criminal records is amplifying, and courts are squarely in the middle. Since 2013, Phillip Knox and Peter C. Kiefer have been surveying court professionals on the likelihood of various future scenarios. Their 2018 survey results showed that court professionals thought it likely that we will see simplified and streamlined expungement procedures within the next ten years.

The survey categorized respondents by age cohorts. Baby Boomers and Generation X respondents thought streamlined expungements seemed likely; Millennial and Traditional respondents thought it had a 50/50 chance.18

 

Respondents

What role should courts have in record clearing? We asked four court professionals from around the country to share what their courts are doing and give their advice on what courts should and should not do.

The panel of court professionals:  Anabel Romero, deputy court executive officer for the Superior Court of the State of California, San Bernardino County; Tanya Damm, clerk for the Honorable Andrew R. Erwin, Circuit Court for the State of Oregon, Washington County; Nicholas Kiefer, director of State Trial Courts, Office of the Criminal Courts Clerk, Metropolitan Nashville and Davidson County, Tennessee; and Sarah Brown-Clark, elected clerk of court, Youngstown Municipal Court in Ohio.

Does your state have a process for clearing criminal records?
Ohio permits the sealing of records, reported Sarah Brown-Clark. The Ohio Revised Code (ORC), § 2953.32 and § 2953.31, allows records to be sealed under certain conditions. Eligible offenders may apply three years after an offender’s final discharge if convicted of a felony, or one year after the offender’s final discharge if convicted of a misdemeanor. First- or second-degree felonies and first-degree misdemeanors involving violence are generally excluded.19 

The record of a conviction can be sealed and unsealed by court order. According to Sarah, “There has been some confusion in Ohio about the distinction between ‘expunged’ and ‘sealed,’ which I believe is now being addressed by the state court.” 

Tennessee allows for expunging criminal records when a case is dismissed, a verdict of not guilty is reached, or an order of nolle prosequi is entered, noted Nicholas Kiefer. In those circumstances, there are no limits surrounding offenses that can be expunged. Nicholas indicates, “Typically, convictions are not allowed to be set aside absent some extreme circumstance. There is, however, a law allowing for expungement of convictions if a strict set of conditions have been met by the petitioner.” State legislatures set the conditions based on the type and age of the offense and other factors. The district attorney general and the court both review the request before ruling.

Tanya Damm responded that Oregon permits expunging criminal records for most misdemeanors, class-C felonies, and some class-B felonies. Exceptions include child abuse, sex offenses, and drunk driving.

Anabel Romero stated that California law provides defendants with the ability to petition the court for relief. California Penal Code (PC) § 1203.4, 1203.4a, 1203.41, and 1203.42 allow defendants to petition the court to withdraw their plea of guilty, or plea of nolo contendere, and enter a plea of not guilty. If they have been convicted after a plea of not guilty, the court can set aside the guilty verdict. In either case, the court would dismiss the accusations or information against the defendants and release them from the penalties and disabilities resulting from the offense. Defendants must comply with numerous requirements, including assuring the court that they are not serving a sentence or probation, or that they have not been charged with any new crime (PC §1203.4). Some exceptions to this process include Driving Under the Influence and Driving While Intoxicated under the California Vehicle Code (VC §13555); failure to submit to an officer’s inspection (VC §42002.1); certain sex acts and sex acts with a minor (PC §286(c), PC §288.5, PC §288a(c), PC §289(j), and PC §261.5 d); throwing lit cigarettes out of a vehicle (VC §42002.1 and VC §23111); and violations for which a defendant has served time in prison.20

Has your court ever participated in an “expungement event”?
Nicholas replied that the courts in the Nashville area (Davidson County, Tennessee) routinely participate in expungement events.

We find that in many instances individuals who are eligible to have offenses expunged from their records either don’t know or, for one reason or another, are afraid to come into the courthouse to begin the process. By holding these events with the public, we remove the negative stigma that surrounds the courthouse and can assist these individuals in a setting where they feel comfortable to ask questions and listen to information about their cases.

Neither Tanya nor Anabel believed that their courts have participated in an expungement event. Tanya mentioned, “Though I can only speculate, I imagine this is primarily because our court has approximately half the number of judges and staff that it should have for a county its size; therefore, there simply aren’t resources available to facilitate this type of event.”  

Sarah recalled that her court did hold an amnesty event in the criminal-traffic division several years ago, which was initiated by the Ohio Attorney General’s Office. It occurred in several cities; Youngstown was one of the sites chosen.

Do you think it appropriate that courts actively participate in expungement events or streamlined processes to clear defendants’ records?
In Sarah’s opinion expungement events are worth the time and effort.

So many people, especially young people, are excluded from employment, housing, job training such as skilled trades, and other educational opportunities because they must respond affirmatively when asked if they have records. Affording these people the opportunity to expunge their misdemeanor records can make a huge difference in their opportunities and their quality of life. The expungement process in my court is streamlined.

Anabel said the California Judicial Branch is responsible for ensuring that access to justice is delivered to all litigants needing court services.

In providing access, we must always look to continually strengthen public trust and confidence; one way to accomplish this is to ensure we always remain neutral. The act of neutrality for our courts comes in the form of providing information, customer service, access to court information, self-help services, and language access, to name a few.

As a court administrator for over 20 years, I believe courts have the responsibility to ensure forms, information, and instructional documents are available to members of the public. The work of the court is to ensure this type of information can be easily read and understood by members of the public. In doing so, we promote public trust and confidence and assist people in navigating through the court system while maintaining neutrality.

Anabel pointed out that actively participating in expungement events can be done by providing information, facilitating form reviews, and answering questions that assist the public by increasing their understanding of the legal system. “However, in my view courts should not cross the line of promoting the exercise of legislative provisions.” 

To Tanya, defendants have the primary responsibility for initiating expungement processes. “The court should remain impartial in these (and all) proceedings. The court’s role should simply be to review the documents put before it and determine whether it is acceptable under the law. Having the court initiate expungements could create the illusion of a biased system.”

Nicholas perceived the court’s role as ensuring that citizens are aware of their rights as they relate to expungements. To that end, expungement events are a great way to fulfill that role.

As court administrators, we are responsible not only for the smooth operation of courts, but also ensuring that the public-at-large has access to the information and the resources needed to exercise their legal rights. Expungement events ensure that members of the public, who don’t frequently visit the courthouse, are made aware of their rights as it relates to expungement and then provide the resources necessary to assist them.

Does your jurisdiction have a routine procedure that helps litigants with clearing their records?
Nicholas declared that his jurisdiction benefited from a fantastic case management system that, in most cases, can generate expungement forms for individuals at the click of a button.

Once the form is created, the individual has only to sign the form in the appropriate place. In the event the case management system cannot generate the order for an individual, clerk’s office staff who are knowledgeable about the expungement process assist in filling out the appropriate forms. The expungement forms and related information are also made available on the criminal court clerk’s website, so individuals can find answers to expungement questions without the need to physically come to the courthouse.

Expungement instructions and forms for the Nashville courts are available here.

Anabel noted that the San Bernardino Superior Court has a variety of informational tools to help defendants with petitioning the court, including instructions available on the court’s website, instructions and forms packets available at each courthouse, and knowledgeable staff at the courthouse or on the phone to assist defendants with questions. The court also maintains a self-help public website, which contains a reference link to the California Courts Self-Help Center. The self-help website contains a toolbox and comprehensive information on expungement/clearing one’s record.21

Tanya said that her court offers fill-in-the-blank forms available to self-represented defendants who wish to seek expungements. “The court has an expungement clerk, though she’s prohibited by law from giving legal advice, so her ability to assist litigants with expungements is incredibly limited.”

If your jurisdiction has a routine procedure for dealing with clearing records, is the court taking the lead or is another agency leading?
Nicholas reported that the criminal court clerk takes the lead for expungement processes in the day-to-day operations in his court. There are many events and situations, however, where the courts led by a local judge or other agency, like the public defender’s office or legal aid, will assist individuals with the expungement process. “No matter who takes the lead in these particular events, the paperwork eventually makes its way back to the clerk, who has the important task of ensuring that these orders and petitions are processed in the most efficient way possible.”

Sarah noted that the Ohio Justice and Policy Center has an online manual—Criminal Records Manual: Understanding and Clearing Up Ohio Criminal Records and Overcoming the Barriers They Create. Based on the increase in requests to have records cleared, word of mouth has been a factor; some defendants draft their own documents, while others have legal counsel. Legal aid is also increasing its advocacy in this area.

Expungements are initiated by the defense in Tanya’s court, whether it is the defendant moving for an expungement pro se or with the assistance of an attorney.

What Ever Happened to Peyton?

For Peyton, it was a struggle. Ultimately, she had to move to another state with less-stringent criminal-background requirements. She missed her family and friends, but she did obtain her license and began her nursing career.

Thanks to Sarah Brown-Clark, Anabel Romero, Tanya Damm, and Nicholas Kiefer for their information and advice on this salient topic. As more defendants are released from prison every day, this discussion continues to swell. As court leaders, we need to join the discussion and offer our input on the role of courts in this issue.

ABOUT THE AUTHOR

Peter C. Kiefer has spent over four decades working for the courts in Oregon, California, and Arizona, as well as on rule-of-law projects in Liberia, Moldova, and Beirut. Contact him at kieferpeter@hotmail.com.  

  1. Peyton is fictitious, and her story is not an actual account. It is an amalgamation of the experiences of several criminal defendants, including the account from the August 26, 2016, Washington Post story “The Law Said an Ex-Felon Couldn’t Be a Nurse. So This Single Mom Got the Law Changed.” It describes Lisa Creason’s struggle to obtain a nursing license in Illinois. The piece was written by Colby Itkowtiz.
  2. In addition to Kim Kardashian, the ACLU; the African American Mayors Association; clergy in Tennessee, Texas, and Mississippi; prison advocacy groups; and congressmen and congresswomen support this movement. Reported by Louise Boyle, Daily Mail.com, May 30, 2018.
  3. “Trump Commutes Alice Marie Johnson’s Sentence,” CBS News Miami, June 6, 2018.
  4. Alan Binder, “Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help,” New York Times, October 8, 2018.
  5. “Criminal Justice Fact Sheet,” National Association for the Advancement of Colored People.
  6. Valerie Strauss, “Mass Incarceration of African Americans Affects the Racial Achievement Gap,” Washington Post, March 12, 2017.
  7. Robynn Cox,  “Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights,” Economic Policy Institute, January 16, 2015.
  8. Michelle Alexander, The New Jim Crow (New York: New Press, 2010).
  9. Reginald Dwayne Betts, “Could an Ex-Con Become an Attorney? I Intended to Find Out,” New York Times Magazine, October 16, 2018.
  10. David Griffith, “The Fallacy of the Nonviolent Offender,” Police: The Law Enforcement Magazine, September 17, 2009.
  11. Elvia Dias, “Uber Driver in Vehicle that Killed a Pedestrian Was a Felon. So What?,” AZCentral, March 20, 2018.
  12. Adam Robinson, “Ban the Box? Two Sides to the Argument,” Hireology, February 7, 2014.
  13. The United States Bureau of Labor statistics put the August 2018 unemployment rate at 3.9 percent.
  14. The public is often unaware of the legal distinctions between the four paths for clearing records described in this article. The term “expungement event,” therefore, ends up serving as an overarching label for any one of the four paths.  
  15. Paul Woolverton, Fayetteville Observer, January 29, 2018.
  16. Kate McKellar, “Salt Lake County’s First Expungement Day Helps Dozens Clear Their Criminal Records,” Deseret News, April 5, 2018.
  17. State of Pennsylvania Court Rule 790.
  18. Phillip Knox and Peter C. Kiefer, Future of the Courts 2018 Preliminary Survey Results. The project surveys the likelihood of various scenarios occurring within the next ten years with average assessments coming closer to 1 being more likely ranging to average assessments coming closer to 5 being less likely and more improbable. Although demographic research differs on the precise definition of each age cohort, we decided to use the following categories:
    • Millennials (born between 1980 and 1994)
    • Generation X (born between 1965 and 1979)
    • Baby Boomers (born between 1945 and 1964)
    • Traditionals (born before 1945).
  19. There are exceptions to the rule barring expungements of first- or second-degree felonies or violent first-degree misdemeanors. See O.R.C. § 2953.36 for a list.
  20. These citations should be viewed as discussion items only; they should not be interpreted as a complete legal analysis on the topic.
  21. A YouTube video, produced by the Northwest Justice Project, describes the process for sealing juvenile records in the State of Washington, https://www.youtube.com/watch?v=0z5SYm26QJ4?.