Issue March 5, 2013

Clean slate

A crop of expungement bills stirs debate among local officials

A handful of bills circulating in Frankfort that would ease state limitations on record expungements for convicted criminals has provoked political posturing among city leaders regarding the extent of the proposed legislation and, more broadly, opened debate on punishment versus rehabilitation.

The bills — SB 79, SB 90, HB 57 and HB 47 — would allow individuals to expunge a wide array of past indiscretions that supporters believe prevent former criminals from obtaining jobs and contributing to society.

Councilman David James, D-6, a former Louisville Metro Police officer with 29 years of law enforcement experience, supports SB 79, a bill filed by state Sens. Julie Denton, Robin Webb, Denise Harper Angel and Kathy Stein. This bill would allow expungement of multiple unrelated misdemeanors or violations, as well as expungement of felony arrests or charges on which no indictment was issued within 24 months of judicial review.

James believes that of all the expungement bills making the rounds in the capitol, this one offers the broadest possible path for those haunted by a criminal record.

“What happens is, when these people go out into the job market and take care of their responsibilities and try to be a good citizen, some jobs require a clean record and it gets them all jammed up,” James says. “We can’t fulfill what we promise them. Their ability to make a living for their family is not there. I think that when people make mistakes that they should be able to correct those mistakes.”

Aside from the thousands across the state who face the negative consequences of such a background when attempting to secure employment, there are other financial hurdles, as well. According to data compiled by the Kentucky Department of Public Advocacy, 732 people per year are “denied or discontinued food stamps because of a drug or fleeing felony conviction.” Further, more than 90 percent of employers conduct criminal background checks, making it that much harder for criminals to secure employment or housing.

Jefferson County Attorney Mike O’Connell — no stranger to the debate over expungements — supports HB 57, a bill filed by Rep. Brent Yonts, D-15, that is far narrower in scope and would only change state statute to “clarify that a traffic infraction does not disqualify a person from seeking such an expungement,” which SB 79 also does.

“All my public efforts have been in support of HB 57,” O’Connell says. “This is the bill that clears up … the definition of a violation. In minor traffic offenses, it does not preclude someone from getting a misdemeanor expunged if they otherwise qualify. We’ve had cases go to the circuit court on this. We’ve had close to like 10 circuit court judges look at the existing misdemeanor statute, five ruling one way, and five ruling the other way.”

Due to the broader scope of SB 79 and the truncated nature of the General Assembly’s short session (which ends March 26), O’Connell contends the best hope for any movement on the issue this year rests with Yonts’ bill.

“In my mind, it always begged for a fix by the legislature,” O’Connell says.

An Aug. 18, 2012, article in The Courier-Journal chronicled the county attorney’s handling of expungements and detailed his office’s appeals of district court expungement orders to circuit court by ignoring a new state law that classified “violations” as anything “other than a traffic violation.”

In an editorial published Feb. 15, 2013, on lawreader.com, former Louisville District Court Judge Benham Sims compiled data from the Jefferson County Clerk’s Office that found half of the 147 appeals filed by O’Connell’s office in 2012 were aimed at swatting down expungements.

“Most of the appeals involve people who were not represented by lawyers, who cannot afford a protracted legal fight that will cost them thousands of dollars and take years to be resolved by standard appeals, and do not want to risk public scrutiny of a mistake they committed years ago,” Sims writes. “(O’Connell’s) legal tactic is to bleed out those seeking to expunge. There is no other explanation and there is no excuse. His behavior in one word can be summed up as ‘disgusting.’”

But O’Connell maintains his office was simply navigating confusion within the courts stemming from existing statutes, adding that his position on expungements has never changed.

“My position has been that I was simply following the law as I saw it in connection with the expungement statute, and what was eligible or ineligible for expungements,” he says.

In an earlier interview, O’Connell did acknowledge that most of those seeking appeals did so without the aid of an attorney, and he referred to the much broader SB 79 as a “full employment bill for lawyers.” He also suggested that bill would make it easier for drunk drivers — particularly those with more than one offense — to clear their records more quickly.

But Councilman James disagrees with O’Connell’s assessment, saying that he, like many others in the city, don’t have to live in the areas most affected by the specter of urban violence.

“I have this map that I carry around with me that shows where all the murders are in the city,” James says. “Where I live, it affects the people you go to school with, your neighbor, someone’s uncle. It’s something that they live with daily… Part of my district is the 13th poorest ZIP code in the country. And I’m not saying that all the people who live there are bad, but a large number of them that live there are not in a good situation financially. They make a lot of mistakes, and this creates a cycle that feeds upon itself. For me, I want that to stop. It’s got to stop.