So What Might the KY Senate do on Felony Expungement?

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On January 6th, 2016, Senate Bill 77 was filed in the Kentucky Senate. SB 77 is the Senate’s approach to felony expungement in Kentucky. It is notably different from the bill that passed the House last week. In some ways, the Senate Bill is superior, but in many ways, it makes expungement more onerous and more expensive. If business leaders and citizens are to reap the rewards of an increased workforce, the fewer financial barriers to expungement, the better.

Differences between the bill passed by the House and the proposed Senate bill include:

  • The Senate Bill creates a new and entirely separate law to handle felony expungement, rather than adding felonies to the current procedure for expunging misdemeanors.
  • The Senate Bill would impose a $280 filing fee for a felony expungement. The House bill would impose only a $100 filing fee. While it is not 100% clear from the language of the Senate Bill, this would seem to be in addition to the $40 fee charged by the Administrative Office of the Courts and the Kentucky State Police for the records check required under KRS 431.079.
  • This would bring the total cost of an expungement under the Senate Bill to $320, as opposed to $140 under the House Bill. Those are just the costs of filing the petition. Hiring an attorney to argue the petition would cost substantially more. And while an attorney isn’t required to seek an expungement, it may become advisable in light of the other changes in SB 77, listed below.
  • SB 77 creates a requirement that the person requesting an expungement make an effort locate the victim of the case. While it is not required that the petitioner find the person, this could prove difficult in some cases for a person petitioning for an expungement on their own.
  • SB 77 greatly increases the burden on overworked Commonwealth’s Attorneys. SB 77 requires that each petition have a response from the Commonwealth’s Attorney made after consulting with the victim. The Commonwealth’s Attorney will then recommend whether the person seeking expungement should be granted the expungement.
  • While SB 77 seems to make it mandatory that the expungement be granted if the requirements are met, this procedure with the Commonwealth’s Attorney seems to invite a weighing of the merits of the expungement. While the language of SB 77 seems mandatory, there is little question that some prosecutors, would enjoy recommending against every expungement. See Com. v. Holloway. This will lead to more argument in the courtroom, and litigants with attorneys will definitely have an advantage.
  • SB 77 would further limit the Class D felonies that are eligible for expungement. In particular, it removes from consideration offenses under KRS 507 and KRS 508–the homicide and assault/wanton endangerment offenses. I actually think this is a reasonable compromise. I expect that some arguing over which Class D felonies should be expunged, and this approach seems pretty commonsense.
  • SB 77 does nothing to address expungement for cases dismissed by the grand jury. The 12 month waiting period contemplated by HB 40 makes sense. The senate should adopt it.
  • SB 77 leaves in the five year prior requirement for expungement of misdemeanors. This is a somewhat complex issue that I want to leave for another post later, but I believe that this is a commonsense change. If we are going to allow felonies to be expunged after waiting five years, regardless of the criminal record prior to the felony, we should afford misdemeanor convictions the same leeway.
  • SB 77 does change the waiting period for seeking an expungement to be shorter. Rather than having to wait five years after the completion of the sentence or probation, the petitioner can seek expungement five years after the judgment is entered. I’m not sure that this language doesn’t have some unintended consequences, but it seems fair.

I’m going to be thinking about these differences over the next few days, and will be back to offer my view on what compromises we can find between the two approaches to create the best bill.

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