Getting a Spike in Traffic the Last Few Days

I’ve noticed a real spike in views of the blog in the last few days. Particularly for the posts that outline what offenses would be eligible for expungement under SB298. I hope that it is Senator Stivers’ fellow legislators coming to have a look at this important, life-changing legislation. If anyone from the Senate or House is reading this:

I understand the reality that not all offenses should be expungeable or vacatable. But please, stick with Senator Westerfield’s five year waiting period. The vast majority of Class D felons will be probated. Many of them will succeed, some won’t. But these probationary periods are generally three to five years. When you add the one to two years it takes to resolve some cases, and the five year waiting period after probation proposed by Senator Westerfield, almost every Class D felon will have gone ten years since the offense they want to expunge.

In fact, there is an easy, compromise solution: simply require a ten year waiting period from the date of the offense, or five years since completing probation, whichever is greater. In reality this will be similar to Senator Westerfield’s proposal in most cases. It will ensure that ten years has passed since the person’s last conviction, and it will obviate a lot of the PFO 2 concerns.

One more point: $500 is just too much. We know that 92% of jobs are doing background checks. We know that most will not hire felons. If we want to get people back to work, pick a lower number. I understand that AOC is underwater and needs money. But it certainly doesn’t cost $500 to store a file in a separate system and remove it from another one. The driving force of this legislation is about getting vulnerable people back to work. We have to eliminate as many barriers as we can to that goal.

Thank you.

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Felon Voting Rights Amendment Passes in Senate

Coverage here at cn|2. The bill would create a ballot initiative for the fall where the general population would vote on a Constitutional Amendment to allow lawmakers to set the standards for when felons get voting rights back. This doesn’t directly affect the expungement issue, and it would still be at least a year before we know what the requirements will be to restore voting rights, but some felons who aren’t eligible for expungement/vacation of their conviction under the new bill could have a way to regain voting rights with this approach.

What crimes would be eligible for felony expungement or vacation under the Stivers’ Senate Bill (pt. 3)

Let’s finish up the evaluation of what charges will be eligible for expungement under the Stivers bill by looking at the offenses eligible under the Kentucky Penal Code (KRS 500-532). Brief disclaimer, in all these posts, I’ve just briefly described the offenses listed. If you or anyone you know is charged or has been charged with one of these offenses, be aware that the law is frequently complex and that my descriptions of the offenses don’t necessarily include all the elements or possible defenses. If you’d like to talk more about the offenses, feel free to contact me. That said, here they are:

  • KRS 514.030: Theft by Unlawful Taking (Class D Felony). This was, until recently, the charge for taking over $300 in goods. The current limit is now $500. The bill would also presumably cover Theft of a Firearm, which is in the same chapter.
  • KRS 514.040: Theft by Deception. Similar to above, the cash amount limit has changed over the years, but the offense basically requires deceiving someone to steal something or take money.
  • KRS 514.050: Theft of property lost, mislaid, or delivered by mistake. Similar to above.
  • KRS 514.060: Theft of services. Same as above but for services.
  • KRS 514.065: Possession, use, or transfer of device for theft of telecommunications services. Making a device to steal cellular or other telecommunication services. Only a felony on a second offense. Unlikely anyone has ever been convicted of this.
  • To save with time, the following other theft offenses will be eligible for expungement:
    • KRS 514.070: Theft by failure to make required disposition of property.
    • KRS 514.080: Theft by extortion.
    • KRS 514.090: Theft of labor already rendered.
    • KRS 514.100: Unauthorized use of automobile or other propelled vehicle. (Second offense is a felony).
    • KRS 514.110: Receiving stolen property.
    • KRS 514.120: Obscuring identity of machine or other property.
    • KRS 514.140: Theft of mail matter.
    • KRS 514.150: Possession of stolen mail matter.
    • KRS 514.160: Theft of identity. Not just what you think it is. Frequently comes up when people have bills in other peoples names, etc.
  • KRS 516.030: Forgery in the second degree. Forged checks primarily.
  • KRS 516.060: Criminal possession of forged instrument in the second degree. Possession of forged checks.
  • KRS 516.090: Possession of forgery device. Possessing a check forging or other forging machine.
  • KRS 516.108: Criminal simulation in the first degree.
    • The statute reads: A person is guilty of criminal simulation in the first degree when he or she knowingly manufactures, markets, or distributes any product which is intended to defraud a test designed to detect the presence of alcohol or a controlled substance.
    • I can’t recall ever seeing anyone charged with this. I’m going to do some more research, but I’m not sure what this offense is designed to prevent people from doing.
  • KRS 517.120: Operating a sham or front company. Self explanatory.
  • KRS 518.040: Sports bribery.
  • KRS 522.040: Misuse of confidential information. A crime public officials can be charged with.
  • KRS 525.113: Institutional vandalism.
  • KRS 526.020: Eavesdropping.
  • KRS 526.030: Installing eavesdropping device.
  • KRS 528.020: Promoting gambling in the first degree. Bookmaking.
  • KRS 528.040: Conspiracy to promote gambling.
  • KRS 528.050: Possession of gambling records in the first degree.
  • KRS 530.010: Bigamy. Marrying two people at once.
  • KRS 530.050: Flagrant Nonsupport. Behind on child support more than $1000.

What crimes would be eligible for felony expungement or vacation under the Stivers’ Senate Bill (pt. 2)

Continuing from the previous post, if the Stivers bill passes, these felonies would be eligible for expungement ten years after completing the sentence (including probation and parole):

  • KRS 218A.1416: Possession of a Controlled Substance, Second Degree: This is currently a misdemeanor, but for many years, a second offense could be enhanced to a felony. Ultimately, anyone should consider voiding a conviction for PCS instead (we will talk about this procedure in a future post).
  • KRS 218A.1417:  Possession of a Controlled Substance, Third Degree: same situation as above.
  • KRS 218A.1418: An older version of the “Theft of a Controlled Substance”statute.
  • KRS 218A.1439: Trafficking in or transferring a dietary supplement, second offense: mainly used to prosecutor people selling ephedrine related substances. I would be shocked if there were more than a handful of felony convictions for this.
  • KRS 218A.282: Forgery of a prescription: self explanatory.
  • KRS 218A.284: Criminal possession of a forged prescription.
  • KRS 218A.286: Theft, criminal possession, trafficking, or unlawful possession of a prescription or blank.
  • KRS 218A.320: Criminal possession of a medical record; penalties. It is what it says. Using a medical record not your own to try to get controlled substances.
  • KRS 218A.322: Theft of a medical record; penalties. Same as above.
  • KRS 218A.324: Criminal falsification of a medical record; penalties. Same.
  • KRS 244.165: Unlawful sale and shipment by out-of-state seller directly to a Kentucky consumer; permissible shipments of wine into Kentucky by out-of-state small farm wineries; penalty. A law that almost certainly no one was ever prosecuted under. Was declared unconstitutional in 2008.
  • KRS 286.11-057: Making a False Statement in a number of Financial disclosures.
  • KRS 304.47-025: Felony offense involving dishonesty or breach of trust; fraudulent insurance act; penalties. Various insurance fraud crimes by insurers.
  • KRS 324.990: Engaging in real estate brokerage without license; penalties. Expungement for all of those people who have twice been convicted of selling real estate without a license.
  • KRS 365.241: Counterfeiting intellectual property; penalties; disposition of property. Somewhat more common. Selling fake sunglasses, purses, etc. worth over $1000.
  • KRS 434.155: Filing illegal lien. More financial crimes.
  • KRS 434.675: Use of scanning device or reencoder to obtain payment card information prohibited. Skimming credit cards to duplicate them.
  • KRS 434.850: Unlawful access to a computer in the second degree. Computer hacking that causes over $300 in damages. I’ve seen it used when employees hacked cash registers.
  • KRS 434.872: Disclosure of information from financial information repository; penalties. This covers social engineering scams at banks where scammers try to get the banks to disclose information on account holders.

Tomorrow I’ll cover the crimes that will be expungeable under the Stivers bill that are a little more common. The rest come from the Kentucky Penal Code and are more of what we think of when we think of traditional criminal law cases. So far, it’s kind of underwhelming, but a lot of the expungeable felonies will be discussed tomorrow. No matter what, this bill is better than our current situation.

What offenses would be covered by Stivers’ 2016 Class D Felony Expungement Bill – Part 1

I’m trying hard to break down what offenses will be expungeable under the Stivers Bill. Of course, this is all subject to change as the bill hasn’t yet passed. I got through about the first third of them tonight. The rest will have to wait for a later post. That being said, here is my first post on what offenses are eligible for expungement under Stivers’ bill:

  • KRS 17.175 – dissemination or misuse of the state DNA database.
  • KRS 186.990 – Theft of vehicle registration stickers; various other tax provisions related to dealers’ tags
  • KRS 194A.505 – commonly referred to as “False Statement to Receive Benefits”. Welfare/Food stamps fraud.
  • KRS 194B.505 – was repealed in 2005. Believe it may be also related to benefits fraud, but will have to check older law books.
  • KRS 217.181 – Theft of a Legend Drug. Stealing a prescribed substance that isn’t subject to the controlled substance act.
  • KRS 217.207 – Theft of or trafficking in prescription blanks, second offense.
  • KRS 217.208 – Forgery of a prescription.
  • KRS 218A.240 – Making a false statement to procure a controlled substance.
  • KRS 218A.1415 – Possession of a Controlled Substance, First Degree. Cocaine, Meth, LSD.

I’ll be back tomorrow to parse some more. Sorry this is taking so long, there are some esoteric parts of the code in the bill.

Stivers Senate Bill Unveiled

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Here is the link for what will likely become the Kentucky Class D Felony Expungement bill. Here is great coverage from CN2. It still has to be passed, but as it was authored by the Senate President, and our Governor has already voiced his support, it looks like we will, at the very least, get this bill. I appreciate the foresight of Senator Stivers and Governor Bevin to push for this, but I have a few thoughts.

Here are my initial reactions:

  1. Ten years after completion of the sentence is just TOO long. There is no empirical reason to pick ten years.  The only basis for this number is the number of fingers on two hands. The reality is that most Class D felons will wait a year to be sentenced after being convicted, and then serve a lengthy probation or parole. While better than nothing, this bill restricts relief to people who have long since aged out of their prime wage earning years. If we want people who make a mistake when they are young to be contributing members of our economy, the right path isn’t to wait until they are 35 to allow for expungement. Forcing people out of the mainstream economy for 15 years just continues to create new felonies.
  2. A $500 application fee is steep. While I understand the budget shortfall, the amount of tax revenues that can be generated from getting former felons to higher paying jobs surely must outweigh the short term gains of the few lucky people able to save the high fee.
  3. Class D Trafficking SHOULD be expungeable. The felon-creation-industrial-complex started as a reaction to the war on drugs. The vast majority of people who will benefit from this bill were addicted to drugs. To deny petty traffickers the possibility of expungement seems to miss the point. I know that this bill is politically unpopular. Be HARD on high-level traffickers. The dime-bag -selling addicts who cleaned their habits a decade ago deserve a second chance.

I’ll be back tomorrow to offer the plain-language list of offenses that are expungeable under this bill. I do want to say that I sincerely appreciate that Senator Stivers authored this bill. It’s not perfect, and hopefully, after debate, we will get something better. I know he is walking a tight-rope with his constituents and I do appreciate him putting his neck out on this.

More tomorrow friends.

Good news from the Senate

stivers

It looks like we may be getting some movement in the near future on expungement, and I am told that the final bill has not been as weakened as we all may have worried. While this article  predicted that we would hear something last week, I suspect that next week may be more likely. If you have ANY time, please contact Senate President Stivers, who will likely be authoring the new law. His contact information is here. I know that as a resident of Manchester, Senator Stivers has seen firsthand the damage that felony-first prosecution has had on our communities. He has seen the pain that drug addiction has caused and the further pain that a felony conviction causes when it disqualifies good people from good jobs.

Please, if you have any interest in this passing, reach out to him this weekend. Class D expungement in Kentucky is about more than getting back to work. It is about restoring gun rights, restoring voting rights, and restoring jury duty. For decades we have case people who have made a minor mistake aside. Now we have the opportunity to fix that. I hope our Senate gets it right the first time, because there may not be a second one.

 

African American Kentuckians are four times as likely to be convicted of felonies as non-African Americans

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There is no clever or funny or any other way around the sad, sober-reality:

  1. There are 243,842 disenfranchised felons in Kentucky. 180,984 have already served their sentences out.
  2. There are 56,920 disenfranchised felon African Americans in Kentucky. 42,552 of them have served their sentence out.
  3. 3,315,996 is total estimated KY Population in the 2010 census.
  4. 254,797 is total estimated 2010 African American KY population.
  5. 7% of Kentuckians are ex-felons, are currently serving time, or are on probation or parole
  6. 22% of African-American Kentuckians are ex-felons, are currently serving time, or are on probation or parole.
  7. If we subtract the number of African Americans who are convicted felons from the total number of convicted felons, and divide by the total population of non-African American Kentuckians, we find that 5.7% of non-African Americans have been convicted of felonies in Kentucky.
  8. Therefore, if we consider only race, an African American Kentuckian (22%) is four times as likely to be convicted of a felony as a non-African American Kentuckian (5.7%).

All of these numbers are based on a study by the Sentencing Project.  While we can debate the cause of these disparities, a 400% increase in likelihood of felony conviction is very difficult to innocently explain away. The fact that African Americans are overwhelmingly, disproportionately the target of felony convictions in Kentucky is just another reason to pass Class-D expungement.