Justice and Due Process

Red Tape Limits Second Chances

Admit it. Fix it. Move on.

That’s what I teach my kids to do when they make a mistake. As a prosecutor, I realized this applied to offenders as well: offenders who couldn’t own their mistakes rarely escaped the cycle of recidivism. However, those who admitted they were wrong and did everything in their power to change themselves and make victims whole generally moved on with productive lives.

That doesn’t mean moving on is easy for the one in four Utahn’s with a criminal record. Even offenders who make meaningful and difficult changes — cutting out friends and family with criminal ties, breaking addictions, and seeking employment — have to contend with a criminal record as they try to move forward. 

That’s why Prison Fellowship, a Christian organization that ministers to current and former offenders, declared April to be Second Chances Month in 2017. They use this month to bring awareness to the difficulties ex-offenders face as they reenter society and to push for changes to make redemption more achievable. Since 2017, other private and public institutions, including the Department of Justice, have jumped on board with Second Chances Month.

A criminal record can make it harder to find housing and employment or obtain higher education and job training — all factors that reduce recidivism. And while, ultimately, making good on a second chance is the responsibility of the individual, there are structural changes which can make this easier. 

That’s where expungement comes into play.

When someone’s record is expunged, courts and police agencies seal the record so it no longer shows up in background checks. And, under law, the individual legally does not have to answer “yes” if questioned about former convictions. A few state agencies are still able to view the record for safety purposes, but the proverbial scarlet letter is mostly removed. 

Utah has done significant work in the past decade with regard to expungement, including passing the Clean Slate Act in 2019. Under this law, people with criminal records for infractions, class B and C misdemeanors, or two or fewer class A misdemeanors for drug possession are eligible for automatic expungement so long as a person doesn’t have too many total convictions and the person has remained crime-free for the requisite number of years. Rather than having to petition for expungement, the court does so automatically if eligibility criteria are met. 

Unfortunately, if a person is not eligible for automatic expungement, the petition-based expungement process is both daunting and expensive. A person must be fingerprinted by law enforcement and submit an application and $65 fee to the Bureau of Criminal Investigation (BCI). BCI takes four to six months to review the application. 

If BCI approves the application, the person must then pay $65 per conviction to obtain Certificates of Eligibility, which the person then files with the relevant court at a cost of $150 per court. The person must also serve notice on the relevant prosecuting agency. Finally, the person must appear before a judge and respond to any objections by the prosecuting agency and victims, if any. 

If a judge decides to approve the expungement, the person pays $30 to obtain copies of the court’s Order of Expungement in each case. Finally, the person delivers these copies to all government agencies that possess records and any private background check companies, who must then expunge the record.

Government bureaucracy at its finest. 

Given the complexity of the expungement process — and even determining eligibility — many people either give up or pay an attorney thousands to do it for them. 

One has to ask, are all these levels of review necessary to protect the public or has complexity accrued over time by default? The fact that 91 percent of expungement petitions are granted suggests that whole categories of expungements are not borderline cases and could be granted without resorting to this process. Utah has been willing to incrementally improve expungement, but it may be time to consider rebuilding a better system from the ground up.

When a person has done the work to earn an expungement, red tape and fees shouldn’t stand in the way of making good on a second chance.