Past and future of expungement reform

This op-ed was originally published in the Deseret News.

Navigating the legal system to obtain an expungement is a costly and confusing endeavor that can take months for the average person to work through. While the new law will help many people, there are some who simply won’t qualify for an automatic expungement — for example, people who have committed more serious offenses. They’ll still have to figure out the system on their own.

Once an individual has fulfilled their obligations to the state, they should be free from discrimination for their past mistakes. Expungement grants them this freedom by clearing their criminal history. Just this year, Rep. Eric Hutchings, R-Kearns, championed a bill (HB431) to make it much easier for individuals with low-level misdemeanor convictions to be granted expungements. Now it can happen automatically.

For more serious offenders who can’t afford the cost of having their records expunged, one answer could simply be to allow fee waivers or more free expungement days around the state. But the problem with this, and criminal justice reform, in general, is often the cost. Why pay to help former offenders when there are many competing priorities calling for more funding? It’s a valid consideration. One answer is that an investment in a former offender’s future can result in a much greater return — not only for the individual but for society as a whole.

When the state prosecutes and incarcerates an individual, then leaves them to their own devices post-release, the chances for opportunity and success are substantially lessened. And when the state marks that person with a scarlet letter, negatively affecting their ability to get a job, housing or apply for school, that individual is likely to reoffend by engaging in criminal activity to make ends meet. As a result, everyone suffers.

But when we allow these individuals to qualify for an expungement — a chance to move on from their past mistakes — then the narrative starts to change, and society reaps the benefits alongside the individual. Recidivism decreases as they are able to get a job and housing with more ease, and then taxpayers won’t have to pay for a revolving door of trials and incarceration.

Finding the right solution to address every offender’s expungement needs isn’t an easy process. Utah’s new law follows a multiyear effort that we’ve participated in to slowly but surely make the expungement process more accessible to the average person. In 2017, for example, the Legislature passed a bill to ensure that minor infractions could not be used to disqualify a person from expunging a record. This effort was continued in 2018 with another successful bill that allows individuals to obtain expungements even with unpaid court debt if the debt is unrelated to the expungeable offense. Both bills made changes that may seem minor, but significantly impact a person’s ability to clear their record.

This year’s bill was an immense lift that began shortly after the wildly successful “free expungement day” hosted by Salt Lake County in April 2018. After seeing how impactful and popular the day was, Noella Sudbury, the county’s senior policy adviser on criminal justice, got to work with Hutchings on future legislation.

After a series of meetings with the leaders of the free expungement day, court officials, prosecutors, and criminal justice reform advocates from the ACLU and Libertas Institute, Hutchings introduced the consensus draft of his bill that went on to receive unanimous support from his colleagues. Governor Gary Herbert’s signature made Utah the second state, behind Pennsylvania, to automate expungement for qualifying offenders.

Utah’s courts will start clearing records in May 2020 for those who will qualify under the new law. In the meantime, policymakers should consider how best to help even more former offenders, beyond those with minor misdemeanors. The fight is far from over to create a more just criminal justice system, but Hutchings and the coalition of stakeholders on this law have demonstrated the impact consensus can bring to benefit the lives of many.