Amidst a global pandemic that already has over five thousand confirmed cases  in Kentucky, Governor Beshear has signed legislation aimed at giving many a second chance. As we enter a significant recession, second chance policies, like HB 327, are more vital than ever.
Second chances are a part of life, but many who have old criminal records may never get one. Instead, those with records face over 600 collateral consequences  that create lifelong barriers to employment, housing, and education. For many of these individuals a “clean slate” would change their lives. Once enacted, House Bill 327 will automatically expunge nonconviction records––for example, when an individual’s case is acquitted or dismissed.
Criminal records, even nonconviction records, create enormous barriers to success. With nine out of 10 employers using a background check  in the hiring process, those with criminal records, even old and minor ones, are half as likely to get a callback or job offer  than those in the general population. The unemployment rate for the justice involved mirrors the rate during the great depression: a dismal 27 percent.  This translates into losses to the economy––a shortfall of at least 78 billion  nationally, which translates into at least 826 million dollars of GDP lost in Kentucky because of criminal records.
Right now, a criminal record is a life sentence to poverty for the individual and could further cripple our economy.
It would be one thing if these records conveyed useful information about public safety. But the research is clear that after a waiting period, individuals with records are no more likely  than anyone else to reoffend. In contrast, saddling individuals with records for their entire lives actually makes it more likely they will reoffend by keeping the basic building blocks of life––employment  and housing––out of reach, even more so in a post-pandemic world. Expungements can enhance public safety by improving individual prospects.
Given how beneficial expungements can be, it is unfortunate that expunging a criminal conviction is a complicated process  in Kentucky: assuming they have satisfied the five year waiting period and completed all the terms of their sentence, individuals must request a certificate of eligibility from the state police (which costs $40), go to the correct county courthouse, file a petition, and pay up to $500 in fees as well as other costs. Then, they may receive notice to attend a hearing, while answering any objections the prosecutor raises.
Most individuals require a lawyer to navigate this lengthy and bureaucratic process. These costs are likely to be amplified for justice involved people in the emerging economic crisis, in which increased poverty will make it even less likely that individuals apply for expungements.
This “uptake gap”––the difference between who is eligible and who actually applies for relief––is an access to justice problem. It means that the well-educated and well-resourced are far more likely to receive relief. In fact, one study estimated that just 6.5 percent of individuals who are eligible actually apply for relief , and that was before we enter what is likely to be another Great Depression.
This is why measures like House Bill 327, and legislation like it, are so important. If expungements were automated, a lack of knowledge about eligibility or difficulty in navigating the court system would no longer be hurdles. Kentucky should seize the momentum behind this policy and consider expanding automated expungements to criminal records that include convictions as well. In these cash-strapped times, the move will ultimately result in cost savings for Kentucky. One study showed that moving to an automated system would cost five cents per record , instead of the thousands it currently costs.
This is why “clean slate” policy––automatically clearing records––is such a powerful remedy. We should celebrate the passage of House Bill 327. In the midst of some very hard times, it is a piece of good news indeed.
- “over five thousand confirmed cases”: https://www.wtloam.com/2020/03/28/gov-beshear-signs-more-than-35-bills-including-law-to-restrict-tobacco-vaping/
- “600 collateral consequences”: https://niccc.csgjusticecenter.org/database/results/?jurisdiction=223&consequence_category=&narrow_category=&triggering_offense_category=&consequence_type=&duration_category=&page_number=1
- “using a background check”: https://www.shrm.org/resourcesandtools/hr-topics/risk-management/pages/background-screens-criminal-records.aspx
- “ half as likely to get a callback or job offer”: https://nrrc.csgjusticecenter.org/employment-opportunities-for-people-with-criminal-records/
- “ a dismal 27 percent.”: https://www.prisonlegalnews.org/news/2018/sep/4/27-percent-unemployment-jobs-crisis-hits-ex-prisoners-hardest/
- “at least 78 billion”: https://cepr.net/images/stories/reports/employment-prisoners-felonies-2016-06.pdf
- “no more likely”: https://www.ncjrs.gov/pdffiles1/nij/226872.pdf
- “employment”: https://www.realclearpolitics.com/articles/2015/06/11/immediate_access_to_employment_reduces_recidivism_126939.html
- “complicated process”: https://dpa.ky.gov/Public_Defender_Resources/Documents/Expungement%20guidebook%207.5.pdf
- “just 6.5 percent of individuals who are eligible actually apply for relief”: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3353620
- “five cents per record”: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3265335