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June 1, 2016

Examining the high costs of expungement process in some jurisdictions

The Marshall Project has this effective new piece highlighting the ugly economics behind how some jurisdictions handle the expungement processes.  The piece is headlined "Want to Clear Your Record? It’ll Cost You $450: In Tennessee and other states, former felons can’t always afford it." Here are excerpts:

Many states charge $150 or less to apply for expungement, the legal term for clearing a criminal record, and some states offer a waiver if the applicant is too poor to pay.  But the Tennessee legislature wanted money for the state’s general fund, so it set the fee much higher.

While a gun permit may be discretionary, a decent job or money for an education are crucial, and for many people once convicted of a crime, Tennessee’s high fee has put expungement out of the reach.  In Tennessee, there are 958 restrictions based on a criminal record, including disqualification for any state-funded student loan or grant. A record also bars employment in a number of fields and any job that involves working with children.

In recent years, increased attention to the connection between these restrictions, which make it difficult to lead a stable life, and recidivism has spurred lawmakers in states across the country to pass legislation affording those with a conviction or an arrest a clean slate, according to a Vera Institute report.  Between 2009 and 2014, 31 states and Washington, D.C., established or expanded expungement laws. Most laws only included misdemeanor convictions or arrest records. A growing number of states are including some low-level, non-violent felonies.  Of the 17 states that do so, the application fee is generally in line with standard court fees. But three states are charging far more. Tennessee’s $450 is trumped by Louisiana's $550 fee, and as of July, Kentucky will charge $500.

Louisiana’s high fee results from inefficiencies that make processing an application arduous — the state’s jurisdictions are largely autonomous, with no central storehouse for information, said Adrienne Wheeler, executive director of the Justice & Accountability Center of Louisiana, a group that has worked to make expungement more accessible.  Further, the justice system — from the state police to sheriffs’ departments as well as district attorneys and court clerks — are underfunded and depend on fines to make up for the tax dollars they don’t receive.  “We were pretty vocal that this was an impossible cost,” said Wheeler of recent reform discussions. But, she said, “These agencies are not getting the funding that they need to function, so it’s hard to ask them to bring it down.”

In Tennessee and Kentucky, bloated prices have little to do with processing the application, but rather the state revenue they were designed to produce.  Fifty-five percent of the cash collected in Tennessee goes into the state’s general fund.  In Kentucky, it will be a full 90 percent. The prospect of revenue is exactly why Tennessee lawmakers were persuaded to pass felony expungement legislation in 2012, said State Representative Raumesh Akbari, a Democrat.  At the time, the official estimate was that the law would raise $7 million for the state annually. In reality, it has generated only about $130,000 each year according to an analysis by a criminal justice nonprofit, Just City. The lack of income is tied to the fact that few would-be applicants can afford to apply, Akbari said.

Public awareness of the issue is gaining momentum in Tennessee. At a fundraising event in February, Memphis Mayor Jim Strickland raised $55,000 in private donations to cover the cost of expungement for indigent applicants.

June 1, 2016 at 08:56 AM | Permalink

Comments

Expungements/pardons etc. for those who have led law-abiding lives long after criminal behavior should be routinely granted--with certain exceptions.

Posted by: federalist | Jun 1, 2016 10:09:00 AM

The quibble would be over what qualifies as "long".

Posted by: Soronel Haetir | Jun 1, 2016 10:43:27 AM

I may be mistaken, but I believe that all states have a mechanism for expungement of a felony conviction if certain (usually quite stringent) criteria are met. The shame is that,apart from the rare pardon, the federal government does not. Society is the worse for it.

See U.S. v. Smith 683 F.2d 1236, 1240 (9th Cir. 1982) (“The stigma of a felony conviction is permanent and pervasive.”); Wayne A. Logan “Informal Collateral Consequences” 88 Washington Law Review 1103 (2013) (“Today, convict status serves as a perpetual badge of infamy, even serving to impugn reputation beyond the grave.”); id at p. 1107 (“stigma can have a self-fulfilling criminogenic effect, predisposing individuals to become the deviants they were branded to be.’); Michelle Alexander, The New Jim Crow (Paperback ed. The New Press 2012) at p. 94 (“Once a person is labeled a felon, he or she is ushered into a parallel universe in which discrimination, stigma, and exclusion are perfectly legal.”); id at 163 (“When someone is convicted of a crime tody, heir ‘debit to society’ is never paid.’”) ; Ernest Drucker, A Plague of Prisons (The New Press 2011), at p. 130 (“Having served their formal sentences, ex-prisoners will endure new forms of punishment capable of generating more anger, more shame, and the scars of permanent social stigma….most states…bar many ex-felons from living in public housing, from working in a wide variety of jobs and professions, and from receiving a range of forms of public assistance including school subsides, income support and food stamps…These [are ]enduring disabilities….]; U.S. v. Wulff 758 F.2d 1121, 1125 (6th Cir. 1985) (“a felony conviction irreparably damages one's reputation.”); U.S. v. Prosperi 686 F.3d 32 (1st Cir. 2012) (“Sometimes [courts do not] fully recognize the anguish and the penalty and the burden that persons face when called to account, as these men are, for the wrong that they committed.” ).

Posted by: Michael R. Levine | Jun 1, 2016 12:52:25 PM

Federalist and I agree 100 percent on this one.

Posted by: Michael R. Levine | Jun 1, 2016 12:57:40 PM

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