The remedy of obtaining an expungement is a wonderful tool designed to motivate a person convicted of a crime to rehabilitate and demonstrate a commitment to bettering society. However, this remedy is often times either burdened with administrative and procedural hurdles that makes an expungement an overly lengthy, or impossible, process altogether. Utah law should not make obtaining an expungement an unreasonably difficult or long process for individuals that qualify for an expungement. And yet the current law has components that do just that. As such, the current Utah law needs to be modified to prevent unnecessary delay and create a more streamlined approach in cases where charges have never been filed as well as in cases where a criminal charge was filed, but ultimately dismissed, so that a person seeking an expungement does not have to wait unreasonable amounts of time to move on with their lives. Further, the expungement remedy should extend to all qualified persons that have demonstrated rehabilitation, remorse, and a commitment to bettering society, including certain “qualified” sex offenders.
Benefts of an Expungment for an Individual
1) Obtaining Employment–the majority of employers do background checks before hiring an applicant. The information employers receive is sometimes incomplete or inaccurate. Even if it is not, it reveals the applicants record of arrests, convictions, and probation status. United States Congressman Charles Rangel (D-NY) has long advocated a federal statute permitting expungement for non-violent crimes, “
2) State Licensing Agencies most often require the applicant to list whether they have ever been convicted of a crime, or ever obtained an expungement (such as a contractor’s license or real estate license).
3) Professional Organizations often reject a person if they have any criminal convictions.
4) Personal satisfaction for the individual in helping them feel that society has finally fully forgiven them, which allows them the ability to psychologically “move on” so they can give their full energies to contribute to society.
5) Immigration--sometimes having a criminal conviction can result in being denied a renewal application for residency status, whether a work visa or other temporary visa to reside in the United States.
Benefits of an Expungement for Society
1) Encourages Rehabilitation. When society makes the expungement remedy available to a person, it removes the dark cloud of despair that hangs over them with the thought that everyone knows, and will always know, their criminal history. This dark cloud has a significant psychological effect, which hampers them from giving a full contribution to society. Often times this person may feel that they made a simple mistake and they have grown from that mistake and would like to move on and not be judged for the rest of their life as the person they used to be, but rather the person they are today. We can all relate to this to some degree, since we have all made mistakes in our past. To be judged for the rest of our lives based on these mistakes would certainly stifle our growth and true potential.
2) Productive, Rehabilitated Individuals contribute more to Society. Rehabilitated individuals that receive a fresh start via expungement are likely to contribute more than if they were not given a fresh start. They are more likely to receive better employment. And better employment means higher income. Higher income means more income tax paid, more consumer spending, more sales tax generated, and more jobs created.
3) Society’s costs go down: The more people that are rehabilitated and are deemed low risk to reoffend and are granted an expungement, the lower the costs to society in cases of sex offenders, since the registry is less difficult to maintain. As a result, these savings are passed on to the taxpayers.
Areas of Concern for Utah’s Current Expungement Laws:
1) In cases where charges have not been filed: if a person was arrested, or simply under investigation, and charges were never even filed against that person, s/he cannot get a certificate of eligibility for an expungement (the first step in the process) until the prosecutor writes a letter indicating that they do not intend on filing charges against that person. But this letter is sometimes very challenging, or impossible, to obtain in a timely fashion, as the prosecutor is often reluctant to write such a letter out of concern that it will preclude them from the option to file in the future. A person seeking to obtain this letter often has to wait several months, and many times, after waiting, the prosecutor denies the request altogether, resulting in the person having to wait until the statute of limitations runs, which is usually 4 years. To make a person wait in legal limbo, with all its adverse consequences such as prospective employment discrimination, etc., is to undermine the precious constitutional right we all profess to honor, which is “innocent until proven guilty.”
2) In situations where the prosecutor has actually filed a charge against a person, but the prosecutor eventually dismisses the case: a person seeking the expungement is prohibited from obtaining an expungement UNLESS the case was dismissed WITH PREJUDICE, meaning that they are barred from refiling the case. Usually prosecutors will not want to dismiss with prejudice for the same reasons stated above: the preclusion effect. As such, the law should state that any dismissed case, whether with or without prejudice, can be expunged. This would preserve the prosecutor’s right to refile, if appropriate. This would also help the person seeking the expungement to not be placed in “limbo” waiting for the statute of limitations to expire, which could be several years in the future. A provision in any modified Utah Code could include language that the prosecutor has discretion to refile a case within the statute of limitations.
3) Third party companies that Profit by Publishing Expunged Crimes: Those that have
received expungements often find themselves the victim of third party companies that publish their crimes on the Internet or other media for profit. These same companies frequently continue to publish these crimes even after the person has obtained a valid expungement order. Although there is currently a federal law that speaks to this issue, there is no Utah law that does. Since federal laws are hard to enforce in this scenario due to the cost to the United States government versus the benefit it would obtain from litigating such small cases, a Utah law needs to be enacted in order to give persons that have obtained an expungement order the benefits the law intended for them: to have a completely clean record and to not have third parties publishing crimes they have been “forgiven” of by a court of law. The law should have a criminal component as well. It is suggested that it be a Class B misdemeanor for a person to knowingly or intentionally publish a person’s expunged record.
4) All qualified persons should be entitled to an expungement, including certain “Qualified Sex Offenders” The benefits of an expungement are currently unavailable to sex offenders. The rationale for this is most likely the assumption that sex offenders are beyond help or rehabilitation. But psychologists are nearly unanimous in concluding that there are varying degrees of sex offenders and that, while some are a high risk to reoffend, there are a significant number of sex offenders that pose little to no risk of reoffending if they had some counseling and therapy to correct their thinking errors. Therefore, to deny these persons the benefits of an expungement sends a mixed message; a message that the law is an unfair arbiter of the administration of true justice and does not have a logical justification by discriminating against certain classes of people that have proven they are rehabilitated and are a low risk to society.
Under the current law, expungements are unavailable to all registered sex offenders. Sex offenders are defined under section 77-41-102 of the Utah Code. However, even if a person successfully obtains a reduction of their offense by a court of law, subsection 16 (a) of that section specifically prohibits any person from being eligible if they even attempted any of the listed sex offenses. Therefore, there is no hope a sex offender will ever be forgiven of their conviction, regardless of what they do to improve, to rehabilitate, and to contribute positively to society.
Thus, an 18 year old that is caught nude in a shower at a beach while intoxicated and is seen by a child is categorized as a sex offender just as a pedophile that has raped a child. Both are required to register as sex offenders. Both are precluded from ever obtaining an expungement. Obviously there is a big difference between these two extremes with respect to not only their respective mental culpability at the time of the offense, but also with respect to the harm inflicted on their respective victims, etc.
Sean Druyon is a member of the Utah Association of Criminal Defense Attorney’s Legislative Committee and is in the process of preparing bills for the upcoming Utah legislative session that address the issues presented above. Stay tuned.