During the course of the session there are bills that cover different topics that orbit around us. Some of these bills orbit at different speeds and some have more gravitational pull than others, drawing more support from legislators or conversely drawing additional ire from them. The orbital path of some bills can last several years. For example, the dating violence bill entered our orbit ten years ago. It took nine years before it finally had enough momentum and gravitational pull to be passed and delivered to the Governor.
One of the concepts that has been orbiting for some time now is that of felony expungement. On one hand you have a desire to keep a record when people break the law against the Commonwealth and their fellow citizens. On the other hand the record of that conviction, in many instances, can be an economic death sentence long after the felon finishes serving their time. Over the course of several years this concept has been debated, largely focusing on issues that arise from these two camps. The perspective of each group is valid, but they are not entirely compatible.
I’ve always tentatively supported some kind of expungement in broad terms for the lowest level offenses, excluding any sex crimes and violent offenses. One of the logistical hurdles has been the notion that there is inconsistency in how different agencies expunge the records they hold, or whether any officials like prosecutors, law enforcement or the court retain access to expunged records and under what circumstances. This continues to be a point of debate.
Another impediment has been the other issues that draw time and attention. This is simply the nature of the legislature. John Tilley and I worked together last year on the heroin bill, and the year before that on the juvenile justice reform bill and the aforementioned dating violence bill was there too along the way. Each of these efforts consumed an extraordinary amount of our resources. To his credit, John had moved felony expungement legislation each of those years and successfully delivered the bills out of the House and into my hands in the Senate.
Last October the judiciary committee brought its show on the road to Hopkinsville, holding our monthly interim meeting at City Hall. Among the witnesses on the agenda that day was a middle aged man who told the story of how he did something stupid with his brother some two decades earlier that resulted in a low level felony conviction when he was 18 years old. He hasn’t committed another offense since. He struggled to find work earlier on in the years following the conviction, and in the absence of a job he could find he created one for himself. Wishing to explore other options he is now attending school to become a physical therapist, but physical therapists are licensed by the Commonwealth and the prior felony conviction may bar his licensure. As many as 100,000 Kentuckians are in the same boat. This man, and others like him, have done exactly what we ask those in the criminal justice system to do: stop breaking the law. It was this man’s testimony that finally sparked a desire in me to work harder to find a solution. Among everything else, this is something I’ve been working on this session.
The idea of expungement has merit but we continue to encounter questions and hurdles that have just as much merit. Which offenses should this privilege apply to? Most agree that some offenses, like sex crimes and violent offenses, should be excluded. However, this discussion has encouraged others to suggest carving out many other crimes. Healthcare facilities want felonies related to healthcare excluded. Humane societies and animal shelters want crimes victimizing animals to be excluded. Retailers and other industries that involve money handling or goods have asked for theft offenses to be excluded. I don’t blame the desire to protect their businesses, patients, customers and clients from a felonious employee, but this must be balanced with the interest of those who have corrected their behavior and turned a corner to improve themselves and contribute meaningfully to society. Perhaps some offenses should trigger an automatic expungement, while others require judicial discretion after weighing certain factors.
We are also debating the length of time one should wait before applying for an expungement. This covers a broad span of options and arguments. At one extreme there are those that want an expungement to be automatic upon the conclusion of the sentence, at the other extreme are those who prefer something on the order of decades, if ever at all. Data supports a waiting period in the neighborhood of 5 years, showing that recidivism rates drop significantly after that much time.
Needless to say, finding and building consensus is challenging. But that doesn’t mean it should be avoided. This work will continue and I am hopeful we can deliver a compromise solution.
We have passed the filing deadlines for new bills in both chambers, with the House hitting 632 and the Senate reaching 309. In the last couple years we've average only about 120 that make it all the way to the Governor’s desk. As we've entered the final third of the 2016 session, we still have much work left to do.