Filing errors also leave some sealed cases open and Confusing laws allow abuse and inequality
Byline: Jason Riley and Kay Stewart
May 15, 2005
Source: The Courier-Journal
Thousands of Kentuckians are erasing their arrests and convictions every year by taking advantage of expungement laws that make it cheap and easy to bury their past mistakes.
But the laws – intended to help offenders wipe out minor convictions or more serious charges that end in acquittals or dismissals – are confusing prosecutors and judges and creating a system of unequal justice , a four-month Courier-Journal investigation of court records from around Kentucky has found .
It also found that:
Because Kentucky doesn ‘t keep a database of expunged cases, the laws can and are being used to shield repeat offenders.
Some defendants are being allowed to hide felonies in which they have admitted guilt.
Expunged cases, which should be secret, have been left in the open or were never processed because of sloppy record keeping and an explosion of requests that has overburdened some courts.
Victims of crimes often aren’t notified that convictions are being expunged, despite a state law that requires them to be among the first told when a defendant seeks to erase a case.
The problems are accelerating because of the increasing number of applications .
The number of legally sealed criminal records in Kentucky has more than doubled in the past four years, driven in part by an increasing desire to shield such information from potential employers, lending institutions and Internet databases.
In the past two years, more than 12,000 criminal cases have been wiped off the state ‘s books as if they never existed.
Thus, former Louisville Metro Police Officer McKenzie Mattingly – acquitted last year by a Jefferson County jury in the controversial shooting death of a 19-year-old suspect – can legally say he never was charged .
Forty states allow expungement of some cases but only 18, including Kentucky, allow some convictions to be sealed.
In contrast, it is much harder to get a case expunged in Indiana, where very few cases are eligible.
Expungements can occur there only if charges were never filed or were dropped because no offense occurred, the wrong person was arrested or if it was determined there was no probable cause.
Kentucky ‘s problems with expungements are happening amid rising concerns nationwide over employee violence and technology that has made checking people ‘s backgrounds cheaper and easier.
And even though Kentucky’s expungement laws have been on the books for more than a decade, the debate continues over whether allowing criminal cases to be erased does more harm than good.
Andrew Leipold , an associate dean of the University of Illinois College of Law, said most people probably favor giving those who have had brushes with the law a new start if they ‘ve truly turned their lives around.
” There ‘s no advantage to the rest of us to make it harder on them to be law-abiding citizens, ” Leipold said.
Lexington resident Kay Curtis, 47, who has two college degrees, said she had trouble finding a job because she was convicted in 1997 for obtaining fraudulent drug prescriptions to feed a drug habit that she said she has long since kicked.
” Expungement would turn my life around, ” said Curtis, who was hired earlier this year to work in her own doctor ‘s office . ” There comes a point where we ‘ve got to be allowed to quit paying for these crimes. “
Yet employers have been among the most forceful opponents of expungement laws.
Parents hiring a nanny, for instance, probably would be among employers who would want to know if a job applicant had a drug conviction, Leipold said .
Bill Eckels, who oversees hiring for the 12,000-employee Jefferson County Public School system, said Kentucky ‘s laws that allow people to have thefts, assaults or domestic violence cases expunged make it harder to determine if an applicant is a risky hire.
” If there ‘s something in their history that says a person shouldn ‘t be around a kid, we need to know that, ” Eckels said. ” Getting it expunged doesn ‘t help us at all. “
Media organizations such as the Kentucky Press Association have lobbied against expungement statutes because they believe the public should be able to see a person’s entire criminal history.
“You don’t just say, ‘Let’s just pretend this didn’t happen,'” said David Thompson, executive director of the KPA. “Records shouldn’t disappear like that.”
Jefferson County Attorney Irv Maze said his job is affected by expungement laws that he agrees “hinder the public’s right to know what really has happened.”
“The one thing I always looked at as a prosecutor, always, I pulled out that rap sheet,” Maze said. “Now if look at the rap sheet and something is white-ed out, I just don’t know.”
Equal treatment elusive
as judicial rulings vary
The expungement laws in Kentucky seemingly spell out who should be eligible for expungements and under what circumstances.
A 1992 statute says that judges, upon request, must expunge misdemeanor convictions five years after completion of the person ‘s sentence if the applicant has no other criminal violations within that time.
Felony convictions are not eligible to be expunged, except for Class D possession of a controlled substance – the lowest felony level. This year, a bill that would have broadened the felony cases eligible for expungement passed the Kentucky House but died in the Senate Judiciary Committee. Its sponsor, Rep. Rob Wilkey, D-Scottsville, has vowed to try again next year.
A 1996 law says that judges have discretion whether to expunge misdemeanor or felony cases that result in dismissals or acquittals. The exception is spousal abuse, which judges must expunge if the charges are dismissed or end in acquittal .
So what can go wrong?
Many judges are unfamiliar with or are confused by the laws and are applying them inconsistently, the newspaper found.
Some judges routinely expunge acquittals or dismissals upon request, while others deny those applications because they don ‘t think they ‘re deserved, even if all legal requirements are met.
While both actions are legally correct, whether or not defendants get expungements can depend upon what county they are in or which judge they appear before.
“That needs to be corrected, because all citizens in Kentucky should be treated equally, ” said former Rep. Mike Bowling, a Middlesboro Democrat who sponsored both expungement laws.
Linda Tally Smith, president of the Commonwealth ‘s Attorneys Association, agreed. “The standards are just so different county to county and circuit to circuit, ” she said.
Several judges and prosecutors interviewed didn ‘t know which expungement applications they have the option of rejecting and which they don ‘t.
When former Officer Mattingly asked that his murder indictment be expunged, Jefferson Circuit Judge Judith McDonald-Burkman told the newspaper that the law required her to grant the request because a jury had found him not guilty.
After later reading the expungement law, McDonald-Burkman said, “There is an argument to be made ” that judges do have discretion.
When Jefferson County Prosecutor Karl Price addressed an Urban League expungement seminar late last year, he said judges must expunge dismissed cases upon request.
“No exceptions, ” Price said.
Fayette Chief Circuit Judge Sheila Isaac said the same when the newspaper asked if judges can refuse expungement applications that meet legal requirements.
Both Price and Isaac acknowledged they were wrong after reading the law.
Still, some judges question if discretion should be used .
If a judge decide s each case on its merits, “then you might be treating one person differently than another based on … personal dislike or publicity pressure, ” McDonald-Burkman said.
But other judges say it is important to use discretion.
Jefferson Circuit J udge Stephen Ryan did so in refusing to expunge Donnez Porter ‘s 1998 acquittal on murder and robbery charges.
“I thought it necessary that law enforcement know that this person had had that charge, ” Ryan said in an interview.
Former Jefferson District Judge Paul Gold, who wrote the 1996 expungement statute for dismissed cases, said he intended to give judges a choice.
Otherwise, he said, “You can ‘t differentiate which case was dismissed because of a technicality and which one was dismissed because it was an improper charge in the first place. “
Diversion cases Judges, law aren ‘t clear if expungement is allowed
Judicial discretion is at the heart of another source of confusion about the process: whether pre trial diversion cases can and should be expunged.
In Kentucky, misdemeanor crimes and class D felonies are eligible for diversion.
In that process, defendants often plead guilty and sentencing is deferred if the defendant completes conditions set by the judge. Upon completion of the program, the case is dismissed .
State law doesn ‘t specifically say if expungement is allowed for such cases.
Under expungement law, cases dismissed with prejudice – meaning the charges can ‘t be refiled – are eligible to be erased. But felony diverted cases are classified as only “dismissed-diverted, ” leaving open the question of whether expungement applies.
Some prosecutors and judges say they don ‘t want diversion cases to be eligible for expungements because it allows some felony guilty pleas to be erased. They say with expungements it ‘s also impossible to tell how many times a person has received diversion, which is supposed to be granted only once every five years for felonies, often more frequently for misdemeanors.
The Administrative Office of the Courts, which runs the state court system, has added to the confusion. For years, the AOC forms that circuit court judges and prosecutors received for pretrial diversion indicated that diverted cases could be expunged. The language was removed in 2003 after Jefferson County prosecutors complained. The AOC said the actions were not related.
Former state Rep. Bowling said when the General Assembly passed the diversion law, it never intended to allow diverted cases to be expunged. That would allow people to apply for diversion “over and over again, ” he said.
Yet judges are coming down on both sides of the issue.
In 2002 , for example, Chief Jefferson Circuit Judge James Shake allowed a woman who had pleaded guilty to felony theft to expunge her diverted case, going against the objection of prosecutors.
Shake found that the Kentucky Court of Appeals has ruled that diversion cases are meant to “wipe the slate clean. ” And the AOC cited the same appeals case in an e-mail to The Courier-Journal, saying that it appeared to allow diversion cases to be expunged.
But while Shake allows diversion cases to be expunged, Circuit Judge Phillip Patton, of Barren and Metcalfe counties, does not.
“In entering the diversion program, you plead guilty, ” Patton said in an interview. ” The fact that you plead guilty, I think the public would have a right to know about it. “
Other judges say they just don ‘t know.
” It ‘s a mystery to me, ” said Bill Harris, a circuit judge in Simpson and Allen counties .
Still in the files
Even expunged records
can be found sometimes
No one is confused as to what is supposed to happen once a judge expunges a case.
The file, court videotape, fingerprint cards and all other records are supposed to be sealed forever – not only from the public, but from police, prosecutors and the judge. Even the motion expunging the case is supposed to disappear.
But a Courier-Journal search for expunged cases in a handful of Kentucky courthouses revealed that doesn ‘t always happen.
The newspaper found records of more than 50 expunged cases mixed in with regular court files or in the courts ‘ computers that are open to the public. Most were in Jefferson County, but some were found in Franklin, Bullitt and Fayette counties.
Attorney John Stewart of Louisville said one of his clients was trying to get a job with the school system when his expunged drug case showed up during his background check. He didn ‘t get the job.
“It happens all the time,” Stewart said. “I used to ask my clients why they were doing this (getting a case expunged), because nobody follows the law. “
Because the state keeps no list of expunged cases, it is impossible to know how widespread the problem is across the state. But The Courier-Journal found records of expunged cases in four of the 12 counties it checked.
In Bullitt County, dozens of expunged cases were left in open cardboard boxes in a file room next to the court clerk ‘s office with the word “expungements ” written on them. Some expunged cases also were mixed in with the regular court files.
Bullitt Circuit Court Clerk Doris Cornell said the majority of the county ‘s expunged cases are sealed and locked in a file cabinet, per state law. Those mistakenly left out, she said, “will be taken care of. “
A couple of expunged cases were found in public records in Fayette County and about a half-dozen were found in the Franklin County Courthouse. Janice Marshall, the Franklin court clerk, said they were left there by mistake.
And a check of Jefferson County cases from 2001 through 2004 found about three dozen that had been expunged but were available in court files or on court computers and not removed from the state ‘s criminal database, which is used to produce background checks.
Russell Salsman, chief deputy clerk in Jefferson County, acknowledged that most of the cases should have been removed from public access.
” It looks like they fell through the cracks, frankly, ” he said. ” … That ‘s an error somewhere in the system that we need to take a look at and make sure we fix. “
A big part of the problem, Salsman said, is that expungements have ” just exploded. ” Expungement requests in Jefferson County went from more than 2,000 four years ago to over 6,500 in 2004, according to court records.
Salsman said the majority of cases are correctly expunged and his office will now check each expunged case to make sure it has been sealed and removed from public files.
When a case is expunged, several agencies – including Metro Corrections, the c ommonwealth ‘s a ttorney ‘s office, m etro p olice and sometimes the state police and the FBI – are ordered to seal their records.
They are supposed to certify to the court within 60 days that they have done so. The FBI, which runs the National Crime Information Center , is not bound by the state order but routinely erases the requested records.
The Courier-Journal checked police booking and arrest summaries of five expunged cases to see if the Louisville Metro Police Department had sealed its records. In three of the five cases, the department had not.
“I ‘m sure we miss some of them, ” said Robin Oates, records manager for the department, theorizing that court clerks might not have sent police the order expunging the case.
Victims left out
Judges and others seek
remedies amid confusion
By law, the victims of a crime are supposed to be among the first notified when a convicted criminal asks that a case be expunged.
But The Courier-Journal has found that victims often are never told. And the law doesn’t allow them to influence the outcome when they are notified – the judge must expunge cases that qualify, regardless of whether the victim objects.
Several circuit court clerks said they didn’t know about the notification law and acknowledged that they weren’t alerting victims, either before or after a case is expunged.
“Somewhere along the way, we were not aware that we were supposed to be notifying victims,” said Julie Lewis, a spokeswoman for the Jefferson Circuit Court clerk’s office. “Right now we’re looking at why we didn’t know this and what we need to do to fix it.”
Other counties were similarly confused about victim notification – with some judges, prosecutors and court clerks saying it was the other’s responsibility to notify victims.
But they said many expungements involve crimes without victims, such as drug cases. And they say it’s not easy finding victims in cases that are at least five years old – the minimum a defendant must wait to get a conviction expunged.
Regardless, clerks should try to find victims, said Leigh Anne Hiatt, a spokeswoman for the Administrative Office of the Courts.
“It is in the clerk’s manual, so I’m not sure why they are not aware of it,” she said.
The confusion and inconsistency that Kentucky ‘s expungement laws are causing is prompting dialogue about the problems and how to remedy them.
In recent weeks, judges from around the state have begun e-mailing each other and the AOC, discussing the best ways to apply the laws.
Still, some court officials, and even the laws ‘ sponsor, say changes must be made – including possibly instituting a statewide database to make sure all expungements are handled correctly.
But despite the problems, most court officials say they still support Kentucky ‘s expungement laws and the intent behind them – to give people a second chance.
“I think if we are honestly going to try to rehabilitate these people, we need to try and bring them back into society, ” Jefferson County Commonwealth ‘s Attorney Dave Stengel said.
Others warn that Kentucky ‘s courts must be careful about handing out expungements. The laws effectively give the courts authority to change history, said Sam Monarch, a circuit judge in Breckinridge, Grayson and Meade counties.
” It needs to be applied with tremendous caution, ” he said.
“The standards are just so different county to county and circuit to circuit.” – LINDA TALLY SMITH, Commonwealth’s Attorneys Association
“That’s an error … that we need to take a look at and make sure we fix.”
– RUSSELL SALSMAN, Jefferson County chief deputy clerk
1. To erase or strike out.
2. To eliminate completely; annihilate. Synonym: erase.
The American Heritage Dictionary of the English Language, Fourth Edition
Ask courthouse officials in Kentucky for an expunged case and they should tell you it doesn’t exist. But you can sometimes find it anyway. A16
Defendants who complete pretrial diversion and have their cases expunged can get around the law limiting diversions. A17
A statewide expungement database could catch problems with the system, some say. But others contend it would defeat the intent of sealing criminal records. A17
On the Web
See complete coverage of Kentucky’s expungement laws and voice your opinion at courier-journal.com
How expungement works
What’s eligible: All misdemeanors and Class D felony drug possession.
Limits: One case, involving any number of charges, every five years.
Exceptions: Sex offenses or crimes against children aren’t eligible.
Filing form: Form AOC-496.
Filing fee: $25.
Requirements: Must wait five years after conviction, seven years if probation was applied to case; no other convictions within five-year period before expungement sought.
Judge’s options: No discretion. Judge must grant expungement if applicant meets requirements.
Who’s notified: Prosecutors, victims.
Case access: No access except to defendant by court order. Not subject to public records laws.
Acquittals and dismissals
What’s eligible: All misdemeanor and felony cases dismissed with prejudice or which end in acquittal.
Exceptions: Law unclear whether cases resulting in diversion qualify for expungement; some judges grant expungement, others don’t.
Filing form: Form AOC-497.
Filing fee: None.
Requirements: Must wait 60 days after dismissal or acquittal.
Judge’s options: Full discretion. Judge can reject expungement even if applicant meets criteria. But spousal abuse cases that result in dismissal or acquittal must be expunged if requirements are met.
Who’s notified: Prosecutors, Cabinet for Health and Family Services in cases involving abuse or neglect of children.
Case access: No access except to defendant by court order. Not subject to public records laws.
What’s eligible: Cases in which no charges were filed or if charges were dropped because no offense occurred; the wrong person was arrested; or there was no probable cause for the arrest.
Limits: Convictions can’t be expunged.
Filing form: Petition must be filed in the court in which the charges were filed or in the county with jurisdiction. The petition must include date of arrest; charge; law enforcement agency employing the arresting officer; any other known identifying information, such as the officer’s name, case or court ca se number; date of petitioner’s birth and Social Security number.
Filing fee: None.
Judge’s options: The judge may grant the petition, set a hearing or deny the petition if the application is insufficient or the applicant is not entitled to an expungement.
Who’s notified: The law enforcement agency and any agencies that hold records relating to the arrest.
Case access: No one can get access from law enforcement agencies or in the state repository for records. However, expungement “does not require any change or alteration in any record (such as a police blotter entry) made at the time of the arrest or in the record of any court in which the criminal charges were filed.”
To get a copy of your criminal record, or someone else’s, pick up a background check request form at any Kentucky courthouse.
You can also write to the Administrative Office of the Courts’ Pretrial Services Records Division, 100 Millcreek Park, Frankfort, KY 40601. Or call (502) 573-1682 .
Include the name of the person you want to check, as well as date of birth, Social Security number, address and ZIP code.
Include a $10 money order or check payable to Kentucky State Treasurer and a self-addressed stamped envelope for a return reply. The fee is $10 for each individual checked.
You can do a lifetime criminal background check on yourself, but Indiana limits the information you can receive on someone else.
Yourself: To receive all your own arrests and court actions, mail a request to the Indiana State Police Central Repository Records Division, Indiana Government Center, 100 N. Senate Ave., Room N302, Indianapolis, IN, 46204.
You must submit fingerprints by mail or in person. The cost is $10, and the results are provided within two weeks.
Someone else: To check someone else, the state police operate a “limited adult criminal history” database with information on arrests and court action within the past year and convictions that occurred more than a year ago.
The law generally allows searches by prospective employers, professional license applicants and others who may be facing court proceedings. A background request form is available online at www.state.in.us/isp . There is a fee.
The state police operate customer-service lines for the online check at (317) 233-2010 and for the records division at (317) 233-5424 .
County records on arrests and court cases can be obtained through each county clerk’s office.
INFORMATIONAL GRAPHIC; HOW TO GET A CASE EXPUNGED IN KENTUCKY; (SEE LIBRARY MICROFILM OR LIBRARY KIOSK PDF PAGES);
INFORMATIONAL GRAPHIC; CLASS D FELONIES GRANTED PRETRIAL DIVERSION, 200-2004; (SEE LIBRARY MICROFILM OR LIBRARY KIOSK PDF PAGES);
INFORMATIONAL GRAPHIC; JEFFERSON COUNTY EXPUNGEMENTS, JAN 2001-MARCH 2005; (SEE LIBRARY MICROFILM OR LIBRARY KIOSK PDF PAGES);
INFORMATIONAL GRAPHIC; EXPUNGEMENTS IN SELECT KENTUCKY COUNTIES, 2001-2005; (SEE LIBRARY MICROFILM OR LIBRARY KIOSK PDF PAGES);
Caption: PRO; “Expungement would turn my life around. There comes a point where we’ve got to be allowed to quit paying for these crimes.” – Lexington resident Kay Curtis, 47, who has two college degrees but has had trouble finding a job because of a 1997 conviction for obtaining fraudulent drug prescriptions
Caption: CON; “The one thing I always looked at as a prosecutor, always, I pulled out that rap sheet. Now if I look at the rap sheet and something is white-ed out, I just don’t know.” – Jefferson County Attorney IRV MAZE, who says his job is affected by expungement laws.
Caption: By Keith Williams, The Courier-Journal; A man visited the Jefferson Circuit Court Clerk’s office recently, seeking to get his misdemeanor record erased. The number of requests is increasing.
Caption: By Stewart Bowman, The Courier-Journal; “Expungement would turn my life around,” said Lexington resident Kay Curtis, 47, who was convicted in 1997 for obtaining fraudulent drug prescriptions to feed a drug habit that she said she has long since kicked. “There comes a point where we’ve got to be allowed to quit paying for these crimes.”
Caption: By Keith Williams, The Courier-Journal; If a judge decides each case on its merits, “you might be treating one person differently than another based on … personal dislike or publicity pressure,” said Jefferson Circuit Judge Judith McDonald-Burkman, center.
Caption: By Michael Clevenger, The Courier-Journal; Jefferson County Prosecutor Karl Price conducted a seminar at the Louisville Urban League for people wishing to have records expunged. Many employers oppose expungement laws
Caption: By Brian Moore, The Courier-Journal; While state law says expunged cases are to be sealed and locked in a file cabinet, these were on top of a filing cabinet in Bullitt County.