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Kentucky House Approves Bill Allowing Low-Level Felonies To Be Expunged

Tagged under: News Kentucky Politics Jobs Expeal
By Expeal on January 20, 2016.

Omid Ghaffari-Tabrizi found this picture of the Kentucky State Capitol Building.

Spending just over a week debating House Bill 40, a law that would expand Expeal in Kentucky and allow low-level felonies to be expunged, the Kentucky House of Representatives signed off on the law. With a large number of House Republicans joining House Democrats, Rep. Darryl Owens' bill – one that he passed through the House for the last seven years – may finally make it through the Senate this year after receiving support from newly elected Governor Matt Bevin. In fact, bills with similar language have been considered by the legislature for at least the last 15 years, all without success.

It didn't come easy despite a 15 to 3 vote in committee. Upon hitting the floor for a full debate, the sparks started flying. Rep. Robert Benvenuti asked how employers would know whether someone was being truthful when claiming to have had a felony expunged. Rep. Owens responded that "One, we are not just inventing expungement. Expungement exists in a number of states. They have all dealt with that. [Two], the federal agencies have the wherewithal to get this information." Rep. Benvenuti continued, saying "Let's make thoughtful decisions based on the facts. You can expunge somebody's records, but you can't expunge facts. You can't expunge behavior. That's the reality. Let's be right on this."

To that end, he listed off a number of offenses that would qualify that he feels are serious. They include third-degree assault, third-degree arson, and intimidating a witness. Rep. David Floyd countered, stating that anyone requesting their record be expunged would be known and complete discretion would rule over any decision that is made. "That person in that local community would be known. If he or she evaded a police officer, they know they have not changed their ways and they don't recommend to the judge that expungement be carried. There are no laws that says you can't hire someone. Note that the significant support by the Kentucky Chamber of Commerce is done so largely because they need workers." Rep. Floyd continued, pointing out the difficulty faced by felons that check off that they have been convicted. Rep. Floyd asked that his fellow legislators give their constituents "hope that if you keep yourself clean, there is that light at the end of the tunnel."

Rep. Derrick Graham also chimed in, saying that as a retired educator, he would hear from former students, many of whom would share their academic accomplishments with him. He made note of the fact that former students with a felony on their records but a master's degree in hand still couldn't find jobs. "We need to practice what we preach. We need to be Godly in our decision making. And when you vote, think about those four words I talked about … redemption, hope, forgiveness, and opportunity."

Rep. Johnny Bell, a criminal defense attorney himself, agreed. He told the chamber that he frequently comes across reformed felons who simply can't find jobs. "Nothing causes more despair than if you don't have any hope for the future." He continued, stating that since most felonies have a five year probationary period, the real amount of time a person needs to keep a clean record is ten years, more than enough time to prove you have changed your life. Other supporters chimed in with personal anecdotes of friends, family, and even constituents who couldn't get jobs after being convicted of a felony.

Rep. Brad Montell, on the other hand, said neither side of issue was "perfect." He was conflicted, but in the end, believes the bill does more good than harm. He pointed out that many in his district have pointed out they have friends and family who would benefit from the law. "This is not an easy vote for me as I know for many in here it's not, and I know it's not a perfect solution," he said. "But I believe that the good that we'll see for our society that this bill will bring outweighs the potential bad, and I am compelled this morning to support House Bill 40."

Rep. Owens stated that the bill's passage was long overdue, and many of his fellow legislators felt the same way. "House Bill 40 Is about redemption. It's about second chances." He said prior to the vote. "More of us are realizing that a felony on a person's record is an economic death sentence for life," he said. Continuing, Rep. Owens made clear, "These are the top Class D felonies prosecuted: possession of a controlled substance, criminal possession of a forged instrument, wanton endangerment, theft by unlawful taking, flagrant nonsupport, receiving stolen property, tampering with physical evidence. These individuals did no harm to seniors, children, or vulnerable adults."

Putting these Kentuckians into the work force was a big reason for the support behind it. Secretary of State Alison Lundergan Grimes pointed out that "Accessing qualified, skilled employees is the number one issue for job growth and economic development in Kentucky. But, because of a past mistake, many – thousands of Kentuckians – who want to work and hav ehte necessary skills can't even get an interview. With the economic and workforce challenges we face, it's time this legislation passes. It's time thousands of Kentuckians get a deserved second chance." In fact, according to the Kentucky Chamber of Commerce, nearly 90,000 Kentuckians are expected to benefit from this new law. The Kentucky State Police is even more optimistic, stating that the 10-year average number of cases for Class D felonies is 15,800 with another 174,068 that would be eligible for retroactive expungement.

After all the statements were made and deliberations took place, the bill passed 80 to 11, with 5 abstaining (PDF warning). The bill was designed to allow low-level Class D felons to expunge their convictions after five years of keeping a clean record, so long as there are no other felony convictions on the person's record and the conviction being expunged is not related to violating human trafficking laws, a sex crime, owning or viewing child porn, or public corruption. A hearing would be held, and a prosecutor from the original agency that obtained the conviction as well as a victim, if one can be identified, would be heard from before a judge could issue an order expunging the record. Now it moves to the Senate.

Senate Majority Floor Leader Damon Thayer said that when the Senate takes a look at the bill, which they will receive today, they will keep an open mind regarding expungement, but he personally believes there are too many eligible crimes. "House Bill 40 would lead to automatic restoration of felon voting rights and I don't favor that unless there is a change in the (state) Constitution. It should be noted that a constitutional amendment on restoration of felon voting rights passed the Senate two years ago with a five-year waiting period. Voting rights would be restored after five years of a crime-free record for an individual."

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