EXPUNGEMENT: A CLEAN SLATE FOR KENTUCKIANS

Author: Carissa Coy, Senior Editor

“There is no man, however wise, who has not at some period of his youth said things, or lived in a way the consciousness of which is so unpleasant to him in later life that he would gladly, if he could, expunge it from his memory” – Marcel Proust. Expungement is the legal process of removing an arrest, charge, or conviction from your record.[i] It is the path to the removal of old misdemeanors and Class D felonies from the records of Kentuckians, giving them access to jobs, housing, educational opportunities, and many other opportunities.[ii] If expungement is granted, the person does not have to disclose the fact of the record or any related matter on an application for employment, credit, or other type of application.[iii] However, the process of expungement can be confusing, time-consuming, and costly for those attempting to navigate it without legal assistance.

Under KRS 431.037, the statute that addresses felony expungement, in order to qualify for expungement there can be no criminal charges currently pending against the party. Additionally, it must have been at least 5-years from the completion of the sentence related to the charge the party is seeking to expunge, there can be no misdemeanor or felony convictions in the 5-years prior to filing a petition for expungement, and the charge must be an eligible Class D felony.[iv] The following are the Class D felony convictions that are ineligible for expungement under the statute: driving under the influence, assault 4 domestic violence, impersonating a peace officer, abuse of a public office, a sexual-based offense, an offense against a child, and convictions which resulted in serious bodily injury or death.[v]

In Kentucky, to apply for expungement of an eligible Class D felony, the petitioner must first order a Certificate of Eligibility from the Kentucky State Police.[vi] The Certificate will notify the petitioner of which charges on their record are eligible for expungement. After receiving the Certificate of Eligibility, the petitioner must file their petition for expungement in the county and court they were convicted.[vii] However, the Certificate expires 30 days after it is dated, so the petition must be filed within this 30-day timeframe.[viii] The Commonwealth’s attorney who prosecuted the case will then be notified of the filing and given a chance to object as well as share the reasons for believing a denial is justified.[ix] A hearing on the matter must be held within 120 days of filing the petition for expungement.[x] At the hearing, the petitioner must prove by clear and convincing evidence that expunging the record is consistent with the welfare and safety of the public, that the action is supported by his or her behavior since the convictions, and that the expungement is warranted by the interests of justice.[xi] The Court will then make a decision on the petition and notify the parties. If the expungement is ordered, the petitioner is no longer required to disclose the fact of the record, or any matter related thereto on any application for employment, credit, or other type of application.[xii] Additionally, the person’s voting rights will be restored, and they may register to vote.[xiii]

This process is not as easy as it may appear at first glance. The expungement process is costly, and many cannot afford to pay the fees associated with filing a petition. For example, the Certificate of Eligibility costs $40 to order, while $50 is due at the time of filing the petition for a felony expungement and another $250 is due if the application is granted.[xiv] An informa pauperis motion may be filed to waive the filing fee with the courts, but there is not yet a system in place that allows petitioners to waive the $40 fee through the Kentucky State Police for the Certificate. As a result of the fees and the work required to file a petition for expungement, many people are deterred from even trying. Many people likely are not even aware that they could have their records expunged. In fact, in Kentucky fewer than 10% of people eligible for expungement petition the court.[xv]

The Clean Slate Act is an automatic expungement law that was introduced in Kentucky in this year’s session, but it wasn’t assigned to a committee.[xvi] The proponents of the Act plan to propose the legislation in the 2024 legislative session, which begins in January.[xvii] Under the Clean Slate Act, the Administrative Office of the Courts would send a list of convictions eligible for expungement to the local court that issued the conviction.[xviii] Within 30 days, the court would order the eligible charges vacated and records, including law enforcement records, expunged.[xix] The court would also notify the person whose record had been expunged.[xx]

Expungement of criminal records plays a vital role in giving individuals a second chance and fostering their future prospects. By erasing past offenses from their record, people are afforded the opportunity to reintegrate into society more successfully. This process removes the barriers that a criminal record can pose, such as difficulty in finding employment, housing, or accessing education and loans. Consequently, expungement empowers individuals to pursue a stable and law-abiding life, ultimately reducing the risk of recidivism. It promotes rehabilitation and reformation over the perpetual stigma of past mistakes, allowing people to contribute positively to their communities and lead more productive lives. In essence, expungement is a powerful tool for societal reintegration and personal redemption, aligning with the principles of fairness and justice in the criminal justice system.  

[i] Expungement: Clean Slate Kentucky, Kentucky Department of Public Advocacy, https://dpa.ky.gov/home-2/clients/expungement/#:~:text=Expungement%20is%20the%20legal%20process,the%20conviction%20will%20show%20up (last visited Sep. 3, 2023).

[ii] Expungement in Kentucky: A guide for local practitioners, Kentucky Department of Public Advocacy, at 1 (updated Feb. 2022) https://dpa.ky.gov/wp-content/uploads/2022/02/Lawyers-Guide-to-Expungement-2020-update.pdf.

[iii] Id.

[iv] Ky. Rev. Stat. Ann. § 431.073 (LexisNexis 2016).

[v] Id.

[vi] Expungement in Kentucky: A guide for local practitioners, Kentucky Department of Public Advocacy, at 3 (updated Feb. 2022) https://dpa.ky.gov/wp-content/uploads/2022/02/Lawyers-Guide-to-Expungement-2020-update.pdf.

[vii] Id. at 4.

[viii] Id at 4.

[ix] Id at 5.

[x] Ky. Rev. Stat. Ann. § 431.073(4)(b) (LexisNexis 2016).

[xi] Ky. Rev. Stat. Ann. § 431.073 (LexisNexis 2016).

[xii] Ky. Rev. Stat. Ann. § 431.073(7) (LexisNexis 2016).

[xiii] Id.

[xiv] Expungement in Kentucky: A guide for local practitioners, Kentucky Department of Public Advocacy, at 11 (updated Feb. 2022) https://dpa.ky.gov/wp-content/uploads/2022/02/Lawyers-Guide-to-Expungement-2020-update.pdf.

[xv] McKenna Horsley, A ‘Clean Slate’ For Kentuckians Convicted of Nonviolent or Low-Level Crimes?, Leo Weekly (Jul. 25, 2023). https://www.leoweekly.com/2023/07/a-clean-slate-for-kentuckians-convicted-of-nonviolent-or-low-level-crimes/

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Id.

[xx] Id.