Expungement erases part of history

If you asked Charles Thomas, the Republican nominee for Fayette County judge executive, whether he had been charged with harassment or terroristic threatening, he could answer "no." It wouldn't be the truth, but it would be the "legal" truth because the records of those charges have been expunged. Kentucky has strong laws on the expungement of criminal records, and the General Assembly has recently taken a hard look at making them even stronger.

After he won the GOP nomination by 400 votes, it was reported that, between 1996 and 2004, Thomas had been charged with 18 misdemeanors which included menacing, intimidating a participant in the legal process, tempering with public records, harassment, fourth-degree aggravated assault, wanton endangerment, terroristic threatening, carrying a concealed deadly weapon, and marijuana possession. Each of the 18 misdemeanor charges had been dismissed, however, and did not result in a conviction. Before he ran for office, a court granted Thomas's request to expunge all records relating to those charges.

To expunge is defined as to erase or to strike out. In Kentucky, expungement of criminal records means that the case is eliminated from the public court record, and "the proceedings in the matter shall be deemed never to have occurred." Legally, Thomas's arrest and charge for those 18 misdemeanors never happened. If asked, the court, the police, and any other agency must simply respond that "no record exists on the matter." Likewise, Thomas does not have to disclose the fact of the record or "any matter relating thereto" on, for example, a job application ­ even if the job is an elected office. This means, he can deny he was ever arrested, charged or even accused.

There are two primary laws in Kentucky governing expungement of records. The first, KRS 431.076, deals with the expungement of criminal records for those who are either found not guilty or for whom charges have been dismissed.

The idea behind this law is defendants are presumed innocent until proven guilty. Those defendants who are never proved guilty are given the opportunity to remove the stain of an arrest record or record of criminal charges. The defendant has to wait at least 60 days after being acquitted or after the charges are dismissed. At that point, he or she can ask the court in which the charges were brought to expunge all records. The only question for the court to consider is whether there are any current charges or proceedings relating to the matter for which the expungement is sought. As long as there are none, the court can order that the records be expunged.

The second expungement law deals with records of cases in which the defendant was found guilty. The statute, KRS 431.078, applies to convictions for misdemeanors and civil violations in Kentucky but not to felony convictions. The idea behind this law is that a defendant who is found guilty of one misdemeanor are a series of misdemeanors arising out of one incident, should be given a second chance with a clean slate. A defendant who is convicted of a misdemeanor or violation must wait at least five years after the serving his or her sentence or probation before asking the court to expunge the record. When a defendant asks for an expungement, the court is required to notify the county attorney and the victim of the crime, if there was a victim. On expungements of misdemeanor and violations convictions, the court must conduct a hearing in which the defendant has to show that:

(1) The offense was not a sex offense or an offense committed against a child;

(2) The defendant had no prior felony convictions;

(3) The defendant had not been convicted of any other misdemeanor or violation in the five years before to the conviction sought to be expunged;

(4) The defendant had not been convicted of a felony, a misdemeanor, or a violation since the time of the conviction sought to be expunged; and

(5) There are no current felony, misdemeanor, or violation charges pending against the defendant.

If each of these five criteria are met, the court can order the records expunged.

The effect of both expungement statutes is the same. An expungement order applies to the court records in the custody of the court clerk. It also applies to any records in the custody of any other agency or official. As such, the records that are expunged include arrest records, fingerprints, photographs, index references, and any other related paper or electronic data. Within 60 days from an expungement order, each agency, including the police, with relevant records must certify to the court that the records have been expunged. If the record is expunged, the all evidence of the charges, arrest, accusation, investigation, adjudication and conviction are erased as if they never happened.

In the 2006 session of the General Assembly, Representative Rob Wilkey, D-Scottsville, introduced HB 93 which proposed to permit any person who has been convicted of a Class D felony to petition the court for expungement of his felony record. He has introduced the same bill for the past several years. Class D felonies mandate prison time, ranging from one to five years, and include criminal acts such as perjury, unlawful imprisonment, eavesdropping, possession of a forgery device, alteration of prescription drugs, and criminal facilitation, etc.

The bill proposed to allow the convicted felon to make a motion for expungement, and if granted, the court orders all court records and any records in the custody of any other state agency sealed. Upon entry of the order to seal the records, "all proceedings in the case shall be deemed never to have occurred, all index references shall be deleted, persons in the court may properly reply that no record exists with respect to the petitioner, and the petitioner shall not have to disclose facts relating to the record on an application for employment, credit or any other type of application."

In addition, this bill is retroactive which means that every 10-year old conviction can be expunged and those serving prison sentences currently can petition for expungement 10 years after their convictions.

HB 93 passed out of the House Judiciary Committee and passed the full House on a vote of 76-21. It stalled in the Senate (as it has in past years). We have no doubt that an expungement bill for Class D felonies will be filed again next year. We hope we can count on your support in our battle against the destruction of court records.

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