People who can’t afford to pay expungement fees might be prevented from clearing their criminal record under a recent Kentucky court ruling.

The Kentucky Court of Appeals earlier this month upheld a Jefferson Circuit Court ruling in which a Louisville man who qualified as indigent was denied a waiver for the fee required to expunge a felony charge from his criminal record.

Attorneys, legislators, and expungement advocates worry the ruling will stifle access to expungements and undercut years of criminal justice reform efforts to return basic rights to thousands of people whose convictions have long passed.

“It is an injustice,” said Sadiqa N. Reynolds, president and CEO of the Louisville Urban League.

New legislation this year made expungement accessible to more Kentuckians. Legislators this year also expanded the scope of the state’s expungement law, making dozens of Class D felonies expungeable. But they stopped short of allowing expungements for convictions of certain drug trafficking crimes, DUI, assault, or a sex offense.

The cost to expunge a felony is now nearly $300 — reduced by lawmakers from $500. Misdemeanors cost $100 per offense.

These efforts ignited a groundswell of support networks aimed at helping people clean their criminal records — philanthropists have pledged money and nonprofits are hosting clinics to guide people through the process.

In December 2018, Jefferson Circuit Judge Audra Eckerle denied Frederick Jones’s request to waive the then-$500 fee to expunge a felony theft charge he served prison time for in 1998. Jones declined to be interviewed.

Eckerle said that Jones, who reported earning less than $950 a month, qualifies for such a waiver. But she disagreed that the fees related to expungement are waivable. Eckerle said expungement is optional and the costs are not unwillingly imposed on someone.

Moreover, legislators who wrote the law did not specifically say the fee could be waived, Eckerle wrote in her opinion.

For this, she said Jones had to pay up if he wanted to rid the conviction from his record.

“Indeed, [Jones] has already had 20 years to amass the $500 fee,” she wrote.

The Kentucky Court of Appeals unanimously agreed with Eckerle.

The ruling comes at a time in Louisville when expungements are in high demand.

And more than 400 people are signed up to attend an expungement clinic run by the Louisville Urban League on Saturday at Roosevelt-Perry Elementary School. Reynolds, a leading advocate for expungement, said the ruling amounts to socio-economic discrimination.

“We want people to be able to re-enter society,” she said in an interview this week. “We want them to be able to engage with society.”

And it’s not uncommon for low-income residents to be granted waivers for expungement-related fees, according to attorneys who assist residents in clearing their criminal records.

Since 2018, the Legal Aid Society in Louisville has assisted more than 1,000 people seeking expungements, according to Stewart Pope, the advocacy director the the Legal Aid Society in Louisville. About 90 percent of those people were granted a fee waiver by a judge, he said.

For many, Pope said the fees are just too much. And without the waiver, they simply wouldn’t be able to get the expungement.

“There literally is no extra money,” he said. “The point of expungement is to get rid of these charges so that somebody can get a better job and hopefully get out of poverty.”

A Right Or A Privilege?

Felony disenfranchisement is pervasive in Kentucky: More than 312,000 Kentuckians are prevented from voting due to past felony convictions, according to a report published earlier this year by the League of Women Voters of Kentucky.

Past convictions can keep people from getting good jobs and they block thousands from exercising basic constitutional rights, like voting or owning a gun. Kentucky and Iowa are the only states to permanently ban felons from voting. More than 1 in 4 African Americans in Kentucky are disenfranchised, the highest rate in the nation.

Clearing a record of a felony allows people to experience life in a way they cannot when they’re burdened by ever-present stain of past convictions, Pope said — they can vote, they can attend field trips with their children, they can seek out jobs without being forced to disclose their past transgressions.

But mandating fees could prove to be a barrier for some.

Kentucky law allows judges to grant waivers for residents who can prove they lack the resources needed to foot the bills associated with appealing, filing, or defending “any action” in court.

But in the opinion issued Oct. 11, the Court of Appeals judges ruled that expungement is different because it’s not a right, but a privilege.

“A privilege the General Assembly has no obligation to provide at all, and which it may therefore provide subject to conditions that our courts are not at liberty to ignore,” wrote Judge Joy A. Kramer in the opinion issued earlier this month.

The judges likened an expungement to a bankruptcy, in that there is no constitutional right to access a bankruptcy. Instead, the opinion said, it’s a matter of “legislative grace.”

Kentucky Attorney General Andy Beshear filed a one-paragraph brief in the appeal, according to the Court of Appeals opinion, which ”stated in essence that he did not have a dog in this fight.”

Asked to explain his position on the case and if he supports fee waivers for expungements, Beshear’s spokesperson Crystal Staley said in a statement that the statute passed by the legislature mandated a fee for all expungements.

“The Court of Appeals enforced the statute as written,” Staley said. “Attorney General Beshear believes that through criminal justice reforms to state law, expungements should be affordable for non-violent convictions that may currently be expunged under the law.”

Beshear is the Democratic candidate for governor opposing Gov. Matt Bevin, who signed into law this year the expansion to expungement rights. Bevin’s spokesperson did not reply to a request for comment on the case.

Reynolds of the Louisville Urban League said support for expungement crosses party lines. One reason for that, she said, is because when people can clear their criminal record they can open themselves up for better job prospects. And hampering people’s ability to do that, she said, would be akin to the state “shooting itself in the foot.”

She’s hopeful the legislature or the Kentucky Supreme Court will clear up the confusion.

“I don’t care which body deals with it, it just needs to be dealt with,” she said.

Review Likely

The state’s highest court will have the chance to hear the case, said Cassie Chambers Armstrong, an attorney with Kaplan Johnson Abate and Bird who represented Jones on his appeal. (Armstrong’s firm has represented KyCIR in recent litigation.)

“We’re talking about a law that affects so many Kentuckians in such a fundamental way, we’re talking about things like jobs and housing, and public benefits and the right to vote,” she said in an interview this week.

Armstrong said she intends to ask the Kentucky Supreme Court to review the case.

Karen Faulkner, a criminal defense attorney in Louisville, has guided hundreds of clients through the expungement process, and said many are granted waivers from associated fees.

She worries that the Court of Appeals ruling will create a class-divide in expungement access — and the poor will be on the losing side.

“What we are looking at with this ruling is a circumstance where those people who have money are able to get expungements and those who are poor are not,” Faulkner said. “And I hope that the Supreme Court looks at the constitutional due process issues and overturns the opinion.”

Legislators who sponsored the recent expungement bill said this debate is an unintended consequence of their legislation.

Sen. Jimmy Higdon, a Republican from Lebanon, sponsored the bill in the most recent General Assembly that widened the scope of felonies considered expungeable, and reduced the filing fee to $250 from $500. Higdon said he always assumed judges would waive the fee for those who can’t afford to pay it.

But Judge Kramer, writing for the Court of Appeals, said “legislative intent is expressed by omission as well as by inclusion.” Higdon’s bill described the fee as mandatory and failed to state fees could be waived, the court ruled.

Higdon said if the Court of Appeals ruling stands, he’s certain legislators will work to “correct what was misinterpreted in my legislation.”

“It’s common practice in Kentucky that if a defendant cannot pay a fee, a judge has a discretion to waive it,” he said. “If I wanted to block them from getting a fee waived, I would have put wording in there to block it.”

Rep. Ed Massey, a Republican from Hebron, sponsored the bill in the House of Representatives. In an interview this week, he said fees should not inhibit anyone from getting an expungement and the legislature must be clearer regarding waivers for expungements.

“The courts should absolutely be able to grant a waiver,” he said. “Nothing would prevent us from revisiting the expungement bill and considering that as a legislative action.”

Contact Jacob Ryan at (502) 814.6559 or jryan@kycir.org.