By Eric Krebs, J.D. candidate, Harvard Law School
Criminal record clearing has become a prominent policy tool for improving individuals’ employment, housing, and reentry outcomes. However, too often, eligibility does not translate into actual access or successful uptake. But why?
This week, on Proof Over Precedent, host Jim Greiner sat down with Hannah M. Crowe, an Access to Justice Lab alumnus and associate at Burns Charest LLP; Renee L. Danser, Associate Director of Research and Strategic Partnerships at the Access to Justice Lab; and Marilyn Harp, former Executive Director at Kansas Legal Services, to discuss the trials and tribulations of the expungement process in Kansas—and what Kansas reveals about the design of criminal law institutions as a whole.
In 2022, Greiner, Crowe, and Danser co-authored an article in the Kansas Law Review titled “Record-Clearing as a Rite of Passage to Engage in the Justice System.” Harp, who had spent more than 40 years as a legal services lawyer in Kansas, began the episode by relaying an emblematic experience. She testified before the Kansas legislature on a bill that would have automated the expungement system. During her testimony, she recalled, “One of the members of the committee, who on this topic held a lot of sway…he just looked me in the eye and said, ‘Why do we need to automate it? It’s so simple!’”
Research and experience tell a different story.
Kansas allows expungement of arrests, convictions, and juvenile adjudications, subject to eligibility criteria and waiting periods. But the practical pathway from eligibility to relief is lengthy and demanding.
Kansas, by law, requires at least six separate forms to petition for expungement: a criminal cover sheet, petition, notice of hearing, expungement cover sheet, proposed order granting relief, and proposed order denying the very relief they seek. These forms request duplicative information—such as court identity, conviction details, and arresting officer information—that courts already possess and can access more easily than petitioners. Some required data (e.g., officer badge numbers or specialized identifiers) are unlikely to be remembered by individuals years after conviction. And, even worse, some forms—for instance, the request for a hearing—are not actually required, as expungement hearings (though technically required) are typically waived.
“A whole lot of this is statutory. So it’s not that courts thought up what they wanted to have in these papers, 53 years ago now, the Kansas legislature wrote the expungement law,” says Harp. “We don’t have practitioners, we don’t have court administrators, or judges, or district attorneys coming up with this. We have legislators who wrote all the things they wanted in the petitions.”
After filling out the litany of forms, petitioners must pay a $195 filing fee per case, with separate fees for separate convictions. “It’s the same fee as, for example, a divorce that might go on for months and months or years,” Harp notes. As an alternative, individuals who cannot afford the fee can complete a detailed poverty affidavit disclosing income and assets. “The affidavit in and of itself is very burdensome and basically constitutes a seventh form where a petitioner would have to provide a ton of information like the name and address of their employer, their income, all of their assets, automobiles, jewelry,” says Crowe. “Even if you got to that last seven step… it’s something that would be a huge deterrent.” And even after, petitioners need to gain access to a form which is not publicly available online. Moreover, even if the petitioner gets an expungement from the court, there is no guarantee that the expungement will lead to the convictions being erased from private databases thereafter.
The process amounts to a “justice-related rite of passage,” one that filters access through procedural complexity, behavioral friction, and institutional design. The official instructions even warn that filing without an attorney could harm legal rights, undercutting the notion that the process is designed for the individuals who need it most. This institutional design illustrates a recurring issue in access to justice: procedural requirements can reproduce power asymmetries between individuals and state actors, even when the underlying legal remedy is intended to promote reintegration.
Taken together—waiting periods, paperwork, fees, hearings, and discretionary standards in-all—Kansas’s expungement system functions less like a universal remedy and more like a selective filter. Individuals with legal assistance, institutional familiarity, or exceptional persistence are more likely to succeed while those without such resources are more likely to be excluded. Danser (previewing a forthcoming Proof over Precedent episode) also noted that, through a randomized experiment, the A2J lab was able to empirically demonstrate a “huge difference in success rates” between individuals with only self-help materials and individuals with representation from Kansas Legal Services—an 8% versus an 82% success rate, respectively. That, Danser notes, leaves a stark choice for Kansas policymakers moving forward: “Do you want to increase your support of legal services attorneys … or do you want to make this process easier?”
For either path, the lesson is clear: legal reform must attend to procedural design and experience. Lawmakers must understand how the systems they design work in the real world, not just on paper.
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.