Over seventy-eight million individuals in the United States – one-third of the country’s adult population – have criminal arrest records. In Kansas, the incarceration rate increased 215% over the past three decades, with Black people overrepresented in both Kansas jails and prisons.
Having an arrest or conviction record may negatively impact one’s ability to participate in society, compromising educational, employment, and housing opportunities. In Kansas, certain convictions disqualify an individual from obtaining employment in the five years following the completion of their sentences in various industries, such as adult care homes, home health agencies, and hospitals.
To address the barriers that individuals with criminal records face, most states – including Kansas – have procedures for expungement, in which a charged or convicted individual petitions the government to clear their record. Some attorneys in Kansas have expressed that the process in Kansas for obtaining an expungement is simple and straightforward. Thus, they believe, even assuming criminal justice record clearing promotes desirable outcomes, Kansas need not pursue broadly applicable, automated record clearing consistent with the model in, for instance, Pennsylvania. These sentiments have surfaced in discussions with legal services providers regarding whether self-help materials and procedural reforms for expungement might be useful in Kansas.
This investigatory study assesses the claim of the high accessibility of expungement in Kansas, as part of understanding the broader landscape of expungement. It found that obtaining expungement in Kansas is not simple or straightforward. Our findings are especially relevant for state legislatures, policymakers, and other stakeholders interested in record-clearing remedies.
Steps to Clear a Criminal Record in Kansas
In Kansas, arrest records, criminal convictions, and juvenile adjudications can all be expunged. As the process is similar for all types of expungements, this study focuses on the expungement of non-juvenile convictions. An individual obtains an expungement by petitioning the court of the county in which they were convicted. Some convictions are never eligible for expungement, including murder and child abuse. All expungement candidates must meet certain criteria and follow specific procedures, outlined below.
- Mandatory waiting period. In Kansas, the waiting period for petitioning expungement of a misdemeanor or minor felony is three years after discharge from probation or parole. The waiting period is five years for major felony offenses. In addition, an individual must not have been convicted of any felony in the two years preceding petitioning for expungement.
- Forms. A central component of obtaining an expungement is the completion of six forms: (1) Criminal Cover Sheet; (2) Petition for Expungement of Conviction, (3) Notice of Hearing, (4) Order of Expungement of Conviction Cover Sheet; (5) Order for Expungement of Conviction; and (6) Order Denying Expungement of Conviction. These forms are available online at the Kansas Judicial Council website or in-person at the reception desk of the District Attorney’s Office of the relevant jurisdiction. The petitioner must file a separate set of forms for each offense.
- Submission and fees. After accurately completing the requisite forms, the petitioner must file with the court clerk their Petition for Expungement and Criminal Cover Sheet, discussed above. As of the time of this study, the petitioner must pay a docket fee of $195 via money order. If a petitioner cannot afford the $195 docket fee, they may submit a Poverty Affidavit with the required detailed information.
- Hearing. In some jurisdictions, courts may grant expungements without a hearing, particularly if no government agency objects, but likely only a lawyer would know that a hearing could be unnecessary. Under Kansas law as written, the petitioner must contact the clerk of the court to request an expungement hearing and attend the hearing. At the hearing, the court will inquire into the background of the petitioner and may have access to any reports or records on file with the prisoner review board.
- Decision. The presiding judge orders the expungement of a conviction if (1) the petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending against the petitioner; (2) the circumstances and behavior of the petitioner warrant the expungement; and (3) the expungement is consistent with the public welfare.
The clerk sends a certified copy of the order of expungement to the KBI. Once the certified order of expungement is received, it takes about two to four weeks for the KBI to process the expungement and update the individual’s criminal record history. The KBI will notify the FBI, the Kansas Secretary of Corrections, and any Kansas law enforcement agencies that were involved with the individual’s conviction.
- Impact. After obtaining an expungement in Kansas, a person “shall be treated as not having been arrested, convicted or diverted of the crime.” However, an expunged conviction may be considered for sentencing purposes if the individual is convicted of a subsequent crime. In addition, disclosure is required in applications for admission to the Kansas Bar, employment as a law enforcement officer, or a license to carry a concealed weapon.
Our findings are relevant for state legislatures and policy stakeholders interested in expungement. The process to obtain an expungement in Kansas is not straightforward or simple, as some attorneys in the state have claimed. As outlined above, the procedures consist of eleven steps, one with five subcomponents. If lowering the barriers to expungement is desirable under some circumstances, one key change may be reducing the number and complexity of steps.
Other improvements would also make the expungement process more accessible. With regard to forms, for example, the six forms could be rewritten in plain English language. Kanas could remove requirements to provide information that is not actually required, is difficult or simply impossible to find, and/or is already in the court’s possession. Kansas could also remove the requirement that a petitioner file a separate set of forms for each conviction. Finally, Kansas could remove requirements that exist only to reduce the court’s workload, shifting the burden from the petitioner to the court to complete the court’s administrative tasks. Short of automating this process, which may help remove barriers for both petitioners and the courts, any and all of these changes would be a step in the direction of accessibility in expungement.