The Access to Justice Lab

at Harvard Law School

expungement

Is obtaining expungement of criminal records simple?: An Empirical Study of Kansas

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Overview

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.

Key Takeaways

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.

What would lower the barriers to record clearing?: An Empirical Study of Two U.S. States

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Overview

Seventy-four million people in the United States have a criminal record — mostly for arrests that did not lead to a conviction or for misdemeanor convictions. By age 23, half of Black and Latino men, more than one-third of white men, and one in eight women have been arrested. Those with criminal records face collateral consequences that may affect many aspects of their lives, from employment and housing to immigration. Unlike some countries, U.S. jurisdictions generally allow public access to criminal justice information, meaning both even private actors like employers and landlords can make decisions based on one’s records.

Recording clearing has become one way to attempt to lessen the burdens faced by those who have been arrested or convicted. “Expungement” is petition-based record clearing, while “sealing” refers to automatic record clearing without needing the individual with the record to initiate the clearing. However, record clearing (particularly expungement) is challenging in the U.S. due to factors such as racial marginalization and lack of access to justice.

While there are many arguments both supporting and opposing record clearing, this study focuses on an empirical question that has never been studied: If states desire to lower the barriers to record clearing, what would be the most effective legislative changes to do so?

We address this question by analyzing decades of criminal records in Pennsylvania and Kansas. We analyze each state separately, examining what could happen to record clearing in each state given certain amendments to the state’s record clearing laws. Our findings are particularly relevant for legislatures interested in implementing or expanding record clearing remedies. 

Pennsylvania Study

Pennsylvania offers record clearing mostly through the state’s Clean Slate Act, which passed in 2018 and took effect mid-2019. The Act expanded expungement eligibility as well as sealing for non-violent offenders, resulting in over thirty million sealed records in the year following its passage.

We obtained data from four Pennsylvania counties: Allegheny, Beaver, Butler and Lawrence. These counties were chosen because we were pursuing separate research into criminal justice record clearing in the same area. We scraped criminal records from the judicial website for the Court of Common Pleas, the trial court, for cases adjudicated from 1990 to early 2021. 

Results 

In Pennsylvania, we found some surprising results: 

  • Legally imposed financial obligations (LIFOs) are critical barriers. Our most important finding is that nominal fees, fines, and restitution are significant barriers to record clearing. There appeared to be few, if any, ability-to-pay exemptions from these barriers. To the extent that one believes that record clearing is a useful policy and that non-payment partly stems from inability to pay, our findings illuminate disturbing echoes of poverty-based punishment.
  • Look-back periods may be unnecessarily lengthy. Eligibility criteria for record clearing include lengthy look-back/waiting periods, despite some evidence suggesting recidivism rates become close to those with no criminal records after surprisingly short amounts of time free of criminal justice involvement. (This idea remains an open question, so we proceed with caution on this point.) The result is that individuals who may be statistically indistinguishable from those with no criminal records waited years to receive record clearing remedies. 
  • Difficulty in implementing sealing results in eligible records remaining visible. As of the time we scraped the data from publicly available judicial sources the Court had been sealing records for more than two years. Yet, a startling number of records resisted clearing, likely because the information needed to determine definitively their eligibility for clearing did not exist in practicable electronic form. The information missing here was of the most basic kind, such as the dispositions of criminal cases.
  • Difficulty in implementing automatic clearing results in individuals resorting to petitions. Accommodating nuanced legislation likely induced errors in implementing automatic record clearing, forcing a number of otherwise eligible individuals to resort to the petition-based process that the automatic processes were designed to supersede.

Kansas Study

Unlike Pennsylvania, Kansas had no sealing statute, so expungement was the only remedy for those seeking record clearing. Kansas law did allow for the expungement of most convictions. 

We obtained data from 29 localities in Kansas. During 2020 and 2021, we scraped criminal case records with filing dates from 1990 and forward from the Kansas statewide court look-up portal and from the Johnson County case search website. Counties outside of Johnson (the most populous country) allowed cases to be searched through a separate site but for a fee for each record, which proved costly. As a result, our effort produced records on 254,622 cases in Kansas, with Johnson County’s website contributing 94,074.

Results

Our analysis in Kansas suggests two results, the first of which is consistent with prior research: 

  • Lack of access to justice leads to a major second-chance gap. There are a large number of seemingly eligible individuals who have not yet requested petition-based record clearing. Such a high number of eligible but uncleared convictions likely stems from a distressingly familiar access to justice problem.
  • Data issues in Kansas’s system make accurate analysis impossible. Structural holes and wholesale irregularities in the data that were available make a complete analysis impossible. Unless there are sources of information easily available to the court but withheld from the public, it may be impossible to test hypothetical record clearing legislation without addressing these massive data issues. 

Conclusion

Our findings are particularly relevant for legislatures interested in implementing or expanding record clearing remedies. Most notably, our findings suggest that two of the most effective changes for lowering barriers would be removing eligibility criteria based on outstanding legally imposed financial obligations (LIFOs) and reducing the length of waiting or lookback periods. We have also demonstrated severe problems with criminal justice data, problems that do and will affect any effort to implement or expand record-clearing. Our findings also reinforce results that other researchers have reported: the second-chance gap is staggering. If record clearing is a wise policy, there is much work to be done. 

Using empirical research to make the U.S. justice system work better for everyone.