Interim study examines increasing access to expungement (Capitol Update)

Recently Rep. Nicole Miller, R-Edmond, hosted an interim study in the House Judiciary-Criminal Committee on potential criminal record expungement reform. The purpose of criminal justice is to separate offenders from society where necessary for protection, to deter future criminal misconduct, and to rehabilitate those who have offended. In a few cases, the behavior is so abhorrent that justice demands punishment for the sake of punishment. But in most nonviolent cases, the creation of a permanent public record to follow offenders for the rest of their lives contributes little to those goals, and instead adds barriers to their achievement. 

Hundreds of thousands of Oklahomans currently have criminal records that make it more difficult to obtain employment, access housing, and simply have normal productive lives. Among them are more than 65,000 Oklahomans with felony convictions, which are now reclassified as misdemeanors because of State Question 780, but whose felony convictions remain on their record.  

Recognizing the problem, over the past 30 years the legislature has passed numerous measures to create, clarify, and add to the ability of persons with an arrest, charge, or conviction for nonviolent misdemeanors and felonies to clear their records. The law allows a person to petition the courts for expungement when an appropriate time has passed since the case was dismissed or not filed, or in the case of a conviction, after completion of the sentence with no added charges having been filed.

Despite its best efforts, the legislature has been unable to devise a procedure that’s financially accessible to everyone who needs it. The expungement process is complicated and expensive, beyond most people’s ability without hiring a lawyer. A person seeking record expungement must initiate the process by filing a petition in court. Notice must be given to all agencies that may be holding records in the case, and a court hearing must be set. If the court finds, after hearing, that the records should be expunged, the court may order such records to be sealed. The expungement order may be appealed to the Supreme Court by the petitioner, prosecuting agency, the arresting agency, or the Oklahoma State Bureau of Investigation. 

There is now a better way. Nearly 20 states have adopted some form of automatic record clearance for their adult or juvenile criminal justice systems. Most recently Utah, Michigan, and Pennsylvania adopted significant “Clean Slate” expungement reforms. Instead of requiring the person with the record to start the process, computer programs initiate the process and provide notice. A computer algorithm identifies potentially eligible cases. Relevant stakeholders have 35 days to dispute eligibility, and undisputed cases are sent to the courts to be expunged. Everyone’s rights remain the same, but technology replaces expensive lawyer and court time.    

The unemployment rate for justice-involved Oklahomans is five times the state average, and the formerly incarcerated are ten times more likely to experience homelessness than the general population according to the Prison Policy Initiative. If the criminal records of these Oklahomans were expunged it would create a huge positive impact on their lives. In addition, studies show it would add billions annually to Oklahoma’s GDP.


Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.

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