This coming year, the Utah legislature may revise Utah’s expungement laws for the worse. The proposed changes in expungement law severely limit people’s ability to expunge convictions. I urge you to write or call your Utah representatives and tell them to kill this bill.

Proposed as the “Utah Expungement Act,” the bill’s stated goal is to help people expunge (which means to seal and effectively “erase”) old convictions by making the process  more “user friendly.” Yet certain provisions in the bill, if not amended or removed, will seriously undermine that worthy goal.

Expungement Fees

This bill increases the fees someone must pay to obtain an expungement. Currently, an expungement costs $145; $0 if you are ineligible. The proposed bill adds an application fee which has yet to be determined. With this addition,an expungement will probably cost upwards of $200. Also, most people cannot qualify to have the fees waived. Utah defines indigency in a way that people with even modest incomes have to pay.

Prosecutorial Discretion

The bill gives prosecutors the ability to restrict arrest record expungements.  Under the proposed changes, a person must obtain confirmation that the prosecuting attorney has declined to file charges before they can get an arrest expunged. This presents several problems:

1. It gives prosecutors unreasonably wide latitude.  They can sit on an arrest for years and years and never formally decline to prosecute it. Also, for some crimes there is no statute of limitation. In theory, a prosecutor that believes a person is guilty of a crime but has no evidence to prove it can call that person a suspect for life. By refusing to “decline to file charges,” the prosecutor ensures that the arrest sits on a person’s record for years, potentially forever. 
2. It requires some sort of affirmative statement from the prosecutor. Generally prosecutors have to charge someone with a crime, then at a later date dismiss the charges as “decline to prosecute.” Yet if no charges are ever filed is a declination written? Verbal? Is there a time limitation for the prosecutor to “decline”? Months? Years?  There should be a time limit.
3. Who is the “prosecutor?” Often, crimes can be charged at a State or Federal level. If the District Attorney and the United States Attorney are both considering filing charges, do they both have to sign off?

Investigative Exception

The proposed bill is problematic regarding investigations because it is vague. It prevents a person from obtaining an expungement on if a crime is being investigated. More problems:

1. What is “being investigated?” How would the Bureau of Criminal Investigation know? What if an investigation is confidential or unknown to the applicant?
2. This gives unreasonably wide latitude to law enforcement. The police can simply say they are investigating someone to prevent them from expunging any blemish. In theory, a single police officer with a grudge, but no evidence, can prevent an expungement by claiming “ongoing investigation.” Think about a suspected or former gang members. If a person has left or is even trying to turn around his life by expunging an arrest record, law enforcement can prevent it merely by stating that the person is under investigation for suspected gang activity.

Although the most important, these concerns are just the tip of the iceberg.

People deserve a second chance. More importantly, people that have been wrongly arrested or accused deserve to have their first chance unblemished. Tell everyone you know about this bill and ask them to call or write their legislator and we can defeat this proposed law before it ever sees the light of day.