Everywhere Beth Linker turned, a criminal past haunted her.
It came up when she sought a better job and when she tried to volunteer, despite the fact that Linker served a brief prison sentence, completed parole early, and has remained drug- and crime-free for more than 10 years.
No expungement option
Utah law says expungement is prohibited for the following crimes or situations:
Capital felonies, first-degree felonies and violent felonies
Felony DUI alcohol/drugs
Registerable sex offenses
Crimes that are pending or being investigated
Statute of limitations has not been met
Waiting period not met
Fines, interest and restitution has not been paid
When there are two or more felony criminal episodes
Any combination of three or more convictions that include two class A misdemeanors
Any combination of four or more convictions that include three or more class B misdemeanors
Five or more misdemeanors or felony episodes
Linker tried to get that past swept clean through Utah’s expungement process only to be told she was not eligible given the number of her felony convictions for drug-related crimes and an initial failure to complete her first probation.
That’s when Linker turned to the Utah Board of Pardons and Parole, which pardoned her crimes in March. But even with that decision in hand, Linker has been unable to clear her record, stymied by a redundant, complicated and expensive process — one Utah lawmakers will look at refining in the 2013 legislative session.
Last session, lawmakers created a committee within the Utah Substance Abuse Advisory Council to study issues related to expungement of drug-related offenses. That group came up with recommendations embodied in HB33, sponsored by Rep. Eric K. Hutchings, R-Kearns.
It would allow a specified number of drug-possession felony and misdemeanor offenses to be eligible for expungement and also clarify that a pardon granted by the Utah Board of Pardons and Parole — which granted 17 pardons in 2012 — has the same legal effect and authority as a court ordered expungement.
"It is certainly a good first step in a direction towards giving opportunity where opportunity is deserved and not having to be so rigid … about who gets a break and who doesn’t," said Scott Reid, an assistant attorney general who was co-chairman of the Drug-Related Offenses Expungement Committee.
"This doesn’t reduce anybody’s sentence," said Santiago Cortez, a past chairman of the Utah Support Advocates for Recovery Awareness and committee co-chairman. "This is for people who do the right thing. … In many cases, we’ve made thousands of dollars of investments to make these people productive citizens and then when they get to the workforce they have barriers."
A costly, complicated process » The Utah Bureau of Criminal Identification receives 700 to 800 applications each month from people seeking to expunge their criminal records. Given that volume, it takes the bureau 10 to 12 weeks to let applicants know if they are even eligible to proceed.
Some crimes can’t be expunged, such as capital murder, first-degree and violent felonies, and registerable sex offenses. Utah law also limits by type and number the convictions a person may have to be eligible for expungement and requires any sentence, probation, fine or restitution to have been met. In addition, the law requires a clean record following the last conviction and waiting periods of varying length, depending on the crime, before a person can seek an expungement: 10 years for any alcohol or drug-related offenses, seven years for eligible felonies, and three to five years depending on the classification of a misdemeanor offense.
The proposed bill would create a five-year waiting period for a felony drug offense.
Fees begin to pile up right from the start: There is a $50 application fee and then a charge of $56 per conviction for a certificate saying the crime is eligible to be expunged. A five-page checklist lays out the process applicants must follow; victims, prosecutors, Adult Probation and Parole and judges may all weigh in on whether or not to grant an expungement.
"It’s very expensive and it’s very difficult," Cortez said.
If a person is denied an expungement, he or she can seek forgiveness from the Board of Pardons.
"It’s the last opportunity that is available for somebody who is trying to get their record cleansed," said Jesse Gallegos, a board member who served on the Drug-Related Offenses Expungement Committee. In many cases, "They have remarkably turned their lives around and gone on to receive college degrees and are prohibited from employment in their requisite field because of their criminal records."
The bill would recognize the board’s authority to forgive a criminal past, ending what is now a duplicative expungement process and reducing expenses for those who get a pardon.
"We are not changing anything about the process and not changing anything about the crimes we are willing to look at," Gallegos said of the bill.
Pardon not enough » Although Linker, 48, received a full and unconditional pardon, she was nonetheless required to apply to the Bureau of Criminal Investigations and go through the entire expungement process, paying fees and charges at each step.
Linker said there is little uniformity between courts, and the number of forms to complete is overwhelming. Linker said she filled out one set of forms available online at the state-court website, only to be told by both a district court and a justice-court clerk that they had their own preferred forms that she would need to fill out.Next Page >
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