Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Griner, and this is Proof over Precedent.
[00:00:35] Speaker B: Welcome to another episode of the Access to Justice Labs podcast, Proof over Preston. I'm your host for today, Jim Greiner, and I'm the faculty director of the Access to Justice Lab.
And I have with me today a spectacular group of folks talking about the Access to Justice Lab's partnership with Kansas Legal Services and pursuing research on expungement, criminal justice record clearing, petition based criminal justice record clearing. We'll draw that distinction in just a moment, what that means. But I have three folks with me today talking about expungement in Kansas and in particular how difficult it is to achieve record clearing in Kansas without a lawyer.
And so, Marilyn, could you start us out by introducing yourself?
[00:01:24] Speaker C: Sure. Thanks, Jim. I am Marilyn Harp. I'm the former executive director of Kansas Legal Services. I've been a lawyer in Kansas for 47 years now a graduate of the University of Kansas Law School and was with Kansas Legal Services my whole career, the last 16 as the executive director.
[00:01:46] Speaker B: And Hannah Crowe, who are you?
[00:01:48] Speaker D: Yes, hi, my name is Hannah Crow. I am a 2022 graduate of Harvard Law School. I had the PLE conducting research with, I'll say Professor Greiner and Renee Dancer and Marilyn Harp when I was a student at Harvard and since graduating, I joined Burntress LLP in their Dallas office. And we are a primarily plaintiff side trial boutique.
[00:02:15] Speaker B: Terrific. And Renee, who are you?
[00:02:18] Speaker C: Hi there.
[00:02:18] Speaker E: My name is Renee Dancer. I'm a researcher at the Access to Justice Lab. I've had the joy of being on this podcast before and also working with these lovely women on this project.
Prior to my time at the Access to Justice Lab, I was a court administrator, which I think will become important as we talk through this work.
[00:02:37] Speaker B: It'll become relevant. Absolutely. So we're talking today about a paper that the four of us published in the Kansas Law Review and we'll obviously provide a link to that paper in the podcast website and the accompanying blog website.
The impetus for writing this paper came, Marilyn, from things that you were hearing when you were advocating or discussing the idea of criminal justice record clearing in Kansas and potentially expanding access to that Remedy. Tell us what those conversations, what was the subject of those conversations as relates to this paper?
[00:03:13] Speaker C: So I was testifying before a legislative committee about a project that would automate the expungement process in Kansas. And one of the members of that committee who on this topic held a lot of sway, was a retired district court judge who asked a question at the end of my testimony, as you know, can happen, legislators get a chance to ask questions back.
And he just looked me in the eye and said, why do we need to automate it? It's so simple.
And, you know, this is a rural judge. He had been a criminal defense lawyer at some points in his life prior to being a judge, and he just saw the process as so simple. Why would we ever need to speed it up?
[00:04:06] Speaker B: And I'm taking that's not the only time that you've ever heard that sentiment among the Kansas bar.
[00:04:13] Speaker C: No, really. And I have to say, it's not unique among lawyers.
It frankly was not even always my experience because when you're used to doing expungements in one county or two or three counties, you sort of get used to the process and the way things happen once you're familiar, it is kind of, you know, from a lawyer's perspective.
[00:04:43] Speaker B: Simple, but it might take a little while to get familiar.
[00:04:47] Speaker C: Absolutely, absolutely.
[00:04:50] Speaker B: And so then, Hannah, we brought you in as and when you were, I think, a 2L at that point, if I'm right.
So this would have been in 2022ish timeframe or is that right? Or would have been a little bit earlier.
[00:05:02] Speaker D: It might have been a little earlier, maybe 20, 21.
[00:05:06] Speaker B: So right around there.
[00:05:08] Speaker C: Yeah.
[00:05:09] Speaker B: And we said, well, let's just figure out, let's just document the steps in this process.
Up until then, there had not been a whole lot of, of of scholarly examination about what the process of expungements look like. Since then, there's been a good publication by two folks who have appeared, who have or will appear on Proof Over Precedent, the podcast. I've interviewed both sonia Starr and J.J. prescott documenting the process in Michigan. And Michigan takes something like 15 steps and an entire page and a half in bullet point form to, to even write down. And that's going to sound familiar because as we're going to find out, it's going to take a whole lot of steps in Kansas and a whole lot of pages in bullet form in order to write it down. But Hannah, tell us, you, you then said, okay, let's. I'm going to write down and we're Going to do a paper on, on the process. Tell us about that.
[00:06:03] Speaker D: Yes. So I, I dove into looking through, like you said, what the, what the actual steps are to get an in Kansas and not being an expert or even an attorney at the time that I was looking at this, and I was immediately overwhelmed by the process. So just to give listeners, I guess, a taste of what's required, there are six different forms that expungement petitioners need to fill out. One of the forms has basically a black box warning on the front that I was really struck by that says, use of these forms without the assistance of an attorney could harm your legal rights.
You may want to have an attorney review your forms before you file them with the court.
So right off the bat, even, even as an attorney now, if I saw that, I would think, oh gosh, I need to talk to someone who specializes in this because I would hate to do anything that would harm my legal rights.
So right off the bat, even if it is easy, you're immediately being warned not to continue without having help.
And then you have to go on to fill out these six different forms, several of which require different numbers of copies to be submitted to the court, all of which you, as the expungement petitioner are required to provide.
And many of the forms require the expungement petitioner to provide information that the court definitely has access to, but the expungement petitioner likely does not. So an example of that would be the identity of the court that convicted the petitioner. Depending on how long it's been since this conviction happened, it's, it's. I, I think it's very likely that the petitioner wouldn't know the identity of the court. Another example would be the name and the badge number of the arresting officer.
I would speculate that that's not something that a lot of people have memorized after an arrest.
So that's another example of something that.
[00:08:05] Speaker B: You know, Let me, let me stop you real quick just to ask two quick follow up questions just about what you've said right there. The people say, okay, well, how can you not, people might think, how can you not know what court convicted you? But it's not enough to just say it's at this courthouse downtown, right. You have to know the, the formal name of the court is that. Right?
You can't just say it's, that it's down to, it's in downtown Topeka or something like that. Right? You can't do that.
[00:08:30] Speaker D: Correct. You can't just say, oh, the Courthouse, on the street or something like that. You have to know the formal name and then even the arresting officer's badge number. I mean, something like that is so, so specific.
If it's okay, I'll go into some of the interviews that I want to do.
[00:08:45] Speaker C: That.
[00:08:45] Speaker B: Just one second. Yes, I want to hear about it. But then, Marilyn, let me ask you. If you had had to find out the badge number from your clients, do you think they would have known it? When you were doing a lot of these, did any of them know the badge numbers or did many of them know the badge numbers of the arresting officers?
[00:09:01] Speaker C: No, not at all. And you know, I know the tricks about where to find it because. And maybe not even the badge number, but the agency that they, that they worked for by the list of the witnesses on the complaint.
But often even then there's abbreviations used. And, and so what the trick, I know is that, you know, if you don't include that information, your petition's not going to be denied.
[00:09:33] Speaker B: But, and again, we'll talk, we'll talk about that in just a second. Because, Hannah, that's what I think part of what you eventually found out was that people can just leave this blank. You wouldn't know that, of course. But then, Marilyn, if you were to try to find the badge number, if you were doing this for the first time and you say, I don't know that I can leave it out, what do you do if you don't? And it's a, you know, and there's an abbreviation. I mean, my thought would be you have to call the, call the cops. Is that right?
[00:09:59] Speaker C: You have to call police records and maybe put in your Freedom of Information request and maybe pay the money to find, to get a copy of your arrest report so you can get the badge number.
[00:10:10] Speaker B: And the Freedom of Information act request would be another form to a different agency, is that correct?
[00:10:15] Speaker C: Absolutely, yes. To police records, a different form.
You know, certainly with a fifteen or twenty dollar fee to it.
[00:10:23] Speaker B: Right.
And Hannah, is one of the things that you have to write down in the form to the court, the case number?
[00:10:32] Speaker D: Yes, that is another, another thing that you have to write down that I suspect many petitioners would not remember or necessarily have access to.
[00:10:41] Speaker B: Okay, so Marilyn, back to you. You can find the case number online nowadays, is that right?
[00:10:47] Speaker C: You can nowadays find. The public, can find it online. Which again is why this is so important, because one of the things that's happened between the time we started this work and today is a public access portal that is statewide and anybody can look up a name and see all of the court involvement. So yes, people can look it up for themselves, but it also means that the HR office at any employer in Kansas or in the country can go into this website and look up the, look up the way more than the case number, you know, what the charge was, what the outcome of the case was and all that.
[00:11:38] Speaker B: So a landlord and employer, et cetera. And this is why we're interested in potentially the clearing, the record clearing remedy.
[00:11:44] Speaker C: Right, Right, exactly.
[00:11:46] Speaker B: But then it strikes me that if, you know, if the person knows the case number, if they, you know, if they either find that online or back in the day, if they still had case, almost any record of a case would the case number and they provided the court with a case number, what is the reason that, that the form insists that there be more information.
That's eas. That's that the court has in its own possession actually better than the individual. So, for example, the name of the court, Maryland. Do you know why they would insist on that? If they have the case number, they can, they have to pull their records anyway. They know the name of the court, don't they?
[00:12:25] Speaker C: They do. And a whole lot of this is statutory. So it's not that courts thought up what they wanted to have in these papers, but 50 years ago, 53 years ago now the Kansas legislature wrote the expungement law and they wrote the petition shall contain.
So we don't have practitioners, we don't have court administrators or judges or DAs coming up with this. We have legislators who wrote all the things they wanted in the petition. And of course, you leave it out, you don't comply with the law and you don't potentially get your, you know, the judge may decide they don't have jurisdiction to do the case.
[00:13:08] Speaker B: Hannah, back to you. Okay, so they have to fill out the forms. And the forms require information from the court that the court already knows and that in some cases the petitioner has to call the court to get the court the information on the forms on their face require information from the cops that the petitioner doesn't know and that the petitioner is going to have to call the cops in order to get potentially, but that, it turns out, aren't necessary really to process the expungement. Keep going. What else is required?
[00:13:40] Speaker D: Okay, so in terms of what else is required, you need to have the.
Well, let's see. So the first, the first sheet that you need to fill out is the criminal cover sheet. This is where you basically provide all of your information.
You know, sex, race, ethnicity, date of birth, all that sort of thing.
That's where the arresting officer's name and badge number comes in.
Then we move on to the second, the second form required, which is the petition for expungement. And it's a lot of duplicative information required in this second form.
So this is basically a two page document that requires, again, you know, the petitioner, sex, race, date of birth, the crime for which they were convicted.
And so again, which should be evident.
[00:14:33] Speaker B: On the case number. If you know the case number, you pull the records, you get the conviction.
[00:14:37] Speaker E: Correct.
[00:14:37] Speaker D: And again, this, this type of information is probably just as easy, if not easier for the court to access.
The third, the third form required is a notice of hearing. And this, actually, if I can diverge for one moment, this, this is an interesting point. So one thing we learned in our research, well, Marilyn definitely already knew this, is that statutorily, a hearing is required for every expungement in Kansas, I think that's not actually true. They're oftentimes waived. But the way that the law is written, it is such that a hearing is required for every expungement. And we believe that that in and of itself is likely to be a big deterrent to people attempting to get an expungement. Because, you know, right off the bat, even if it's not actually true, you think right off the bat, you're going to have to appear in court, set aside time in your work schedule, you know, take off work, perhaps go down, face the courts and appear actually to get an expungement, and you actually have to prepare, as the petitioner, a notice of hearing for that. So that's something I found particularly interesting.
Do you want me to keep going or.
[00:15:55] Speaker B: Yeah, just. Just real quick. What. When you say the petitioner has to prepare a notice of hearing.
A notice of hearing is a document that the court will eventually issue to say that there is a hearing. Right. But the petitioner has to prepare the document for the court.
[00:16:11] Speaker D: Correct.
[00:16:12] Speaker B: And as an extent, do we not have word processing software these days that would, you know, make it really easy for the court to just slap in a date and a case number and go. I mean, copy and paste, Right?
[00:16:25] Speaker C: We do.
[00:16:25] Speaker D: And courts definitely do this all the time. So it's a little bit odd that that ball is still being put in the. In the petitioner's court, but it is so.
[00:16:34] Speaker B: Okay. All right, so then, go on. Now, we have three documents to. The first two of which were had enormous amounts of duplicative information. The third one, the petitioner might be saying, why am I filling this out as opposed to the court right now going on.
Oh, sorry, sorry, go ahead.
[00:16:50] Speaker E: I just want to interrupt because I think that there's a really important point about this notice of hearing that needs to be said in this podcast and it is that the petitioner actually has to call the clerk of court to get a hearing date to then put in the notice of hearing to then give back to the clerk of court to send out to people.
So it's even more crazy making than just the fact that they have to fill it out.
[00:17:18] Speaker C: And as a practitioner in this, I know not to file the notice of hearing.
I never file them. If there's going to be a notice of hearing, the clerk, I mean, and it's set in maybe 10% of the counties, the clerk or the secretary for the judge does the notice of hearing. So again, like practitioner tip, but not available to self represented people.
[00:17:46] Speaker B: Fantastic.
So we have a third form that we know actually doesn't have to be filed. Right. But that of course, no one would if you weren't, if you weren't not just a lawyer, but an experienced lawyer in this, in this, in this regime. So Hannah, if you saw this and you were going through the statute and the, and the forms online, as a lawyer doing this for the first time, at least I speak for myself, I would have filed it. Right. I would have called and you know, maybe even said, I'll call, do what Marilyn said, I'll call the court and say, what hearing date do you have available? I've got to fill this out. Turns out you don't have to if you know that. No better. But anyway. All right, keep going, Hannah.
[00:18:23] Speaker D: Okay, absolutely. So moving on to form number four, which is the order of expungement of conviction cover sheet.
This is yet another form that requires a lot of the same information. So again, name, address, Social Security number, date of birth, and the purpose of this duplicative sheet is allegedly to aid the government in expunging the correct conviction in the event that an expungement is ordered. But of course, all the information that you're providing on this sheet is already accessible.
And then we move on to the fifth and the sixth forms, which are, I would think would be very odd as a, as a non legally trained petitioner, which is that you actually fill out and submit to the court an order for the expungement of your conviction and then oddly enough, an order denying the expungement of your conviction. So as the petitioner, you are basically expected to fill out and submit the form granting the relief that you are requesting and then also denying the relief that you are requesting.
As now a practicing attorney, you often do submit form orders granting proposed orders granting the relief that you're requesting from the court, so that, you know, ideally the court can just sign off what you're asking for. I have never had to, in my three and a half years of practice, had to submit an order denying my requested relief. You know, perhaps some other attorneys have.
[00:19:56] Speaker C: Had to do that.
[00:19:57] Speaker D: But again, the people that are filling these forms out, these allegedly easily forms out, are not practicing attorneys. So I imagine it's even more odd.
[00:20:08] Speaker B: Let me stop you there, Marilyn. Is this normal in Kansas? For all areas where you have to. When you're submitting a motion for something you want, you must include a proposed order granting the relief and a proposed order denying the relief?
[00:20:21] Speaker C: No, that is very odd.
And just to be clear, is not statutory, but was a decision by the judicial council, who decided as more and more work was done in this expungement area to make forms available to the public.
And so they create all the forms that might be needed. But again, you know, they do it in a serial way, and it's on the list. So people fill out the, you know, people hit that and are told in the instructions to fill it out either way.
[00:21:03] Speaker B: Okay, great. And again, you wonder, you know, this software thing, this word processing thing, it's going to be big one day, right? You know, people are going to be able to figure out how, you know, how easy it is to cut and paste. Right. You know, and the courts probably are going to figure that out, too. They could probably do this. Okay, so, Hannah, we've got six forms. Duplicative, unnecessary, even though they are. They appear to be necessary.
In fact, many of them unnecessary.
And some. And the last one just, honestly just strikes me as downright mean that you have to fill out. You have to fill out an order denying your motion. You have to do that for the court. Okay, great. So we've got six forms, and we've filled them all out, and we've had to call the court several times to figure out all these things. And probably different offices within the court. I imagine that the scheduling, the person that does the scheduling is not the person that has all the access to the other information.
Okay, great. We've got the six forms. Now what?
[00:21:58] Speaker D: So then you have to pay a $195 docket fee in order to not even Necessarily get an expungement. Right. This is just to have your expungement.
[00:22:10] Speaker B: Considered so you don't get that back if it turns out you don't get the expungement.
[00:22:15] Speaker D: Correct, Correct.
And, you know, again, I think it's not uncommon to have filing fees in courts, but the person expected to do this is not a practicing attorney. This is a, this is a, this is just a layperson who wants to get an expungement. Yet they're still being required to pay the almost $200 docket fee. There is an option to fill out something called a poverty affidavit if the $195 docket fee is going to be a financial burden. But that affidavit in and of itself is very burdens, basically constitutes a seventh form where you have to provide. A petitioner would have to provide a ton of information, name and address of their employer, their income, all of their assets, things like automobiles, jewelry.
It almost feels like filling out that poverty affidavit is even if you got to that last seventh step, that would almost be in and of itself something that would be a huge deterrent in my view.
[00:23:22] Speaker C: I want to add just a moment to what Hannah says about filing fees, because at least in Kansas, I mean, in Kansas, these cases are filed kind of as an add on to the case, the criminal case. So if you're reading through the criminal case, this is going to be at the end of that. And defendants have already been required to pay court costs as a defendant in a criminal case.
So this is, you know, not a new case.
It doesn't require, you know, the anticipated potential months of court time and all those things.
But it's charged the same fee as, for example, a divorce that might go on for months and months and years if their kids under 18, a court has jurisdiction, you know, for literally years in a case. And that court cost, $195 is all they pay.
So my argument has always been there shouldn't be a court cost because they've already paid it as the criminal case and it's just a money grab.
[00:24:33] Speaker B: And Malin, just to, just to clarify, surely it's the case that you can pay just one of these and expunge if you have, say, you know, three instances of possession of low amounts of marijuana, three convict, you know, six months apart, you can get all three of those done in one swat, Is that right?
[00:24:52] Speaker C: Only if, only if the prosecutors charged you in one criminal case.
This is. These go into each criminal case. So it's an add on for each case.
[00:25:03] Speaker B: So if you were a tad rambunctious in your youth and you had three convictions from, say three separate arrests for something like underage drinking or.
Actually, no, underage drinking wouldn't be expungible. Right. Because that would be a juvenile offense, which is a whole different thing that actually. Is that correct, that in Kansas juvenile offenses are not eligible for expungement?
[00:25:25] Speaker C: No, they are eligible for expungement. They are not eligible for expungement if you have any adult convictions.
[00:25:32] Speaker B: Ah, okay.
[00:25:33] Speaker C: So for example, I'm working now with a young woman who has supported herself since she was 15 and obviously sometimes she supported herself by stealing food. So she has shoplifting convictions as a youth, but also a couple as an adult. And she has to wait till she's eligible as an adult three years post sentence to get those convicted and then.
[00:25:59] Speaker B: Work backwards, get the adult convictions expunged and then she can get the juvenile conviction.
[00:26:05] Speaker C: Right, but it shouldn't be harder to get a juvenile expungement than it is an adult.
[00:26:11] Speaker B: Right, so. Okay, so got it. So then if you have. But the point is for the. Back to the filing fee. If you had, if you had three separate convictions for say, shoplifting of food as an adult, you know, and these are from incidents that are three months apart and so they're charged as different crimes, that means the filing fee to try to get this. It's three separate sets of six or seven forms and then three and then a total of $585 a filing fee, not one filing fee of $195. Is that right?
[00:26:47] Speaker C: That is correct.
[00:26:48] Speaker B: Fantastic. Okay, Hannah, keep it, keep us going for it.
[00:26:53] Speaker D: And before we keep going, Marilyn mentioned an interesting point which maybe we're going to loop back to later, but the, the waiting period is something that I do think is worth mentioning. You can't start this whole process until several years have passed from your conviction. And it depends on the type of conviction. But even, even, even small, like small convictions for like traffic infractions or cigarette tobacco infractions, those still require a three year waiting period.
So you can't get going on this immediately, which in and of itself is a hurdle.
[00:27:29] Speaker B: And while we're on that point, when does the three year clock start ticking?
[00:27:33] Speaker D: I believe I would, I would defer to Marilyn on this question, but I believe it's from once you have completed your, completed your sentence, if you, if you were sentenced. Is that, is that correct, Marilyn?
[00:27:43] Speaker C: That's exactly right. From the release from probation or, or parole, whatever.
[00:27:50] Speaker B: That's the point I wanted to make. It's not with the date that you walk out of an incarceration facility. If, for example, you have two or three years of probation, after that, you have to wait until the two or three years of probation are over. Is that correct? Correct. Yeah. Fantastic. Again, maybe I need a different word. Hannah, keep us going here.
[00:28:10] Speaker D: All right, so once you have paid your 195docket fee or multiple docket fees, if you have multiple convictions you're trying to expunge, then you will have a hearing.
And again, if you just start. If you look at this process from the outside in, it appears that every single expungement requires a hearing, which, again, I think could be a huge deterrent through conversations.
I believe it's the case that not actually every expungement does require a hearing, but looking from the outside in, it appears that every single one does.
What happens when there is going to be a hearing is after receiving the petition, the court will notify the prosecutor who prosecuted the case and the arresting law enforcement agency. And if no one objects, then the court can go on ahead and grant that expungement without a hearing.
But if there is a hearing, then this is a formal court proceeding where the petitioner must show up.
If they're not represented by counsel, if they're doing this themselves, then they're showing up to court without a lawyer. And the court at, at the hearing can ask the petitioner questions, inquire into their background. They'll have access to a lot of different records. So, you know, I would, I would view this as a very intimidating process for anyone to go through, particularly, you know, even with a lawyer, but particularly without a lawyer. I don't know if that's enough detail or if.
[00:29:54] Speaker B: Let me just ask a follow up question. This is, this is, you know, going back to court. That's something that people have. Do all the time and they have a great experience. Each time they go, it's positive, they walk away. I mean, you know, these are folks that. Right. I mean, I mean, it's sarcastic, right? These are folks that have had, you know, intimidating experiences. And this is a theme that we're emphasizing the access to just labs emphasizing in other settings. Right. We deliberately build courts with tall, you know, tall buildings with columns. We have judges in black robes, we have judges elevated and sitting in high benches. In other words, the whole architecture, the setup of the room is designed to intimidate. There may be a good reason for that, to get people to comply with court orders voluntarily. But it is supposed to be an intimidating place, and whether it should be that way is a different issue. But it's designed to be intimidating, and people know that they're going to have to go back or they think they know they're going to have to go back on their own. Marilyn, how many of what fraction of cases that you filed in your years actually did end up with the hearing?
[00:30:58] Speaker C: There are three or four counties that always set them for hearings, but that's out of 105 counties, so fairly rare. I do want to, I want to clarify something Hannah said, too.
You know, it is kind of standard practice in federal court that you file a motion and then the other side can object, and then there has a. Here, there's a hearing, and if there's nothing, it goes on through. That is not the case with these expungements. A judge will virtually never sign the order without a signature of the. Of the county attorney or district attorney on there. So instructions to people are, do these orders present them to the county attorney's office for signatures as a way to avoid the hearing.
So, you know, I mean, that's, that's the other sort of lawyer thing.
Lawyers see the. I mean, you know, when you're in the heat of battle, you may have attitudes about the people on the other side, but generally people just see the. Their role. You know, a lawyer's role on behalf of the state, a lawyer's role on behalf of the petitioner. And, and there's nothing animosity there. We're all kind of doing our jobs. But for somebody who's been in the criminal justice system, that is not a reality. And so the prosecutor's office, who you now are trying to get to sign this piece of paper, you're being asked to go talk to them to sign this piece of paper, put you in jail once, convicted you of a crime. They're not just doing their job. They made your life awful. And now you're sent to go see them to get their agreement to this order before the judge will sign.
[00:32:46] Speaker B: Yeah, absolutely. Absolutely. Super. So, okay, so we think that we're going to have a hearing. We may actually have a hearing, Hannah. We may not. Keep us going.
[00:32:58] Speaker C: Yep.
[00:32:58] Speaker D: So if you, if you do have a hearing as the petitioner, you have to show up to the hearing in person. You have to bring copies of the.
Of several of the forms. So the order of the expungement of conviction cover sheet, the order expunging your conviction, and then the order denying the expungement of your conviction, which is funny. I'm like, I'll show up. Like, not, you know, oh, sorry, I forgot that third form.
I don't think that would go over well.
[00:33:25] Speaker C: The form you have to show up, that third form is the order waiving the filing fee, which does not exist online anywhere.
So if you're asked to produce that, you're kind of at a loss.
[00:33:38] Speaker B: So if you. If you needed to use this poverty form that Hannah mentioned earlier, then. Then you would also need to have the order that allows the. That where the court grants that petition to. To. To proceed without paying the filing fee. And you're saying, marilyn, that one's not online.
[00:33:55] Speaker C: That one's not online.
[00:33:56] Speaker B: So where do you get it?
[00:34:00] Speaker C: Maybe a judge will have pity on you and create it.
[00:34:05] Speaker B: You know, software is going to be big one day. This word processing software is going to be big one day. Yeah, right.
[00:34:11] Speaker C: I mean, the hope exists that maybe someday the judicial council will publish that form, but they haven't yet.
[00:34:19] Speaker B: Okay, super fantastic.
Go ahead, Hannah.
[00:34:26] Speaker D: I think we should combine them. Super fantastic.
[00:34:28] Speaker B: Yeah, super fantastic. There we go.
All right, Keep going.
[00:34:32] Speaker D: Okay, so, you know, let's show up for your hearing, survive the hearing, or don't. You don't have the hearing, and then the court will make a decision. So under the law, the judge will order the expungement of the conviction. If the petitioner has not been convicted of a felony in the past two years, there's no criminal proceeding against the petitioner, you know, currently pending the circumstances. This is a quote. The circumstances and behavior of the petitioner warranted the expungement. So that's a bit vague. And then quoting again, the expungement is consistent with the public welfare.
[00:35:11] Speaker B: All right, I want to stop you there. If I'm reading that as a pro se litigant, lawyerless litigant, and I'm saying I've got to go to a hearing. I'm thinking the judge could ask me about my Internet surfing. They could ask me about, you know, where I go on a Friday night. You know, if I go visit a bar and have a drink on a Friday night. I mean, I'm thinking they could do anything. Right. Because it's the character of the. Of the. Of the petitioner. Right. Is that. Is that.
What am I missing, Hannah? What do you think? What am I missing? If you're looking at this from the.
[00:35:43] Speaker D: Outside, No, I think I. I think that's exactly right. I'm interested if. If Marilyn has any war stories about this but, but no, I think. I think you're thinking, oh, gosh, you know, this. This formidable person in a black robe is basically going to get to look into every area of my life and determine whether or not I'm worthy of a expungement for this. For this crime that occurred, you know, many years ago.
[00:36:08] Speaker B: Do I pat dogs when I, when I walk past them?
[00:36:10] Speaker C: Right.
[00:36:10] Speaker B: I mean, you know, I mean, of course. I mean, as a lawyer, I would be astonished if a judge asked any of those questions. But I'm a lawyer, right? I've been in courtrooms before, plenty of times. Marilyn, comment on that.
[00:36:20] Speaker C: So two, you know, one of the things we haven't talked about is where that notice of hearing goes. So the notice of hearing goes to victims of the crime.
So it, it could, you know, that. That's a whole nother. If a victim shows up and says, this person continues to harass me, or, you know, whatever the statement is that that little catch is the place that the judge could say, okay, even though there's no new crimes, you know, you're still a jerk. So we're not going to grant it. But the, the most recent, just flabbergasting one, is a judge found an arrest warrant for not showing up in court on a child support case in a different county.
And while he didn't deny the expungement on that basis, he was unwilling to grant it until my client dealt with his arrest warrant for not coming to court about child support in a different county.
So Hannah asked for a worse story. And that's my current low level of ridiculous reason, because I was like, judge, maybe he can't pay his child support because he can't get a better job because he has this conviction.
[00:37:44] Speaker B: But that you anticipated. My next question, why is it that many people want expungements? Many people say they wanted to get a better jobs, then they can earn more money to get you to pay, you know, to pay their child support. Right. So this becomes another sort of indirect debtors prison.
Okay, so, Hannah, keep going. Then we have the hearing, right? And then. And we filed the papers, right? And we've had the hearing. What now?
[00:38:09] Speaker D: So if the judge orders the expungement, then it will.
[00:38:13] Speaker B: You're done, right? You're finished.
[00:38:15] Speaker D: I wish I was gonna say I have some more bad news.
So it'll take. Well, the good news is that it only takes two to four weeks for the Kansas Bureau of Investigations to basically process the expungement and update the individual's, I guess, you know, Official criminal history record.
However, there are a bunch of private agencies which anyone can access if you go online to basically look up someone's criminal history. And, and the Kansas Bureau of Investigations takes no responsibility to notify those private agencies that the, that the conviction has been expunged.
So you could have, you could have successfully obtained an expungement from a court in Kansas. But if your, you know, potential employer or a landlord is using a private search engine to search for criminal convictions, your prior conviction that has now been expunged could still be showing up and you could still basically have that, that barrier to you accessing, you know, employment or housing.
[00:39:27] Speaker B: So this could be anything from mugshots.com to the credit reporting bureaus to, you know, Experian or TransUnion or something like that. They might have this information.
[00:39:37] Speaker D: Correct. And then. Oh, please, go ahead.
[00:39:39] Speaker C: Sorry. At least the credit reporting agencies will take it off, generally if provided the expungements. You know, mug shots before. Right. Mugshots is in business to extort money from you to get your arrest photo off. And they will not take it off just because it's been expunged.
[00:39:56] Speaker B: Good. So, Hannah, keep going.
[00:39:59] Speaker D: I was just going to add that now you have your next assignment, which is you as the petitioner actually need to go ahead and contact any of those private record check agencies that are causing you a problem and inform them that your expungement has been.
Your expungement has been granted, your conviction has been expunged. So it's not over once you get that expungement.
[00:40:23] Speaker B: And Marilyn, Hannah mentioned the kbi, which is the Kansas Bureau of Investigation, the sort of state equivalent of the FBI.
And am I right, it basically accumulates records from courts from, from, from, from, from the court system and, and from, and from arresting agencies from the, from the cops. Right.
But, but, but that suggests to me that the KBI is not the only source of these records. In other words, that's not the only, that's not the only government source that has records of prior criminal justice involvement.
[00:40:58] Speaker C: Right. So, and online records. So the kbis are, you know, only available for cost, not you need to.
[00:41:06] Speaker B: Pay a fee to get them. In other words, you have to pay $20 to get a download of someone's, quote, criminal record. But the criminal record is just the criminal record from the kbi.
[00:41:16] Speaker C: Right, Correct. And so one of the things that trips people up is that they have to. That the Department of Corrections maintains a website and they will take people off if they're informed of the Expungement. But you know, we're talking about getting paper from courts to the KBI, to a different branch of government and that is not always seamless. And so again, as a practitioner, I have to go, you know, check the KBI's website and I mean check the public, there's a little public part of the KBI website for certain kinds of convictions and then further go check Casper is the name of the Department of Corrections site. And if there's a problem, I know what to do about it. But you know, a petitioner, a non representative petitioner is not going to do that. I do want to say one more thing. Hannah has done a great job about people who have hearings.
It's almost worse for people who don't have hearings because at least with a hearing there's a time a judge is prepared to deal with your case if you get an agreement. I mean, again, I know and I have the ability to submit that order electronically to a judge and it's going to sit there in their, in their queue to sign. But if you don't, you have to go behind whatever security system there is that keeps judges safe in their courthouse, talk to their secretary, leave the signed order, get the who and hopefully the secretary will get the judge's signature on this agreed order. Then they might call you back to make another trip to the courthouse to walk it from their desk to the clerk's office to have it processed.
So maybe the secretary feels like they're willing to take that, you know, two step, two floor walk. But maybe they'll, they're going to call you back to come do that walk.
[00:43:23] Speaker B: To move something from one floor of the courthouse to another floor.
[00:43:27] Speaker C: Exactly, exactly.
[00:43:28] Speaker B: Super.
No, super. Fantastic. That's what I should be right. So okay, so then, and so, and then we've got again, just don't want to lose track. There are the online court, through the online court system itself, which you should, you should make sure is being scrubbed as well of the information.
[00:43:47] Speaker C: Right.
[00:43:48] Speaker B: Is that correct?
[00:43:49] Speaker C: Yeah, and that's, I really have to say, I mean it's a potential for a problem, but I've never, I've never had, I've, I've had one or two times when I've had to call a clerk back and say, hey, you missed this one. It should be locked down.
[00:44:07] Speaker B: We may have another one for you by the way, based on some research we were doing for our study that we want you to investigate just this morning.
[00:44:14] Speaker C: Okay, happy to do that.
[00:44:17] Speaker B: Just to mention and preview one problem, one potential issue that's coming in a report, the large report that we're going to be filing as a result of the research we're doing. We also ran into issues with the KBI records where they have a separate system of recording incarceration from conviction and court proceedings. You since incarceration could only occur after a court proceeding, it should be that the incarceration is linked to a court proceeding. But we found instances in which the it was unclear from which court proceeding the incarceration stemmed, the incarceration resulted. And as a result from that, even though all of the court proceedings were cleared, they were all gone from the record. We still saw incarceration information in the KBI record because the KBI took the position that it could not clear the incarceration information unless it knew which court proceeding had been cleared.
And since it couldn't link the two events in any way, it refused to clear the record of the incarceration even though all of the court proceedings had been cleared. So there was no, there was nothing it could rest on. But they still wouldn't clear it. They still wouldn't, wouldn't scrub the record. So it's not as though you're in that. And that would require potentially further advocacy, maybe going and talking to someone. So this is still going down the line. Okay, so this is the. And so I just want to round back to where we started. You know, Marilyn, I'm just curious, have you, have you been able at all, or has you been able to take any of this information or the set of processes or anything and say, go back to the people who said this is all so easy.
Why would we need to simplify it? Why would we need to automate it or whatever it is? Have you been able to go back to them and say, maybe not?
[00:46:07] Speaker C: No. But that opportunity is coming up. The legislative session starts June 12, January 12. And I am armed with my copies of this article and Hannah's good work.
And we're going to be doing some, doing some advocacy in the expungement area.
[00:46:28] Speaker B: Super. And then, Renee, let me come back to you because this will be previewing some future podcasts, proof over precedent podcasts.
Being the ghouls that we are in the Access to Justice Lab as researchers, we took advantage of the difficulties that this process, in other words, to produce science. How did we do that?
[00:46:55] Speaker E: I cannot claim Gould status.
[00:46:58] Speaker B: I'll do that.
[00:46:59] Speaker E: I'll start there.
I think really what we are trying to do is kind of expand on Hannah's good work and highlight just how difficult it is, but we thought, we suspected even before we wrote this article because we developed this project in 2019 with Marilyn. We suspect that it is easier for someone with a lawyer to get an expungement than somebody without a lawyer, even with really well developed and in use self help materials, which Kansas Legal Services had. They had already developed an online guide and file type of system, an online interview to develop expungement petitions to comply with the petition based expungement requirements.
So we randomly assigned folks who received lawyer versus these existing self help materials to get an expungement. And we suspected that people who had the lawyer would be successful and that if they were more successful and more successful to a certain degree, we would be able to effectively randomly assign expungement.
[00:48:16] Speaker D: Right.
[00:48:16] Speaker E: And then we could tell the effect of expungement.
I don't think we could have ever expected how big of a gap there would be.
But this Hannah's work, really uncovering the full scope of this process and going through it detail by detail here today, I think probably helps everyone to understand that. But it was such a difference and I'm looking forward to this report coming out. It is such a huge difference in success rate that we really can tell the difference, the effect of expungement by using this statistical method called an instrumental variable, with the instrument being the lawyer, the lawyer's assistants.
So you know, and you know, coming out of that, what. What Marilyn will work on with the legislature is deciding like do we want to increase our, you know, support of legal services attorneys? Because these are folks who can't afford their own attorney.
Because there's absolutely. They just.
Folks cannot clear their record without a lawyer, by and large. Or do we want to make this process easier? Those to me seem to be the two options available to the legislature at this point.
[00:49:41] Speaker B: I mean we can. And we can go ahead and preview by the way, just as a. Just as to address, I think the thing that may be occurring to many of our listeners. How could you possibly ethically do this? It was ethical because there were too many people. There were more people than Kansas Legal Services could, Could. Could provide full representation to. There were. So it was an over subscription situation. There were way too many people who are coming in and in. In the context of a scarce resource where you can't provide the resource to everyone.
It is almost all people who have thought about the issue, say randomizing who gets it is one ethical way to, to distribute that resource, which is basically what we did.
[00:50:21] Speaker E: Absolutely. And that's really evidenced by the fact that Kansas Legal Services had already created this kind of robust self help materials that they were directing folks to when they, when they didn't have capacity to serve them. And you know, random assignment actually is a little fairer when you think critically about it than a first come, first serve kind of method which a lot of legal services agencies do deploy, you know, for good reasons. But this, this actually gave everyone the same amount of chance. Right. To get the service right.
[00:50:51] Speaker B: And we can preview this, the, the statistics that will be coming out in the, in this report that were mentioned on this larger research project about the effect of expungement.
The success rate after two years of enrollment with Kansas Legal Services for folks who were randomized to self help despite the excellence of Kansas Legal Services self help materials was around 7.7%.
So under 8% of folks after two years were able to achieve expungements with Kansas Legal Services representation. It was more than 10 times that amount.
It was 81% actually. 82%.
So it was just an enormous, you know, just an absolutely enormous difference. And again, we do a lot of self help material work at the Access to Justice Labs. We've seen a lot of self help materials that are quite frankly awful that only lawyers could use. Kansas Legal Services materials did not fit into that category. They were, they were well done from start to finish. And despite that two year we, we only had about less than 8% of people getting, getting record clearing two years after they were fully enrolled with Kansas. And then RAND applies to self help.
So.
Go ahead. Sorry, go ahead. Renee.
[00:52:07] Speaker E: Yeah, I was just going to say, I mean one thing that Kansas Legal Services added as a component to the self help group that we, they added for the purposes of this research or in conjunction with starting this research is that they also offered a 30 minute consultation for clients that completed their materials to help them understand what the next steps were, which seems pretty necessary based on what we discussed here, but also, you know, just to also review them for completion, completeness and even getting to that point was difficult for folks.
[00:52:39] Speaker B: Yeah. And it's far more than most people in a legal services setting ever receive. The combination of self help materials and the half hour consult, then I think we'll leave it there. But let's get final words from each of you. Renee, we'll ask you to go first. What? Any final thoughts before we sign off?
[00:53:00] Speaker E: I will correct a little bit of the record and just for the court folks who are out there saying I've betrayed them, in fairness to courts, I don't think they have the badge number either.
[00:53:12] Speaker B: No, that's the cops that have that you have to call. That's even worse. You have to call the court for some pieces of information they already have. Then you have to call the cops. Right. Or contact the cops and try to find the right person. Yeah, absolutely.
Super. Marilyn, final thoughts from you.
[00:53:29] Speaker C: You know, I think this work has been highly instructive for me. I have been like you know, for years trying to expand resources for people and thinking that self help materials can help bridge the gap. And I have in fact seen that fairly effectively in the divorce context. So why wouldn't it work in expungement? And it has been very eye opening to me to realize that that self help is not, It's not even helping clear off the low hanging fruit, the folks who maybe can do it themselves.
8% just says nobody can do this or virtually nobody can do this. And so it's opened my eyes a lot to not having self. Not having self help materials be available. I mean, that's not even a band aid.
[00:54:36] Speaker B: It's something that we may want to invite you back on Proof over Precedent to discuss, Marilyn, because we're doing some research in other settings and trying to tease out when it is possible for self help materials to provide some differences in success rates. In other words, to provide the hard help that people need.
So far, the evidence on it I'll just preview is completely awful.
There is emerging good, high quality randomized evidence and none of it looks good so far. So it's just something we want to invite you back for.
Hannah, the final word from you.
Sure.
[00:55:11] Speaker D: I guess going through these steps and looking at the data, I guess it's easy to be a little bit discouraged how difficult this process is, but I'm actually encouraged by the high percentages of people that were able to achie expungements when they had help from an attorney. So I think, you know, even as an attorney myself, like I don't want to use self help. I just want someone to. I would, I would want someone to, who specializes in this to help me. And of course that's, you know, that's the, that's what everybody deserves.
So hopefully this work and the work that the Access to Justice Lab is doing will, will help make those resources more available to people because it does seem like, like when the attorney help is available, then high percentages people are able to obtain the expungements, which we know is good for everybody.
[00:56:02] Speaker B: Either more available or less necessary.
Correct. One of the one or the other, and I think, I think it's got to be a combination of both. But I think we've got to have a big, big focus on on Less Necessary as well.
Yep, terrific. Thank you so much to all three of you. We're going to leave it there for Proof Over Preston and again, Marilyn Harp, Hannah Crowe, Renee Dancer, thanks so much.
[00:56:23] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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[00:56:49] Speaker E: We wanted to understand the effect of expungement or record clearing on housing security and employment stability.
But to do that, we couldn't really randomly assign whether or not someone received a record clearing remedy.
So we needed to identify a way that we thought individuals would be more likely to receive a record clearing remedy and randomly assign that.
