JUDGE BENHAM SIMS Ret. CALLS FOR EXPUNGEMENT REFORM AND EXPLAINS SB 79

By Benham Sims – Feb. 15, 2013

I was surprised to learn today that 1/2 of all the Appeals Jefferson County Attorney Mike O’Connell’s office filed last year were Appeals to expungements orders.

Can you imagine any other prosecutor in the United States devoting that much time to object to people trying to move on with their lives, wanting to get a job to provide for their family?

According to the Clerk’s office the County Attorney appealed about 50 cases in 2011. In 2012, the County Attorney filed 147 Appeals! Almost 70 appeals were Expungements-that represents 20% more expungement appeals then all the criminal appeals filed by his office the year before!

If O’Connell was really interested in seeking guidance from the court-why did he not ask the Supreme Court for a Certification of the Law? For those of us who are lawyers, the answer is obvious. Most of the Appeals involve people who were not represented by lawyers, who cannot afford a protracted legal fight that will cost them thousands of dollars and take years to be resolved by standard appeals, and do not want to risk public scrutiny of a mistake they committed years ago. His legal tactic is to bleed out those seeking to expunge. There is no other explanation and there is no excuse. His behavior in one word can be summed up as “disgusting”

The Courier Journal criticized O’Connell’s position (See editorial copied below). The original sponsor of the Expungement Statute House Judiciary Chairman, Mike Bowling called O’Connell’s position “absolutely ridiculous…the who reason we wrote the law was to help people move on”. After much public and private criticism, he assured Labor that he would address this issue in the General Assembly.

As an interested person who incurred Mike’s wrath including several ugly comments in letters to Labor I was most interested in his response. Most elected officials when called on the public carpet for their mistake, call a group of interested people, including often critics of their policy, to work together to address the problem. O’Connell did not do this. Instead of rescending his policy as advocated by Labor and the Courier Journal, and working with labor to address the issues and problems with Kentucky’s antiquated expungement laws, O’Connell merely drafted a bill that addressed the violation language issue and nothing else. A cynical person may say that all he did was provide statutory coverage for his policy change. http://www.lrc.ky.gov/record/13RS/HB50.htm

I am writing to you to ask for your help in order that we may together help thousands of other Kentucky families. Sixty Five million Americans have a criminal record-that translates to one in four adults who have some offense on their criminal background. Today, ninety six percent (96%) of all employers run criminal background checks on job applicants. Fifty percent (50%) of the employers will not even offer an interview to someone with a criminal background. Their application or resume is as good as in the garbage. A new disturbing trend involves employers running criminal background checks on current employees. In today’s society you cannot volunteer at your daughter’s school, on your son’s little league team, or at your church without a background check. Many of my clients do not want the school receptionist or the Little League Manager to know if they have a petty offense from years ago. Misdemeanor and violation convictions were never meant to be a life time sentence, but with a few clicks of an employer’s computer mouse your life’s mistakes can be exposed to all.

Kentuckians have a unique ability to understand what is fair. In our criminal justice system we need to act likewise. We should allow those who commit minor crimes to pay their debt to society, learn from their mistakes, change their behavior and move on with their lives. What parent has told their 17 year old, “You can’t go to prom, because when you were 12 your were disobedient!” A parent does punish conduct that occurred years ago because it would not be fair, it would not be proportional, and it would not cause the desired correction. For too long, we in this state have failed to address a growing problem of our fellow citizens being denied good paying jobs with good benefits because our expungement laws were drafted years before the internet age. I am asking you to help me educateour State Senators and State Representatives.

Last week State Senators Julie Denton, Robin Webb, Denise Harper Angel, Kathy Stein filed Senate Bill 79 that reforms and modernizes Kentucky’s expungement law. They will need your help in securing the support of other State Senators and State Representatives. In certain circumstances, and after judicial review, Senate Bill 79 law will permit those who have more then one charge on their record to secure an expungement of a violation or misdemeanor 5 years after a finding of guilt by the court. Under the new law, a plea or pleas to a minor crimes will no longer be a life sentence. I have attached a copy of the bill for your review. http://www.lrc.ky.gov/record/13RS/SB79.htm The bill will only pass if citizens of this state call, email, and write their elected leaders in Frankfort and tell them their life story and how a criminal charge has personally impacted their ability to provide for themselves and their family. I hope you will cut and paste this letter and insist that your close friends and family also contact their state senator and state representative.

Contacting your representative is very easy. If you are a registered voter, click on the Kentucky State Board of Elections Voter Information Center https://cdcbp.ky.gov/VICWeb/index.jsp and merely type in your name and date of birth, click on the “submit” button and links to your House District and Senate District will appear along with the House and Senate District Numbers. For example, I live in the 48th House District and my State Representative is Bob Deweese. When I click on his name, I received his contact information including his email and phone numbers. Call and email your State Representative and State Senator today. Five minutes of your time may mean the difference in passage of this bill.

The proposed expungement legislation, Senate Bill 79, http://www.lrc.ky.gov/record/13RS/SB79.htm, amends the current law in a number of significant ways:

1. Senate Bill 79 amends the current definition of “violations” so that prosecutors cannot not use a mere speeding ticket to object to the expungement of a criminal record.

2. Senate Bill 79 recognizes that all of us make mistakes and those of us who have committed minor criminal offenses(Violations and Misdemeanors) should be allowed to pay our debt to society and after a period of good behavior erase the conviction for our past mistakes.

3. Senate Bill 79 addresses an omission in the current law that prevents thousands of Kentuckians who have been charged with felonies that were dismissed in District Court, or the Grand Jury refused to indict, or the prosecutor dismissed from expunging their charges. The current law provides no mechanism to expunge the felony charge. This is fundamentally unfair and Senate Bill 79 provides a procedure for those charged with felonies that were dismissed to expunge their record and restore their good name.

4. Senate Bill 79 preserves the right of police agencies and prosecution agencies to maintain records for legitimate investigative and record keeping.

5. Senate Bill 79 provides a protocol for the courts to insure that all parties (prosecutors, victims, and the person seeking the expungement) have an opportunity to be heard on whether an expungement should be granted or not.

6. Senate Bill 79 recognizes that other states are granting expungements to their citizens and unless Kentucky also joins their ranks, our citizens will face a significant disadvantage in competing for jobs with out neighbors.

7. Senate Bill 79 recognizes that minor offenses and violations should not be a life sentence. The law recognizes a common truth that:

People make mistakes and mature, people learn from mistakes and lives are changed by sobriety, education, faith or parenthood. If a person has committed a crime, paid the debt to society and broken no laws for five years, how does it serve the public to prevent that person from finding a good job?

The crimes we are talking about include cashing a bad check, failing to return a rented TV on time, shoplifting as a part of a high school or college prank, driving under the influence or experimenting with marijuana. The individuals seeking expungement are not habitual criminals; they are us. How many people are denied or fail to seek better jobs with better benefits which help families? For these individuals, life becomes a vicious cycle of job rejections and despair so that they will never enjoy the fruits of their education or their willingness to work hard. I hope you will work with me to help Kentucky families. All it takes is a phone call, letter, or email. I urge you to call your State Senator and your State Representative today.

Note: LawReader has invited the Jefferson County Attorney to comment on Judge Simms article and to make any posts he wishes on this topic.

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