Expungement Expansion: Missouri Makes More Misdemeanors Moot.

• Author: Lee, Raymond

1. INTRODUCTION

   If you live in Missouri and want to be a barber, (1) a social worker, (2) or an interpreter for the deaf community, (3) you better not have a criminal record. (4) The State imposes licensing restrictions on those professions and approximately fifty others based in part on a person's prior criminal convictions. (5) This means that those with even minor criminal offenses in their history may face significant challenges in finding a job. This sort of regime is not specific to Missouri--every state in the nation has some form of employment restriction based on citizens' criminal records. (6) The effects of a criminal record are not limited to potential employment concerns but can extend to other aspects of life, including the loss of civil rights such as voting, (7) the ability to serve on a jury or hold an office, (8) and the ability to possess a firearm. (9) Further, a criminal record can have an impact on a person's ability to rent an apartment or get into college. (10) Often compounding these negative factors is the social stigma that accompanies having a criminal record.

   On July 13, 2016, then-Missouri Governor Jay Nixon signed Senate Bill 588 into law, which expands the opportunities available in Missouri for the expungement of criminal convictions from a person's record. (11) The new law went into effect on January 1, 2018, and encompasses nearly two thousand misdemeanor and felony crimes now eligible for expungement, which is the process of removing a conviction from an individual's criminal record. (12) The new law makes it easier for former offenders who have completed their sentences, paid restitution, and become law-abiding citizens to petition the court in which they were convicted to close their criminal records to the public. (13)

   This Note evaluates the evolution of Missouri's expungement law. Part II identifies the consequences of living with a criminal record and addresses the socioeconomic impacts it can have, as well as its impact on civil rights. Part III details the passage of Senate Bill 588 and its effect on the expansion of expungement in Missouri. Finally, this Note argues that, while Missouri's expungement expansion represents a laudable step towards restoring the rights and opportunities of its citizens, the law nevertheless remains a work in progress. This Note additionally offers recommendations to further broaden expungement in Missouri by making it more widely available, encompassing, and robust.

2. LEGAL BACKGROUND

   This Part details the wide array of consequences that living with a criminal conviction can have on an individual. This Part further discusses the recent growth of criminal record expungement and sealing and details why these methods have become popular tools for lawmakers to turn to. Finally, this Part discusses the history of criminal record expungement in Missouri prior to the passage of Senate Bill 588.

   1. Consequences of Living with a Criminal Record

      Nationwide, as many as one in three adults have a criminal record that reflects some form of involvement in the criminal justice system. (14) Given Missouri's current population of more than six million residents, (13) that percentage amounts to over two million of our friends, family members, neighbors, and also complete strangers who have had at least a minor skirmish with law enforcement officers.

      1. Socioeconomic Impact

         In many occasions, this population faces a glut of "collateral consequences" beyond the sentences, if any, in their criminal cases. (16) The most notable of these consequences are employment barriers. (17) State and federal laws bar individuals with certain convictions from working in a wide range of professions, from everyday vocations - such as long-term health care, child care, schools, and transportation - to more obscure occupations, like handling fireworks or fitting customers with hearing aids. (18) In several other career paths, criminal convictions can prevent workers from obtaining or retaining mandatory occupational licenses. (19) Even in unregulated occupations, the rejection of job applicants with criminal records remains extremely common. (20) The use of background screening has become ubiquitous; surveys reveal that upwards of ninety percent of employers use criminal background checks in their hiring decisions. (21)

         Higher education and housing arc not far behind. As many as two-thirds of colleges collect criminal history information from applicants during the admissions process. (22) It is estimated that eighty percent of landlords conduct criminal history checks on prospective tenants. (23) When these consequences are considered en masse, it is no surprise that criminal records arc a major stumbling block for those trying to escape poverty. (24)

      2. Impact on Civil Rights

         Any felony conviction brings with it a wide range of negative consequences--everything from the severe social stigma of being labeled a "felon" to the possibility of jail time and the wide array of post-conviction hurdles, such as difficulty finding a steady job or an apartment to rent. (25) However, when discussing the consequences of a felony conviction, what is often overlooked is the fact that felons are stripped of many of their civil rights. (26) In Missouri, like most other states, the loss of rights that accompany convictions can follow an offender long after his or her debt to society has been paid. (27)

         Under Missouri law, a person convicted of a felony offense may not vote while serving a prison sentence or while on parole or probation. (28) Similarly, misdemeanants are also disenfranchised; however, their voting ban lasts only as long as their prison sentence. (29) Consequently, nearly 90,000 Missouri citizens are currently disqualified from voting. (30) In Missouri, a person who is convicted of a felony or any misdemeanor involving misconduct in office or dishonesty also forfeits the right to hold any elected or appointed public office. (31) Missouri law also dictates that a felony offender is permanently disqualified from jury service unless pardoned. (32) Further, purchase or possession of firearms is unlawful for a person "convicted of a felony under the laws of [Missouri], or of a crime under the laws of any state or of the United States which, if committed within [Missouri], would be a felony." (33)

         While current Missouri law does automatically restore voting rights and the right to hold public office to most individuals who have been convicted of a misdemeanor or felony upon completion of their sentences and/or probation, (34) such restoration of rights is not universal. For instance, when a person has been convicted of "a felony or misdemeanor connected with the right of suffrage," these rights will not be restored. (35) Further, as long as a felony remains on a person's criminal record, that person's rights to purchase a firearm, possess a firearm, or serve on a jury can never be restored unless he or she is pardoned. (36)

   2. Methods of Remedying the Collateral Consequences of Conviction

      A great deal of the collateral consequences that accompany a criminal record are life-long. (37) However, people with criminal records who develop a track record of avoiding future criminal endeavors do not present an ongoing risk to the community for more than a few years. Studies show the rate of an individual with a prior criminal record reoffending (38) falls below the rate of arrest for the general population after approximately four years of abstaining from crime. (39) This Section discusses the solutions that some states have put forward to help ease the ongoing burden of living with a criminal record.

      1. Policy Solutions

         Mindful of how the economic challenges discussed in Section A affect such a large number of people--most of whom have paid their debts to society and present no current threat--policymakers across the country have sought avenues for mitigating these barriers. At the federal level, progress has been virtually non-existent. With the exception of guidance issued by the United States Department of Housing and Urban Development ("HUD") stating that blanket prohibitions by landlords who turn down tenants based on their criminal records are a violation of the Fair Housing Act, (40) no significant steps towards remedying the collateral consequences of criminal records have been taken at the federal level. However, attempts at remedying collateral consequences at the state level have gained much more traction. (41)

         One notable policy solution the State of Missouri recently enacted in 2016 is "ban-the-box," which seeks to eliminate bias against individuals with criminal records by advocating to remove the "box" that job applicants typically must check if they have a criminal history. (42) While ban-the-box represents a "statewide step in the right direction," it is limited in its scope in that the underlying offenses that caused the need for criminal history anonymity remain unscathed on an individual's record and thus still very much exist. (43) Moreover, even when remedies aimed at curtailing the consideration of criminal records in the hiring process exist, they are not self-executing. (44) For instance, an employer must first know about and understand a remedy such as ban-the-box and then also have both the ability and the willingness to apply the remedy properly before a job applicant can benefit from it. It comes as no surprise that many employers fail to fully utilize these remedies. (45)

         Another new and innovative tool that some states have turned to is the certificate of relief. (46) A certificate of relief is meant to demonstrate that an ex-offender has been rehabilitated based on meeting certain statutory requirements, and it carries effects such as removing automatic licensing bars, providing a judicial testament of good character, and protecting employers from negligent hiring claims. (47) While empirical studies have concluded that certificates of relief...