Expungements, or the sealing or destroying of criminal convictions from state and federal records, is currently available in Oklahoma under a narrow set of circumstances. It is available to those who have been acquitted, those who have obtained a dismissal after reversal on appeal, those who have had factual innocence established by DNA, those who have had their misdemeanor or felony charges dismissed after the completion of a delayed or deferred sentence, and those who have completed their misdemeanor or felony sentences without any new arrests in an established time period, to name a few.
However, currently 94% of Oklahomans that are eligible for expungements under Oklahoma law have not received one. As the Oklahoma State Bureau of Investigation states in the FAQ section of their website, “[t]here are specific paperwork, notice, and legal requirements necessary in order to successfully petition for an expungement of your arrest records. The OSBI strongly suggests you get a lawyer to advise you of the proper actions to take.” The current system of obtaining an expungement is unnecessarily opaque and requires significant resources dedicated to employing a lawyer to navigate the system. This creates a situation where hundreds of thousands of eligible Oklahomans are not able to obtain an expungement due to a lack of knowledge about the process and a lack of resources to hire an attorney. This is hardly an Oklahoma specific problem, as a study in Michigan found that only 6.5% of those eligible to obtain an expungement, received one within the first five years of eligibility.
Why are expungements important?
Oklahoma, along with many other states, has an extremely low expungement uptake rate. This is a dire situation because of the enumerable benefits obtaining an expungement can have on the life of a former criminal defendant. First, a study by the MIchigan Law Review found that recidivism rates of those who received expungements were exceedingly low, with only 7.1% being rearrested within 5 years of receiving their expungement. Further, only 4.2% were convicted of another crime within 5 years. The numbers are even lower for those arrested for violent crimes, 2.6%, and those convicted of violent crimes, 0.6%. These figures make sense when one considers the correlation between poverty and violent crimes.
Beyond recidivism rates, obtaining an expungement has numerous economic benefits. According to the Oklahoma Policy Institute, within two years of receiving an expungement, personal income rose by 25%. This is consistent with findings in Michigan, where within one year of receiving an expungement, individuals were 13% more likely to be employed, 23% more likely to be earning at least $100 per week, and had their quarterly wages increase by 23%. This is likely because, in the United States today, 9 out of every ten employers, 4 out of 5 landlords, and 3 out of 5 colleges, nationwide, conduct a criminal background check on applicants. Moreover, criminal records reach across generational lines. For example, boosting a child’s family annual income by just $3,000 leads to a 17% increase in annual earnings for that child in adulthood, and children with two or more negative experiences with moving during childhood are 13% less likely to finish high school and 60% less likely to obtain a college degree compared to children who never moved.
However, the benefits of expungement are not limited to the individual who seeks it but also exist for the local community in which that individual lives as a whole. As stated earlier, expungement decreases the likelihood of recidivism while simultaneously decreasing incidents of violent crime, thereby increasing public safety. Further, expungements can act as a boost to local economies. It is estimated that the United States loses 87 billion dollars in GDP annually from keeping those with criminal records out of the workforce. According to a Stanford University study, the benefits of expungement, in the form of increased tax revenue and decreased spending on public assistance, outweigh the costs at a rate of $5,800 per person every year. In fact, if not for mass incarceration and the financial difficulties of having a criminal record, the nation’s poverty rate would have dropped by 20% from 1980 to 2004, saving millions in public assistance costs. Further, these issues are a significant driver of racial economic inequality with African-Americans making up 26% of the prison population compared to 7% of the general population, and Latinx individuals making up 15% of the prison population compared to 9% of the general population.
HB3316
Oklahoma’s legislative session begins on February 7, 2022, and Representative Nicole Miller has filed HB3316, in an effort to make expungements automatic. The law would make those eligible, except for those receiving a pardon, or those that have been convicted of a non-violent felony, to automatically receive an expungement without expanding the eligibility criteria. The new law would also allow a law enforcement or prosecutorial agency to object to an automatic expungement if they have reason to believe a case is not eligible for automatic expungement, the defendant has not paid, in full, any court ordered restitution to the victim, or they have reason to believe the former offender is currently engaged in criminal activity. The new law will make no changes to those convicted of violent crimes.
Automatic expungement of this sort would act on a dual front. It will lighten the load on an already overtaxed court system, as judges and attorneys would no longer need to hear and argue over expungement petitions, while simultaneously providing economic benefits to the individuals who obtain an expungement as well as their communities as a whole. HB3316 is a step towards decreasing recidivism, increasing public safety, and providing an economic boost to the state as a whole.
