Expungement law sought by criminal justice reformers

Fresh out of prison, where he’d just finished a year-and-a-half stint in prison for stealing a relative’s car, Adam Rose walked into a Starbucks inside a grocery store in Safford to apply for a job.

Rose, who was imprisoned at age 20, had been a barista before he was locked up, and thought Starbucks would be a good fit. The interviewer loved him and things were going great until they got to the end of the interview, when she asked if he’d ever been convicted of a felony.

“I’ll never forget the way she looks at me, and her voice changes and she says, ‘Oh, I’m sorry, we don’t hire felons. You can leave,’” Rose said.

Rose had only been out of prison for a couple weeks when he had his wake-up call at Starbucks. Today, he works as a chef after getting a job through GAP Ministries, a non-profit organization in Tucson that provides social services.

But for many, that stigma doesn’t go away.

Years after their sentences end, people with felonies on their records are often precluded from getting decent jobs and housing. Frequently, employers don’t want to hire felons and landlords don’t want to rent to them, making it harder to re-adjust to life after incarceration and more likely that ex-convicts wind up behind bars again.

Situations like that are on Rep. Ben Toma’s mind as he heads into the 2019 legislative session. Toma, R-Peoria, hasn’t yet finalized all the details, but the overarching idea is to allow felons with nonviolent records to expunge their convictions after five to seven years. Prior convictions would still be visible to law enforcement, but would be shielded from others.

That means those records would no longer be counted against them when it comes critical needs such as employment and housing.

“From a legal standpoint and from a procedural standpoint, the goal is to eliminate the scarlet letter effect,” Toma said.

The proposal wouldn’t affect recently released inmates such as Rose at the time of the Starbucks incident. But for people who have kept clean records for years after their release, the proposal would effectively wipe the slate clean.

Lawmakers tackled a similar issue during the 2018 legislative session. House Bill 2312, sponsored by Rep. Eddie Farnsworth, R-Gilbert, makes it easier for people to have their felony convictions set aside, a legal process similar to expungement. But a set-aside falls far short of what Toma and other expungement advocates want to do.

Farnsworth, who is moving to the Senate and will chair the chamber’s Judiciary Committee, which will likely hear any criminal justice reform bills next session, said he’ll have to review Toma’s proposal before he can comment on it.

“Set-aside is a little different than expungement. That’s why I’m going to have to see the scope of his bill and what it really means,” Farnsworth said.

The notion of expungement already has one powerful skeptic.

Yavapai County Attorney Sheila Polk, a frequent critic of justice reform proposals, said she supports the “ban the box” policy that Gov. Doug Ducey implemented in hiring for state government jobs in 2017, which prohibits would-be employers from asking about felony convictions during the initial part of the hiring process. And she said government should combat recidivism by helping people with felony convictions on their records.

But Polk said it’s not the government’s place to hide information that employers and landlords might find important.

“I certainly support the notion that, once somebody has paid their dues, that we need to help them lead productive lives. But I just have a problem with the idea that a potential employer doesn’t get to learn information that they might find relevant to the job,” she said.

At least one traditional critic of justice reform is keeping an open mind. Maricopa County Attorney Bill Montgomery is amenable to expungement, depending on how far it goes.

Montgomery wasn’t keen on the idea of simply eliminating employer and landlords’ ability to see a conviction that had been expunged. He noted that convictions still leave other digital footprints, and determined searchers would still be able to find many of them, even if an applicant for a job or an apartment doesn’t disclose them.

But he suggested that, rather than seal or expunge felony convictions, they could be annotated to inform employers, landlords or others that those convictions had been effectively vacated, and that they can’t legally discriminate against an applicant because of them. That prohibition could be enforced in the same way that other anti-discrimination laws are enforced, he said.

“If there’s a way to allow someone to be able to legally say, ‘I don’t have a felony conviction,’ when seeking employment because they’ve been crime-free for a period of time, I think that encourages rehabilitation. It encourages people to make amends and I think contributes to reducing recidivism,” Montgomery said.

Toma acknowledges that the bill is likely to face some opposition. But he’s hopeful that it will garner enough support to pass without undergoing changes that would limit its effectiveness. He believes lawmakers will be more amenable to a proposal that helps former convicts after their release than they will to proposals that make changes to the front end of the criminal justice system, such as planned push for sentencing reform.

“I feel pretty good about it now. Conceptually, I think we definitely can pass something. My personal concern, though, is to make sure that whatever it is that we pass is significant and it doesn’t somehow get watered down to the point where it doesn’t mean much,” he said.

Toma has been working with other criminal justice reform advocates on both sides of the partisan divide in preparation for the 2019 legislative session. He and other members of the disbanded Ad Hoc Committee on Criminal Justice Reform – Reps. Kirsten Engel, D-Tucson; Tony Navarrete, D-Phoenix; Tony Rivero, R-Peoria; and David Stringer, R-Prescott – have several bills they plan to run this year, including one that would reduce marijuana possession from a felony offense.