Should poor people have to pay a fee to get their felony record erased in Kentucky?

Thousands of Kentuckians are prevented from cleaning old felony convictions from their backgrounds because the state requires $340 in fees they can’t afford to pay, the Kentucky Supreme Court was told on Wednesday.

The high court heard an appeal from Frederick Jones of Jefferson County, who in 2018 asked to have a 20-year-old felony theft conviction expunged from court records.

In 2016, the General Assembly passed a law allowing certain nonviolent Class D felonies to be removed from public record if applicants wait five years after completing their sentences. State law already allowed the expungement of misdemeanor convictions.

However, Kentucky charges fees as part of this process. Currently, that includes a $50 filing fee, a $40 certificate of eligibility fee and a $250 expungement fee that is split between commonwealth’s attorneys, Kentucky State Police, the Administrative Office of the Courts and the Kentucky Department of Libraries and Archives.

Jones said he could not afford the fees. He argued that under Kentucky’s in forma pauperis statute, judges are allowed to let poor people proceed with court actions at no cost. But a Jefferson Circuit Court judge and, later, the state Court of Appeals ruled that Jones had to pay, in part because legislators who wrote the 2016 law did not explicitly state that the fees could be waived.

As of Jan. 1, 3,223 expungements had been granted under the 2016 law, according to state courts data. There are an estimated several hundred thousand Kentuckians with felonies on their record, although many have multiple convictions or committed more serious offenses than the expungement law covers, so they are not eligible.

Arguing before the Supreme Court on Wednesday, Jones’ attorney, Michael Abate of Louisville, said a criminal record brings “life-altering consequences,” making it difficult for someone to get a good job, find housing or qualify for certain public benefits. Convicted felons also lose some civil rights, such as voting and serving on juries.

In the expungement process, a judge must decide whether an applicant qualifies to have his record cleared, Abate said. The only difference in Jones’ case was that he could not afford to pay to accept the expungement, Abate said.

Sounding sympathetic, Chief Justice John Minton Jr. asked Abate: “Is there any other process that we’re aware of under Kentucky law in which access to justice is predicated upon the ability to pay a fee?”

“Your Honor, no, I’m not aware of one,” Abate replied.

Republican Attorney General Daniel Cameron’s office argued against waiving the fees for poor people. Cameron’s predecessor, Democrat Andy Beshear, now the governor, essentially took no position on the matter when the case was before the Court of Appeals in 2019.

Arguing on Wednesday, Assistant Attorney General Robert Baldridge said bankruptcy court requires a filing fee. But Justice Michelle Keller challenged that comparison, saying bankruptcy courts let poor people include their filing fees along with the other debts being discharged if necessary.

Keller said she’s uncomfortable with money raised by expungement fees from former felons going to prosecutors, state police and the state courts. She called it “an appearance of impropriety.”

“It strikes me that we’re sitting here as beneficiaries ... we’re recipients of this funding,” Keller said. “You know where I’m going with this? It’s just got the appearance of — unngh! We want you to make your life better, we’d love — and the judge said yes, you meet the criteria to have your felony record expunged. But then there’s these funds that go to pay back the people who put you there.”

Baldridge told Keller the high court could issue a decision explaining that it disagrees with some outcomes of the expungement law without — on its own initiative — inserting a fee waiver provision, Baldridge said.

“Justice Keller, we all have to live with terrible laws that the General Assembly has written,” Baldridge said. “The court is in a unique position where they could say ‘We have to enforce this law, but we think it’s terrible. We think they should amend it, it’s unseemly, we feel gross writing this opinion.’”

Some lawmakers in Frankfort have tried to add a fee waiver to the expungement law, without success.

Last winter, a bipartisan Senate bill would have allowed judges to waive the fees once they declared a person to be indigent. But the bill died for lack of action in the Senate Judiciary Committee.

The lead sponsor, state Sen. David Yates, D-Louisville, said he will file another fee waiver bill this winter if the Supreme Court does not rule for Jones.

“In the cases that are covered by this law, the only thing that separates someone in Kentucky from remaining a felon and someone from having a clean record is the ability to pay that fee,” Yates said. “That isn’t fair.”

“These extra costs — I know a few hundred dollars may not seem like a lot to some of us, but to someone who doesn’t have any money, it’s a real barrier,” he said.