proposal for legislative reform

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I know that you didn’t ask for all this, and so I’ll include a summary of my recommendations for changes to the expungement law at the end, which you are certainly free to skip to. However, I wanted to give a fuller description of the effects of the law’s problems, and in particular how the law as it is written is effectively unusable by professionals working within and adjacent to the criminal justice system.

I imagine that probation is essentially a system of incentives for people who have been caught in the system to make positive changes to their lives so that they will not need to participate in the system ever again. It seems to me that most of the legal incentives that probation officers wield are negative - sanctions, violations, loss of privileges, jail time, and revocation. Of course, many probation officers offer rewards for good behavior, and certainly the benefits of an improved life is reward by itself. But from what I understand, probation officers have a dearth of legally meaningful positive incentives.

Expungement is just such a positive incentive.

Consider if, upon the successful completion of your duties to the court, you will be able to get your name back, and your court involvement won’t hinder your ability to find a job or a home.

Moreover, the expungement law was clearly written with anti-recidivism in mind. In general, the following are true:

- A person who has their charges dismissed after completing drug or community court is in many cases able to have their charges expunged immediately. ORS 137.225(1)(b)

- A person who completes probation successfully is able to have their conviction expunged three years from the date of conviction; but a person who has probation revoked is only eligible ten years from the date of revocation. ORS 137.225(1)(a) and (c)

- A person with a single conviction only needs to wait three years from the date of conviction, but if that person picks up another conviction, then their eligibility date is becomes ten years from date of the more recent conviction. ORS 137.225(1)(a); (7)(b)

- A person is not eligible for expungement of any charges until they are off of probation. ORS 137.225(1)(c)

These are all incentives that professionals within the system could be applying. It’s easy to imagine a system where expungement of a case is part of the graduation ceremony from its associated court sentence. But as of this writing, no County in Oregon has a system in place where all eligible persons completing probation or drug court know if they are eligible for expungement. The few programs of which I’m aware must outsource this work to legal aid attorneys, rather than being able to simply have probation officers do this step. This is because the expungement law is a mess.

Contradictory, complex, and completely unusable

Without weeks of additional training, it’s very difficult to give accurate advice about a person’s expungement eligibility. It’s not just that the law is too punitive - which it is - but it’s extremely complicated and internally inconsistent.

As an exercise, I challenge you to check the law itself, ORS 137.225, a 2,200 word leviathan. Examples of its complexity abound, but consider that:

- A conviction for a possession of marijuana of less than an ounce is eligible, (5)(d), but a dismissal of the same is not (by omission)

- Assault in the Third Degree is listed explicitly as both eligible and ineligible (6)(e); (12)(c)

- Unauthorized Use of a Vehicle is eligible, but Possession of a Stolen Vehicle is not (7)(a)

The following exemplifies the chaos. Let’s say you have a conviction for Theft in 1990 and another conviction for Possession in 2015. Theft and Possession are type-eligible, so we simply ask if enough time has passed for these cases to be eligible. It would appeal to common sense that the case from 1990 speaks less to the person’s character than a case from 2015 - if either of these cases should be expunged, a sensible law would at least make the 1990 case eligible. But exactly the opposite is true. First the case from 1990 is not eligible, because under (7)(b), a case is not eligible for expungement when the person who committed it has a conviction from the last ten years besides the one sought to be expunged. But the case from 2015 is eligible, because besides that 2015 case, the person does not have another case from the last ten years. Furthermore, (5)(a)(ii) states that expunged convictions still count for the purposes of calculating expungement analysis, so expunging the 2015 case doesn’t make the 1990 case eligible. Ironically, the 1990 case is not eligible, the 2015 one is.

For a final glimpse into the madness of this law, recent dismissed cases similarly block older dismissed cases (8)(a), but there is no equivalent of (5)(a)(ii) for arrests, so a person is often incentivized to first expunge one arrest, and then to expunge older arrests.

This is why we are creating software to perform the analysis, and furthermore, why we are excited to partner with organizations like yours. But like I said, we are not profiting off of this software, and would prefer to see that the expungement law is changed to be simpler. My recommendations for simplifying the expungement law are to make it consistent, simple, and, ultimately, usable.

Too many types of charges ineligible

Certain types of convictions are never eligible for expungement. These include the ones you would expect - sex crimes, first degree robberies and burglaries, homicides. But the list also includes things that you wouldn’t expect. The list includes several misdemeanors eligible for probation, including

- misdemeanor Endangering the Welfare of a Minor, which is often charged when children are living in a house where a person is using drugs

- any type of traffic crime, including misdemeanor DUII

Additionally, Delivery of a Controlled Substance is typically a Class B Felony, which is only eligible after 20 years, and only if the person is not ever again arrested for any reason. As such, almost no conviction for a Delivery charge is ever eligible. Putting aside the morality of permanently affixing felony status to persons who often succumb to dealing drugs out of financial desperation, the effective ineligibility of almost all drug offenders is bad policy. It means that the people with these charges are never incentivized by the expungement statute to stay out of the system.

Summary

The expungement law is too complicated and it contains no consistent moral narrative. Its time-eligibility requirements are confusing and contradictory. The list of eligible charges somehow misses the least morally culpable - a dismissed violation. Finally, too many cases are effectively categorically ineligible. Anyone who successfully completes probation should be able to have that case expunged.

Therefore,

SUMMARY LIST OF PROPOSED CHANGES

1. Get rid of (7)(b), which states that a person trying to expunge a certain conviction needs to not have any other convictions within the last ten years. As it stands, (7)(b) renders null the relatively simple rules of (1)(a)-(1)(c). It creates the situation where if you have convictions for Theft in 1990 and 2015, the conviction from 2015 is eligible now, but the conviction from 1990 is eligible in 2025.

2. Similarly, get rid of (8)(a), which makes a person ineligible to expunge an arrest if they have another arrest within the last three years.

3. Amend (1)(b) to add “violation” to the list of expunge-able dismissals

4. Resolve inconsistencies between (6) and (12) in favor of (12)

5. Make all charges eligible upon successful completion of probation

These are only my recommendations as to the expungement law's eligibility criteria, as opposed to the filing processes. If you’d like to hear my equally verbose analysis on that, I’d be happy to provide it.

Michael Zhang Attorney,

Oregon Bar No. 185180