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The Scott M. Matheson Courthouse in Salt Lake City is pictured on Wednesday, Feb. 19, 2020. Spenser Heaps, Deseret News

Spenser Heaps, Deseret News

BYU students helping prevent expunged records from popping up in background checks

By Annie Knox, | Posted - May 1, 2021 at 8:03 p.m.

SALT LAKE CITY – It's no secret that even low-level criminal convictions can get in the way for those seeking to find a new apartment, change jobs or obtain a professional license.

But for many, having the case sealed doesn't change that. Even after expungement, the records can linger online and in databases maintained by background-check services.

A group of law students and professors at Brigham Young University is now seeking to change that. They've created a new guide to help Utahns and those outside the state make sure the cases don't continue to haunt them. The online tool, Goodbye Record, also helps states and employers take steps to honor expungements.

"The court system is set up to protect society, to protect individuals, but at the end of the day, people who are eligible for expungement have all served their time," said Marie Kulbeth, an attorney and adjunct professor helping to oversee the initiative. "They've completed everything that they were told they had to do to fulfill the debt they have to society, but society doesn't really give them a break."

Kulbeth noted many have picked up low-level criminal charges while in the throes of addiction but are now in recovery and leading a life free of crime. She said they deserve a second chance.

"Everyone knows somebody with an addiction. It's part of your life, whether it's you as an individual, a family member, a friend, a colleague. You know somebody who has had the struggle," she said. "There's also the underlying idea of, 'What is justice without mercy?'"

In 2019, the Beehive State became second in the nation to adopt a so-called clean slate law, following Pennsylvania in granting automatic expungements for certain crimes. The Utah law allows those with nonviolent misdemeanor cases to have the records automatically sealed within five to seven years, but it's not up and running just yet. The state court system is at work building the complex computer system it will use to do so.

"Utah's kind of ahead of the curve in that area," said Tanner Schenewark, a BYU graduate who took the LawX class earlier this year. "Hopefully we can get this taken care of in more states."

The pandemic prevented Schenewark and his colleagues from meeting with Utahns to hear their about their experiences with expungement, but the team gathered those perspectives in the form of a survey. The results illustrated the stranglehold an old conviction can maintain on a person's professional and personal life, Schenewark said.

"They have families, they have dreams, and they have jobs," he said. "And a lot of that has to go on hold if the state doesn't get it right, or if employers don't act the way they should."

With guidance from Kulbeth, Utah Supreme Court Justice Deno Himonas and others, the eight BYU law students developed the batch of resources in one semester.

One webpage provides information on how to file complaints with U.S. regulators if a company reports an expunged case to an employer — a violation of federal law — and on getting in touch with a national expungement clearinghouse to flag cases for removal from databases.

States can take action, too. Most have contracts with background-check companies purchasing public records tied to criminal cases, Kulbeth said. So the BYU law students came up with a model contract — based on a version used in Pennsylvania — that grants the state digital access to a company's online records in order to double-check that sealed cases are no longer listed.

The records often linger for reasons that aren't nefarious, the Florida-based Accurate Information Systems notes on its website. It can be a challenge for the screening companies to make sure they're keeping up as records are sealed. Sometimes, a police agency or a different type of government agency will fail to remove a case from its own rolls, so the information shows up in the company's searches.

Utah's Administrative Office of the Courts is reviewing the contract it uses with those sorts of businesses, said spokesman Geoffrey Fattah, and is considering potential tweaks in line with what the BYU students recommend.

Their project identifies ways employers can address the issue as well. It invites them to take a pledge to support the initiative and raise their dissatisfaction if a sealed case shows up in a screening.

At the Utah Supreme Court, Himonas is cheering the students' work.

"Rather than trying to replicate other efforts," the justice said, "LawX studied the space and sought to understand what the real choke points are to create some really innovative approaches to the expungement process."

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