By Kevin Hempy, Pepperdine Caruso School of Law
First place winner of the third annual law student writing competition.
In 2016, Jamie Achenbaugh made a poor decision. She decided to hold onto some methamphetamine for a friend, intending to return it later.1 While wrapping Christmas presents, she was arrested in her Iowa home for intent to deliver drugs, and ultimately convicted of a felony.2 Although she served her time in jail, today she faces a different set of consequences. In the past year, she has applied for 116 jobs, swimming upstream against an employment system that often rejects those with criminal records.3 She can no longer vote in the state of Iowa, and as a result of financial struggles related to her arrest, lost her driver’s license.4
Unfortunately, Jamie’s struggle is not an affliction of the few. Approximately one out of every three American adults has a criminal record of some kind.5 These records create myriad barriers for individuals who have interacted with the criminal justice system. Studies have found that 87 percent of employers conduct background checks on at least some of their employees,6 and two out of every three employers would not hire someone with a criminal conviction.7 These barriers are not limited to the employment context. A 2016 survey found that 44 percent of landlords would not overlook a criminal record in housing decisions.8
Expungement statutes enable those with criminal records to remove these barriers and improve their situation. In 2019, University of Michigan law professors J.J. Prescott and Sonja Starr published a study on expungement in Michigan and found wages for those with an expunged record in Michigan increased by more than 20 percent within one year.9
The potential of expungement to reduce recidivism rates is also worth considering. The United States has a shockingly high recidivism rate;10 and costs associated with recidivism are substantial for states.11 Studies have found that recidivism rates are lower for those who find post-release employment.12 Because expungement reduces barriers to employment and can increase wages, expungement also has the potential to lower recidivism rates. Prescott and Starr found that recipients of expungements in Michigan had low recidivism rates, within five years only 7.1 percent were re-arrested and only 4.2 percent were reconvicted.13
Expungement and recidivism have also been studied in the context of wrongfully convicted individuals. In 2014, a group of researchers studied 118 individuals who were exonerated of crimes for which they had been previously convicted.14 Of the exonerees who had their records expunged, 31.6 percent committed a post exoneration criminal offense, compared to 50 percent of those who did not have their record expunged.15 Although exoneration is a different context than the typical expungement of convictions available in many states, this study supports the theory that expungement can reduce the rate of recidivism.
Because of the data supporting expungement and the barriers that criminal records create, 2019 was a record year for increased access to expungement. The Collateral Consequences Resource Center’s 2019 report found 153 laws aimed at reducing barriers enacted by state legislatures and the federal government.16 The state of Iowa joined this movement, enacting a 2019 law allowing expungement of certain misdemeanors.
There are two primary statutory mechanisms for expungement in Iowa. Iowa Criminal Code Section 901C.3 governs expungement of misdemeanor convictions,17 while Section 901C.2 governs expungement of non-convictions.18 Section 901C.3 came into effect on July 1, 2019, and immediately expanded access to expungement for Iowans convicted of misdemeanors. Section 901C.3 allows for expungement of certain misdemeanors if a defendant proves that a) it has been 8 years since the date of conviction, b) the defendant has no pending criminal charges, c) the defendant has not been previously granted two deferred judgments, and d) the defendant has paid all court costs, fees, fines, and restitution.19 The law allows Iowans to expunge only one offense in their lifetime unless multiple offenses “arose from the same transaction or occurrence.”20 Section 901C.3 also contains a lengthy list of misdemeanors not eligible for expungement including sex offenses, domestic abuse related crimes, and obstructing justice.21
The adoption of Section 901C.3 did not repeal the limited expungement law that existed before 2019 in Iowa. In 2016, the legislature enacted Section 901C.2, which governs the expungement of non-convictions from a criminal record. Section 901C.2 allows expungement of a non-conviction record if the defendant was acquitted of all charges or the charges were dismissed, and all court costs, fees, and other financial obligations have been paid.22
It is important to consider the state of the criminal justice system in Iowa before proposing improvements to its expungement law. If Iowa had avoided the mass incarceration and promulgation of criminal records that have plagued the rest of the United States, then perhaps modification of Sections 901C.3 and 901C.2 would be less pressing. Unfortunately, this is not the case as Iowa’s criminal justice system faces many of the same issues affecting the country at large.
Approximately 18,000 Iowa residents are currently incarcerated in county jails, state prisons, and federal prison, and another 34,800 are under criminal justice supervision.23 Overall, Iowa’s incarceration rate is higher than any of the founding countries of NATO.24 Unfortunately, Iowa’s incarceration statistics are trending upward. At the end of the fiscal year 2019, the state prison population was 8,475, the highest total since 2011.25 In 2019 the Iowa Department of Corrections reported a rate of return to state prison of 38.8 percent, a 1 percent increase from the fiscal year 2018, and the highest of at least the last 13 years.26 Over 90 percent of these individuals in Iowa state prisons will eventually reenter their communities.27
There is no data currently available providing how many Iowans have a criminal record. However, in a state with elevated incarceration rates, the available date suggests it is likely a significant portion of the overall population. In 2010, 5.72 percent of adult Iowans had a felony conviction on their record.28 Felony cases often make up a minority of a state’s caseload: in 2018 the National Center for State Courts reported that misdemeanor cases made up 83 percent of Iowa’s total criminal caseload.29Additionally, many Iowans may have an arrest record that was never filed by a prosecuting office. Therefore, there is likely a significant portion of Iowa’s adult population with a criminal record.
Because of the reality of mass incarceration in Iowa and the likelihood a significant portion of the population has a criminal record, Iowans would be better served by more expansive expungement jurisprudence than the current system allows. As detailed above, the two primary mechanisms for expungement in Iowa are Section 901C.2, for acquittals and dismissals, and 901C.3, for misdemeanor convictions. Both Section 901C.2 and 901C.3 can be improved to better serve the people of Iowa.
Section 901C.3 is a very limited expungement statute in comparison to other states. Adam Rosenblum, a New York criminal defense attorney conducted a 2020 survey of the 39 states that allow expungement of a misdemeanor conviction for retail theft of less than $200.30 Rosenblum gave each state a score based on the waiting period required by the statute, the application fee and other factors. Of the 39 states included, Iowa ranked as the third most difficult state to expunge this kind of misdemeanor retail theft.31
The primary issue with Section 901C.3 is the waiting period of eight years. Only two states that allow expungement of misdemeanor retail theft for less than $200 have a waiting period longer than 8 years required for that offense.32 Presumably, the primary goals of any expungement statute are to assist those with criminal records to return to work and to lower the rate of recidivism. In doing so, a state with an effective expungement system will improve their economy by having more workers in the workforce, and improve public safety and save money on the criminal justice system due to the lower recidivism rate.
However, Section 901C.3 diminishes these positive effects by imposing such a stringent waiting period for all expungeable offenses, even minor misdemeanors. The vast majority of recidivism occurs in the first three years: in 2018 the U.S. Department of Justice found that 82 percent of the prisoners released who were rearrested within the nine years of 2005-2014 were arrested within the first three years.33 Thus, the risk for recidivism eight years after a misdemeanor conviction is very low; at that point, much of the positive potential of reducing recidivism through expungement will likely be gone. Iowa’s expungement law should instead be focused on assisting those with minor criminal records get their record expunged much earlier than eight years after conviction, which will decrease barriers to employment and housing, and keep vulnerable Iowans from entering the cycle of crime and incarceration.
While the primary goal of an expungement statute is decreasing barriers for those with criminal records, the primary concern with easing access to expungement is public safety. Concerns over public safety regarding expungement are valid, but Section 901C.3 is ineffective in addressing these concerns. Many states with waiting periods for expungement trigger eligibility based on the end of the last criminal sentence. For example, in Illinois, to seal (a similar process to expungement) most convictions the individual must have gone three years since the end of their last criminal sentence without further interactions with the criminal justice system.34 Illinois’ waiting period protects public safety by only allowing expungement for those who have shown the ability to avoid criminal charges and convictions for a significant period.
On the other hand, Section 901C.3’s waiting period does not trigger based on the end of an individual’s last criminal sentence. Instead, it must be eight years since the date of the conviction, and there can be no pending criminal charges. As Iowa State Representative Mary Wolfe has pointed out, this means an individual convicted of a misdemeanor theft offense nine years ago could have that offense expunged, even if they were currently on probation for a felony-level theft offense.35 This approach has the potential to be less effective in preserving public safety by allowing expungement for individuals who were recently engaged in criminal activity.
Another issue with Section 901C.3 is that it only allows expungement of one misdemeanor conviction per lifetime. An Iowan with three misdemeanor convictions from ten years ago will be able to expunge only one. While this is a positive step for that individual, they may still face the same or very similar barriers to housing or employment with two convictions that they did with three. This maximum of only one expungement in an individuals’ lifetime also looks past the intersection of crime with two important variables: drug addiction and age.
A significant amount of crime is drug-related – a 2017 Bureau of Justice report found that from 2007-2009, 42 percent of state prisoners reported using drugs at the time of the offense for which they were incarcerated, and 21 percent of state prisoners said their most serious current offense was committed to get money for drugs or to obtain drugs.36 Although treating drug addiction is difficult, drug use is not a life sentence; many who struggle with addiction do change the course of their life and achieve sobriety. Iowa’s expungement statute overlooks this reality. An Iowan who experienced a period of addiction and an accompanying criminal record but has since achieved sobriety and a new chapter in their life will only be able to expunge one misdemeanor conviction from their period of addiction. This is the case regardless of how long ago the addiction and crime was and how long the individual has been sober.
Just like addiction, Section 901C.3 also overlooks the intersection of crime and age. The age-crime relationship is widely accepted in the field of criminology and holds that crime rates begin to increase in early adolescence, peak in the early to mid-twenties and then decline.37 This appears to be the case in Iowa; in 2018 Iowans ages 20-29 committed both more property crimes and more violent crimes than any other age range.38
Mistakes as a young adult do not mean a lifetime of crime. From age 14-25, humans are continuing to develop their ability to control their impulses and aggression, and evaluate the consequences of their actions; psychosocial development does not end at age 18.39 As the maturation process progresses, many individuals move away from a life of crime. One study that followed 1,354 young offenders for 7 years after their initial court involvement found less than 10 percent became chronic offenders.40
Unfortunately, Section 901C.3 fails to consider the age-crime relationship by limiting available expungements to one per lifetime. Many Iowans who make poor decisions in their younger years leading to a criminal record of more than one misdemeanor conviction turn their life around and chart a new crime-free course as they age and mature. These Iowans should be able to expunge all of their misdemeanor convictions and put their past behind them.
As argued above, the primary weaknesses of Section 901C.3 are its eight-year waiting period and the limitation of expungement to one conviction per lifetime. Resolving the latter issue is straightforward; Iowa’s legislature should allow expungement of as many convictions as are eligible. Reworking the waiting period of Section 901C.3 will require more nuanced consideration.
One possibility for an improved waiting period system is to map expungement eligibility onto Iowa’s already existing criminal code. Iowa’s criminal code goes further than simply separating criminal offenses into misdemeanors and felonies. There are three categories of misdemeanors: simple, serious, and aggravated.41 Simple misdemeanors are the least significant while aggravated misdemeanors are the most significant, punishable by up to two years in jail.42 Iowa’s felony code is similarly organized into four classes, Class A, Class B, Class C, and Class D.43 Class D felonies are the least serious while Class A felonies are the most serious felonies, punishable by life imprisonment.44
The Iowa legislature could use these preexisting categories for determining waiting period eligibility for expungement. One possible framework is as follows: Simple misdemeanors are eligible for expungement one year after the end of an individuals last criminal sentence, serious misdemeanors two years after, aggravated misdemeanors three years after, Class D felonies 5 years after, Class C felonies 7 years after, and Class B and Class A felonies never eligible.
Once this waiting period system is developed, the legislature could also carve out certain crimes it believes should never be eligible for expungement. Many states do completely prohibit expungement of certain offenses such as DUI and sexual offenses. The public safety considerations for exempting these crimes from expungement are compelling and the Iowa legislature would be wise to consider those arguments.
Although developing this type of system would require a nuanced evaluation by the Iowa legislature, it would ultimately serve the people of Iowa better by enabling less serious offenses to be expunged more quickly, while still protecting public safety through the Iowa criminal code’s already existing framework.
The American legal system is built on the idea that an individual is innocent until proven guilty. Someone who is charged with a crime that is later dismissed, or acquitted of criminal charges, has not been proven guilty. Many Americans assume if they are never convicted, then their criminal record will automatically disappear. Unfortunately, in many states including Iowa, this is not the case, and a criminal record of an arrest, dismissal, or acquittal can still create barriers for individuals. One study found that job seekers’ disclosure of a single disorderly conduct arrest that did not lead to a conviction resulted in a four percent decrease in employer callback rates.45
It is certainly a positive that Iowa allows for expungement of non-conviction criminal records through Section 901C.2, but there are aspects of the statute that could be improved to protect Iowans facing barriers from non-conviction records. The first problematic aspect of Section 901C.2 is the requirement that all court costs, fees and other financial obligations must be paid. This requirement includes fees for court- appointed attorneys given to indigent defendants.46 Therefore, an accused indigent Iowan who has been granted a court-appointed attorney, and is found to be innocent by a jury of their peers, will be unable to expunge their criminal record until they have repaid all costs associated with the attorney. This is particularly troubling in situations where an individual is falsely accused of a crime they did not commit.
An additional concerning area of Section 901C.2 is the lack of automatic expungement. In Michigan, Prescott and Starr found that only 6.5 percent of those eligible received an expungement within five years of when they first qualified.47 Prescott and Starr theorize this low expungement rate is the case for reasons such as lack of information, fees, and distrust of the criminal justice system.48 These issues are also present in Iowa’s statute, so it is reasonable to expect the percentage of eligible individuals receiving relief under Section 901C.2 is also low. Likely due in part to these concerns, the conversation around expungement of non-conviction records has begun to change in recent years.
Some states have recently adopted non-conviction expungement policies that create automatic expungements with no petition required.49 Additionally, in 2019 the Collateral Consequences Resources Center published a Model Law on Non-Conviction Records calling for automatic expungement of uncharged arrests and cases terminated in favor of the accused, with no fees required.50 To provide a more equitable system for those with non-conviction records, the Iowa Legislature should follow suit and adopt an expungement statute that provides for automatic expungement for non-conviction records without a fee.
With the adoption of Sections 901C.2 and 901C.3, Iowa has markedly improved its expungement statutes, and potentially positively impacted the lives of many citizens. Nevertheless, when considering the current landscape of the criminal justice system in Iowa, it is apparent there is still much room for improvement in Iowa’s expungement statutes. To assist the many Iowans struggling with barriers created by their criminal records, the Iowa legislature should reconsider expungement in the 2020 legislative session.
1 Jamie Achenbaugh, Iowa law on voting after felony conviction means that my voice is silenced
5Barriers to Work: People with Criminal Records, NATIONAL CONFERENCE OF STATE LEGISLATURES, (Jul. 17, 2018), https://www.ncsl.org/research/labor-and-employment/barriers-to- work-individuals-with-criminal-records.aspx.
6Background Checking – The Use of Criminal Background Checks in Hiring Decisions, SOC’Y FOR HUMAN RES. MGMT, (July 19, 2012), https://www.shrm.org/hr-today/trends-and- forecasting/research-and-surveys/pages/criminalbackgroundcheck.aspx.
7JEREMY TRAVIS ET AL., FROM PRISON TO HOME THE DIMENSIONS AND CONSEQUENCES OF PRISONER REENTRY 31 (Urban Institute, 2001).
826+ Renting Statistics, MY SMART MOVE, https://www.mysmartmove.com/sites/SmartMove/blog/assets/img/infographics/Rental-Stats- IG.png.
9J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, HARV. L. REV. 133, forthcoming (2019) https://ssrn.com/abstract=3353620
10 See MARIEL APLER ET AL., 2018 UPDATE ON PRISONER RECIDIVISM: A 9-YEAR FOLLOW-UP PERIOD (2005-2014) 2 (U.S. Department of Justice, 2018).
11See ILLINOIS REPORTS FIRST: THE HIGH COST OF RECIDIVISM 2018 REPORT 1 (Illinois Sentencing Policy Advisory Council, 2018).
12John M. Nally et al., Post-Release Recidivism and Employment among Different Types of Released Offenders: A 5-Year follow-up Study in the United States, 9 INT’L J. CRIM. JUST. SCI. 16, 27 (2014). available at http://www.ijcjs.com/pdfs/nallyetalijcjs2014vol9issue1.pdf.
13Prescott and Starr, supra note 9 at 35.
14Amy Shlosberg et al., Expungement And Post-Exoneration Offending, 104 J. CRIM. L. & CRIMINOLOGY 353 (2014).
15Id. at 355.
16 MARGARET LOVE & DAVID SCHLUSSEL, PATHWAYS TO REINTEGRATION: CRIMINAL RECORD REFORMS IN 2019 1 (Collateral Consequences Resource Center, 2020).
17IOWA CODE § 901C.3 (2019).
18 IOWA CODE § 901C.2 (2016).
19IOWA CODE § 901C.3 (2019).
22IOWA CODE § 901C.2 (2016).
23Iowa profile, PRISON POLICY INITIATIVE, https://www.prisonpolicy.org/profiles/IA.html.
25FY2019 ANNUAL REPORT 20 (IOWA DEPARTMENT OF CORRECTIONS, 2019). Available at https://doc.iowa.gov/sites/default/files/documents/2019/11/fy2019_doc_annual_report.pdf.
26 Id. at 23.
27Id. at 13.
28Study: Felony conviction rates up sharply in Iowa, nationwide, CEDAR RAPIDS GAZETTE (Jan, 7, 2018), https://www.thegazette.com/subject/news/public-safety/study-felony-conviction-rates- up-sharply-in-iowa-nationwide-20180107.
29See National Center for State Courts’ Court Statistics Project Data Viewer, available at http://popup.ncsc.org/CSP/CSP_Intro.aspx.
30 Adam H. Rosenblum, Clearing Criminal Records: Ranking the States from Toughest to Easiest, ROSENBLUM LAW (Jan. 6, 2020) https://rosenblumlaw.com/data/clearing-criminal- records-ranking-the-states-from-toughest-to-easiest/#ranking.
33 APLER, supra note 10 at 1.
3420 ILL. COMP. STAT. §2630/5.2. (2020).
35Mary Wolfe, New rules now allow expungement of some criminal offenses, CLINTON HERALD (Jul. 11, 2019), https://www.clintonherald.com/opinion/new-rules-now-allow-expungement-of- some-criminal-offenses/article_2d4e8787-433a-52c8-874c-f6a5de614ee5.html.
36JENNIFER BRONSON ET AL., DRUG USE, DEPENDENCE, AND ABUSE AMONG STATE PRISONERS AND JAIL INMATES, 2007-2009 6 (U.S. Department of Justice, 2017).
37Michael Rocque et al., Age and Crime, ENCYCLOPEDIA CRIME & PUNISHMENT 1 (2015).
38 FBI’s Crime Data Explorer, available at https://crime-data- explorer.fr.cloud.gov/explorer/state/iowa/crime.
39Laurence Steinberg et al., Psychosocial Maturity and Desistance From Crime in a Sample of Serious Juvenile Offenders, JUVENILE JUSTICE BULLETIN, Mar. 2015, at 8.
40 Id. at 6.
41IOWA CODE § 701.8 (2020).
42 IOWA CODE § 903.1 (2020).
43IOWA CODE § 701.7 (2020).
44 IOWA CODE § 902.1 (2020).
45Christopher Uggen et al., The Edge of Stigma: An Experimental Audit of the Effects of Low- Level Criminal Records on Employment, 52 CRIMINOLOGY 627, 637 (2014).
46 See State v. Doe, 927 N.W.2d 658 (Iowa 2019).
47Prescott and Starr, supra note 9 at 19.
48Id. at 28-31.
49MODEL LAW ON NON-CONVICTION RECORDS (Collateral Consequences Res. Ctr. 2019).
50Id. at 8.