Oklahoma is the latest state to consider legislative changes that could make expungement easier and more accessible for ex-criminal offenders. According to the Tahlequah Daily Press, the state’s legislature is currently considering a bill that would improve the technology behind Oklahoma’s expungement process. House Bill 3316, proposed by Republican State Representative Nicole Miller, would “authorize” the state to develop a new algorithm explicitly geared toward combing through criminal records and identifying cases eligible for expungement.
Per the Tahlequah Daily Press, the big obstacle to getting criminal records expunged in Oklahoma is cost. Expungement involves a lengthy, complex petitioning process. While individuals are technically allowed to represent themselves, the Oklahoma State Bureau of Investigation “strongly suggests” that everyone seeking expungement hire a lawyer. Legal fees, of course, are costly, which can render expungement a prohibitively expensive option for many. A former Oklahoma legislator and a criminal justice advocate, Jabar Shumate, told the Tahlequah Daily Press that expunging a criminal record could cost between $1,500 and $5,000, depending on the case. Someone who can’t find a job because they can’t pass a criminal background check, in other words, would likely struggle to afford an expungement in Oklahoma.
If it passes, House Bill 3316 could change that reality. The algorithm the bill calls for would not only identify criminal records eligible to be expunged but would also automatically commence the expungement process for convictions deemed to be eligible. In other words, House Bill 3316 could take a time-consuming and expensive process and make it both automated and free.
Oklahoma wouldn’t be the first state with an automatic expungement law – often known as “Clean Slate” legislation. Michigan, Pennsylvania, and Utah have adopted laws that automatically expunge eligible criminal convictions in the past few years. The trend will likely continue in the years to come as criminal justice reform continues to create more widespread adoption of ban the box laws, background check bans or heavy restrictions in housing situations, and more. Clean Slate laws are part of this broader trend toward building a more tolerant society when it comes to criminal history.
As expungement laws continue to spread and evolve, it will become increasingly important for employers to use only reliable background check companies with up-to-date databases and above-board policies for collecting information. In the vast majority of cases, employers are legally barred from considering sealed or expunged offenses in their employment decisions. A pitfall is that some background check providers or sources only update their data occasionally. As a result, an expunged or sealed crime can sometimes show up on a criminal background check.
At backgroundchecks.com, we strive to be vigilant about updating our proprietary criminal history databases. We also attempt to go directly to the source (usually a county courthouse). These more localized data sources are more likely to provide the most up-to-date information, given that they are usually the primary source of the data in question. As a result, using these sources makes one less likely to pull criminal records that should be sealed or expunged.
Employers can also avoid serious legal issues over expunged criminal records by making sure they comply with the FCRA. Proper FCRA compliance allows a window in the background check process for candidates to dispute background check findings if those findings lead to their disqualification from job consideration. Following the FCRA properly, even employers that accidentally disqualify candidates based on expunged criminal history can at least protect themselves by safeguarding the candidate’s right to dispute the background check. Learn more about the FCRA in our Learning Center.
About Michael Klazema The author
Michael Klazema is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments