Over 36,000 people in Hawaii arrested for possessing less than 3 grams of marijuana before that offense was decriminalized in 2019 could have all or part of their criminal records expunged at no cost if legislation to amend the state’s criminal statutes succeeds.
House Bill 1595, which passed the full House on Tuesday and now heads to the Senate, would create a free state-initiated process for certain criminal records to be expunged over time, including for those arrested or convicted for promoting a detrimental drug in the third degree.
More than 52,000 arrest records under that statute exist in the state’s criminal data repository, but only 10,000 of those arrests resulted in convictions, the House Judiciary Committee was told during an informational briefing on Friday.
The total number of offenders who would be affected in one way or another by the law is 36,378, according to the administrator of the the Hawaii Criminal Justice Data Center, Phil Higdon. Not all would qualify for full expungement because of other offenses.
Launching a proactive expungement program that doesn’t require an application would be a heavy lift for the HCJDC and the state Judiciary, the committee was told.
But Hawaii is in a strong position to implement it because of its unified court system and because it has some of the most detailed case records in the country, according to David Roberts, executive director of the nonprofit National Consortium for Justice Information and Statistics, SEARCH.
Twenty-plus mainland states already have a state-initiated expungement process, including California, Connecticut, Michigan and Minnesota. Other states including New York have extended that to initiate the sealing of court records.
Closing The Gap
The HCJDC already manages a record expungement program by application for non-convictions and, with a court order, for the records of people convicted of certain first-time drug, property and alcohol offenses.
HB 1595 and Senate Bill 2689 would add possession of 3 grams of marijuana, decriminalized in 2019, to that list.
The HCJDC receives about 1,440 requests for expungement per year, and approves about 1,080, Higdon said. Three-quarters of those resulted in full expungements. The balance were partial expungements or were rejected.
Applications cost $35 for first-time expungement and $50 for additional expungements, of which $10 is non-refundable.
A free, state-initiated program would close a gap for those who may qualify under the existing expungement laws but haven’t yet done so, said Frank Steifel, policy advisor from the non-partisan Last Prisoner Project.
Cost remains the main reason more people don’t apply for expungement, Jennifer Brown, associate director of the Hawaii Innocence Project, said. The cost of retaining an attorney to obtain a court order, and even the application fees can prevent people from applying, she said.
All expungements require a review by a court for the associated case files to be removed from public access, adding another step to the process.
Connecting the records held by the HCJDC to the original police agency records is like “following the breadcrumbs”, according to Steifel, but is necessary to confirm whether the reasons for the arrest qualify records for expungement.
Records Can Still Be Out There
A single expungement application is currently being completed in little over a month by the HCJDC, Higdon said, but the scope of a broader state-initiated program would require additional resources. The current application fees also offset HCJDC staff salaries, and would need to be factored in when estimating the cost of the measure.
Neither the attorney general or the Judiciary sell criminal records to private vendors, but some information can still be scraped by third parties prior to expungement or sealing, said Michelle Acosta, deputy chief court administrator for the First Circuit.
“Once it’s sealed, then it’s sealed, but if that information was obtained at the point it was public information and it remains out in the internet universe, that is something that is beyond the control of the courts,” she said.
Including a mechanism in the legislation that would require those third parties to also comply with expungement and sealing orders is one possibility, Roberts said, but enforcement becomes “highly problematic.”
The HCJDC acknowledges that expunged and sealed records can still leave a public trail, and provides an expungement certificate to applicants at additional cost. “That is best practice to highlight for Hawaii,” Steifel said. “The fact that an individual would have an expungement certificate would prove that record had been expunged, even if that person’s name came up through a third-party database.”
If passed, HB 1595 also requires the HCJDC to provide an annual report to the Legislature that includes information on the total number of expungement orders granted, the number of records removed by county and state agencies and anonymized demographic information on people granted an expungement.
