Garbage In, Garbage Out in Report Claiming Concern Over Expungement Legislation

Garbage-in, garbage-out. Nothing could be truer of government reports. On Tuesday, State Auditor Nicole Galloway released a report suggesting the General Assembly may have passed legislation that will violate the Hancock Amendment’s strict limits on raising revenue through taxes or fees. The potential offending legislation, according to Galloway’s report, was Senate Bill 588, a bill that I carried in the Missouri House, to help Missourians who had turned their lives around to expunge non-violent offenses from their record if they met strict requirements. Of course, creating such a path is not free. Accordingly, to be fiscally responsible, the legislation had to include a filing fee that high enough to cover the costs so that law-abiding Missourians wouldn’t be left paying the tab.

Senate Bill 588 sets an expungement case filing fee of $250 – roughly the median figure compared to the fee other states charge. Unlike taxes or broadly applicable fees, the expungement fee is completely voluntary. If a Missourian has never been convicted of a crime, they pay nothing. If a Missouri has been convicted of a crime and rehabilitated themselves such that they are eligible, they still are not forced to pay anything.

Auditor Galloway’s report suggests that the General Assembly may have violated the Hancock Amendment by protecting taxpayers from having to absorb the costs of expungement filings, even when they’ve never been convicted of a crime. The report’s fatal flaw is that it relies on a bloated fiscal note that dramatically overestimated the number of Missourians who are eligible and likely to apply for an expungement.

The flawed fiscal note on which the Auditor relies estimated the legislation could result in the collection of up to $146 million in expungement filing fees based on assumptions that there would be 617,197 expungements filed each year. To put that in context, there were only 170,362 total criminal cases (excluding traffic citations) filed in Missouri circuit courts. In other words, the data on which Auditor Galloway relied predicts there will be nearly four times as many expungements filed as actual criminal cases.

The flawed fiscal note makes at least five faulty assumptions:

  1. The note assumes Missourians will pay $250 to expunge speeding tickets after three years. Except that current law already requires points on a person’s license disappear after three years. Automatically. Based on filings from last year, traffic tickets account for 42 percent of the total cases filed by Missouri prosecutors – so shave 42 percent off the fiscal note.
  2. The note assumes five percent of eligible Missourians will apply. It’s apparently a pure guess – and thus not a legitimate route to determine the legislation’s likely fiscal impact. Fortunately, we have at least rough proxy that might make for a more accurate assumption. Under current law, Missourians can expunge a DWI after 10 years if they have no further convictions. In 2016, there were 7,470 applicable DWI convictions in Missouri. Yet there were only 101 petitions for expungement filed – a percentage of 1.3 percent. With this in mind, we can shave approximately 75 percent off the already reduced fiscal note.
  3. The note fails to account for indigent applicants. Section 488.650 of the bill provides that the surcharge may be waived if the petitioner is unable to pay the costs. By some estimates, approximately one in three criminal cases filed is assigned to the public defender’s office. This is a good proxy for the percentage of potential applicants who would be eligible for waiver of the fee. As a result, we can take another 33 percent off the total for indigency.
  4. The note fails to de-duplicate offender data. Under SB 588, a person is only eligible if they have not been found guilty of any other misdemeanor of felony. However, the analysis did not include a thorough de-duping review of all arrest and conviction records. This would preclude considering an unknown, but likely large number of offenses counted as “eligible” for expungement under the fiscal note. (One study by the National Institute of Justice found that just over 75 percent of released felons were re-arrested within five years. We cannot apply that 75 percent factor to the entire bill, however, because it also allows for misdemeanor expungements.)
  5. The note fails to account for the fact that up to two misdemeanors and one felony can be expunged in a single petition. This too would reduce the number of expungements filed, and likely by a significant amount because many single instance events resulting in multiple criminal charges and convictions.

Applying some of these reasonable assumptions to SB 588 yields a dramatically different result. The first three flaws can be readily quantified. Start with the initial estimate of $146 million, then eliminate the 42 percent that represent traffic citations and the estimate is reduced to $84.7 million. Next apply a take-up rate of 1.3 instead of 5 percent and the revised estimate is $22 million. Then set aside approximately one-third of cases for the indigent applicants and the estimated fees collect is reduced to $14.5 million. These calculations do not account for the inability to de-dupe current convictions or to group multiple offenses into a single expungement filing.

In her announcement and press conference on the report, Auditor Galloway was careful to point out that her analysis was of a potential violation. But, to put it plainly, there is absolutely no chance SB 588 would raise voluntary fees beyond the Hancock limit of $94.3 million. It is good legislation that will help Missourians secure the second chance they’ve earned —  consistent with the actions of dozens of other states.