By Jeffery Chmay, Staff Writer
Photo courtesy of Pixabay.com
On October 5, 2023, the American Civil Liberties Union of Pennsylvania (“ACLU”) filed a lawsuit “in response to the Delaware County Office of Judicial Support’s refusal to expunge a criminal record due to unpaid court costs, despite a court order requiring expungement.”[1]
According to the Petition for Review, in January 2023, the Petitioner received a full and unconditional pardon from Governor Wolf for his 2019 conviction of possessing marijuana.[2] In April 2023, The Honorable Anthony D. Scanlon then signed an order that required the Delaware County Office of Judicial Support (“OJS”) to expunge the Petitioner’s criminal records, which OJS then refused to process until outstanding court costs were paid.[3]
While the Petitioner generally asserts that the right to expungement after a pardon is not conditioned on the payment of court costs for a “conviction that no longer exists,” the Petitioner further supports their claim by pointing to the court order itself.[4] Rule 790(A)(2)(h) requires that a petition for expungement note “if the sentence includes a fine, costs, or restitution, whether the amount has been paid.”[5] Then, if a judge orders expungement, that order must also state “if the sentence includes a fine, costs, or restitution, whether the amount has been paid.”[6] Here, the Petitioner noted their outstanding balance of $897.75 in court costs on their petition and while Judge Scanlon acknowledged the unpaid costs in his expungement order, the order did not state that the expungement was conditioned upon paying those unpaid costs.[7]
The Petitioner contends that this lawsuit is even more egregious in that the Court has already resolved this exact issue when, in late 2022, OJS similarly denied an expungement due to unpaid court costs.[8] In that instance, the ACLU of Pennsylvania wrote a letter to OJS and President Judge Cartisano explaining the statutory and constitutional issues with this policy.[9] Judge Cartisano then ordered OJS to process the expungement regardless of outstanding costs to which OJS finally complied.[10] The Petitioner asserts that the outcome in this previous situation should have clearly informed OJS of its obligations moving forward in regard to expungements and unpaid court costs.[11]
The issue here is also representative of a much larger problem in the criminal justice system. Andrew Christy, senior staff attorney at the ACLU of Pennsylvania said, “the clerk’s refusal to expunge this conviction over unpaid court debt creates a two-tiered system of justice where only those who can afford to pay can benefit from a pardon and expungement. It’s not just wrong; it’s illegal.”[12] For expungements in particular, the payment of outstanding court costs “presents a ‘Catch-22’ because those in most need of record relief are those whose records obstruct them from obtaining gainful employment and who are therefore likely to have outstanding court debt.”[13]
Here, the Petitioner’s, now pardoned, marijuana conviction continues to cause reputational harm, interferes with employment opportunities, and prohibits firearm ownership.[14] The intended effect of a pardon is to “completely free[] the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense.”[15]
In the current wave of pardons for marijuana convictions, this incident is not likely to be isolated. Hopefully unjust roadblocks do not continue to stand in the way of the freedom to which these individuals are entitled.
[1] https://www.aclupa.org/en/press-releases/aclu-pennsylvania-sues-delaware-county-over-failure-expunge-criminal-record
[2] Petition for Review, K.B. v. Delaware County Office of Judicial Support, https://www.aclupa.org/en/cases/kb-v-delaware-county-office-judicial-support-et-al
[3] Id.
[4] Id.
[5] Id. (citing Pa. R. Crim. P. 790(A)(2)(h)).
[6] Id. (citing Pa. R. Crim. P. 790(C)(2)(h)).
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] https://www.aclupa.org/en/press-releases/aclu-pennsylvania-sues-delaware-county-over-failure-expunge-criminal-record
[13] Amy F. Kimpel, Paying for a Clean Record, 112 J. Crim. L. & Criminology 439 (2022).
[14] Petition for Review, K.B. v. Delaware County Office of Judicial Support, https://www.aclupa.org/en/cases/kb-v-delaware-county-office-judicial-support-et-al
[15] Id. (internal citation omitted) (emphasis in original).
