IF MY ABILITY TO EXPUNGE MY OLD CRIME IS AFFECTED BY THE NEW LAW CAN I STILL GET IT EXPUNGED?
Knowing the law isn’t as easy as it appears to be. Every time a legal case occurs the law can potentially change. To truly understand the law on any given subject you must know how it has been applied in your particular circumstances. The past interpretation of the law by a court is called “case law”. This short video explains how case law works: The case below answers the specific question below in straightforward language. If you need straightforward answers to your legal questions, feel free to contact our office for a free consultation.
STATE V. ANDERSON, 744 P.2D 143 (KAN. CT. APP. 1987).
This case addresses the following issue:
1. If My Ability To Expunge My Old Crime Is Affected By The New Law Can I Still Get It Expunged?
This case addressed the issue of whether the defendant could get his conviction expunged even if his ability to expunge the old crime was affected by the new law. In exploring this issue, the court concluded that denying the defendant the opportunity to expunge his criminal record constituted a punishment and denying him the opportunity to remove his criminal record disadvantaged him. Id. at 145. In short, the court held a defendant could still get his conviction expunged even if the new law affected the crime committed. Id.
In 1974, the defendant pled guilty and was convicted of one count of aggravated indecent solicitation of a child. Id. at 144. In 1986, seven years after being released from probation, the defendant asked the court for an expungement. Id. In response, the district court denied the expungement request. Id. In making their decision, the district court used the 1986 Kansas expungement statute which did not allow for expungement of cases involving aggravated indecent solicitation of a child. Id. However, the Kansas expungement statute in place in 1974 when the crime was committed did not have such exception for aggravated indecent solicitation of a child. Id. Therefore, the defendant appealed the district court’s decision arguing the district court should have used the 1974 Kansas expungement statute. Id.
The sole issue in this case was whether the district court’s use of the 1986 Kansas expungement statute violated the ex post facto clause of the United States Constitution. Id. According to the United States Constitution, “No State shall . . . pass any . . . ex post facto law.” Id. at 145. The appeals court noted that for a criminal law to be ex post facto, two elements must be present: (1) the law must apply to events occurring before its enactment; and (2) it must disadvantage the offender affected by it. Id. In this case, the defendant felt that the district court’s decision to use the 1986 statute violated the ex post facto clause of the United States because the 1974 statute (which was in place when the defendant committed the crime) would not have kept him from getting his conviction expunged. Id.
The appeals court determined that the first element of an ex post facto law was clearly met because the district court applied the 1984 statute to a 1974 conviction. Id. As to the second element, the defendant argued the district court’s use of the 1986 statute “disadvantaged” him in that it imposed additional punishment to the 1974 statute. Id. Therefore, the question became whether the new provision of not allowing aggravated indecent solicitation of a child to be expunged imposed greater punishment on the defendant. Id. In short, the appeals court determined that the district court’s use of the 1986 statute instead of the 1974 statute imposed greater punishment on the defendant. Id. The appeals court concluded that denying the defendant the opportunity to expunge his criminal record constituted a punishment and denying him the opportunity to remove his criminal record disadvantaged him. Id. Additionally, the use of the 1986 statute in a 1974 conviction violated the ex post facto clause of the United States Constitution. Id.