Bob Ambrogi
Eight students in the LawX legal design lab at BYU Law have developed an online resource, called Goodbye Record, that is designed to address flaws in the process for expunging criminal records in Utah and potentially other states as well.
I’ve written a number of times about LawX, a lab program launched in 2017 in which law students use design thinking to analyze and address critical issues in access to justice. In each semester-long lab, the students tackle a different issue.
Previous LawX projects have resulted in the development of SoloSuit, to help consumers respond to debt collection lawsuits, and which spun off as a private company, and Hello Landlord, designed to help tenants more effectively communicate with their landlords about issues that can lead to eviction.
In an interview yesterday, Marie Kulbeth, one of three adjunct professors who led the lab this semester, and Tanner Schenewark, a 2021 graduate who participated in it (and who will now join Clifford Chance in its New York office), told me that they chose expungement as their topic this year in part because of BYU Law’s past experience offering a Pro Bono Expungement Clinic.
The students initially planned to develop an app to help individuals apply for expungement. But as they investigated the issue as part of the design-thinking process, they found the bigger problem was that expungement often failed to result in the fresh start it was designed to provide.
They found that flaws in the system and outdated online information often make it difficult to fully erase a criminal past, even after obtaining expungement, resulting in online remnants that show up in background checks and often prevent individuals from obtaining housing or employment.
Given these findings, the students abandoned the app idea and instead built an online resource that addresses three main constituencies that can play a role in helping to ensure second chances for those who have had their records expunged: employers, individuals and governments.
“The idea is really to provide an electronic toolkit for the problem,” Schenewark said.
The employer component, which Goodbye Record calls the partner component, is directed at employers and invites them to take the Fair Shot Pledge to implement and support a series of measures to help reduce instances of misreporting, thus giving qualified individuals a fair shot at employment. Companies that take the pledge may display their corporate logo on the Goodbye Record website to let potential employees know they support individuals seeking a fresh start.
The individual component informs people on how to navigate post-expungement roadblocks, including how to report violations to the Equal Employment Opportunity Commission and the Department pf Housing and Urban Development, and how to communicate with the expungement clearinghouse to help background-check companies remove expunged records from commercial databases.
Currently in Utah, individual petitioners are responsible for reaching out to all the different agencies to make sure their records are expunged. This cannot be done electronically and often requires individuals to take time away from their work or job searches.
The government component addresses potential legislative and administrative solutions, including ways states and courts can improve the final step of expungement, limit access points and require commercial data subscribers to update their databases.
One solution the students developed to address the government component is improved contract language between governments and data subscribers. The students found that courts and government agencies have contracts with public records companies to regularly provide criminal data, and that those companies often resell their data even further downsteam. But when expungements are granted, the companies do not always update their data, so criminal records still appear in online databases and in criminal records checks.
The students developed contractual language for governments to use with these companies that does two things. First, it requires the companies to regularly update their databases to reflect expungements. Second, it provides an audit procedure to ensure that companies comply.
The students are also pushing for states to adopt legislation to shift the burden of distributing expungement orders from the individuals who are granted expungement to the agencies that maintain these records.
Earlier this month, the LawX students presented their findings to the Utah Supreme Court and Utah’s Administrative Office of the Courts. As a result, the Administrative Office has committed to amending its Compiled Data Dissemination Agreement to incorporate the students’ language.
It is also considering backing the legislation that would shift the burden of distributing expungement orders from individual petitioners to the Utah Bureau of Criminal Identification, which would be authorized to electronically request that other state agencies remove expunged information from their records.
While the students’ efforts have so far focused on Utah, they designed Goodbye Record to be a national resource and they plan to take their lobbying efforts to other states now that this has been launched.
In addition to Kulbeth, who is also COO and general counsel at SixFifty, the lab was also led by adjunct professors Eric Vogeler, general counsel and CCO at Genesis Block, and Justin Whittaker, principal at Invisible Co., who shared his expertise in product and business development and design thinking.
The lab also consulted with Utah Supreme Court Justice Constandinos “Deno” Himonas, known nationally for his role in developing Utah’s regulatory sandbox.
“I am really excited about this project,” Himonas said in a statement provided by LawX. “It is such a powerful example of design thinking and application. Rather than trying to replicate other efforts, LawX studied the space and sought to understand what the real choke points are to create some really innovative approaches to the expungement process.”
Given that Schenewark is now headed off to begin a career as an associate in the transactional group at Clifford Chance, I asked him if he thought his LawX work on a criminal justice problem contributed anything to his future career.
As it turned out, it was his summer associate position at Clifford Chance, a firm known for innovation and where he had the opportunity to work with the legal automation startup Josef, that whet his appetite for legal tech and led him to enroll in LawX.
Working through the design-thinking process in LawX showed him how complex legal problems can be and how many moving parts must be managed to address them, he said.
“When you’re able to come up with a solution that’s elegant and effective, I think that was a huge outcome,” he said. “I hope that I’ll take that forward in my career.”
Kulbeth pointed to something else the students learn. BYU Law seeks to instill in students not just a sense of justice, but also of mercy, she said, and expungement is one aspect of the criminal justice system that truly implicates mercy.
The person granted expungement has done their time, completed any probation, paid any fines, and now wants a chance to live their life and be part of their community.
“To me, that’s the meaning behind the project,” Kulbeth said. “We can’t have a perfect justice system. We know we don’t have one. So we have to have a way for mercy to be incorporated into the system.”
