Amicus Curiae Brief — Jane Doe, Petitioner v. Iowa

Supreme Court briefSep 5, 2019

Ask Donna

What actually matters in this document.

Text

No. 19-169

In the

Supreme Court of the United States

_____________________________

JANE DOE,

Petitioner

IOWA,

Respondent

_______________________________

On Petition for a Writ of Certiorari

to the Iowa Supreme Court

_________________________________________________

BRIEF OF AMICUS CURIAE COMMUNITY

LEGAL SERVICES, INC. IN SUPPORT OF

PETITIONER JANE DOE’S PETITION FOR A

WRIT OF CERTIORARI

_________________________________________________

JAMIE GULLEN

KATIE SVOBODA-KINDLE

Counsel of Record

1424 Chestnut Street

Philadelphia, PA 19102

215-981-3708

215-981-3787

kkindle@clsphila.org

jgullen@clsphila.org

_________________________________________________

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE……………………1

SUMMARY OF ARGUMENT………………………….2

ARGUMENT………………………………….…………..3

ARREST RECORDS ARE DEVASTATINGLY

COMMON AND EASILY ACCESSIBLE IN

THE DIGITAL AGE……………………………..3

II.

ARREST RECORDS CAUSE STIGMA AND

FORECLOSE ABILITY TO EARN INCOME

AND ACCESS LIFE NECESSITIES…….……5

a. Criminal Background Screening is on the Rise

among Employers………………………………...5

b. Arrest Records Cause Lack of Income and

Depressed Earnings………….…………………..6

c. Housing Access and Family Stability Are

Impacted by Arrest Records…………………….9

III.

IOWA

CODE

901C.2

PUNISHES

INNOCENT PEOPLE BY RELEASING

THEIR CRIMINAL RECORDS TO THE

PUBLIC SOLELY BECAUSE THEY ARE

INDIGENT……………………………………....11

a. Presumption of Innocence is a Bedrock

Principle that Prohibits Punishing People Who

Are Not Convicted of Crimes………………….12

b. Publicizing Non-conviction Records Imposes an

Unjust Harm on Innocent People…………..…13

i. Iowa Legislators Supported the Bill as a

Means to Undo an Unjust Harm to Innocent

Iowans……………………………………...…14

ii. The Text of Iowa Code § 901C.2 Reflects the

Belief that Public Non-conviction Records

Are an Unjust Penalty……………..……….16

c. Making Non-conviction Records Public Due to

Unpaid Fees Impermissibly Punishes Innocent

People……………………………………..……...17

IV.

SINGLING OUT AND PUNISHING PEOPLE

WHO OWE FEES DUE TO INDIGENCY

VIOLATES THE EQUAL PROTECTION

CLAUSE………………………………………….21

CONCLUSION…………………………………….……22

iii

TABLE OF AUTHORITIES

Cases

Bell v. Wolfish, 441 U.S. 520 (1979)…………..….13, 20

Coffin v. United States, 156 U.S. 423 (1895)……...…12

Commw. v. Malone, 244 Pa.Super. 62 (Pa. Super. Ct.

1976)………………………………………………………19

Commw. v. Wexler, 494 Pa. 325 (Pa. 1981)…………19

Griffin v. Illinois, 351 U.S. 12 (1956)…………….…..12

James v. Strange, 407 U. S. 128 (1972) ………8, 21, 22

Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015)..13, 19

Nelson v. Colorado, 137 S.Ct. 1249 (2017).…..….12, 18

State v. Doe, 927 N.W.2d 656 (Iowa 2019)..……….…

.……….…..……………………….………….15, 18, 20, 21

Statutes

Iowa Code § 901C.2………………..………………passim

Iowa Code § 907.4…………………………………….…17

15 U.S.C. § 1681c…………………………………………5

Other Authorities

Amanda Agan & Sonja Starr, The Effect of Criminal

Records on Access to Employment, 107 AM. ECON.

REV.: PAPERS & PROC. 560, 560 (2017), available at

https://repository.law.umich.edu/cgi/viewcontent.cgi?

article=2892&context=articles....................................7

Devah Pager, Bruce Western & Naomi Sugie,

Sequencing Disadvantage: Barriers to Employment

Facing Young Black and White Men with Criminal

Records, 623 ANNALS AM. ACAD. 195, 199 (2009),

available at https://scholar.harvard.edu/files/pager/

files/annals_sequencingdisadvantage.pdf..................7

Iowa Courts Online Search,

https://www.iowacourts.state.ia.us/ESAWebApp/Sele

ctFrame (last visited Aug. 29. 2019). ...................5, 14

Jenny Roberts, Expunging America’s Rap Sheet in the

Information Age, 2015 WIS. L. REV. 321 (2015)…..…4

J.J. Prescott & Sonja Starr, Expungement of Criminal

Convictions: An Empirical Study, 635 PUB. LAW AND

LEGAL THEORY RES. PAPER SERIES 45 (2019), available

https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=3353620................................................7, 8

Marie Claire Tran-Leung, Beyond Fear and Myth:

Using the Disparate Impact Theory under the Fair

Housing Act to Challenge Housing Barriers against

People with Criminal Records, 45 CLEARINGHOUSE

REV. 4, 5-6 (2011)..........................................................9

MARIE CLAIRE TRAN-LEUNG, SARGENT SHRIVER NAT’L

CTR. ON POVERTY LAW, WHEN DISCRETION MEANS

DENIAL: A NATIONAL PERSPECTIVE ON CRIMINAL

RECORDS BARRIERS TO FEDERALLY SUBSIDIZED

HOUSING

16-19

(2015),

available

https://www.povertylaw.org/files/docs/WDMDfinal.pdf........................................................................9

Meyli Chapin et al., A Cost-Benefit Analysis of

Criminal Record Expungement in Santa Clara

County, STAN. UNIV. PUB. POLICY PROGRAM 15 (2014),

available at https://publicpolicy.stanford.edu/

publications/cost-benefit-analysis-criminal-recordexpungement-santa-clara-county............................7, 8

Nat’l Ctr. for State Courts, Privacy/Public Access to

Courts Records: State Links, http://www.ncsc.org/

topics/access-and-fairness/privacy-public-access-tocourt-records/state-links.aspx (last visited Aug. 28,

2019). ............................................................................4

REBECCA VALLAS ET AL., CTR. FOR AM. PROGRESS,

REMOVING BARRIERS TO OPPORTUNITY FOR PARENTS

WITH CRIMINAL RECORDS AND THEIR CHILDREN: A

TWO-GENERATION APPROACH 1 (2015).........................4

Representative Sharon Steckman Remarks on Senate

File

385

(April

14,

2015,

8:57:39

AM),

https://www.legis.iowa.gov/legislation/billTracking/bi

llHistory?ga=86&billName=SF385 (follow April 14,

2015 “video” link)………….........................................14

Representative Mary Lynn Wolfe Remarks on Senate

File

385

(April

14,

2015,

8:55:15

AM),

https://www.legis.iowa.gov/legislation/billTracking/bi

llHistory?ga=86&billName=SF385 (follow April 14,

2015 “video” link)………….........................................15

Representative Chris Hagenow Closing Remarks on

Senate File 385 (April 14, 2015, 9:01:16),

https://www.legis.iowa.gov/legislation/billTracking/bi

llHistory?ga=86&billName=SF385 (follow April 14,

2015 “video” link)…………...................................16, 18

Robert Brame et al., Demographic Patterns of

Cumulative Arrest Prevalence by Ages 18 and 23, 60

CRIME & DELINQ. 471, 478 (2014). ..............................4

Roy Maurer, Know Before You Hire: 2017 Employment

Screening Trends, SOC’Y FOR HUMAN RES. MGMT. (Jan.

25,

2017),

https://www.shrm.org/

resourcesandtools/hr-topics/talent-acquisition/pages/

2017-employment-screening-trends.aspx...................6

Roy Maurer, More Employers Letting Candidates

Explain Conviction Records, SOC’Y FOR HUMAN RES.

MGMT. (May 15, 2015), https://www.shrm.org/

resourcesandtools/hr-topics/talent-acquisition/pages/

candidates-explain-conviction-records.aspx...............5

Senator Rich Taylor Closing Remarks on Senate File

385

(March

17,

2015,

4:52:00

PM),

https://www.legis.iowa.gov/legislation/billTracking/bi

llHistory?ga=86&billName=SF385 (follow March 17,

2015 “video” link)…………...................................16, 18

U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE

STATISTICS, SURVEY OF STATE CRIMINAL HISTORY

INFORMATION SYSTEMS 3 (2014), available at https://

www.ncjrs.gov/pdffiles1/bjs/grants/244563.pdf..........3

vii

U.S. DEP’T OF LABOR EMP’T STANDARDS ADMIN. WAGE

& HOUR DIV., FACT SHEET #30: THE FEDERAL WAGE

GARNISHMENT LAW, CONSUMER CREDIT PROTECTION

ACT'S TITLE III (2016), available at https://

www.dol.gov/whd/regs/compliance/whdfs30.pdf.....…8

INTEREST OF AMICUS CURIAE 1

Community Legal Services, Inc. (CLS) was

founded by the Philadelphia Bar Association in 1966

as an independent 501(c)(3) organization to provide

free legal services in civil matters to low-income

Philadelphians. Since its founding, CLS has served

more than one million clients who could not afford to

pay for legal representation. CLS has prioritized

providing extensive services to people with criminal

records for nearly two decades. It has been at the

cutting edge of issues surrounding the civil

consequences of criminal records, including the

impact of records on employment, housing, and

education.

CLS also assists hundreds of Philadelphians

each year with clearing up their records through the

expungement, sealing, and pardon processes. CLS

advocated for Pennsylvania’s bi-partisan Clean Slate

law, which became the first in the nation to automate

the process of sealing millions of criminal records,

including all non-convictions. CLS is a national leader

on criminal record clearing, and has launched the

National Record Clearing Project through which it

provides nationwide support to civil legal services and

other organizations that are seeking to start or

expand their record clearing programs.

1 Counsel for amicus curiae authored this brief in whole, and no

other person or entity other than amicus has made a monetary

contribution to the preparation or submission of this brief.

Counsel for both parties were given ten days notice and both

parties consented to the filing of this brief.

SUMMARY OF ARGUMENT

In the digital age, arrest records are often as

readily available as newspaper articles, able to be

pulled up on a smart phone or delivered to an inbox in

the form of a commercial background check. This is

especially the case in Iowa, where even people falsely

accused of crimes have that information publicized

online on a government website. These records impact

the nearly 700,000 Iowans who have been arrested,

but are particularly detrimental to indigent Iowans

who are most in need of access to employment,

housing, and stability for their families. Even a nonconviction record can wholly foreclose the ability of

individuals to secure gainful employment or access

stable and safe housing.

In Iowa, a poor person who is charged with a

crime is required to pay a fee to enjoy the right to

counsel in his defense, even if he is found not guilty.

Iowa crossed a constitutional line in its efforts to

collect that fee when it enacted Iowa Code § 901C.2,

which denies access to expungement to people who

were too poor to pay for a lawyer in the first place, and

are still too poor to pay for the indigent defense fee.

By enacting a harsh, discriminatory and punitive

penalty that singles out indigent defense fee debt and

applies to people who are presumed innocent, Iowa

has violated both the Equal Protection Clause and the

fundamental prohibition against punishing the

innocent.

The sanction is a punishment because Iowa

legislators recognized no legitimate government

purpose for keeping non-conviction records public,

finding instead that public arrest records were an

unjust penalty imposed on innocent people. Moreover,

the sanction is excessive in relation to any legitimate

interest. Poor Iowans are not good sources of income,

and are even less likely to be able to pay if their

records are made public and they are unable to secure

gainful employment.

Iowa Code § 901C.2 not only punishes people

who are presumed innocent, it singles out people who

are presumed innocent and have the misfortune of

being poor. The intersection of the Equal Protection

challenge with the presumption of innocence makes

this case ripe for review. The widespread availability

of non-conviction records and the harm they cause

makes this case of particular importance nationwide.

We thus respectfully ask this Court to grant the

petition for certiorari.

ARGUMENT

ARREST RECORDS ARE

DEVASTATINGLY COMMON AND

EASILY ACCESSIBLE IN THE

DIGITAL AGE

More than one hundred million American

adults have some type of criminal record.2 In Iowa,

this translates to over 677,000 individuals.3 Today,

approximately one-third of American adults, and onehalf of African American adults, will be arrested by

2 U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,

SURVEY OF STATE CRIMINAL HISTORY INFORMATION SYSTEMS 3

(2014), available at

https://www.ncjrs.gov/pdffiles1/bjs/grants/244563.pdf.

3 Supra note 2 at Table 2.

the age of twenty-three.4 Half of American children

now have at least one parent who has a criminal

record.5 Many of these records are for arrests that

never resulted in conviction.

The prevalence of and easy access to criminal

records has become a significant burden on millions of

individuals and families across the United States.

Twenty years ago, an employer or landlord would

have to go to a local courthouse to view a physical file

to find out whether a job applicant or potential tenant

had a criminal record. Now, due to advances in

technology and the resulting rise of a multi-billiondollar background check industry, employers,

landlords, and data collection companies are able to

easily access criminal records online.6

For individuals who were arrested but never

convicted, the widespread publication of this record

information is particularly problematic. In the past,

an individual who was not convicted of an offense

would leave the courtroom with little to no

repercussions from the state having accused him of a

crime, potentially without merit. Today, states like

Iowa frequently publish criminal record information

4 Robert Brame et al., Demographic Patterns of Cumulative

Arrest Prevalence by Ages 18 and 23, 60 CRIME & DELINQ. 471,

478 (2014).

5 REBECCA VALLAS ET AL., CTR. FOR AM. PROGRESS, REMOVING

BARRIERS TO OPPORTUNITY FOR PARENTS WITH CRIMINAL

RECORDS AND THEIR CHILDREN: A TWO-GENERATION APPROACH

1 (2015).

6 See Nat’l Ctr. for State Courts, Privacy/Public Access to

Courts Records: State Links, http://www.ncsc.org/topics/accessand-fairness/privacy-public-access-to-court-records/statelinks.aspx (last visited Aug. 28, 2019); Jenny Roberts,

Expunging America’s Rap Sheet in the Information Age,

2015 WIS. L. REV. 321 (2015).

online and sell arrest data to commercial background

check companies who then reveal that information to

employers, landlords, and others. Criminal histories

are particularly easy to access in Iowa because

statewide criminal record information is published on

Iowa Courts Online, which can be accessed by any

person at any time.7 This information can be used

even against individuals who were acquitted.

II.

ARREST RECORDS CAUSE

STIGMA AND FORECLOSE

ABILITY TO EARN INCOME AND

ACCESS LIFE NECESSITIES

a. Criminal Background Screening is

on the Rise among Employers

Ninety percent of employers perform some form

of criminal background check during the hiring

process.8 Many employers contract with commercial

background check companies to provide them with

criminal history record information. These companies

are permitted by the Fair Credit Reporting Act to

reveal arrests without convictions dating back seven

years. 15 U.S.C. § 1681c(a)(5). Sometimes this rule is

violated and arrests dating back much further than

seven years are reported.

7 See Iowa Courts Online Search,

https://www.iowacourts.state.ia.us/ESAWebApp/SelectFrame

(last visited Aug. 29. 2019).

8 Roy Maurer, More Employers Letting Candidates Explain

Conviction Records, SOC’Y FOR HUMAN RES. MGMT. (May 15,

2015), https://www.shrm.org/resourcesandtools/hr-topics/talentacquisition/pages/candidates-explain-conviction-records.aspx.

Employers commonly screen for and reject

applicants, or terminate current employees, based on

records of arrest without conviction. “Ban-the-Box”

laws that prohibit asking about criminal records on

the initial job application have proliferated around

the country. But these laws have not reduced the

prevalence of background screening of applicants and

employees, which is on the rise.9 Many employers

consider arrest records relevant to the hiring process,

while other employers lack training in how to

understand criminal records and may assume that

arrest records are equivalent to conviction records.

This means that people with arrest records lose more

job opportunities and earn less money than their

counterparts without records.

b. Arrest Records Cause Lack of

Income and Depressed Earnings

The widespread availability of arrest records

and the prevalence of employer background checking

mean that individuals who have never been convicted

of a crime can nonetheless be boxed out of employment

altogether, or be stuck in a chronic state of

underemployment, unable to reach their full earning

potential based on their education, skills, and

abilities.

Researchers have found that the existence of a

criminal record reduces the likelihood of a job offer by

more than 50 percent, with an even more pronounced

9 Roy Maurer, Know Before You Hire: 2017 Employment

Screening Trends, SOC’Y FOR HUMAN RES. MGMT. (Jan. 25,

2017), https://www.shrm.org/resourcesandtools/hr-topics/talentacquisition/pages/2017-employment-screening-trends.aspx.

effect on Black applicants than white applicants.10

Another study found that when employers asked

about criminal history of job applicants, those without

records received sixty-three percent more callbacks,

even though the records in question were relatively

minor.11

By contrast, a study out of California showed

that individuals who had their arrest records

expunged reported an increase in yearly income of

$6,190 after record clearance.12 Additionally, ninetythree percent of those surveyed reported feeling more

confident in their future job prospects once the stigma

of their criminal records were no longer following

them.13

Similarly, a study out of Michigan found that

those who obtain expungement experience a sharp

upturn in their wages within just two years, with

earnings rising by twenty-five percent.14 The

10 Devah Pager, Bruce Western & Naomi Sugie, Sequencing

Disadvantage: Barriers to Employment Facing Young Black and

White Men with Criminal Records, 623 ANNALS AM. ACAD. 195,

199 (2009), available at

https://scholar.harvard.edu/files/pager/files/annals_sequencingd

isadvantage.pdf.

11 Amanda Agan & Sonja Starr, The Effect of Criminal Records

on Access to Employment, 107 AM. ECON. REV.: PAPERS & PROC.

560, 560 (2017), available at

https://repository.law.umich.edu/cgi/viewcontent.cgi?article=289

2&context=articles.

12 Meyli Chapin et al., A Cost-Benefit Analysis of Criminal

Record Expungement in Santa Clara County, STAN. UNIV. PUB.

POLICY PROGRAM 15 (2014), available at

https://publicpolicy.stanford.edu/publications/cost-benefitanalysis-criminal-record-expungement-santa-clara-county.

13 Supra note 12.

14 J.J. Prescott & Sonja Starr, Expungement of Criminal

Convictions: An Empirical Study, 635 PUB. LAW AND LEGAL

researchers attribute this to unemployed people

finding jobs and very minimally employed people

finding steadier or higher-paying work.15

Framed another way, Iowans who cannot afford

to pay their indigent defense fees and expunge their

records experience the harm of having their wages

depressed by twenty-five percent. This is analogous to

wage garnishment, which federal law generally caps

at twenty-five percent of income.16 In James v.

Strange, this Court noted that a “debtor's wages are

his sustenance, with which he supports himself and

his family. The average low income wage earner

spends nearly nine-tenths of those wages for items of

immediate consumption.” James v. Strange, 407 U. S.

128, 135 (1972). Iowans with arrest records that they

cannot expunge due to their indigence are like the

debtors in Strange, unable to support themselves and

their families.

If indigent Iowans were allowed to access the

expungements to which they are otherwise legally

entitled, they would have a chance to increase their

earnings and climb out of poverty. Not only would this

increase individual and family income, but it would

also create more government revenue for Iowa

because individuals with higher income are able to

pay more in taxes and utilize fewer public benefits.17

Ensuring that indigent individuals have access to

THEORY RES. PAPER SERIES 45 (2019), available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3353620.

15 Supra note 14.

16 U.S. DEP’T OF LABOR EMP’T STANDARDS ADMIN. WAGE & HOUR

DIV., FACT SHEET #30: THE FEDERAL WAGE GARNISHMENT LAW,

CONSUMER CREDIT PROTECTION ACT'S TITLE III (2016), available

at https://www.dol.gov/whd/regs/compliance/whdfs30.pdf.

17 Supra note 12.

expungement relieves individual suffering, while

ultimately providing financial benefits to localities,

states, and our nation as a whole.

c. Housing Access and Family Stability

Are Impacted by Arrest Records

Arrest records also serve as a large barrier to

stable housing, especially for low-income and

vulnerable individuals and families. Public housing

authorities often use records of arrest without

conviction to deny housing to prospective residents or

evict current tenants.18 Moreover, many public

housing authorities look back as far as twenty years

to deny individuals housing based on criminal

records.19 These denials prevent entire families from

being able to live together in affordable housing.

Although not regulated in the same way as

public housing, private landlords often set up

background check procedures of their own volition or

as required by some municipal governments, and

deny rentals to individuals with arrest records.20 One

recent study out of Akron, Ohio found that nearly twothirds of private landlords did not accept applicants

with criminal records.21 A brief search on Craigslist

18 MARIE CLAIRE TRAN-LEUNG, SARGENT SHRIVER NAT’L CTR. ON

POVERTY LAW, WHEN DISCRETION MEANS DENIAL: A NATIONAL

PERSPECTIVE ON CRIMINAL RECORDS BARRIERS TO FEDERALLY

SUBSIDIZED HOUSING 16-19 (2015), available at

https://www.povertylaw.org/files/docs/WDMD-final.pdf.

19 Supra note 18, at V.

20 Marie Claire Tran-Leung, Beyond Fear and Myth: Using the

Disparate Impact Theory Under the Fair Housing Act to

Challenge Housing Barriers Against People with Criminal

Records, 45 CLEARINGHOUSE REV. 4, 5-6 (2011).

21 Supra note 20, at 6.

reveals that screening based on arrest records runs

rampant across the country. In states like Iowa where

non-conviction arrest information is published online,

landlords can easily do their own internet searches

and screen out prospective tenants with arrest

records.

These policies cause many vulnerable

individuals and families to face tremendous housing

instability, and even homelessness, while doing little

to protect the safety of residents. Moreover, housing

and employment discrimination often compound one

another, keeping indigent people in a perpetual state

of instability and poverty, unable to escape their

records and access the basic necessities of life.

Take the case of CLS client Maria, a 37-yearold mother of three children who had experienced

years of domestic violence at the hands of her

children’s father. After his violence put her in the

hospital several times, Maria decided she needed to

leave him. While she was in the process of getting

legal help to get a Protection from Abuse order against

him, he showed up at her house and began physically

attacking her. Afraid for her life, Maria grabbed the

closest item she could find – a glass bottle – and hit

him on the head with it so she could get away. He then

ran to the police station with a bleeding cut on his

head and accused her of assaulting him. This led to

Maria being arrested. Fortunately, these unfounded

charges were quickly dismissed for lack of evidence.

Soon after, Maria was hired as a receptionist at

a hospital, and was able to leave the home of her

abuser and begin renting a safe apartment where she

could live with her children. Then, the background

check the hospital conducted came back and Maria’s

arrest record was reported. The hospital flagged the

record and told Maria she would need to clear it up if

she was to continue to work there. Maria was fearful

that she would lose her job and thus her ability to

maintain a safe home for herself and her children.

Maria was able to get connected to legal help to

get her record expunged, which she then was able to

show to her employer to maintain her job. Had she

been in Iowa and charged an indigent defense fee, she

would not have been able to afford to expunge her

record given her precarious financial situation. She

would have likely lost her job, and she and her

children would have become homeless, unable to

procure or sustain housing because of her record. Or

worse yet, they would have been put back in a

situation where they were subject to violence.

Maria’s story is all too common among CLS’s

clients. Likewise, there are doubtless thousands of

innocent Iowans like Maria who are facing similar

situations due solely to their indigency.

III.

IOWA CODE § 901C.2 PUNISHES

INNOCENT PEOPLE BY RELEASING

THEIR CRIMINAL RECORDS TO THE

PUBLIC SOLELY BECAUSE THEY

ARE INDIGENT

Jane Doe, like all the Iowans who are eligible

for expungement under Iowa Code § 901C.2, is

presumed innocent. Even though she was not

convicted, Doe owes fees to the state for the attorney

who was appointed to represent her because she could

not afford to hire counsel. As much as the Iowa

government may want to exact indigent defense fees,

they may not do so in a way that punishes Doe,

because she is protected by the presumption of

innocence.

In enacting Iowa Code § 901C.2, Iowa

legislators imposed the penalty of keeping arrest

records public for people who were presumed innocent

but could not pay fees. By their own calculations,

keeping non-conviction records public is harsh,

unjust, and unrelated to a legitimate governmental

interest. Because the Iowa legislature chose to impose

this penalty after recognizing that it is unjust and

unjustifiable, the publication of arrest records is a

punishment. As a punishment imposed on people

presumed innocent, it violates one of the most basic

tenets of our law.

a. Presumption of Innocence is a

Bedrock Principle that Prohibits

Punishing People Who Are Not

Convicted of Crimes

When individuals like CLS client Maria or Iowa

Legal Aid client Doe are arrested, they are presumed

innocent unless proven guilty. This presumption of

innocence is a value that lies at the root of our nation.

“The principle that there is a presumption of

innocence in favor of the accused is the undoubted

law, axiomatic and elementary.” Coffin v. United

States, 156 U.S. 423, 453 (1895). This principle is not

altered if a person is indigent, has appointed counsel,

owes fees, or is unable to pay fees. The realization of

the presumption of innocence cannot be contingent on

indigency. See Griffin v. Illinois, 351 U.S. 12, 17-18

(1956) (“Plainly the ability to pay costs in advance

bears no rational relationship to a defendant’s guilt or

innocence.”).

Presumption of innocence is not limited to

individuals who have pending charges. Nelson v.

Colorado, 137 S.Ct. 1249, 1255 n.8 (2017). Rather,

individuals like Maria or Doe who are accused of

crimes but later acquitted, or have their charges

dismissed, are likewise presumed innocent. See id.

(finding that petitioners whose “convictions were

reversed or vacated, with no prospect of

reprosecution” were presumed innocent “once those

convictions were erased.”)

Iowans who are eligible for expungement under

Iowa Code § 901C.2 were all either acquitted of the

charges against them or had those charges dismissed,

so they are all presumed innocent. It should go

without saying that they therefore should not face

punishment. Punishing people who are presumed

innocent is the antithesis of due process. See Bell v.

Wolfish, 441 U.S. 520, 535 (1979). That is why this

Court has made clear that people who are not

convicted of a crime “may not be punished at

all.” Kingsley v. Hendrickson, 135 S.Ct. 2466, 2474

(2015).

b. Publicizing Non-conviction Records

Imposes an Unjust Harm on

Innocent People

The legislative history and text of Iowa Code

§ 901C.2 show that Iowa legislators recognized the

great harm imposed by public non-conviction records

which prevent Iowans from accessing opportunity.

Iowa viewed this harm as particularly unjust because

it was imposed on people who enjoy the presumption

of innocence. Iowa legislators crafted a law that did

not recognize any legitimate governmental interest in

keeping non-conviction records public, and thereby

they expressed their belief that publicizing these

records was unjustifiable.

i. Iowa Legislators Supported

the Bill as a Means to Undo an

Unjust Harm to Innocent

Iowans

Reflecting the growing body of research and

awareness regarding the harm of arrest records, the

Iowa legislature introduced Senate File 385, the bill

that became Iowa Code § 901C.2, in the spring of

2015. The bill received unanimous, bipartisan support

– no small feat in today’s hyper-partisan era. Many

legislators spoke in favor of the bill, emphasizing the

fact that public records do great harm.

I had a constituent who contacted me

this summer and her story was horrific…

She was arrested for dealing in meth... It

was a case of mistaken identity, totally

mistaken identity, I talked to both of the

lawyers involved… [After the case was

dismissed], for her it was not over. She

has a degree as a medical assistant …

She goes to apply for a job and the first

thing they see on her records is that she

was charged with dealing in meth… She

can’t get a job anywhere because of the

fact that she can’t get it taken off Iowa

Courts Online.22

22 Representative Sharon Steckman Remarks on Senate File 385

(April 14, 2015, 8:57:39 AM),

https://www.legis.iowa.gov/legislation/billTracking/billHistory?g

a=86&billName=SF385 (follow April 14, 2015 “video” link).

This is a bill that is going to help

thousands of Iowans… Under current

law [a dismissed] case file, all the

information in it, all the untrue

allegations stays on their record forever.

And every time they go to apply for a job,

every time they fill out a rent application

… they have worry that somebody is

going to pull that out.23

The Iowa legislators not only condemned the

harm caused by public non-conviction records, they

believed that expunging such records is required by

justice. Unlike the Iowa Supreme Court, which

dismissed expungement as “a matter of legislative

grace,” State v. Doe, 927 N.W.2d 656, 660 (Iowa 2019),

Iowa legislators explained that it is fundamentally

unjust to harm those who have been convicted of no

crime by foreclosing access to necessities like

employment and housing, and that the purpose of the

bill was to undo that unjust harm.

Colleagues, this is the right thing to do.

People who are not guilty have court

records online, are being harmed. Some

are having trouble getting jobs, finding a

place to live… It’s just not right to do

that to people if they were found not

23 Representative Mary Lynn Wolfe Remarks on Senate File 385

(April 14, 2015, 8:55:15 AM),

https://www.legis.iowa.gov/legislation/billTracking/billHistory?g

a=86&billName=SF385 (follow April 14, 2015 “video” link).

guilty or

justified.24

the

charges

weren’t

The bill’s sponsor in the house went so far as to

describe the retention of public non-conviction records

as a penalty that violated fundamental rights. “It’s

just simply the right thing to do to make sure that

people’s fundamental rights are protected, that they

are [sic] not have a lingering penalty or societal black

mark for a crime of which they are [sic] been found not

guilty.”25

The Iowa legislators understood that living

with an arrest record is an unjust penalty that

impacts every area of life, and expungement is the

way to fulfill the promise of the presumption of

innocence.

ii. The Text of Iowa Code § 901C.2

Reflects the Belief that Public

Non-conviction Records Are

an Unjust Penalty

During the discussion of Senate File 385, not a

single legislator argued that there is a legitimate

governmental purpose for permanently publicizing a

non-conviction record. No one argued that there is

value in a public record that could possibly outweigh

24 Senator Rich Taylor Closing remarks on Senate File 385

(March 17, 2015, 4:52:00 PM),

https://www.legis.iowa.gov/legislation/billTracking/billHistory?g

a=86&billName=SF385 (follow March 17, 2015 “video” link).

25 Representative Chris Hagenow Closing remarks on Senate

File 385 (April 14, 2015, 9:01:16),

https://www.legis.iowa.gov/legislation/billTracking/billHistory?g

a=86&billName=SF385 (follow April 14, 2015 “video” link).

the harm public records caused. Instead, all of the

speakers expressed a belief that making nonconviction records public forever imposes an unjust

penalty on innocent people. This belief is not only a

matter of legislative history; it is built into the very

text and structure of Iowa Code § 901C.2.

Iowa Code § 901C.2 is premised on the belief

that there is no possible legitimate governmental

interest in keeping a non-conviction record public. The

law does not allow a prosecutor to object and argue the

government’s interest in keeping a particular nonconviction record public. See Iowa Code § 901C.2 (“the

court shall enter an order expunging” a qualifying

record. (emphasis added)). The law does not allow the

presiding judge to weigh the government’s need for a

public record against the harm to the individual, to

determine whether the allegations were sufficiently

proven, to decide whether the actions underlying the

arrest are part of a larger pattern of behavior, or to

judge whether the individual somehow “merits”

expungement.26 Instead, every qualifying record

“shall be expunged.” Iowa Code § 901C.2. In creating

this structure, the legislators codified their belief that

forever publicizing non-conviction records is an unjust

and unjustifiable harm.

c. Making Non-conviction Records

Public

Due

to Unpaid

Fees

26 The government’s potential arguments are much weaker than

they might be if Iowa completely destroyed an expunged record.

Under Iowa law, an expunged record is not destroyed. It is

inaccessible by the public, but can still be viewed by judges,

court clerks, police and corrections personnel, and prosecutors.

Iowa Code § 901C.2(2); Iowa Code § 907.4(2). This is similar to

“sealing” or “limited access” in other states.

Impermissibly Punishes Innocent

People

Iowa legislators recognized that making nonconviction records public forever is an unjust and

unjustifiable penalty. They described the harm in

punitive terms, calling it a “lingering penalty”27 and a

harm that was “just not right.”28 They crafted a law

that did not recognize any possible legitimate

governmental interest in keeping records public, but

instead created an automatic right for all eligible

cases without consideration of the government’s need

for a particular public record.

But even as they expressed the belief that

publicizing non-conviction records was an unjust

penalty on the innocent, even as they passed a law

that codified that belief, they made it impossible for

indigent people to expunge their non-conviction

records. The Iowa Supreme Court found that this

condition was imposed to “motivate defendants to pay

what they owe to the State.” State v. Doe, 927 N.W.2d

at 665.

But Iowa may not punish innocent people in

order to extract money from them. Cf. Nelson v.

Colorado, 137 S.Ct. at 1256 (“Colorado may not

presume a person, adjudged guilty of no crime,

nonetheless guilty enough for monetary exactions.”)

Every Iowan who is eligible for expungement under

Iowa Code § 901C.2 is presumed innocent, no matter

if she is rich or poor, if she owes fees or not.

Iowa has extended a right of expungement to

people who are presumed innocent based on notions of

27 Supra note 25.

28 Supra note 24.

basic fairness and justice, recognizing that that the

harm is great and there is no legitimate governmental

interest at play. At the same time, they have imposed

this harm, a harm that they have deemed unjust and

unjustifiable, as a penalty for nonpayment of fees. By

choosing to impose this penalty, they are punishing

the innocent.

The gravity of the penalty alone makes it akin

to a punishment. “[I]t is not hyperbole to suggest that

one who is falsely accused is subject to punishment

despite his innocence [due to his arrest

record]. Punishment of the innocent is the clearest

denial of life, liberty and property without the due

process of law.” Commw. v. Malone, 244 Pa.Super. 62,

69 (Pa. Super. Ct. 1976) (cited with approval in

Commw. v. Wexler, 494 Pa. 325, 329 (Pa. 1981)).

Innocent people lose wages, jobs, and housing due to

criminal records that are generated, retained and

publicized by the government. In fact, the

Pennsylvania Supreme Court has found that there is

a right to expungement of arrest records in some

circumstances because the hardship imposed is so

great. Commw. v. Wexler, 494 Pa. at 329.

But it is not only the seriousness of the penalty

that makes this action a punishment. It is the fact

that Iowa has chosen to impose a penalty even after

recognizing that it is harsh, unjust and unjustifiable.

Iowa legislators recognized that there can be no

governmental interest in publicizing an arrest record

that outweighs the harm that record causes to people

who are presumed innocent. They crafted a law that

mandates expungement of eligible cases, without

consideration of the particular facts underlying them.

But at the same time, Iowa chose to publicize nonconviction records as a penalty for nonpayment. By

imposing a serious harm without a legitimate

governmental interest, Iowa has chosen to punish

innocent people who owe fees. See Kingsley v.

Hendrickson, 135 S.Ct. 2466, 2473 (2015) (actions are

a punishment if “the actions are not ‘rationally related

to a legitimate nonpunitive governmental purpose’” or

if “the actions ‘appear excessive in relation to that

purpose.’” (quoting Bell v. Wolfish, 441 U.S. 520, 538

(1979)).

Iowa’s publication of non-conviction records is also

punitive because it is excessive in light of any possible

legitimate governmental interest. See id. (actions are

punishment if they “appear excessive in relation to

[their stated] purpose.”). The harm public criminal

records do to innocent people greatly outweighs any

gain the legislature can expect to get by “motivating”

indigent people to pay fees they cannot afford.

Individuals who have no ability to pay are by their

nature not good sources of revenue for the

government. The government is more likely to recoup

revenue by allowing indigent people to access

expungement, which will allow them to get better

employment, pay more in taxes, and rely less on public

assistance programs.29

Moreover, the penalty of denying access to

expungement is excessive because it is imposed on

people even when they have no ability to pay the fees

they owe. The Iowa Supreme Court found that a judge

is not permitted to waive the fee requirement when

the petitioner has no ability to pay. “Had the

legislature intended to allow courts to waive the

requirement that court-appointed attorney fees be

repaid prior to expungement based on a present

29 See supra note 12.

inability to pay, it could have said so.” State v. Doe,

927 N.W.2d at 665. A penalty that applies irrespective

of ability to pay is a lifetime sentence for many

Iowans, and imposing this penalty on those who were

never convicted is excessive no matter what they owe.

IV.

SINGLING OUT AND PUNISHING

PEOPLE WHO OWE FEES DUE TO

INDIGENCY VIOLATES THE EQUAL

PROTECTION CLAUSE

The error of Iowa’s scheme is even more

apparent when one considers that the class of people

who are punished are indigent people who exercised

their right to court-appointed counsel. State v. Doe,

927 N.W.2d at 662 (“In our view, the relevant groups

to compare are individuals who owe fees to a private

attorney and those like Doe who owe fees for courtappointed counsel.”). Iowa Code § 901C.2 violates the

Equal Protection Clause because it singles out people

who exercised their right to court-appointed counsel

for a harsh and punitive penalty. Iowans who are

innocent, but have the misfortune of also being poor,

cannot expunge their records “merely because [their]

obligation is to the public treasury rather than to a

private creditor.” James v. Strange, 407 U.S. 128, 138

(1972). In contrast, people of means who could afford

to hire a lawyer and are subsequently acquitted or

have the charges against them dismissed can easily

remove their arrest record from the public sphere.

Indigent people like Doe who cannot afford

counsel are nonetheless guaranteed the right to

counsel by the United States Constitution. Imposing

harsh conditions against her because she exercised

this right, and thereafter owes fees to the state, is “a

discrimination which the Equal Protection Clause

proscribes.” James v. Strange, 407 U.S. at 140-41. The

Court in James v. Strange considered a recoupment

statute that imposed harsher recoupment rules on

indigency fees than other types of debts. The Court

found that this law violated the Equal Protection

Clause because it invidiously discriminated against

indigent criminal defendants. The Court stated that

the law “embodie[d] elements of punitiveness and

discrimination which violate the rights of citizens to

equal treatment under the law.” James v. Strange,

407 U.S. at 142.

Like the recoupment statute in James v.

Strange, Iowa Code § 901C.2 is punitive and

discriminatory in relation to indigent people charged

with crimes. But unlike the recoupment statute in

James v. Strange, Iowa Code § 901C.2 targets poor

people who are also presumed innocent. A poor person

who is wrongly charged with a crime is already

burdened with court debt in Iowa, despite his

innocence. To add insult to injury, the Iowa

legislature has decided to single out that debt for

harsh, discriminatory and punitive treatment. Iowa

legislators have imposed a sanction that, by their own

calculations, is unjust and has no legitimate

governmental purpose. By targeting indigent

defendants, they are violating the Equal Protection

Clause. By targeting innocent indigent defendants,

they are violating our deepest ideals of justice and

fairness.

CONCLUSION

Innocent Iowans with arrest records should not

be forced to live with a myriad of negative

consequences for their entire lives solely because they

are indigent. This case presents a legal issue of great

importance to the Constitution, set in the context of a

widespread problem regarding the public availability

of non-conviction records and the devastating harm

they cause to individuals and families. We

respectfully request that this Court grant certiorari in

this matter and reverse the decision of the Iowa

Supreme Court.

Respectfully submitted,

Jamie Gullen

Counsel of Record

Supervising Attorney

Community Legal Services, Inc

1424 Chestnut St.

Philadelphia, PA 19102

215-981-3787

jgullen@clsphila.org

Katie Svoboda-Kindle

Staff Attorney

Community Legal Services, Inc

1424 Chestnut St.

Philadelphia, PA 19102

215-981-3708

kkindle@clsphila.org

September 5, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.