Brief of Amici Curiae of Lewis & Clark Law School Criminal Justice Reform Clinic, American Civil Liberties Union of Oregon, Oregon Tradeswoman, Oregon Consumer Justice, Fines & Fees Justice Center, and National Consumer Law Center in support of Appellant Kenneth Marion Duhham.
Kenneth Marion Dunham is caught in a debt trap. Without expungement of his criminal record, he cannot secure employment. Without employment, he cannot pay his court debt. And without paying his court debt, he cannot expunge his criminal record.
Mr. Dunham’s situation is neither unique nor rare. Criminal justice researchers and reform organizations—including amici—have long documented the troubling twin consequences of court debt that cannot possibly be repaid and criminal records that prevent employment and financial security. The Oregon
Legislature created a system of expungement to mitigate the severe financial consequences of a criminal record. But if the people most affected by those consequences are prevented from expunging their criminal records because of their poverty, the very purpose of the remedy is defeated.
Criminal records and court debt both have devastating and destabilizing effects on the lives of defendants. The goal of Oregon’s criminal justice system is not to inhibit social and economic mobility, destabilize families, and penalize poverty. To avoid these consequences, the state requires its procedures both for expungement of records and for relief from court debt to be implemented effectively and efficiently.
We agree with Mr. Dunham that the trial court abused its discretion when it declined to consider the Excessive Fines Clause and the factors outlined under ORS 161.665(5) and ORS 161.685(5) when denying his motion to waive his outstanding court debt.
The effect of the trial court’s decision is to condition his access to expungement on the payment of a debt that—without expungement—is impossible to pay. That is not what the Oregon Legislature intended when it created procedures to allow people like Mr. Dunham to obtain relief.