Wendi C. Thomas: Expunge this: Tennessee law impossibly complicated

It started, as many stories do, with a pretty woman.

She was a barmaid in New Orleans. Ray Duncan can't remember her name, but he brought her back to Knoxville.

"I fell in love," he admitted. "I started buying things for her and I started writing checks."

Five bad checks, totaling no more than $600.

He was 19 when he was caught, convicted and sent to prison.

Duncan, now 55, lost his right to vote. That's what bothers him the most.

He hoped that a new state law, designed to expunge the record of certain one-time, nonviolent felons, would clear him in time to vote in the fall presidential election.

But it won't, at least not by November.

To say that the law, which took effect July 1, has some kinks is to assert that Mount Everest is gently sloped.

The list of requirements to apply is long and the list of felonies excluded is longer.

What began as a well-intentioned bill has morphed into a mess that has frustrated those who need help and those trying to help them.

Shell game

Rep. Karen Camper, D-Memphis, introduced the law after she saw how tough it was for ex-offenders to find employment.

It passed with bipartisan support –88-1 in the House and 19-10 in the Senate.

But in the three weeks since the law went into effect, no one in Shelby County has benefited.

Just figuring out who qualifies is a chore.

Tennessee Code Annotated 40-32-101(g) is so narrowly tailored that it says yes to a felon convicted of car burglary but no to someone convicted of getting too rowdy at a funeral.

Most nonviolent offenses committed before Nov. 1, 1989 do, but dozens committed after Nov. 1, 1989 don't.

Eligible convictions include Class E felonies on the inclusion list or misdemeanors not on the exclusion list.

No sex crimes qualify, which would include the conviction of a driver stopped for playing porn on TV screens inside the car.

Then, there are the costs. The law levies a $350 fee, but there's another statute that allows the county clerk to charge another $100.

Sen. Beverly Marrero, D-Memphis, said her office talked to a woman who took out a car title loan to come up with enough money.

"She needed to get this expunged from her record to get employment," Marrero said.

"When she went there with her $350 in hand, they told her she needed $450. It's outrageous."

Even the wording is confusing: it allows for the expungement of "one of the following class E felonies" for… "an offense."

Duncan, who otherwise has a clean record, was convicted on two indictments, one for two checks, the other for three, all of which were written over a week's time.

If an offense is intended to be a single criminal incident, as Shelby County deputy district attorney John Campbell believes, then this could be more than one criminal incident. Multiple checks, multiple victims, multiple offenses.

But depending on how the district attorney filed the case, said Knox County Public Defender Mark Stephens, who has researched Duncan's situation, it could be just one.

Stephens suspects the details will be ironed out if the legislature revises the law or it's tested in court.

If the law wasn't written to help people like Duncan, Stephens wonders who it was written for.

It reminds him of a scene from "The Jerk," where Steve Martin plays a weight-guesser at a carnival. If he's wrong, Martin says, fairgoers can choose from a huge wall of prizes. Then Martin narrows the prizes available from everything on the wall, then what's on a shelf, and then only what's on a small section of the shelf.

"At the end of his little skit," Stephens said, "you can get like an eraser and a thumbtack and that sort of reminds me of this expungement.""This sounds like, 'Oh my god, we're going to give these people a break!' and in the end, it'll be two people in the whole state who will get their record expunged.

"The rest are going to get an eraser and a thumbtack."

Dozens of hopefuls have called Stephens' office. "I have not had a single person who qualifies."

Neither has Shelby County assistant public defender Josh Spickler, who has fielded many inquiries.

Wayne Ferguson, a professor at a community college, has volunteered to pay part of the fee of someone who can't afford it. Spickler hasn't been able to take him up on his offer.

This law, Spickler said, is the "best example in my career about how poorly written legislation affects people."

Said Campbell: "It's very confusing… I can't tell you how many lawyers have told me they've had trouble understanding it."

Expungement inquires and petitions are now Campbell's full-time job.

Several hundred people have contacted the DA's office here and in Nashville, Campbell said, but only a handful appear to qualify. Campbell hasn't presented any completed petitions for expungement to the court.

The legislature thought ex-offenders would pay the fees, and then find out whether they qualify or not, but the opposite has occurred.

Most find out they don't qualify because of prior misdemeanor convictions or because of court costs and fines they can't pay, and they stop there.

"They were expecting to make millions of dollars on this and it's just not going to happen," Campbell said.

Everyone seems to agree: The law is better than nothing. It's a start.

But no one has a success story to share or see many on the horizon.

Meanwhile, Duncan pays attention to national politics, even though he knows it's unlikely that he'll be headed to the polls come November.

"What's going on in Washington now is because of the people, because we don't go out and vote," he said. "We could change it."

The expungement wouldn't help Duncan's job prospects; a heart attack in 1995 ended his career as a bearing and power transmission equipment salesman. And he doesn't care for guns; his mother used one to commit suicide.

But Duncan, who now lives in Camdenton, Mo., would like to vote.

"How long do I live have to with this hanging over my head? Forever?"

Then he remembers the pretty woman's name: Grace.

"That's kind of ironic, because that's what I most believe in about God."