Senator Wiener Introduces the Fresh Start Act to Remove Outstanding Restitution as a Barrier to Expungement

February 23, 2022

SACRAMENTO - Today, Senator Scott Wiener (D-San Francisco) introduced Senate Bill 1106, the Fresh Start Act, which helps people clear their criminal records by ensuring outstanding restitution and restitution fines are not a barrier to expungement. Currently, people across California are frequently denied record sealing and expungement because they are poor and cannot afford to pay outstanding restitution and restitution fines. Restitution debt is often the only thing holding someone back from clearing their record and finding a job and housing. This exacerbates the cycle of poverty and criminalization of Black and brown communities, who are disproportionately impacted by the criminal legal system.

Two types of restitution payments are frequently imposed on anyone convicted of a crime. The first is a restitution fine, which is a fixed amount charged to anyone with a conviction regardless of the crime and its impact. Restitution fines can run in the thousands and even more than $10,000. The second is direct restitution, by which a court can order someone to compensate a victim for the harm caused to the victim.

When setting these amounts, courts are not required to take into account a person’s ability to pay that restitution. This means that victims of crime, who are awarded restitution, overwhelmingly receive either nothing or a small percentage of the restitution because a defendant lacks the resources to actually pay it.

Current law allows courts to deny a request for expungement of a conviction — even if the individual is otherwise eligible for expungement — if they have any outstanding unpaid restitution. A court can deny expungement on this basis even if the defendant is living in poverty.

This kind of barrier to reentry does not increase the likelihood that someone will pay off their restitution. In fact, blocking someone from clearing their record makes it even less likely that they’ll ever be in a position to pay restitution. A 2014 study by Stanford University and the San Jose State University Record Clearance Project found that the estimated benefits of expungement outweigh costs by about $5,800, per person, in one year – nearly $6,500 in today’s dollars.

Under SB 1106, people who have served their time would be able to clear their criminal records despite owing restitution, if they otherwise meet the criteria for that relief. SB 1106 does *not* cancel a person’s restitution debt. Rather, the legislation allows a person to clear their record and move forward in life despite being too poor to pay restitution.

The bill is sponsored by a multi-regional coalition focused on modifying the court fee system and ending wealth extraction through the criminal legal system, which disproportionately impacts Black and Brown communities, inflicting life-long monetary subjugation on them. The coalition is made up of legal advocates, formerly incarcerated people, policy experts, and movement building organizations led by impacted people.

“People exiting our criminal justice system find it difficult, if not impossible, to get jobs and housing due to their record,” said Senator Wiener. “Helping people clear their criminal records – be it with expungement or record sealing – is an important strategy to help formerly incarcerated people reenter society successfully. Restitution payments should not keep people in an unending cycle of poverty and hold them back from restarting their lives. That is counterproductive for everyone involved, including victims. SB 1106 will help many in our communities get their lives back on track.”

“As a woman who served my time and came home committed to improving my life and changing the narrative by mentoring youth inside of the justice system, this bill would give me a chance to remove many barriers that I still face financially some 10 years later,” said LaVell Baylor, Deputy Director of Freedom 4 Youth.

“This kind of barrier to reentry has not been shown to increase the likelihood that someone will pay off their restitution. In fact, it is more likely that it prevents them from doing so,” said Delaney Green, Clinical Teaching Fellow at the Berkeley Law Policy Advocacy Clinic.