New Maryland law allows “shielding” of some misdemeanor convictions
Earlier this month, Maryland governor Larry Hogan signed the Second Chance Act of 2015, 2015 Md. Laws 313 (HB 244), which allows eligible persons to petition a court for “shielding” (or sealing) certain misdemeanor records. This is the first time Maryland has authorized limits on public access to conviction records other than nuisance offenses and offenses that have been pardoned.
The new law, which goes into effect on October 1, is a significant step forward in the treatment of conviction records in the state. However, its effect may not be as sweeping as many would like. Only a handful of misdemeanor offenses are eligible for relief, and records that have been generally shielded from public access remain available to a significant number of employers and licensing entities. We take a more detailed look at the new law below.
Shielding is only available for twelve enumerated non-violent misdemeanors, ranging from malicious destruction of property to prostitution. Possession of a controlled dangerous substance (which includes all illegal drugs) is also eligible for shielding, though distribution and other more serious drug offenses are not. Any offense sentenced as a “domestically related crime” is also ineligible.
A person may only petition for shielding once in their lifetime, though a single petition may seek shielding of multiple convictions so long as the convictions are from the same county. A waiting period of three years following satisfaction of sentence — including any period of community supervision — applies. However, if a person is convicted of an additional offense before filing a petition to shield, then the prior conviction may only be shielded when the intervening conviction becomes eligible for shielding. This means that a person may not shield an otherwise eligible offense if he or she is subsequently convicted of an ineligible offense. A person may not petition for shielding while a defendant in a criminal proceeding.
The court has no discretion to deny a petition for shielding if the eligibility requirements are met. No hearing is necessary unless the State’s Attorney objects to the petition. Prior to granting a shielding petition, the court must notify victims of the relevant offenses and allow them to submit relevant information to the court.
Shielding has the effect of rendering “a court record and police record relating to a conviction of a crime inaccessible by members of the public,” and such records are not accessible on the Maryland Judiciary Case Search (which provides public access to state court records). Shielding does not restore rights lost as a result of a conviction and does not make the conviction “disappear.” However, a shielded conviction does not count as a conviction for the purpose of determining eligibility for expungement (relief that is distinct from shielding and only available for non-conviction dispositions and a handful of nuisance convictions).
In general, employers, educational institutions, and government licensing and services agencies may not require a person to disclose shielded convictions on an application or in an interview and may not take adverse action against a person for refusing to disclose such convictions. There are some major exceptions that threaten to swallow this rule, however. Notably, any employer or licensing agency that is required or authorized by law to inquire into a person’s criminal record (and there are hundreds of provisions of law that require or authorize such inquiries) may access a person’s shielded record. Exceptions also apply to health occupations boards, child care facilities, and the medical marijuana commission, among others.
How does it stack up?
Maryland joins Arkansas, Indiana, Louisiana, and Minnesota as the jurisdictions that have recently enacted new expungement or sealing laws, or have significantly overhauled those already on the books. However, Maryland’s law is comparatively limited in scope and effect because of the limited number of offenses that are eligible for shielding (the other states all allow sealing/expungment of a significant number of misdemeanor offenses and at least some felony offenses), the broad exceptions to the general non-disclosure provision, and the absence of accompanying non-discrimination provisions. The Maryland law also does not prohibit private criminal record reporting agencies from disclosing shielded convictions (Indiana, Louisiana, and Minnesota all contain such prohibitions, and also provide a mechanism for requiring reporting agencies to remove sealed/expunged records from their databases). Like Indiana’s law, Maryland permits a person to apply for shielding only once in their lifetime. Still, despite its limitations and uncertainties, many with low-level Maryland criminal convictions stand to benefit from the new shielding law.
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