Tag: expungement

Long waits for expungement frustrate public safety purposes

Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods.  If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison.  Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt. The preamble to the new Louisiana law says it is intended “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.”  But a felony offender is ineligible to apply for expungement until ten years after completion of sentence, long after recidivism has ceased to be a statistical risk.  In other words, the new law is not likely to do much if anything to “break the cycle of recidivism” or help people “reentering the community” (presumably from prison).  Even misdemeanants have to wait five years before they are eligible. The only people whose records can be expunged immediately are those who were never convicted to begin with. Wouldn’t people returning to the community from prison be more likely to benefit from supportive social services, rehabilitative programming, and assistance with obtaining transitional jobs and housing?  It is possible that the legislators expected the availability of expungement at some future time to provide an incentive to stay on the straight and narrow — but the reference to employment opportunities upon “reentering the community” suggests they had something more immediate in mind.   Relief after a long period of law-abiding conduct also serves a useful purpose to recognize a person’s full rehabilitation, but it does nothing to overcome obstacles faced by people upon their release from prison. The formulaic recitation of public safety-related purposes to justify providing relief from collateral consequences is not unique to Louisiana, and neither is the apparent contradiction with those purposes presented by extended eligibility periods.  New broad expungement schemes in Indiana, Minnesota and Arkansas also make felony offenders wait years without another run-in with the law before they can apply for relief.  Any notion that expungement of conviction records will facilitate reentry or discourage reoffending is either mistaken or disingenuous.   Expungement of arrest records is another matter, though concepts of “reentry” and “recidivism” don’t strictly apply where a person is not convicted. So this raises three questions:  1) why can’t we enact relief from collateral consequences at a time when it will in fact facilitate reentry and impact public safety; 2) why aren’t we doing more to avoid conviction in the first place; and 3) why are legislators and other government officials so hesitant to justify restoration of rights in terms of fairness and/or reward? The answer to Question #1 is that only a few states have enacted laws authorizing relief from collateral consequences as early as sentencing, when it could be of genuine help with reentry.  New York has had such a law for years, for first offenders sentenced to probation. Vermont, Colorado and New Jersey now also have laws authorizing the sentencing court to dispense with mandatory collateral consequences, and bills that would accomplish this have been introduced in several other states.  Relief at sentencing is a feature of both the Uniform Collateral Consequences of Conviction Act and the Model Penal Code: Sentencing, so perhaps this will be the wave of the future.  Note, however, that not a single state provides record-closing relief to convicted persons prior to completion of sentence, so advocates would do well to consider more transparent forms of relief during the period covered by the sentence. Question #2 gets a more hopeful answer:  more than half the states have opportunities for diversion and deferred adjudication followed by expungement or sealing.  This means that people charged with minor offenses can avoid a conviction record if they successfully completion of probation.  But again, this is not a “reentry” remedy strictly speaking since by definition the person never leaves the community.  And, in those jurisdictions that condition eligibility on a guilty plea, they may be subject to collateral consequences during the period of probation.  The new Model Penal Code: Sentencing has provisions implementing both diversion and deferred adjudication that do not require a formal plea, and whose specific goal is to enable people to avoid incurring collateral consequences. Since there is never a conviction, the person may answer honestly that they have never been convicted.  These provisions originated in the 1970s when reformers were interested in encouraging rehabilitation through sentencing, as we perhaps are again today. (I would note it is high time that the federal government expanded the only authority it now has for deferred adjudication, 18 USC 3706, from drug possession to any minor offense.) Question #3 is rhetorical.   Read more

How much must a law school applicant disclose about his criminal record?

The New York Court of Appeals is considering how candid a person must be about his prior criminal record when applying to law school.  During oral argument on February 12 in Matter of Powers v. St. John’s University School of Law, several judges raised public policy concerns over the law school’s summary rescission of David Powers’ admission midway through his second year, based on how he had described his criminal record on his original application.  Powers had disclosed a past conviction for drug possession, but did not also report that he had initially faced more serious charges of drug-dealing.  These underlying charges came to light mid-way through Powers’ second year, when he sought clarification from the New York courts as to whether his criminal record would preclude his admission to the bar. According to an account of the argument in the New York Law Journal, “[Powers] involvement with drugs seemed to concern state Court of Appeals judges less than St. John’s University’s decision to rescind his admission to law school.” The St. John’s law school application form asks whether the applicant has ever been “charged with, pleaded guilty to, or been found guilty of any crime, offense or violation” except for minor traffic violations. The school’s lawyer argued that Powers caused his own problems by not being truthful when he applied for admission — though he conceded that if Powers had disclosed the more serious distribution charges “he would have been denied from the outset.” The judges expressed concern that people like Powers should have to face the ramifications of youthful criminal conduct later in life despite managing subsequently to lead law-abiding lives.  Powers’ record was expunged under New Jersey law shortly after his admission to law school. Chief Judge Lippman thought St. John’s should have taken into account the subsequent expungement in deciding what if any action to take against Powers after the fact: We think about young people whose lives are ruined because of a single mistake at one point in their life and where policy makers say, “Not right. One offense, so many years ago, whatever age, whatever the statute is. We want to make sure that the young person’s life is not ruined. Expunge the record.” (Note that New York law does not authorize courts to expunge adult convictions, though New Jersey does.)  Judge Eugene Pigott Jr. wanted to know why Powers was not given a hearing before the school took action against him: I would have thought there should have been a hearing somewhere where these people would have come in and said, “Yeah, this the worst guy we ever saw and thank God St. John’s was able to catch him before he went to the Second Department and got admitted as an attorney.” Powers’ attorney, Roland Acevedo, called his client a “poster child” for rehabilitation, a claim that several of the judges appeared to agree with.  Acevedo himself had a past conviction for armed robbery when he was admitted to the bar in 1997, and he often represents lawyers and others who seek to practice their professions despite a criminal record. When people make efforts to change behavior, such as Powers, such as I did by getting treatment and then getting educated, that should amount to something in people’s eyes,” said Acevedo, a graduate of Fordham University School of Law. “Everybody is entitled to a second chance, but when people show they are entitled to it by doing something that is not easy in any arena, that should be worth something, especially in the case of Mr. Powers.” In 2013, a 3-1 Appellate Division, Second Department, panel upheld the law school’s actions.   See 110 AD3d 888.  While the majority said it did not consider the penalty imposed to be “shocking to one’s sense of fairness,” the dissent thought it excessive.  At the least, Powers should have been dismissed so that he could transfer with the credits earned in his first three semesters. In an amicus curiae brief filed in support of Powers, several New York legal services groups told the court that Powers had truthfully disclosed his criminal record to St. John’s, arguing that the question on the application form was ambiguous. They urged the judges to prevent him from being penalized because of the message it would send to their clients who have faced criminal charges in the past. “If an institution of higher education, or by extension an employer or housing agency, can require applicants to answer ambiguous questions about their criminal conviction histories and then, at any time after granting appeal, penalize them based on the institutions’ misinterpretation of their responses, our clients have no defense against arbitrary and discrminatory action,” the groups said in a brief prepared by Community Service Society attorneys Judith Whiting, Kimberly Westcott and Paul Keefe. Other groups joining the brief were the Bronx Defenders, Education from the Inside Out Coalition, the Legal Action Center, the Legal Aid Society, Legal Services NYC, MFY Legal Services, the Osborne Association and Youth Represent. The court is expected to hand down a ruling in March.   Read more

Disclosure of nonconviction records may violate European Convention on Human Rights

This is the most recent in a series of posts by Professors James Jacobs and Elena Larrauri comparing criminal records disclosure policies in the United States and Europe.  The decision of the European Court discussed below invalidated a policy of the United Kingdom authorizing broad disclosure of non-conviction records relating to child victims.  (The U.K.’s policies on disclosure are closer to those of the U.S. than they are to those of continental countries.)  While the U.K. has subsequently narrowed its disclosure policy, it remains to be seen whether even as amended the U.K.’s disclosure policy will pass muster under the European Convention on Human Rights. THE CASE OF M.M. v. THE UNITED KINGDOM [2012] ECTHR  (APPLICATION NO.24029/07, FINAL JUDGMENT 29/04/2013). In 2000, M.M. was arrested by Northern Ireland police for child abduction. M.M. apparently took her infant grandson away from the child’s mother (estranged from M.M.’s son) to prevent her taking the child to Australia. Rather than face formal charges, M.M. agreed to accept a “police caution,” a formal reprimand from a police commander administered at the police station. (There is no U.S. equivalent.)  According to the applicable criminal records law at that time, the caution is recorded on and remains in the police database (Police National Computer) for five years and is then regarded as “spent” (expunged) and no longer available to the public.  In September, 2006, a health care company offered M.M. a child care job, subject to a satisfactory background check. In response to the company’s query about prior convictions and cautions, M.M. voluntarily disclosed the prior caution, which was verified by the Criminal Records Office of Northern Ireland. Although the caution was now more than five years old, the Criminal Records Office explained that, under a new policy (triggered by the infamous Soham murders), police permanently retain and disclose cautions related to child victims.  Consequently, the company withdrew the job offer.  M.M. challenged the U.K.’s disclosure policy in the European Court of Human Rights. (In 2002, the U.K. had been rocked by the murder of two school girls in Soham by the school’s custodian. The police had information in their files pertaining to his previous  sex offending, but had not alerted the school because there had not been a conviction. The subsequent Bichard Inquiry recommended greater police sharing of information about allegations of sex offending and child abuse. M.M. was a “victim” of that new policy.) Pursuant to the post-Soham disclosure policies that applied to any employment requiring a background check, caution data contained in central records must always be retained in police files and disclosed without regard to the provisions of the Rehabilitation of Offenders Act.  (The ROA would ordinarily require deletion of “spent” caution information after a certain period of time.)  Prior to 2012, these policies made no distinction based on the seriousness or the circumstances of the offense, the time which has elapsed since the offense was committed, and whether the caution or conviction is spent. In short, there appeared to be no scope for the exercise of any discretion in the disclosure exercise. The ECtHR found that the U.K’s. policy violated the European Convention on Human Rights’ Article 8, which guarantees “respect for private life”, i.e. a  right to privacy that protects personal data. The right to private life is not limited to personal secrets or intimacy, but extends to “the right to establish and develop relationships with other persons.” Disclosing convictions diminishes the individual’s liberty to develop social and employment relationships.  This is especially pernicious when the information refers to a distant event that everyone other than the record-subject is likely to have forgotten about. Moreover, European legislation considers convictions and police cautions as personal protected data covered by data protection laws regarding information collection, storage and disclosure. The U.K. sought to defend its criminal records retention and disclosure policy by invoking Article 8, section 2, which provides that: There shall be no interference by a public authority with the exercise of this right [to privacy] except such as  is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others’. The ECtHR held that such a heavy-handed (over-inclusive) record retention and disclosure policy could not be justified by the need to prevent sexual and other abuse of children. According to the ECtHR, Article 8 requires a more nuanced policy on disclosing information known to the police. Because police cautions are not public information, the disclosure policy must take into account the facts of the particular case, including the nature of the offence, the case’s disposition, the length of time since the offence took place and its relevance to the employment sought.  The Court highlighted the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further noted the absence of any mechanism for independent review of a decision to retain or disclose data. Finally, the Court noted with approval a 1987 Council of Europe Recommendation regulating communication of police data to third parties. According to the Recommendation, disclosure is permissible only when necessary to prevent a serious and imminent danger. The UK’s policy was not consistent with that standard, and so was the court ruled it invalid on its face. The U.K. disclosure rules invalidated in M.M. have now been substantially revised.  In 2012, the U.K. enacted the Protection of Freedoms Act and established the Disclosure and Barring Service to administer its provisions relevant to authorized background check requests.  New “filtering rules” adopted by the DBS provide that some convictions and cautions will not be disclosed if: a) 11 years have elapsed since the date of conviction or six years in the case of a caution; b) it is the person’s only offense; and c) the offense did not result in a custodial sentence. Even then, it will only be removed if it the underlying offense is not one of  the more than 1000 offenses (notably offenses involving child victims) that will always be disclosed.  Under these new “filtering” rules, M.M.’s caution would still be disclosed. Time will tell whether the EctHR will approve this limited policy revision. The U.S. does not have the formal cautioning procedure that exists in the U.K. However, diversion from prosecution is common, usually for minor offenses. Whether the successful completion of a diversion program will lead to expungement of the arrest and charges depends upon each state’s laws. A number of states require that arrests that do not result in a conviction be automatically deleted from the rap sheet and that corresponding court records be sealed. Most states provide for such deletion only upon court order, and make exceptions for conduct involving sex offenses or crimes of violence. However, even in the few states that require deletion automatically, the required deletion often does not occur because of failure to communicate the disposition information to the state records repository. Moreover, during the time before charges are dismissed, the arrest and charge information can be obtained and copies from court records and, by authorized users, from rap sheets. Thus, arrest information is often available, even if the record-subject is not convicted. More importantly, with respect to comparison with the M.M. v. U.K. decision, there is no U.S. constitutional requirement that police or courts purge or refrain from disclosing arrest, diversion or conviction information.  See Paul v. Davis, 424 U.S. 693 (1976). Indeed, a federal appears court has recently held that dissemination of arrest information is not libelous even if it has been automatically “erased” under state law.  See Martin v. Hearst Corporation, Docket No. 13-3315 (2d Cir., January 28, 2014). Read more

Publishers not liable for internet posting of “erased” arrest records

When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media.  A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute.  But the contemporaneous news accounts remained available on line, and the publishers refused to remove them. Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute.  The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.”  The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).   The court of appeals explained that Connecticut’s Erasure Statute was intended to operate in the context of the justice system, to prohibit disclosure by government agencies, to bar reliance on the arrest in any subsequent criminal proceeding, and to permit the person arrested to swear under oath that the arrest never occurred.  However, it was not intended to create any duties on the part of private parties (notably including publishers) or create a cause of cause of action against them. The few enumerated exceptions to the erasure requirements and the statute’s text confirm that the legislature contemplated erasure only in the context of the judicial and law enforcement systems. As the district court reasoned, “nothing in [§ 54-142a] suggests any intent to impose requirements on persons who work outside courts or law enforcement agencies, and nothing suggests any intent to mandate the erasure of records held by such persons.” In short, while the Erasure Statute requires the state to delete or expunge records of an arrest, and confers on the arrested person the “legal status” of a person who has never been arrested, “it does not and cannot undo historical facts or convert once-true facts into falsehoods. . . .  The Moving Finger has written and moved on.” Courts in other states with analogous statutes had reached the same conclusion.  See, e.g., G.D. v. Kenny, 15 A.3d 300, 315–16 (N.J. 2011)(“Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.”); Bahr v. Statesman Journal Co., 624 P.2d 664, 666 (Or. Ct. App. 1981) (“The [expungement] statute does not . . .impose any duty on members of the public who are aware of the conviction to pretend that it does not exist. In other words, the statute authorizes certain persons to misrepresent their own past. It does not make that representation true.”); Rzeznik v. Chief of Police of Southhampton, 373 N.E.2d 1128, 1133 (Mass. 1978) (“There is nothing in the statute or the legislative history to suggest that, once the fact of a conviction is sealed, it becomes nonexistent, and hence untrue for the purposes of the common law of defamation.”). The result in Martin and other similar cases might easily be different under the expansive European law of privacy that produced the “right to be forgotten” holding of the European Court of Justice last May against Google.  Posts on this site by James Jacobs and Elena Larrauri suggest that it would.  The process put in place as a result of the European Court’s decision enables people to remove links to unwanted content from Google’s search results, and it has been applied in a few cases to dated minor criminal records.  The relevance of the Google ruling for American privacy law is discussed in a September 2014 New Yorker article by Jeffrey Toobin, available here, that will be fascinating to American readers and may cause a frisson in the American publishing world.   Read more

Ohio pardons provide “only forgiveness, not forgetfulness”

On January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records.  In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states.  The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.” “Only forgiveness.”  Is pardon then such a second class prize?  What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred?  If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do. As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself). In January 2011, Governor Ted Strickland pardoned James Radcliff’s five dated convictions (which included “a 1982 felony conviction in Franklin County for breaking and entering a donut shop while possessing a screwdriver”) in recognition of his 30 years of law-abiding conduct.  A month later Radcliff went to court to have his record sealed, even though the sheer number of his crimes put him outside the category of people authorized to pursue that relief under Ohio Rev. Code Ann. §§ 2953.31.  The court of appeals thought Radcliffe’s record of rehabilitation “deserves redemption,” and ordered that his petition be granted. The government appealed, arguing that the court had no inherent power to seal a record of conviction, even a pardoned one.  The high court held that “if he is to have that redemption, it must come from the General Assembly.” Earlier decisions of the Ohio Supreme Court had found inherent judicial power to expunge or seal convictions, but that was before the legislature entered the conversation to define with some precision exactly what convictions it wanted courts to be able to seal.  The enactment of sealing legislation meant there was no longer a role for the court to take an independent view of the matter.  Over and above the detailed sealing law, the Radcliffe court pointed out that the legislature had also made certain provisions for retaining pardon documents, noting that “[t]he fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it.” In determining that courts had no power independent of statute, the Ohio high court expressed disappointment over the legislature’s failure to provide for a broader sealing remedy in cases like Mr. Radcliff’s: Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. . . . . The pardon does not wipe the slate clean. If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act. The majority associated itself with the Pennsylvania Supreme Court in stating that “[a] pardon without expungement is not a pardon.”   The three dissenting justices thought it “unnecessary in this case to state the proposition so unequivocally,” though they thought there was enough left of the inherent judicial power to order expungement in the “unusual and exceptional circumstances” of a pardon. In concluding that courts have no inherent authority to seal pardoned convictions, the Ohio court is in good company.  The Supreme Court of Mississippi recently came to a similar conclusion about the limits of judicial authority in closing records, so that pardon in that state also “provides only forgiveness, not forgetfulness.” In this regard, it seems worth noting that a majority of states do not authorize sealing or expungement of pardoned convictions.  Of those that do, it is by statute in all but three states (Indiana, New Jersey, and Pennsylvania).  Even a presidential pardon provides “only” forgiveness. It appears that a national discussion of the relative merits of forgiving and forgetting as a way of restoring rights and status may be well underway. NOTE: It seems anomalous that Ohio law would provide for “forgetting” out-of-state and federal convictions by authorizing Ohio courts to seal them, but not for “forgiving” them through a Certificate of Qualification for Employment.  (See today’s post on CQE’s here.) How will an Ohio court enforce its sealing order directed to a foreign jurisdiction?   Read more