Tag: Marshall Project

Survey of law enforcement access to sealed non-conviction records

As part of our non-conviction records project, we have researched what state laws provide on law enforcement agency access to and use of sealed or expunged non-conviction records for routine law enforcement purposes.  This issue is particularly salient in light of an ongoing lawsuit against the New York Police Department in which a New York state court found that the NYPD’s routine use and disclosure of sealed arrest information—without securing a court order—violates New York’s sealing statute.

Looking across the country, we found an almost even split on this issue: exactly half the states either do not allow law enforcement access to sealed records for routine law enforcement activity, or condition law enforcement access on a court order (as in New York) or formal written request.  Specifically, we identified 25 states and two territories that appear to limit law enforcement agency access to and/or use of non-conviction records, either absolutely (12 states and two territories), or without a court order (11 states) or formal written request to the state custodian of records for a specified purpose (two states).  The other 25 states, plus two territories, the District of Columbia and the Federal system, exempt law enforcement agencies generally from sealing or expungement laws, or in a few cases have no law authorizing sealing of non-conviction records (American Samoa, the Federal system, and Wisconsin).

Note a couple of things about the way we conducted this research.  First, our results apply only to records that do not result in a conviction (though in many states the answer is the same for records that do), and we classified them according to their apparent application to law enforcement operations (some states allow law enforcement agency access for employment and certification purposes).  There are a handful of states that bar law enforcement agency access but allow access by prosecutors, both generally (NC) and in specific situations (AR, KS), and we classified these as barring law enforcement access, because the possibility of police access to records through prosecutors is not the kind of unregulated direct access at issue in the New York litigation.

The second thing to note is that our results say nothing about how easy or hard it is to get a non-conviction record sealed or expunged, or who is eligible for this relief.  For example, of the states whose laws bar access, New York offers sealing of non-conviction records right at disposition as a routine matter, with the burden on the prosecutor to show why sealing isn’t appropriate (and it is a high bar).  Other states in the “no access” or “court order” categories (e.g. Virginia, Kentucky, West Virginia) require a defendant to file a separate civil petition after an eligibility waiting period, disqualify based on prior record, require a hearing at which the petitioner has the burden of showing why relief should be granted, and even impose civil filing fees.

Our classification tells a bit more about the scope or effect of sealing/expungement relief in each state more generally, since states that “delete” or “erase” non-conviction records are more likely to specifically bar law enforcement agency access than states that merely limit public access to the record.  But even states that provide some public access (e.g., by licensing boards) may also bar access for law enforcement functions (e.g., KS).  (Further information about the effect of sealing or expungement relief in each state may be found in the Restoration of Rights Project profiles.)

Our state-by-state research follows.

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Sex offender residency restrictions in the courts: is the tide turning?

The Marshall Project has published an important new article by Maurice Chammah on legal challenges to restrictions on where registered sex offenders can work, live, and visit. See “Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic.”  Chammah writes that activists, finding lawmakers unreceptive to any measure perceived to benefit sex offenders, “have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.”

 Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.

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Ban the other box – Suspension and expulsion shouldn’t be a bar to college

University application form

The following piece was originally published by The Marshall Project, a nonprofit news organization focused on the US criminal justice system.  Even though criminal records and school disciplinary records are entirely distinct, they both pose similar, often unjust, obstacles to higher education.  Consideration of both types of records in the admissions process can have the troubling effect of excluding qualified and motivated young people — particularly those from minority communities — from America’s colleges and universities because of past mistakes that have little to do with academic potential or the protection of public safety.

The story is familiar: a high school student grabs another student’s iPhone at lunch and tries to sell it. He is caught, arrested, and booked into juvenile hall. He is also suspended. If universities and colleges follow the recent recommendation of the Obama administration, colleges will not consider the student’s criminal record in the initial stages of the admissions process. These recommendations, contained in a recently released “Dear Colleague” letter by Education Secretary John B. King, represent a significant step in removing barriers to education for people with criminal records. And just this week, over a dozen colleges and universities signed on to the White House’s Fair Chance Higher Education Pledge.

Unfortunately, the letter and the pledge are silent about another common question on college applications: Have you ever been suspended or expelled from school? For the teenager who stole the phone, this means that while his criminal record may not ruin his chance to be admitted to college, his school disciplinary record just might.

More than 3 million students are either suspended or expelled from schools each year and when they are, a discipline record is generated. While the barriers created by criminal records have begun to receive much-needed attention, the barriers created by school discipline records have been largely overlooked. The Department of Education report that accompanies King’s letter mentions school records only in passing, without taking a firm position. Like criminal records, school discipline records can, and do, jeopardize young people’s chances to succeed. Like criminal records, school records are a scarlet letter.

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Excessive filing fees frustrate new expungement schemes

How much is a clean slate worth?  That’s the question many people with criminal records are asking in Kentucky, Louisiana, and Tennessee, where the cost of filing for expungement is (or will soon be) between $450 and $550.  To put that into perspective:  In Kentucky, the $500 fee required to expunge an eligible felony conviction under a new law that takes effect in July will equal nearly half of the monthly wages of a full-time worker earning the state’s $7.25 minimum wage.  The relative cost will be even higher for the many people who have difficulty securing steady full-time employment because of their criminal record.  The high filing fee puts relief effectively out of reach for most of those it was intended to benefit,  even if they elect to file without retaining a lawyer.

There is a major disconnect between these exorbitant fees and the policy rationale that has led many states to create or expand expungement opportunities in recent years.  Expungement improves the employment prospects of people with criminal records, allowing them to achieve a degree of economic stability that in turn discourages further criminal behavior.  People held back from economic stability by their criminal records are the people that are likely to benefit most from expungement, and the social advantages of expungement are most keenly experienced among this population.  But these are the very people least likely to be able to afford to pay high application fees.

According to an article by Maura Ewing published by the Marshall Project earlier this week that takes a closer look at the issue, Kentucky, Louisiana, and Tennessee are outliers among states that allow for expungement in charging such high fees:

Many states charge $150 or less to apply for expungement … and some states offer a waiver if the applicant is too poor to pay.

In the 17 states that allow for expungement of low-level felonies, “the application fee is generally in line with standard court fees.”

So why are the application fees in those three states so high, and where does that money go?  Ewing found that while Louisiana’s fees were considered necessary to cover the costs of an inefficient and underfunded justice system, the fees in Kentucky and Tennessee were driven solely by the prospect of generating general revenue.  From the article:

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Justice Department (or part of it) will no longer use the “f-word”

The Washington Post has published an op ed by a top Justice Department official responsible for grants and contracts announcing that her agency* will no longer use labels like “felon” and “offender” to describe people who have a criminal record.  Assistant Attorney General Karol Mason, who heads the Office of Justice Programs, said that she had recently issued “an agency-wide policy directing our employees to consider how the language we use affects reentry success.”

I have come to believe that we have a responsibility to reduce not only the physical but also the psychological barriers to reintegration.  The labels we affix to those who have served time can drain their sense of self-worth and perpetuate a cycle of crime, the very thing reentry programs are designed to prevent.

This is terrific news, and comes on the heels of a thoughtful editorial by Bill Keller of The Marshall Project proposing that journalists ought to make an effort to avoid disparaging language:

[W]ords that not long ago were used without qualms may come to be regarded as demeaning: “colored,” “illegals.”  “Felon,” which makes the person synonymous with the crime, is such a word. Likewise “convict.”  I’m less troubled by words that describe a temporary status without the suggestion of irredeemable wickedness — “inmate” and “prisoner” and “ex-offender” — but ask me again a year from now.

Ms. Mason’s piece explained further:

This new policy statement replaces unnecessarily disparaging labels with terms like “person who committed a crime” and “individual who was incarcerated,” decoupling past actions from the person being described and anticipating the contributions we expect them to make when they return.  We will be using the new terminology in speeches, solicitations, website content, and social media posts, and I am hopeful that other agencies and organizations will consider doing the same.

Interestingly, the Post editor either didn’t read Ms. Mason’s piece or didn’t agree with it, since the paragraph introducing it used the word “convict” twice.  I guess it just takes time.

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*A note at the bottom of the op ed explains that Ms. Mason’s new policy applies only to OJP and not to the Justice Department as a whole.

“The Other F-word” – A journalist’s perspective on labeling people with a criminal record

On Monday we published a piece by CCRC Director Margaret Love titled “A plea to stop labeling people who have a criminal record,” which was critical of the media’s usage of “degrading” terms like “felon” and “offender” to describe people with criminal histories. Yesterday Bill Keller, Editor-in-Chief of The Marshall Project, responded to Ms. Love’s critique in a piece that provides an interesting look at the issue through the lens of his own experience as a journalist.  It also includes a response from the style editor of The New York Times on the specific subject of Ms. Love’s criticism.  We republish Mr. Keller’s piece below.

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The many faces of expungement in America

An article from The Marshall Project published on September 17 got us thinking about the elusive term “expungement” and what it really means, both functionally and philosophically.  In “Five Things You Didn’t Know About Clearing Your Record: A primer on the complicated road to expungement,“ Christie Thompson describes an unusual class action lawsuit recently filed by a public-spirited lawyer in a Tennessee county court seeking “to have the case files destroyed for hundreds of thousands of arrests and charges that never resulted in a conviction.”  She proceeds to point out some of the pros and cons of expungement relief, including that expunged records may still be available from private background screening companies or the internet.

But the problems with expungement laws are deeper than the article suggests. Quite apart from theoretical objections to relief based on pretense, the fact is that expungement laws have functional flaws even where public records are concerned.  For example, the Tennessee expungement law described in the Marshall Project article has no effect on records in the possession of law enforcement or prosecutors, or on appellate court records and opinions.  See Tenn. Code Ann. § 40-32-101(b)(1).  Moreover, it authorizes release of expunged arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding upon request. See § 40-32-101(c)(3).

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Collateral consequences and the transforming effect of the drug war

Amid last week’s torrent of commentary about the downstream effects of the punitive policies of the 1990s came this extraordinary interview with David Simon of the Wire, who attributes the breakdown of community in Baltimore to the aggressive abuse of official discretion in the drug war.  While Simon’s remarks are not directly related to collateral consequences, it is not hard to trace to the same source the regime of punitive laws and policies that now bars people with a criminal record from benefits and opportunities affecting literally every aspect of daily life.

Case in point, from an NPR report aired last week: Tyrone Peake, trained as a drug counselor, is barred for life from working at a nursing home or long-term care facility in the State of Pennsylvania because of his 1981 teenage conviction for attempted car theft for which he received probation.  See Carrie Johnson, “Can’t Get A Job Because Of A Criminal Record? A Lawsuit Is Trying To Change That,” April 30, 2015.

Dismantling what Jack Chin has called “the new civil death,” like rebuilding trust between police and community, is the work of the next decade.

New York Times editors question efficacy of expungement laws

In an editorial titled “Job Hunting With a Criminal Record,” the editors of the New York Times tackle the problem of employment discrimination against the estimated 70 million Americans who “carry the burden of a criminal record.”  They question the efficacy of expungement and other popular “forgetting” strategies for dealing with employer aversion to risk, preferring the “longer term” approach of “a change in attitudes about people with criminal records.”

The editorial points out that expungement laws typically apply only to “relatively minor transgressions,” require lengthy waiting periods, and include “significant exceptions” (e.g., they don’t apply to jobs and licenses requiring a background check, a large and growing segment of the labor market). In addition, “trying to keep anything secret in the 21st century is no sure thing.”  Finally, “record-sealing laws do not and cannot address the underlying problem of overcriminalization.”

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Forgiving v. forgetting: A new redemption tool

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