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).
The REDEEM Act currently in committee in the U.S. Senate provides the first authority for “sealing” federal criminal records since the repeal of the Youth Corrections Act in 1984. As we described in an earlier post, the Act would provide significant relief from many of the collateral consequences imposed on those with a federal rap sheet. But the Act’s limitation on eligibility to “nonviolent” crimes, together with its corresponding restriction on consideration of state priors, threaten to undermine the Act’s beneficent purpose — not simply by categorically excluding many deserving individuals from relief, but also by inviting endless wrangling over which particular individuals are deserving.
Increasingly, scholars and advocates are questioning the glib and thoughtless distinction politicians have for years drawn between violent and non-violent crimes for purposes of sentencing. The unfairness of categorically excluding all offenses falling within a broad definition of violence, without regard to how long ago the conduct occurred or how minor, is compounded when the record sought to be sealed did not result in a conviction.
But perhaps the most persuasive reason for federal lawmakers to junk the distinction between violent and nonviolent offenses is a practical one, since it is frequently impossible to determine if a particular federal crime is violent or not, as the Supreme Court’s recent decision in Johnson v. United States demonstrates. If the distinction must be retained, definitions need to be clarified lest disputes over coverage result in few people actually getting relief. The good news is that the necessary fix is a simple one: rather than defining vaguely which offenses are eligible for sealing, the REDEEM Act should define precisely which offenses are not.
We start with a description of the REDEEM Act’s eligibility criteria, then show why they will give the government an opportunity to frustrate the Act’s intent. Indeed, a wag has described them as catnip for the litigious.
The REDEEM Act, introduced in the US Senate in March by Senators Corey Booker (D–NJ) and Rand Paul (R–KY), seeks to expand employment opportunities for those with federal criminal records by giving federal courts sealing authority. Because courts have generally held they do not have inherent authority to seal records — at least where an arrest or conviction is valid — the Act would open an entirely new avenue of relief from many of the collateral consequences that result from a federal arrest or conviction. While in the past similar bills have not made it out of committee, the attention that criminal justice reform is currently receiving on the national political stage and the REDEEM Act’s bipartisan support could give the Act a fighting chance.
The Act, as introduced, is not without its flaws. Chief among them are its vague definition of what crimes are eligible for relief, the broad discretion courts would have to deny relief for eligible offenses, the significant exceptions to the confidentiality of sealed records, and the uncertain effect of sealing on collateral consequences. The good news is that the Act’s defects are not structural and can be easily remedied through the legislative process.
This post contains a nuts and bolts overview of the Act. In subsequent posts, we will take a closer look at ways the Act could be improved. Since the procedures and eligibility criteria applicable to adult and juvenile offenses differ in significant ways, we look at each in turn. Read more
During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term.
Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term. He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief: