AP Photo by Nam Y. Huh
Legislators in several states are attempting to decide what’s more important — the public’s right to know or a convicted criminal’s right to a second chance?
Advocates across the country are urging passage of protections they hope would give ex-offenders a better shot at a new life by erasing their criminal pasts. And while these efforts have failed before, a handful of bills expanding the type of records sealed recently gained traction in New York, New Mexico and Illinois.
The bills are facing strong opposition from media advocates, businesses that rely on criminal background checks before hiring employees and law enforcement agencies holding the records.
Across the country every day, journalists comb through prosecution and court records. Access to criminal records is essential to gain the full picture for many crime stories, said Todd Lighty, an investigative reporter with the Chicago Tribune.
“When does it end?,” Lighty said about the continuing legislative attempts to seal certain criminal records. “It’s like an eclipse where more and more of the sunlight goes away.”
Criminalizing publication of sealed records
A bill before the New York State Assembly would criminalize the publication of sealed records, regardless of how the information was gathered or who published them.
As the proposed legislation reads, any publication regarding the arrest, detention or conviction of an individual whose record is sealed shall be considered a class A misdemeanor — placing publication of sealed records (even if lawfully obtained) — in the same offense classification as crimes such as prostitution, cemetery desecration in the third degree and sexual abuse in the third degree.
“Any such attempt to conceal criminal records – to the extent permitted – would disallow true and accurate reporting about newsworthy matters of public concern,” said Michael Grygiel, a media lawyer in Albany, N.Y.
Time restrictions proposed in the sealing bill make it particularly unworkable, opponents say. Because information related to criminal convictions would be readily available to the public years before it could be sealed – five years for misdemeanors and eight for felonies under the proposed rule – news organizations, private databases and Internet providers would have to purge such information from their electronic or physical archives for all time or face severe sanctions for the inadvertent publication of information that, previously public, became sealed merely by the passage of time.
Such databases are often maintained by multiple agencies or obtained through individuals and private companies who perform background checks for businesses on potential employees.
In 2001, the U.S. Supreme Court held in Bartnicki v. Vopper that media defendants could not be held liable for publishing truthful information of significant public interest or concern and lawfully obtained from a third party, even if that third party violated the law.
The high court held that the First Amendment protected Frederick Vopper, an on-air personality for WILK Radio in Pennsylvania, and other media defendants, for airing an illegally intercepted phone conversation concerning a proposed teachers strike, so long as they did not participate in the unlawful interception of the call.
“A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” U.S. Supreme Court Justice John P. Stevens wrote in the court’s opinion.
Under the proposed New York bill, a person would be entitled to $500 for each publication of their sealed records and with actual damages for injury caused by the disclosure of the information.
“The purpose of this bill is merely to get the system to be functioning the way the system is supposed to function,” said Assemblyman Daniel O’Donnell, who authored the bill. “We as legislators have made a public policy determination that certain kinds of information, usually first arrests…should not be public information.”
O’Donnell said the effect on the news media was not taken into account when writing this bill. But, according to O’Donnell, under this proposed law, journalists cannot be prosecuted for publishing information already in the public domain, but could be sued if they intentionally obtained sealed information and disseminated it to the public.
But opponents of the bill are not so sure.
In a letter to the New York State Bar Association, which supports the bill, Grygiel, who chairs the state bar’s Committee on Media Law, wrote, “however well-intentioned,” a portion of the proposed bill “runs afoul of the state Constitution and the First Amendment by imposing criminal penalties and creating a private right of action for disseminating information related to sealed convictions – regardless of how the information is obtained, its newsworthiness or its veracity.”
A punishment for releasing sealed records had to be written into the bill, O’Donnell said, because “unless you create a disincentive for people to do it, then they are going to do it anyway.”
Breaking down barriers
In order to level the playing field for ex-offenders entering the workforce, criminal advocates and legislators in Illinois are pushing for a change to the state’s Criminal Identification Act that would expand the types of convictions eligible under Illinois law to be sealed or expunged.
“We live in these communities and to have over 50 percent of our adult men – who are ex-offenders and most are unable to work – that is a real problem,” said Melissa Williams, executive director of the Wiley Resource Center, an organization that provides free legal aid to members of the community on Chicago’s west side. “And when we are asking why there is so much violence on our streets, it has a lot to do with poverty and hopelessness.”
For the past five years, Williams has worked in Chicago providing free legal consultations to released offenders re-entering society. But day after day, Williams witnessed people unable to obtain employment, continue their education or find housing, in large part due to their criminal records. And while she worked to aid individuals in clearing their name, the way Illinois’ Criminal Identification Act stands, Williams said there was only so much that could be done without a complete systematic change.
Illinois law allows those convicted of a crime to petition the circuit court in which they were charged to have their criminal records sealed. But only nonviolent misdemeanor offenses and three class 4 felonies — the state’s lowest grade felony — are eligible. The three felonies currently permitted for sealing are possession of marijuana, prostitution and possession of a controlled substance.
But under the proposed legislation, H.B. 5723, ex-offenders — those having no contact with the criminal justice system for at least four years — would have the option to remove more of their criminal pasts from the public eye.
According to Williams, these measures are aimed at breaking down employment obstacles, ultimately decreasing the likelihood of individuals reoffending.
“We believe that expanding what folks can do as far as sealing their criminal records and allowing them to get jobs and housing, and opening up access to education . . . can take away the permanency of this underclass or take away this mark of slavery that we have out here now,” Williams said. Without these added resources to eliminate marks on one’s background, Williams said that criminal discrimination against ex-offenders is likely to continue.
The proposed change to the Illinois statute would not automatically seal criminal records. In line with the current law, after a request to seal records is made, the petitioner’s former prosecutor and any involved law enforcement agencies are given a chance to object to the expungement or sealing of the criminal records. If any objections are made the request goes before a judge to decide.
And while sealed records would remain on file, they would not be made available to the public without a court order. In instances of expunged records, circuit court documents would remain publicly filed, but records pertaining to arrests and charges would be hidden. Agencies presented with an order to expunge records would be required to fulfill their obligation within 60 days.
Any inquiries regarding expunged records would turn up empty, as records under this judicial order are seemingly nonexistent.
These measures are largely intended to help people clear their name, but could in turn negatively affect public accountability by also granting policy makers the ability to erase criminal records.
H.B. 5723 would increase the number of felony offenses qualified for sealing so long as they do not fall under seven broad categories. Persons convicted of class 2, 3 and 4 felonies could petition for their records being sealed unless the offense is of a sexual nature, reckless driving under the influence, dog fighting or a violation of an order of protection. Additionally, any offense requiring an individual to register as a sex offender under the state’s Sex Offender Registration Act is not authorized to be sealed.
Williams said a majority of the offenses she deals with daily are drug related.
The bill, sponsored by Illinois state Rep. La Shawn Ford, is not the first attempt by state legislators and advocates to amend the current law. According to Dennis DeRossett, executive director of the Illinois Press Association, similar bills over the past five years have failed to make it past committee hearings for a vote by the entire legislative body. The bill saw its last movement on March 30 when it was referred to the rules committee. DeRossett said it is not likely the bill will see a vote this legislative session, which ends May 31.
“These folks they’ve gone — most of them not just to Cook County jail — they’ve gone to prison. They have successfully completed their sentences, their parole and it’s been at least four years in addition to the completion of their sentence,” Williams said. “We need to let them get back to living life again, so that the community can live life too.”
Bill dies on governor’s desk
In March, New Mexico Gov. Susana Martinez vetoed a bill aimed at allowing former offenders to apply for expungement of criminal records – from misdemeanor offenses to felonies – meaning all proceedings from an arrest to a conviction would be treated as though they never happened. The bill successfully passed through both legislative bodies, but was rejected by the governor, who believes the public and media have the right to know the history of criminal proceedings.
“Signing this piece of legislation into law would fundamentally and negatively alter the New Mexico criminal justice system and place a significant impediment on the public’s and media’s right to know about information relating to convictions, arrests, and other criminal proceedings,” Martinez said in a press release explaining her decision to veto the proposed legislation.
Known as the Criminal Record Expungement Act, the legislation would have removed all public access to certain law enforcement and court records if a court sided with the petitioner seeking to have their records expunged. The bill would have allowed for a record expungement if a petitioner could show they were a victim of identity fraud, were wrongfully arrested and charged with a crime or were released without a conviction. Offenders who were “convicted of one or more misdemeanors or violations of a municipal ordinance arising out of one incident” and had no other convictions after completing their sentence could appeal to hide their criminal past.
“This bill would allow for the expungement of arrest and trial records of crimes ranging from municipal offenses to felonies, so long as there is no conviction — including sex offenses, batteries, assaults, domestic violence offenses, and other heinous crimes,” Martinez wrote. “But even more concerning is that it also provides for the expungement of convictions for certain crimes, including domestic violence, allowing a court to decide that the public and media no longer deserve to know about an individual’s convictions.”
Additionally, a person convicted of a misdemeanor could petition to have all arrest records removed from the public eye, but at least five years would have to lapse from the time of conviction before a request could be made. That time would increase to 10 years for any offense involving domestic violence or abuse. And certain types of convictions would not be eligible for expungement, including any crime committed against a minor, a sexual offense and driving under the influence.
“The integrity of the court’s databases are important for law enforcement, journalists, landlords and employers, searchers, activists and parents,” said Gwyneth Doland, executive director of the New Mexico Foundation for Open Government. “If you are going to remove some information from the public view then there has got to be a really good reason for it and we are just afraid that the value here isn’t worth what we are going to lose.”