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Expunging criminal records

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iStockphoto.com The Alaska legislature passed a bill this spring that would have denied access to criminal case documents if the…

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The Alaska legislature passed a bill this spring that would have denied access to criminal case documents if the accused is acquitted or the case is dismissed, but Gov. Sean Parnell vetoed the proposed law in late August.

Alaska is not alone in trying to restrict public access to records of defendants who are not convicted. Some other states either seal materials from certain cases that resulted in an acquittal or dismissal, or remove that listing from a person’s public “rap sheet” altogether. With the latter process, known as expungement, people have no way of knowing that a person was arrested.

Proponents of sealing or expungement warn that prospective employers, landlords and others may unfairly stigmatize people who are arrested but not convicted. But journalists and media lawyers say this information can provide useful context for stories and help the public understand how the criminal justice system works.

While the proposed Alaskan statute would not have destroyed the records completely, it would have made it nearly impossible for people to get them.

“It’s not clear what you’d have to do to get access to these records if the bill passes. Maybe you’d need to file a case, which can be really expensive,” John McKay, a media lawyer in Alaska, said while the bill sat on the governor’s desk. “Anytime you remove information from the public record, it makes it harder for journalists to do their jobs.”

The Alaska bill, SB 108, would have automatically sealed certain court documents 120 days after the acquittal or dismissal date. It would also have sealed acquittals and dismissals for cases that took place before the October 2014 effective date.

Sen. Fred Dyson, the sponsor of SB 108, had said the bill would “strengthen privacy and due process rights for Alaskans by keeping certain court records confidential when criminal charges are dismissed or the accused is acquitted.”

But First Amendment advocates in the state fought the bill.

McKay wrote a letter to Sen. Dyson on behalf of the Alaska Dispatch News, arguing that the state legislature overstepped its bounds with the bill. “The courts have recognized the public’s right of access to the courts,” McKay said. “That’s not something the legislature can just change as it will unless they show there aren’t any reasonable alternatives.”

McKay also said that unlike public records laws, which can be determined by state statutes, the U.S. Supreme Court has ruled that the press and public have a First Amendment right of access to court proceedings.

“The legislature should have to pass a higher bar here,” he said.

A similar proposal failed in New Mexico. In 2012, the state’s governor, Susana Martinez, vetoed a bill that would have removed arrest records from public view completely. She said in a statement the legislation would place a “significant impediment on the public’s and media’s right to know about information relating to convictions, arrests and other criminal proceedings.”

Policies around the country

Policies for expunging or sealing information about non-convictions vary by state. Some states seal certain records and keep a second copy on file, while others destroy certain records completely, giving defendants clean slates. Many courts even permit individuals to deny their arrests completely post-expungement.

States also have differing policies on the types of offenses that are eligible for expungement, with some just allowing it for non-violent or “minor” crimes. In a few states, expungement or sealing can be automatic, but, more commonly, courts have discretion on whether or not to grant it.

Margaret Love, a defense attorney and former pardon attorney at the Justice Department, keeps track of these state laws.

She says there seems to be a trend toward limiting the use of those records, States are telling employers they can only get fairly recent documents, for example, rather than access records deep in a defendant’s past.

Sealing and expungement is designed to help those who are accused of crimes get jobs and successfully participate in society, without the fear of public judgment.

“There’s a desire to let people get on with their lives,” Love said.

But media law attorney McKay says bills like SB 108 – which makes sealing automatic – make finding the right balance between cleaning criminal records and maintaining transparency in the courthouse more difficult.

More than a decade ago, the 76th Texas Legislature followed McKay’s logic by rejecting a bill that would have granted automatic expungement in the cases of acquittal, pardoning, or dismissal. Texas didn’t allow expungement relief for those convicted but later deemed innocent until 2011 when the 82nd Texas Legislature passed changes to the existing code.

McKay says that, if anything, access to court documents should be decided on a case-by-case basis rather than automatically by category. On July 1, 2013, Indiana enacted a sealing and expungement law that does just that. The new expungement process does not close the records, but instead puts limits on the use to which people, like employers, can access them.

Journalists say record access is essential to reporting practices

Julia O’Malley, an Alaskan journalist and board member of the Alaska Press Club, says reporters need access to the court records at issue in the proposed bill so they can do their jobs. The media works to deliver information, she says, not to protect the public from itself.

“If we’re going to spend public money to have a public hearing, the record of that hearing should be available to the public,” O’Malley said. “We don’t have secret courts in this country.”

She also says the records are the most reliable source for fact checking.

O’Malley also warned that the provisions of SB 108 would keep journalists from comprehensively covering important court cases.

For instance, the Alaskan media reported on a man charged with murdering his girlfriend last June, only to find that he had similar charges existing on his criminal record from November 2013. The man was acquitted of the 2013 charges, but O’Malley says the story on the June case would have been incomplete without facts about the previous charge.

“We need to be able to ask the question, ‘What happened here?’ If we didn’t know that had previously happened we wouldn’t be able to go to the system and ask, ‘Why wasn’t he charged before?’” she said.

The Fairbanks Daily News-Miner published an editorial in February that highlights many of O’Malley’s concerns. The piece explains that, with SB 108, a reporter wouldn’t be able dig up a public official’s old allegations and the public would have no way of knowing whether or not prosecutors had a strong case that was inexplicably dropped.

“An acquittal or dismissal doesn’t always mean the accused didn’t commit the crime,” the News-Miner wrote. “An acquittal can also mean that prosecutors didn’t do a good job presenting their case.”

McKay says making records confidential in cases of complete acquittals and full dismissals could potentially cover up errors and abuses.

“The whole idea is that these are still significant records. Just because someone’s acquitted doesn’t mean the public isn’t interested,” McKay said. “It’s exactly these types of records that are more likely to show that there was a mistake made somewhere in the court system. Either someone was wrongfully accused, wrongly prosecuted or there was some type of error that made it so the case didn’t result in a conviction.”

Arguments against access

Despite journalists’ wishes, defendants want a second chance. The public posting of a person’s name and charges can affect employment prospects and an individual’s ability to find housing, Dyson said in his statement.

“All of us took an oath to protect both of our state and federal constitutions,” Dyson said. “Given our oath, I believe that our default position must be to protect privacy and the concept that we are all considered innocent until proven guilty. There will always be good sounding reasons to trample on civil rights, but we must default to the Bill of Rights when issues are in doubt.”

Love said, “The jury is the one who decides if he did or didn’t do it. That’s the system we’ve got. Period.”

Love believes the public has no legitimate interest in accessing dated criminal records in “an overwhelming number of cases” and says most stories turn out to be “sensational and ugly.”

“If the media would do more to encourage proper use of records, like be more responsible when talking about people who have a criminal record, then people might be more comfortable granting public access,” Love said.

But O’Malley said restrictions on access keep journalists from doing a good job.

“I’m not here to defend bad journalism. It’s the job for every journalist to treat defendants fairly,” O’Malley said. “But there are bad journalists, just like there are bad cops, bad attorneys, and bad judges. We shouldn’t handicap the public because there are journalists who are sensational.”

O’Malley says people are “misunderstanding what journalism does.”

“It’s our job is to explain what happened. Of course we can note if the charge was acquitted, but we cannot erase the record,” she said. “Our job is not to protect someone’s reputation.”

Finding the right balance

The Alaskan legislature, and the United States as a whole, is still trying to figure out how to develop a compromise for the journalists who want access and the defendants who want a fresh start.

Love noted the dual interests here, but emphasized the burden on those who have faced arrest. “There are a host of burdens that we put on people that drive people out of society,” she said. “We’re creating a permanent second-class citizenship. That’s the social problem the press has to recognize when they request public access.”

McKay says the societal judgments are a problem, but there are other ways to protect people who have been charged of crimes but not convicted.

“It’d be better to pass laws that say, you can’t discriminate based on whether or not someone’s been arrested or convicted of something,” McKay said. “Don’t just remove a whole box of certain records from public access.”