« First cases for a new SCOTUS: two more efforts to sort out ACCA uncertainty with old criminal history | Main | On eve of execution, Tennessee Supreme Court rejects challenge to state's execution protocol »

October 8, 2018

Highlighting efforts by some prosecutors to help with expungements

Today's New York Times has this notable new article under the headline "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." Here are excerpts:

[A]lthough law enforcement officials have traditionally opposed [broadened expungement and sealing laws] for an array of reasons — including accountability, a belief that records are vital to public safety, and unstinting support for crime victims — a growing number of them have begun to recognize that criminal records can be enduring obstacles to self-sufficiency and even help trap people in cycles of crime.  Increasingly, they are overtly endorsing mercy through record suppression.

“It’s just a matter of trying to remove obstacles that would make it more difficult for someone to become a productive member of the community,” said Terry Curry, the elected prosecutor in Marion County, which includes Indianapolis and has a population approaching 1 million residents.  “If an individual has stayed out of the criminal justice system, then why should they continue to have that stain forever?”

Though in most places the paperwork burden for expungements has fallen on private lawyers and nonprofit legal clinics, South Florida prosecutors now routinely hold events intended to help people wipe away records of arrests but not convictions.  A district attorney in rural Louisiana leads information sessions about expungements for some felony convictions after a 10-year waiting period; a Vermont prosecutor recently held a record-clearing clinic; and the authorities near Fort Bragg, N.C., attracted about 500 people to an expungement event last year.  Last month, the Brooklyn district attorney promoted “Begin Again” events, where, one advertisement said, people were invited to “clear your record of a misdemeanor marijuana conviction or warrant.”

But there is still a national patchwork of policies and terminologies, from destroying records to sealing them to simply noting that a conviction is effectively vacated. States have imposed various waiting periods, conditions and fees.  Some places have made their processes deliberately simple, while others have complicated approaches that may require legal assistance or court hearings.

The proliferation of new laws, and newfound enthusiasm on the part of some prosecutors, has hardly erased all doubts about the wisdom of suppressing records.  Many prosecutors, especially in rural areas, remain skeptical of any action to show mercy for a person’s past, and some judges engage in measured resistance, holding hearings more to complain about an expungement law than to weigh an application’s merits.  “You have prosecutors and judges who just think it’s wrong: ‘You’ve caused trouble in this county, you’re a wrongdoer and you shouldn’t get a blank slate,’” said Bernice Corley, the executive director of the Indiana Public Defender Council.

But Margaret Love, the executive director of the Collateral Consequences Resource Center and a former United States pardon attorney, said that clemency and expungements are part of the criminal justice process for a reason.  “It ought to be something that prosecutors welcome and use to their advantage to create criminal justice success stories, to advertise criminal justice success stories,” she said.

The nuanced approach in Indiana, where officials hoped that expungements would improve people’s job prospects, is increasingly seen as a model.  Under its so-called Second Chance law, the state has a tiered system in which the offense, and the outcome of the case, determines the waiting period and the exact relief.  Indiana does not destroy records, but can limit access to them and mark them as expunged, and crime victims are permitted to express their views before any decision is made.  “Indiana should be the worst place in America to commit a serious crime and the best place, once you’ve done your time, to get a second chance,” Gov. Mike Pence, now the vice president, said when he signed the records measure into law in 2013.

I am glad to see this topic garner the attention of the Times, though I am a bit disappointed not to see any mention of the particularly notable marijuana-reform developments on this front. Specifically, as I discussed briefly in this recent paper for the Federal Sentencing Reporter, a number of prosecutors in California began taking proactive steps to clear prior marijuana convictions after the state enacted marijuana legalization in 2016.  

October 8, 2018 at 04:32 PM | Permalink

Comments

1000% agree with this. Pardons should be routinely granted too for stale convictions.

Posted by: federalist | Oct 8, 2018 6:39:59 PM

Federalist, I commend you on your comment above.

How can one hold young kids down in the mud, for foolish acts that they regretted ever since.

To me the federal system, keeps score on anything you ever did in your life. Then keeps ratching up the sentence with attibutes from your past so you qualify for Mandatories.

More emphasis on what was done and not so much on ones past.

Posted by: MidWestGuy | Oct 8, 2018 8:35:34 PM

I might agree with this if the original sentence were anywhere near enough but from the decade I've been reading here that rarely seems the case.

Posted by: Soronel Haetir | Oct 9, 2018 12:53:15 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB