Expungement and post-exoneration offending.

• Author: Shlosberg, Amy

TABLE OF CONTENTS INTRODUCTION I. A SURVEY OF EXPUNGEMENT LAW A. Overview B. States in Our Study II. METHODOLOGY III. RESULTS A. Descriptive Statistics B. Post-exoneration Offending C. Expungement IV. DISCUSSION A. Labeling Theory B. Alternative Explanations CONCLUSION Introduction

Although the problem of wrongful convictions has recently come into clearer focus, very little attention has been paid to the factors that allow exonerees to successfully reenter society, and almost none at all has been paid to the commonsensical measure of expunging the exonerees' records of the offense for which they were wrongfully convicted. Fundamental fairness would seem to require expungement, and yet in our study of 118 individuals who were exonerated and released between 1999 and 2009, we found that approximately one-third did not have their records expunged.

Generally speaking, expungement laws are restrictive. The federal government does not allow records to be expunged, and many states either do not allow records to be expunged or do so only under very limited circumstances. "Expungement" also means different things in different places. In some jurisdictions, expunged records do not disappear. (2) In three of the four states covered by our study--Florida, Illinois, and Texas-- securing expungement is extremely difficult. In the fourth state, New York, the situation is substantially better. (3) Perhaps not coincidentally, post-exoneration offending is dramatically lower in New York than in the other states in the study. As one might imagine, failing to expunge an exoneree's record has problematic consequences. Among exonerees who had their records expunged, 31.6% committed a post-exoneration offense (PEO) compared to 50% of those who did not have their records expunged. Of the four states in the study, New York has by far the most favorable expungement laws. There, only 8.3% of exonerees offended following their releases. This association is consistent with seminal concepts of labeling theory, which holds that status as a former criminal has a stigmatizing effect and acts as a substantial barrier to reentry. Several studies suggest that labeling effects are strongest for first-time offenders and, indeed, in our study the statistical benefits of expungement were driven principally by its ameliorative outcomes for exonerees without prior records.

On the whole, these findings suggest that exoneree expungement, which heretofore has been virtually ignored as a public policy issue, deserves far greater attention. Expungement is a nearly costless way to help ensure that exonerees make successful transitions into society following their releases. Following this Introduction, this Article offers a survey of expungement laws. Part II describes the larger project and details the methodology employed. Part III presents our results. In Part IV, we explain how labeling theory can shed light on the problematic consequences of failing to expunge and consider alternative explanations for the association we found between expungement and post-release offending. We conclude with some directions for further study and some simple suggestions for reforming the law.

1. A SURVEY OF EXPUNGEMENT LAW

   1. OVERVIEW

   Forty-five states and the District of Columbia currently have some mechanism through which an individual may expunge or limit disclosure of a criminal record. (4) These laws differ wildly. (5) The first difference is one of nomenclature: the process of limiting disclosure of criminal records to the public may be referred to as "expungement," (6) "expunction," (7) "sealing," (8) "setting aside," (9) "destruction," (10) "purging," (11) or "erasure." (12) States also differ substantially in their preconditions for expungement of a criminal record, and in both the manner and procedure by which they carry it out.

   While almost no two statutes are the same, some commonalities regarding expungement do exist. Almost every state, for example, allows for the expungement of records related to minor offenses committed by juveniles. (13) Most states also allow for the expungement of arrest and court records relating to cases that did not end in convictions. (14) This includes instances where the cases were dismissed or ended in nolle prosequi, the defendant was acquitted at trial, or the statute of limitations expired before the prosecutor pressed charges. (15) The District of Columbia and some other states, including Nebraska and Pennsylvania, offer expungement to those who take part in "diversion programs," which may include treatment for problems with drugs or alcohol. (16) Under certain limited circumstances in a handful of states, expungement of arrest records is mandatory or construed as a right. (17)

   Generally, however, expungement is not guaranteed. In the federal system, most offenses are not eligible for expungement. (18) At the state level, even where expungement is possible, it is often excluded where a charge is dismissed through plea-bargaining or in exchange for testimony regarding another crime. (19) Other states preclude certain charges from being expunged (20) or deny expungement to offenders with certain kinds of prior offense records. (21) Some expungement statutes require petitioners to wait a certain amount of time before they can file for expungement. (22) In some states, a conviction obtained during this waiting period, or a charge pending at the time of filing, disqualifies an individual from receiving expungement. (23) Sometimes these wait periods can be quite long. (24)

   The barriers to expungement can be so substantial that in some states, merely showing that a criminal proceeding did not result in charges or conviction is not enough. For example, in California exonerees may only petition for sealing and destroying of their arrest or court records in cases that ended without the filing of a plea, with the filing of a plea but without a conviction, or with acquittal only after obtaining a determination of "factual innocence" from the arresting criminal justice agency. (25) If the criminal justice agency does not grant the petitioner's request, he must petition the court for such a finding by showing that "no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (26) Simply stated, in California one must be not only "not guilty" but "factually innocent" to get an arrest record expunged. In other states, petitioners are at the whim of the system. In Delaware, for example, if a misdemeanor charge or violation is "terminated in favor of the accused" and the person has no prior convictions, then the record of the arrest is subject to mandatory expungement. (27) Everyone else must rely upon the discretion of the Attorney General or the court. (28) To secure discretionary expungement, the petitioner must prove, based on a preponderance of the evidence, a failure to expunge constitutes "manifest injustice." (29)

   Most states make some provision for the expungement of convictions, but the barriers remain formidable. (30) Statutes that provide for this possibility often apply only to those convicted of misdemeanors or minor crimes. (31) Where a provision is made to expunge the record of those who commit more serious crimes, a full and unconditional pardon from the Governor is sometimes required as a precondition. (32) In deciding a petition for expunging a conviction, a court generally weighs the interests of the petitioner against those of society, (33) or a court may be required to decide in favor of the "public welfare" (34) and may consider factors, such as the degree of rehabilitation (35) or "moral character" of the offender. (36) As with the expungement of arrest records, numerous exceptions, procedural restrictions, and long waiting periods apply. (37) Michigan, Utah, and Wyoming, for example, mandate that petitioners wait a certain amount of time before filing a petition, and they each exclude those with prior felony convictions, those with charges pending at the time of the hearing, and those who have already benefitted from the statute once already. (38) Other states have similar provisions. (39) While most of these expungement proceedings rely on the discretion of the court, some statutes provide for automatic or mandatory expungement of certain convictions. (40) The deficiencies of expungement statutes have been widely condemned in the academic community. (41)

   Similar statutes exist in the wrongful conviction realm. Eleven states (not including those in our study) and the District of Columbia have expungement statutes that are specifically tailored to the wrongfully convicted. (42) In its model legislation on compensation for the wrongfully convicted, the Innocence Project includes a drafter's note recommending that states adopt expungement procedures that complement compensation statutes. (43) Such statutes offer perhaps the best hope for an exoneree seeking to expunge a record of an erroneous conviction and start anew. (44) The most inclusive of these statutes allow for expungement of a criminal record for anybody who receives either a pardon or a court finding of actual innocence. (45) Other states force exonerees to rely on either a pardon or a judicial determination alone, or include more restrictions on how they may obtain relief. For example, the District of Columbia provides a means through which a court can set aside a wrongful conviction and seal the records pertaining to it, but the statute makes no mention of executive pardons. (46) On the other hand, Connecticut (47) and Utah (48) guarantee expungement based on absolute pardons but make no specification for those whose convictions are vacated or set aside by a court. The same is true for those in Tennessee whose pardons, furthermore, must be based on actual innocence. (49) In North Carolina (50) and Oklahoma, (51) one may rely upon a pardon based on actual innocence or a court order of innocence...