Thou shalt not expunge Mobile Press Register, Inc. v. Lackey.

AuthorOverstreet, Brian


In Mobile Press Register v. Lackey, the Alabama Supreme Court enjoined the Mobile Municipal Court from expunging criminal files and allowed the Mobile Press Register to access criminal records that were previously sealed. (1) Briefly, expungement is the process of removing a conviction from a person's criminal record. (2) Currently, Alabama statutes do not explicitly provide for policies, requirements, and procedures to expunge criminal records. (3)

The Alabama Supreme Court's conclusion impinged the rights of some defendants whose cases were expunged. A defendant who pleaded guilty in exchange for the promise of future expungement made an uninformed choice between alternative courses of action because the defendant received sentencing misinformation from the municipal judge. Also, files involving youthful offenders may have been unsealed contrary to public policy which protects some young adults from the stigma of criminal convictions.

The first section of this Note discusses background information including the authority of the Mobile Municipal Court, the public nature and storage location of some municipal criminal records, the purpose of the Alabama Criminal Justice Information Center, a defendant's alternate courses of action, procedures used by various courts to exercise mercy toward defendants, and legislation in other jurisdictions to facilitate the expungement of criminal records. The next section is a statement of the case including a recitation of the facts, the procedural posture, the standard of re view, and the court's holding and reasoning. The final section is an analysis of how the Alabama Supreme Court defines "expungement" and how its conclusion conflicts with methods used by the Mobile Municipal Court to mitigate criminal penalties.


The Mobile Municipal Court attempted to expunge selected records by sealing the case file and removing the index from an electronic repository. (4) The Alabama Supreme Court held that the Alabama Criminal Justice Information Center Act did not support this practice, as the municipal court had argued. (5) Consequently, the supreme court's order to release the files to the public frustrated some defendants' decisions to plead guilty to municipal charges (6) and interfered with lawful means by which a municipal court may mitigate the harshness of a criminal conviction in regard to youthful offenders. (7) The Alabama legislature has not established a clear policy to guide courts contemplating whether to expunge criminal cases. (8) In contrast, legislatures in other jurisdictions have established specific criteria and procedures. (9)

  1. The Mobile Municipal Court

    The Mobile Municipal Court has original jurisdiction of all prosecutions for violations of the Mobile Code of Ordinances occurring within the police jurisdiction of the City of Mobile. (10) Mobile ordinances are either misdemeanors (11) unique to the City of Mobile (12) or state misdemeanor offenses adopted by a catch-all ordinance. (13) Defendants are entitled to a bench hearing before a municipal judge; (14) however, defendants may appeal to the Thirteenth Circuit Court of Alabama for trial de novo where they are entitled to a trial by jury. (15) The Mobile Municipal Court conducts itself procedurally as a state court (16) and is required to report on and maintain a public record of the proceedings. (17) These public records are available for public inspection. (18)

  2. Public Records and Record Storage

    The Alabama Open Records Act provides that "[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise provided by statute." (19) The Alabama Supreme Court also recognizes that public writings are "necessary to record the business and activities required to be done or carried on by a public officer so that the status ... of such business and activities can be known by [the] citizens." (20) However, there are numerous specific exemptions such as juvenile and youthful offender records. (21) Otherwise, intentionally destroying, concealing, or tampering with a public record is a crime. (22)

    To comply with the applicable laws, the Mobile Municipal Court must vary how its records are stored. Ordinarily, the Mobile Municipal Court stores its most recent records at the courthouse (Government Plaza) to facilitate court activities and make the documents available to the public. In addition, information from each original record is stored and indexed electronically in an internal database maintained by the Municipal Information System. (23) However, some records are required for judicial purposes but are exempt from public access. For example, the Youthful Offender Act provides that some adult defendants may be treated as juveniles, which includes restricting the availability of the adult defendants' criminal records. (24) In these instances, the court maintains some jurisdiction over youthful offenders and requires continued access to the records. (25) Therefore, these records are also maintained at Government Plaza but in a more restricted manner.

  3. The Alabama Criminal Justice Information Center

    Mobile Municipal Court case dispositions are reported to the Alabama Criminal Justice Information Center (ACJIC). (26) ACJIC is responsible for the "system for the interstate and intrastate accumulation, storage, retrieval, analysis and dissemination of vital information relating to certain crimes, criminals and criminal activity." (27) ACJIC also ensures that criminal histories and any information that may lead to the identification of a person to whom a criminal history pertains are restricted to those persons or agencies with a need or right to know. (28) Hence, ACJIC records are not public records. The ACJIC system is the only system in Alabama that compiles information from state, county, and municipal organizations, which it then provides to the National Criminal Information Center (NCIC), the singular national crime database secured by the Federal Bureau of Investigation. (29)

  4. Defendant's Options

    In most misdemeanor cases, a defendant must elect whether to plead not guilty to the charges or accept a plea bargain. A plea bargain is "a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty ... in exchange for some concession by the prosecutor, usu[ally] a more lenient sentence." (30) However, a plea bargain may be set aside, despite the plea of guilt, if the defendant's choice between alternative courses of action is not intelligent because she has received sentencing misinformation, (31) and the defendant challenges the plea within the statute of limitations. (32)

  5. Clemency

    From time to time, occasions arise where justice is better served through mercy than punishment. Currently, several methods exist which allow a court to grant clemency. A court may use intermediate punishments, grant a pardon, or seal the defendant's records.

    1. Intermediate Punishment

      Courts have limited authority to determine when and how offenders are adjudicated or sentenced. The Alabama Sentencing Reform Act of 2003 promotes "just and adequate punishment for [an] offense" (33) by allowing a "continuum of punishment options." (34) While establishing harsh standards for convicted felony offenders, (35) the Act also provides "judges with flexibility in sentencing options and meaningful discretion in the imposition of sentences" (36) and a "[wide] array of sentencing options in appropriate cases." (37)

      The Alabama legislation provides for twenty-nine intermediate punishments. (38) These punishments include non-traditional sentencing options such as educational programs, probation, community service, and home confinement that take effect after a defendant has been convicted. (39) Additionally, these punishments include drug court and pre-trial diversion programs that may spare the defendant a conviction altogether. (40) However, the Act does not exempt any court from its responsibility to maintain the criminal histories of the defendants. (41)

      The Mobile Municipal Court is authorized to impose many of these intermediate punishments. Among other intermediate punishments, the Code of Alabama expressly provides for municipal courts to impose intermittent sentences, establish work release programs, and require attendance of educational, corrective, or rehabilitative programs that take effect after a defendant has been convicted. (42) In addition, the Mobile Municipal Court engages in diversion programs that spare qualifying defendants a conviction altogether. (43)

    2. Pardons

      Sovereign powers often possess the authority to grant a pardon. The United States Constitution provides that the President "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." (44) The Alabama Constitution provides that "[t]he governor shall have power to remit fines and forfeitures, under such rules and regulations as may be prescribed by law; and, after conviction, to grant reprieves...

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