Legislators in Annapolis are putting important focus on the struggles that individuals with criminal records confront as they attempt to move past their interactions with the criminal justice system, contribute to their families and strengthen their communities. Across the U.S., criminal records have never been as widely available and easily accessible than at present. In Maryland, these records are particularly easy to access via a court-maintained website that displays all criminal records dating back to 1991, including charges that did not result in conviction. The records are everywhere. They hold individuals back, fail to recognize that individuals evolve and move past the circumstances that brought them into the criminal justice system, and stand in the way of opportunity.
The most viable way for individuals to move past their records in Maryland is through the expungement process. Expungement allows individuals to remove eligible charges so that the public, including employers and landlords, does not exclude and shun a person simply because of the record. Thus, expungement better positions individuals to secure the employment, housing and peace of mind that they sorely need, richly deserve and have earned.
Currently, expungement is chiefly available in Maryland to individuals whose charges did not result in conviction. These include charges that a state's attorney declined to prosecute, that judges dismissed, that have been postponed indefinitely and that resulted in acquittal. These dispositions are not convictions, yet they remain on criminal records, available for all to see, speculate about and judge.
There are a tiny band of nine charges that can be expunged if they result in conviction, so called "nuisance" crimes that include panhandling, sleeping on park benches, vagrancy and riding a transit vehicle without paying. These very narrow expungement opportunities run counter to the laws in several states, which allow individuals to remove an array of misdemeanor and even felony charges that resulted in conviction.
The current legislative session has several bills that strive to provide deserving individuals greater opportunity to remove charges from their records. One bill aims to eliminate Maryland's notorious subsequent conviction rule. Under this rule, charges that were once eligible to be expunged — charges that result in three types of non-conviction dispositions — can no longer be expunged if the person has been subsequently convicted of a crime. In my work over the years representing hundreds of individuals in expungement proceedings and reviewing thousands of criminal records, nothing stands more in the way of expungement and crushes more hope than this rule. Charges that did not result in conviction should remain eligible for expungement. Period.
Another important bill is the Maryland Second Chance Act of 2015, which aims to allow individuals to shield 13 misdemeanor charges that resulted in conviction. The charges include disorderly conduct, trespass on posted property, theft under $1,000, possession of a controlled dangerous substance, driving without a license and prostitution — all of which currently stay on records forever, regardless of the years or decades that pass and despite all that individuals have done over those courses of time to attempt to move past their respective circumstances. Shielded convictions would no longer be available to the general public but would remain available to law enforcement and the courts as well as to employers required to perform background checks, health occupation boards and child-care related facilities, such as schools, camps, recreation centers and foster care agencies. Moreover, a person must wait three years after the sentence is completed to apply for shielding, with the exception of the theft conviction, which requires a five year waiting period. Thus, to shield a conviction, the applicant must complete the sentence successfully, wait the required time period, have no pending cases and initiate the shielding process with the court by filing a petition and paying the required court fee. The individuals who will benefit from this bill are those who have demonstrated the discipline, commitment, need and hunger to move past their criminal records and to live productive, law-abiding lives.
The legislators understand that individuals should be judged based on who they are rather than on a long-ago circumstance or simply their misfortune of interacting with the criminal justice system. These bills strike the right balance between accountability, fairness and redemption. All Marylanders would benefit greatly by their passage.
Michael Pinard is a professor at the University of Maryland Francis King Carey School of Law and co-director of the Clinical Law Program. His email address is firstname.lastname@example.org; Twitter: @ProfMPinard.