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Op-ed

We need more expungement, not less | GUEST COMMENTARY

As complex as our legal system can be, most readers will recognize the phrase “innocent until proven guilty.” By design, our criminal justice system favors the accused. Think momentarily about what it means for the government to remove our fundamental rights to life, liberty, and the pursuit of happiness — even temporarily — through imprisonment. This is an immense power, and it is why our court system both maintains a presumption of innocence and requires the state to prove beyond any reasonable doubt that a criminal defendant is guilty before removing one of us from society.

Really, it’s this simple: If the state is going to wield its power to lock someone away in a cell, it had better have a really good reason and make absolutely certain there’s no doubt the individual committed a crime.

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The Sun recently ran an op-ed (“Last year, Maryland started shielding certain arrest records from view. It’s putting the public in danger,” March 29) by Page Croyder. The piece argued that shielding public records for a person who was charged with a crime – but not convicted – makes our society less safe. As advocates for people who have been imprisoned and charged with crimes, we would like to offer a different view.

First, we wish to acknowledge that the domestic violence scenario offered in the op-ed is something that should be taken seriously. However, the issue in this example seems to be one of prosecutorial failure, not of our state’s expungement laws. We cannot make laws according to fear and outlier scenarios. Instead, we should make laws according to evidence and what benefits our entire community.

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One in four Marylanders have a criminal record, and many of these Marylanders have not been convicted of the crimes listed on their public record. Regardless of whether they are proven guilty, publicly-available criminal records obstruct important life opportunities for years after individuals’ legal cases have been closed. When someone has a criminal record, they are more likely to be denied housing, occupational licenses, and even entry-level jobs unrelated to their record. This diminished access to jobs and housing reduces the likelihood that individuals will be able to support their families, build generational wealth, attend to their health, and pursue higher education. Beyond these restricted opportunities, people with criminal records may experience social rejection when acquaintances, romantic interests, and others discover their publicly available record. Studies show that when people cannot access the above resources, opportunities, and social connections, their chances of recidivism increase.

We all pay the price when we do not allow individuals to move forward with their lives when they have not been convicted of their charges, or even found not guilty. Among many other costs, taxpayers are burdened with the high costs of operating prisons, paying for children in foster care while parents are incarcerated, and providing social welfare support to people who cannot find a job because of their record. Alternatively, studies show that we can reduce recidivism through expungement, because expungement reduces barriers to stable housing, stable employment, caring for children, seeking higher education, receiving adequate health care, and having a strong social support network.

Lastly, it is worth discussing the op-ed author’s concern that plea bargaining allows defendants to obtain a less serious conviction and punishment than warranted by their actions. We know from working with hundreds of people who have been charged with crimes, that the opposite is often true. An arrest incident can result in a myriad charges being assigned, only for a court case to uncover that the defendant was responsible for only a minor offense. Scholars have also noted this trend. Because over 90% of cases are disposed of through plea bargaining, researchers note that prosecutors may assign more plentiful and serious initial charges than necessary with the expectation that they will need to negotiate.

Under these circumstances, defendants may feel pressured to plead guilty to crimes they did not commit in order to mitigate the risk of a potentially harsher sentence. Unfortunately, the pervasive racial injustices in our legal system play out within the plea bargaining process. Among those who have their charges reduced during arraignment or disposition, white defendants are systematically offered more charge reductions than Black and Latinx defendants.

We believe that our family members and friends with criminal records should not be defined by their past choices or unfounded charges, and we are glad that our elected officials voted in agreement with us. A healthy society is not built around holding its citizens’ past wrongs against them for the rest of their lives; it is built on giving all people an opportunity to thrive and connect to each other despite all of our imperfections.

Christopher Dews (christopher@jotf.org) is the senior policy advocate at Job Opportunities Task Force. Elaina McWilliams (elaina@out4justice.org) is the policy and research coordinator at Out for Justice, Inc. Christopher Sweeney (csweeney@mvlslaw.org) is the workforce development project coordinator at Maryland Volunteer Lawyers Service.


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