Doing Something about Criminal Records

originally published February 24, 2009

Whenever a publicized tragedy or injustice occurs, lawmakers perceive a political need to “do something,” which for them means a new law.

For example, one proposed law this year would require police departments to file monthly reports on the activities of SWAT teams, thanks to the door-busting, dog-killing performance of the Prince George’s County cops who raided the house of the Berwyn Heights mayor last year. Whether this would contribute in any meaningful way to restrain overzealous police is anybody’s guess, but legislators would have “done something.”

Not long ago a “do something” issue concerned expunging—which means erasing--information from criminal records. This followed a big controversy in Baltimore over so-called “illegal arrests.” Because city prosecutors were refusing to charge defendants in up to a third of arrests, because police arrest practices were so controversial, and spurred on by in-fighting between the chief prosecutor and the mayor, public perception grew that all arrests that did not result in charges were “illegal.”

This perception was inaccurate, which I explained in The Lie That Won’t Die. Nevertheless, the Maryland General Assembly jumped into the act and passed a law that automatically expunged all arrest information on cases dropped without charges from criminal records.

Bad idea. First, I wonder whether county lawmakers knew what they were doing because they discriminated against their own citizens. Everyone released without charge in the city—even if their arrest was legal--gets their arrest immediately expunged with no effort on their part. Everyone arrested outside the city whose cases are eventually dropped—even if their arrest was illegal— must apply for expungement after waiting for three years. (This is because prosecutors do the charging in the city while the police do it in the counties.) Such is the effect of politicians jumping to solutions.

But my concern goes deeper than treating city and county citizens differently. My years in criminal justice taught me that arrest patterns are very important to assessing the dangerousness of a criminal, something I have written about before. By expunging information, law enforcement loses an important tool. (For an example, see below.)

New problems offer an opportunity to rethink the current way we do business. But instead we usually graft new laws onto old frameworks, losing the chance for a more comprehensive solution and often doing more harm than good.

Maryland law allows for expunging not only arrests but some convictions, and a new bill due for a hearing on March 3rd would expand the list of convictions that can be expunged. I don’t oppose the intent of this bill, but I do oppose the practical consequences. But we can have the best of both worlds if we approach the issue differently.

The criminal justice system has an interest in seeing the entire criminal history in order to assess those who pose the greatest risks to public safety. At the same time, society has an interest in allowing citizens who have made a mistake (or were unfairly arrested) to rehabilitate themselves and clean up their record, which is the interest advanced by expungement laws.

Why not have one criminal record for the purposes of criminal justice and another for the purpose of background checks? The criminal justice record would include everything. Prosecutors and judges would have the ability to decide what is meaningful and relevant for public safety in handling new cases.

But a background check would balance the competing considerations of adequate notice to employers about potential employees and the societal interest in rehabilitating people and allowing them to work. Any proposed changes to the expungement law, such as this year’s proposed bill, would not involve law enforcement, but keep the discussion squarely focused upon employer and rehabilitative interests (as well as foster care, adoption, and other activities that expose children to adults.)

With our current state of technology, this should not be difficult. Rather than expunging certain arrests and convictions, the State could code these not to appear on a background check. Employers and social service agencies would get the sanitized background record check. New arrests would generate the traditional—and complete--rap sheet for criminal justice purposes.

Now this would be doing something meaningful about criminal records.

Who is More Dangerous?

Let’s consider the hypothetical cases of two 30-year old men who are arrested for selling drugs in Baltimore. City prosecutors, who are overwhelmed with felony drug cases, consider whether to charge them with a misdemeanor or a felony.

They look at their records. Before the automatic expungement law took effect, they would have seen this:

Defendant 1 has two arrests for loitering which were dropped without charges. (Loitering is very difficult to prove due to constitutional considerations and is routinely not charged.)

He has another arrest for handgun possession, also dropped without charges. The prosecutors look up the prior case (easily done at Central Booking) and find that the defendant had been arrested with a handgun tucked into his waistband. However, the police officer who recovered the gun had searched the defendant on the basis of an anonymous call, violating the 4th Amendment. Since the evidence would have been thrown out at trial, prosecutors simply refused to charge the case.

Defendant 2 has one arrest for trespassing where he was found sleeping in a vacant city-owned house. Since the city never sends anyone to court to testify about their vacant houses, prosecutors dropped the case without charging it.

The defendant also has two arrests for illegal panhandling that were not charged because city prosecutors consider these not worth prosecuting.

The defendant with the two loitering arrests (very typical for drug dealers) and the handgun arrest should be treated as a dangerous drug dealer and charged with the felony. Defendant 2 is likely a down-and-out addict who could effectively be handled in misdemeanor court. The bails set for these two should be different as well.

But with these arrests expunged, how should prosecutors charge these defendants? What bails should commissioners and judges set?

Why is the Maryland General Assembly blinding those who are tasked with making public safety decisions?

There is a better way.