Commentary: Expunge? It depends. (And does it matter?)

Your son, on a dare from his new college friends, slips a candy bar from the store rack into his pocket and walks out without paying. The next time the game escalates. It’s a video game at Wal-Mart, except Wal-Mart has security people watching, and your son is caught and arrested.

A simple charge of theft results in a conviction, a fine and, hopefully, a valuable lesson. Your child sincerely tells you it was a stupid mistake and will never happen again.

A few years pass, and your son, graduated from college, has applied for the job he’s really wanted, a position in a high-tech security firm. The interview goes well, and the job should be his, except there’s a glitch.

Through its electronic search of records, the firm discovers a criminal record showing a theft conviction. Your son is disqualified unless the theft conviction can disappear.

You talk to your lawyer to see if something can be done. After all, this is the only blemish on his application, on his life. He’s a great kid. He’s hardly a criminal. We all make mistakes.

Your lawyer tells you that you can ask a judge to have the conviction expunged.

To expunge something is to erase it, as if it didn’t happen. The process to expunge a criminal conviction is set out in our state statutes. A petition is made to the court with notice being sent to various parties, typically the prosecuting attorney’s office and law enforcement agencies. The petition is then heard in open court allowing for those parties to object if they deem the expungement to be unwarranted or unlawful. These types of requests come before the district court regularly.

To explain all the standards and exceptions pertaining to court-ordered expungement of records would exceed the limitations of this article. Our state statutes authorize the expungement of certain records as a matter of course and allow expungement under the court’s inherent authority under other limited circumstances.

The district court has more authority to expunge its own records than the records held by outside agencies, such as a police department or the state Bureau of Criminal Apprehension. As to the latter, the court, among other criteria, is limited in its expungement authority over non-court records where it is necessary to prevent serious infringement of an individual’s constitutional rights, and those benefits to the individual outweigh the disadvantage to the public from the elimination of the public record.

Let’s go back to our original scenario, except now you are the prospective employer.

You’ve worked hard to create a company in a highly competitive field. To succeed you assure your clientele that everyone who works in your company has been extensively screened to ensure that those employees handling sensitive and secretive material are beyond reproach. You vouch for each and every one of them. They can be trusted.

Don’t you as the employer deserve to know the entirety of an applicant’s former criminal record?

Weighing these competing and conflicting interests is core to a district court judge’s function. As to this hypothetical, the court could decide to expunge the court’s own records (they aren’t shredded or destroyed, but sealed from public access) on the grounds of its inherent authority.

However, an order to expunge outside records held by police or the BCA would probably not stand. Under current precedent (appellate decisions reviewing lower court rulings) the inability or difficulty in gaining employment is not a sufficient basis to obtain the expungement of all records held by public agencies.

Another point is essential to understand here. I have discussed the potential erasure of only public records.

Not that long ago, a criminal background check was conducted almost exclusively within court and law enforcement records. That is no longer the case.

Information regarding criminal records can now be obtained via the Internet from many sources, most compiled by commercial services, and some are more accurate than others. None of these private sources is within the jurisdiction of the court system. The records kept by Wal-Mart are private as are the agencies with whom they want to share that information.

So then, what is the value of an expungement of a public record in today’s world?

Record-keeping is, and always has been, a vital concern of the court system. With the advent of electronic records and scanning of paper documents, records can now be kept forever in large quantities and yet be instantly and accurately accessed. In our daily lives we gain information from a number of sources be it television, radio, newspaper, the Internet or our regular personal contacts. Younger generations rely on sources different and foreign to their senior counterparts. Regardless, each of us develops our own habits and practices in determining what information is sound and reliable.

This process of gathering and filtering information will continue to evolve in both our personal and professional lives. As we decide where to look, the records held by public entities will continue to be a trusted source, and for that reason, expungement of any of these records will remain an important process.

Is the disappearance of any of these records from the public view a good idea? That may depend on how it affects you or those near to you.

Tags: opinion, commentaries