Can ‘clean slate’ laws really erase criminal records from public view? It’s complicated

Miranda Spivack examined the contentious issue of expunging records from public documents during her APF fellowship. The McClatchy Newspapers printed all four of her articles, which are shown here.

Anyone who has used a dating app knows the value of an Internet search before showing up for coffee. So do employers and landlords, who will scroll on their own for insights and information they may have missed in an interview, or that a formal background checker did not include.

Online searches can turn up hidden work history, criminal records, and credit history, information that the prospective employee or tenant may not always offer up, nor be required by law to provide.

But what would happen if the U.S. follows Europe and enacts “Right to be Forgotten” and other record-expungement laws, allowing individuals to get their Internet profiles scrubbed of negative information?

Yet can anyone really get rid of records in the digital age? Online databases and searches have grown so large and unwieldy, many experts are skeptical that a person’s past can ever really be forgotten.

Those who support the growing movement in the U.S. to give people with criminal records a second chance and the opportunity to re-enter society say it is imperative to make these online background searches more difficult. And they are gaining substantial support from a diverse coalition that includes the Chan-Zuckerberg Initiative, the Ford Foundation, Koch Industries and the American Conservative Union Foundation.

Before the Internet, it was relatively easy to avoid stigmatization once a sentence was served or a fine paid. Now, Google and the background check industry make actions of the past hard to leave in the past. Searching for someone’s name can bring up their picture on profit-oriented mugshot websites for years after they serve their sentence.

Depending on the state, criminal records may either be expunged or sealed. An expunged record is destroyed, leaving no trace of a person’s conviction in the state’s hands. When a record is sealed, it is not destroyed, but withdrawn from public view. The public typically has limited or no access to a sealed record, but police, prosecutors and judges retain access.

Forty-five states, the District of Columbia and Puerto Rico offer some form of record removal of criminal records — and that means, in theory at least, that the information will also disappear from the Internet.

But getting a record removed from public view either through sealing or expungement can be costly, often requires going to court, and may take several years to accomplish.

In the dozens of states where there is no automatic system to get rid of records, getting a record erased or put into a digital lockbox with only certain people allowed access (usually police, prosecutors and judges), is an expensive undertaking.

In Alabama, it can cost a minimum of $300 to file papers to get the process started. In Illinois, the filing fees are around $130, depending on the county. A move to make it easier to get rid of a criminal record has led at least four states, including California, to enact some type of automatic, computerized record erasure, with Pennsylvania leading that effort in 2018.

HUGE TECHNICAL CHALLENGES TO REMOVING CRIMINAL RECORDS

The movement to make it easier to get rid of a record has been linked by supporters to police practices that result in large groups of people having records for relatively minor violations that nonetheless continue to prevent them from getting a job, finding a place to live, and even volunteering in their child’s school.

Public criminal records are especially problematic for people of color, especially Black and Hispanic people, who disproportionately are arrested and convicted in the U.S. — in what critics have said is often a direct result of overzealous policing and a criminal justice system that for decades has been weighted against them.

Brent Smoyer, lobbyist for the Professional Background Screening Association, said the technical challenges of record removal can be overwhelming.

“Because of the web of agencies involved in sealing a record, an employer may still find out about a sealed or expunged conviction because one or more local or federal agencies has not updated its system,” Smoyer said.

“In addition, companies that harvest justice system records may not purge information they had previously gathered; consequently, an individual looking for a job or promotion may appear to be lying or misleading about a past offense, jeopardizing his or her chances for the job,” he said.

Furthermore, employers can often find information about arrests and convictions from the Internet without ever conducting an official background check.

“This may lead employers to make decisions based on incomplete or unreliable information, such as arrests on charges that were later dismissed, or even inaccurate reporting,” said Smoyer.

Smoyer said screeners who do research for clients have come upon records that should have been automatically sealed or destroyed by court order or under a state law, but remain available because no person or computer program actually got rid of them.

And laws about how far back a background check can go, known as the “lookback,” differ from state to state, making it possible that a screener could come up with information that is still online in one state, having been gathered up previously, but goes back further than another state’s law allows.

“We understand you want to reduce the lookback time and that is well and good. The feds have run the tracks on this and established seven years as a kind of magic number,” for credit reporting, Smoyer said. He’d like to see a standard applied by all states to other types of records, such as criminal records.

‘THEY WILL FIND A WAY TO GET IT’

Meanwhile, the waiting periods to get a criminal record sealed or expunged — which also vary from state to state — can leave the information lingering for years in the public domain.

These waiting periods can range from one year or less for a misdemeanor, as is the case in West Virginia, to 10 years for two non-violent felonies in Oklahoma. Until expungement laws were modified this year in Delaware, certain records would not be completely destroyed until the person turned 80, or 75 if they had been crime-free for 40 years.

“If people really value or want the information, and it is out there, they will find a way to get it,” said Amanda Agan, a Rutgers University economics professor. “If we really do want this to go away, how do we make it possible so that people cannot get around this? It really shocks me how easy it is to find criminal records.”.

There are other roadblocks to getting a record removed. A company regularly scraping court records or collecting them in person from a courthouse could obtain information before it is sealed or expunged, as was the case in Colorado in the late 1990s. Court officials had found that a data collection company had sold information to clients that included names of sexual assault victims, and other types of information that had been deemed non-public.

“By giving a private company access to data, the court system also inadvertently gave private companies the power to control and disseminate information that could be used to the detriment of people accused, charged and convicted of a crime, moving well beyond the agency’s public service intent,” the Colorado Supreme Court noted in a 1999 ruling.

All of which adds up to a potential risk for anyone relying on the data or hoping to get it erased. And that creates problems for those trying to conduct background checks. “Accuracy is the lifeblood of our industry, “ Smoyer said.

Advocates of expungement say they recognize the risks that the Internet poses, but think it is still worthwhile for people to try to get their records removed.

“When someone is 40 years out and still being haunted by a record, when you put these things on the scale, to me how heavy does this weigh,” said Jenny Roberts, a law professor at American University in Washington, D.C., who has studied criminal records expungement and coauthored a treatise on the consequences of having a record with Margaret Colgate Love and Wayne A. Logan.

“Yes, while it is true for some clients, they have to chase down and write a letter to the data company and background check company to get their records removed, for many clients these expunged records really do disappear, especially if it is pretty minor and fairly recent,” she said.

Nila Bala, a senior fellow at the R Street Institute, a D.C.-based think tank, and a former public defender, acknowledged that there are times when records aren’t really removed. But she is still supportive of the efforts to provide a fresh start.

“I would say, of all the remedies that the law offers, expungement is probably one of the most powerful ways to react, reintegrate individuals back into the community,” she said.

“There’s always going to be things that slip through the gaps, you could say or cracks because you know, there are private databases, mugshot databases online, and of course, there’s news stories that the media can publish about somebody,” Bala said “And those are not official criminal record checks. So, you know, an employer, hopefully, you know, a good actor wouldn’t rely on any of that, because that could be outdated or it could be wrong.”

The federal Equal Employment Opportunity Commission suggests that employers who say their policies do not allow for a job candidate with a criminal background to be considered for employment, should explain how the candidate’s conviction is relevant to a particular job, and share that information, upon request, with the prospective employee who may be able to explain that it is not relevant.

HOW ‘RIGHT TO BE FORGOTTEN’ LAWS ARE WORKING IN EUROPE

In Europe, the process is far different. The “right to be forgotten,” has allowed Europeans to work with search engines such as Google to scrub search results.

However, there is a workaround. The European Union’s top court has ruled that Google does not have to apply this to searches conducted outside of the region. It means Google only must remove links from search results in Europe after receiving a request that meets standards.

The purpose of the EU law is to allow an individual to ask Google to delete sensitive information, including a criminal record or extramarital relationship, if the information is considered no longer relevant or extra information that is not necessary to address whatever the issue at hand might be.

Google had argued that the obligation could be abused by authoritarian governments trying to cover up human rights abuses were it to be applied outside of Europe. In 2019, Google said that since it had received more than 845,000 requests to remove a total of 3.3 million web addresses.

Spanish journalist Enrique Dans, writing in Forbes, suggested that erasure from the Internet is a false promise.

“When you want to find something out about a person, just launch your VPN, point it to a node outside Europe, and avoid censorship. Let’s be clear: the ‘right to be forgotten’ does not exist, it never existed, and [the] ruling makes that even clearer than it already was. The ECJ (European Court of Justice) may be the court of final appeal, but it got this one seriously wrong. It’s time to forget the right to be forgotten.”

Meanwhile, in the U.S., several newspapers and one major news organization, the Associated Press, have gotten on the record-removal bandwagon. The Atlanta Journal-Constitution, The Bangor Daily News, The Boston Globe and The Cleveland Plain Dealer, and The Lexington Herald-Leader, a McClatchy paper, have said they will remove a story from their archives, noting the possibility of causing long-lasting harm.

In a story explaining the move, the AP said “Often, the AP will publish a minor story — say, about a person arrested for stripping naked and dancing drunkenly atop a bar — that will hold some brief interest regionally or even nationally and be forgotten the next day.”

But the arrested person’s name will remain forever online, even if charges are dropped or there is an acquittal, said John Daniszewski, AP’s vice president for standards, in the AP’s story.

Roberts, the law professor at American University, said the U.S. system may need some perfecting, but she believes that the clean slate movement is on the right track. Like many academics, she says the data could remain available, but names could be removed, allowing researchers to study trends, even if they can’t track down the individuals or cross-check the data.

But Jennifer Nelson, a lawyer for The Reporters Committee for Freedom of the Press, said anonymized data can still lead to massive black holes of information for anyone —activists, defense lawyers, domestic violence victims, and private investigators seeking to help a lawyer exonerate a client by challenging a witness’s credibility.

And that means that it becomes harder to expose patterns and poor practices in law enforcement, prosecutors’ offices and the courts. While the goal is to get rid of lingering records that cause harm, she said, “the effects of it are to allow perpetuation of the problem.”

The risk, she said, is that bad behavior and illegal actions by law enforcement will “continue with impunity. They know the records are not going to be there forever for someone to look over.”