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Each year, thousands of people are arrested in the District of Columbia for crimes but are not prosecuted or convicted. Many of these arrests are for minor offenses. Some are far more serious. For all these individuals, the mere fact that they neither were found nor pleaded guilty does not erase the criminal arrest record maintained by law enforcement, prosecution, and the courts. Because D.C. law severely restricted the circumstances under which criminal records could be sealed or expunged, virtually everyone arrested here was burdened with a criminal record for life. Until now. Under the Criminal Record Sealing Act, which takes effect this month, literally tens of thousands of individuals previously unable to clean up their past can now turn to the D.C. Superior Court for help. The power of a court to seal a person’s criminal record is both critical and controversial. It represents a difficult policy choice between two equally important goals: (1) giving those arrested, charged, or convicted of a criminal offense a second chance and (2) maintaining arrest information for future law enforcement, public safety, and employment purposes. Anyone with an arrest record knows well the difficulty of obtaining a job, getting into school, and finding housing. Those who have been arrested can tell you how embarrassing it is to describe the circumstances of the arrest to prospective employers and landlords, many of whom wrongly equate an arrest with a conviction. (Some city leaders are so concerned about unfair discrimination that the D.C. Council is considering a proposal to protect ex-offenders under the D.C. Human Rights Act.) Law enforcement officers and employers, on the other hand, are equally concerned about the risks of rewriting criminal histories. Whether or not there was a conviction, they argue, those investigating later crimes or hiring for positions of trust and responsibility need to know that someone was once arrested. An arrest for a sex offense against a child is quite important information for schools and day-care centers. And an arrest for embezzlement is surely relevant in hiring accountants. Until now, the balance between individual rights and law enforcement interests had tipped heavily in favor of not sealing criminal records. A SMALL WINDOW
�Ineligible’ Misdemeanors Under the New Criminal Record Sealing Act
• Felon in possession of pistol• Driving while intoxicated• Operating motor vehicle while impaired• Driving under the influence• Any intrafamily offense• Refusal to provide for child under 14• Abuse of vulnerable adult• Failure to report child abuse• Disorderly/”peeping tom” • Misdemeanor sex abuse• Violating sex offender registration• Any offense requiring sex offender registration• Violating child labor laws• Election/petition fraud• Trademark counterfeiting• Second-degree fraud• Credit card fraud• Insurance fraud• Telephone fraud• Second-degree identity theft• Attempted theft• False statements to employer• Fraud and false statements• No valid driving permit (second offense)• Altered title or registration• No commercial driver’s license• No school bus license• False statement to Department of Motor Vehicles• False information on registration or dealer certificate• Public assistance fraud• Violation of building/housing code• Violation of utility regulations• Interfering with access to medical facility• Conspiracy to commit any of these

Almost 30 years ago, the D.C. Court of Appeals, sitting en banc, held that an arrestee is entitled to have his criminal record sealed only if he can show, by the stringent standard of clear and convincing evidence, that he did not commit the crime for which he was arrested or that no crime in fact occurred. In reaching its decision in District of Columbia v. Hudson (1979), the court did not rely on any then-existing statute or rule. It simply concluded that an individual who had been arrested for an offense that he did not commit should not bear the social and legal stigma that accompanies an arrest. The court held that sealing the arrest records was an appropriate equitable remedy. The procedure outlined by the D.C. Court of Appeals in Hudson was later turned into Superior Court Criminal Rule 118. It was limited in scope. Only those whose case ended without a prosecution were able to apply. They were required to make the requisite showing of wrongful arrest or no crime by clear and convincing evidence. And the motion to seal had to be filed within 120 days of the dismissal of the case, with very limited exceptions. The result of the Hudson decision and Rule 118 is that few people could benefit, and even fewer actually did. Those who were eligible faced a high burden of proof, a tight time limit, and (often) limited resources. Each year only a small fraction of those arrested but not convicted managed to have their records sealed. Last year the Council for Court Excellence, a nonpartisan nonprofit that works to improve the administration of justice, conducted an in-depth review of the expungement process in the District. The center considered practices and policies here and across the country. Its April 2006 report rightly concluded that the District’s existing system was too harsh on those who had not been convicted and that many more people — including some convicted of minor offenses — could clear their records without any significant negative impact on law enforcement. The report offered recommendations and draft legislation to create a better expungement mechanism. And a bill was introduced in the D.C. Council. A number of individuals and groups testified for and against that bill in a spirited hearing before the Council’s Judiciary Committee. At the time, I served as the D.C. attorney general, and I testified about the need for a comprehensive strategy that would strike the proper balance between the two major policy objectives. Law enforcement officers, individuals with criminal records, victims of crime and their family members, and employers also testified about their concerns with sealing and not sealing criminal records. In the end, after a number of amendments to address issues raised in the hearing, the D.C. Council passed the Criminal Record Sealing Act. It was signed by the mayor in December. Because Congress reviews all D.C. laws relating to the criminal justice system, the new statute did not go into effect until this month. The Criminal Record Sealing Act represents a sea change in the District’s criminal justice system. It fundamentally alters the process for sealing criminal records by expanding the categories of crimes and people that qualify, removing the time limits for filing motions to seal, and changing the burdens of proof. Suddenly there are a large number of people who could take advantage of this opportunity to erase — or, more accurately, draw a curtain over — past mistakes. The new law is careful to distinguish among crimes, setting stiffer sealing requirements for some than others. Misdemeanors are classified as “eligible” or “ineligible.” Records of arrests for ineligible misdemeanors — generally, those perceived as representing a greater threat, such as possession of a pistol by a felon, driving while intoxicated, and any offense requiring sex offender registration — are more difficult to seal. (See accompanying list of ineligible misdemeanors above.) There is only one felony on the eligible list — failure to appear. Likewise, the law is particular about which people qualify. Any person whose case terminated without a conviction and who can prove that he is actually innocent can have his record sealed. In cases other than actual innocence, the person must also show that he has kept his nose clean. Those who were arrested but not convicted of any eligible misdemeanor or felony can move to seal their record if they have no disqualifying arrests or convictions for two years after their case terminates. Those arrested but not convicted of any other misdemeanor or felony can move to seal if they have no disqualifying arrests or convictions for five years after their case terminates. And, for the first time, those actually convicted of any eligible misdemeanor or felony can move to seal if they remain arrest-free for 10 years after their case terminates. Not surprisingly, there are still many unanswered questions about how these provisions will be applied. Will the charge listed by the police at the time of the arrest determine whether the crime is an eligible misdemeanor or felony? What happens if the police charge an ineligible offense that is then reduced by the prosecutor to an eligible offense before the case is terminated? And what happens if the police charge offenses prosecuted by both the D.C. Office of the Attorney General and the U.S. Attorney’s Office and the two offices disagree on whether the record should be sealed? We can expect much litigation before these issues are resolved. SHIFTING BURDENS In another significant change, the new law removes the time limits for sealing records. A motion to seal can be filed at any point after a person becomes eligible to file. But there are significant incentives to file sooner rather than later. Perhaps most important, the court may use a rebuttable presumption that the government was prejudiced in responding to the motion if the individual waits too long before filing. What constitutes “too long,” and when will the court choose to wield the presumption? Time and litigation will tell. Finally, the act lowers the burden of proof. Those who were actually convicted must still meet the higher “clear and convincing” standard. But those arrested and not convicted who claim actual innocence can make the necessary showing by a mere preponderance of the evidence — if the motion is filed within four years of the case’s termination (another incentive to file quickly). The same lower standard holds for people arrested and not convicted of ineligible crimes: They must show by a preponderance of the evidence that it is in the “interests of justice” to seal their record. And the burden of proof actually shifts for those arrested and not convicted of eligible crimes: It falls to the prosecution to show by a preponderance of the evidence that it is not in the interests of justice to seal the record. Because the act does not compel an evidentiary hearing in every case, it is left to the court to decide when a hearing will be required and when a motion to seal will be decided based on the pleadings alone. If the motion is granted, the court has broad powers to seal all relevant records in the possession of the D.C. Office of the Attorney General, the U.S. Attorney’s Office, the relevant law enforcement agency, the Pretrial Services Agency, the Department of Corrections, and any court file. Finally, a person whose record is sealed because he is found actually innocent of the offense may go forth and state that he has never been arrested, without fear of committing the crimes of false statement or perjury. In other cases, the person whose record is sealed may still be required to note the arrest when applying for certain government jobs and licenses. It is not an understatement to say that the court and the government are bracing for a tidal wave of new motions to seal over the next few months. The Attorney General’s Office has hired additional staff to respond to the expected increase in motions, and the judges on the Superior Court have been trained on the new law. Many people will surely seek this second chance at a fresh start.

Robert J. Spagnoletti, the former attorney general of the District of Columbia, is a partner in D.C.’s Schertler & Onorato.

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