By Erica Salazar, Houston College of Law
Second place winner of the first annual law student writing competition.
A criminal record can ruin a person’s life by prohibiting him or her to have some basic rights in today’s society mostly due to the ease of retrieving a digital copy with today’s technology. Expungement is a way that the Court can give an ex-offender redemption for a regrettable crime. Many individuals see expungement as a way to start over in life. They can apply for a job, volunteer at their child’s soccer game, or volunteer at Church with ease, because they know that their past has been erased along with the records. Therefore, individuals will be grateful to have their past erased and be able to find shelter and employment, so he or she is less likely to repeat their mistakes and fall back to a life of crime.
Criminal records significantly alter a person’s life and make it impossible for a person to bounce back after a slip. A criminal record has been called a “civil death” in this country, because it excludes a person from being able to vote, serve on a jury, becoming employed as a licensed profession, and access to student loans, subsidized housing, and public benefits. 1 Over 100 million people had a criminal record across the nation as of 2014, and in many cases, expungements are granted if the ex-offender can prove they have turned their lives around and why they should have a second chance. Id.
In the study in the article cited above, 38 out of 40 interviewed subjects were denied employment because of criminal convictions before or while waiting for a criminal expungement. Id. One of the interviewees, a thirty-eight year old father, was convicted at the age of 15 of having intercourse with a minor, and this prevented him from enlisting in the army, which led to Mario 2 finding other ways to make money; he received various convictions, including “possession of concealed weapons, felon in possession of a firearm, second-degree commercial burglary, [and] possession for sales, one of which was actually on a school campus.” Id. Those convicted of felonies are most likely disallowed from serving in the military unless they receive a “moral waiver,” but sexual offenses are not waiver-eligible. Id.
Jobs that are in specialized fields, like health care or the military, that provide good benefits, and that are with the local, state, or federal government are difficult to obtain with a criminal record. Id. Also, securing or obtaining employment in an educational setting might be impossible for those that have a criminal record. Id. The respondents also became reluctant to apply for employment opportunities, because they feared the perspective employer making a background check and rejection. Id. A license could get revoked, such as a Certified Nurse’s Assistant license, which was the case for another respondent in the study. Id. This study demonstrated how difficult it is to find employment, and I will bring it up again in section III to discuss how the respondents’ lives changed after they received the “criminal record clearance,” also known as an expungement.
Because most employers and landlords have easy access to criminal records during this digital age, a criminal record can cause the following lifelong obstacles that make it impossible to overcome a criminal past:
Helen Gaebler, Senior Research Attorney at the William Wayne Justice Center for Public Interest Law at The University of Texas School of Law, Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas, (2013), available at https://law.utexas.edu/publicinterest/research/criminalrecords_report.pdf.
In Texas, more than one million people get arrested per year, and all of these individuals are at risk for the long term negative life-altering consequences of a criminal record. Id. There has not been a lot done in making sure that these electronic criminal records are accurate and legally compliant, and there is not a uniform statewide release procedures that does not limit access to criminal records and minimize the damaging consequences. Id. These criminal records sound as if they are not worth the crime, so it is important to note what is causing people to commit these crimes and how the expungement process can play a role in preventing recidivism.
According to a study between 1979 and 1997, the rise in national crime rates correlates with the decline in wages and the increase of unemployment among men that did not pursue higher education after high school during the same time period. Jeff Grabmeir, Higher Crime Rate Linked to Low Wages and Unemployment, Oklahoma State University Research News, (April 10, 2002) http://researchnews.osu.edu/archive/crimwage.htm. Federal statistics show that the inflation- adjusted wages among men without a college degree fell by 20 percent from 1979 to 1997. Id. Meanwhile, the property and violent crime rates increased by 21 percent and 35 percent during the same period. Id. Money tends to be a motivation for some violent crimes, including assault and robbery. Id.
Even though there has been an increase in national crime rates between 1979 and 1997, there was also a decline in crime from 1993 to 1997 that can be explained by the increase in the wages of unskilled workers across the United during the same time. Id. (citing Bruce Weinberg, co-author of the study in the article cited above and professor at Ohio State University). Lastly, the most affected by the changes in labor opportunities are low-skilled worked, despite the personal and family characteristics. Id. If criminal records can prohibit individuals from obtaining employment and employment can minimize crime, then depending on whether expungements would help ex-offenders obtain employment expungements will be able to prevent recidivism.
Each state conducts expungement differently, but this portion will discuss the expungement process and its effects in the state of Texas. According to TEX. CODE CRIM. PROC. art. 55.01:
“[a] person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if the person is tried for the offense for which the person was arrested and is acquitted by the trial court . . ., convicted and subsequently pardoned . . . or otherwise granted relief on the basis of actual innocence with respect to that offense . . . or the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending there was no court-ordered community supervision . . . unless the offense is a Class C misdemeanor . . . .”
Rather than filing a petition or a hearing, the Texas statute requires that the curtailed expungement be received within the thirty days after receiving the acquittal. TEX. CODE CRIM. PROC. art. 55.02. The defense counsel or the prosecutor, if the defendant did not have 5 representation, may file the petition for expungement and prepare an order for the court’s signature. Id. art. 55.02 § 1. The court clerk must send the certified copy of the expungement order to the Texas Department of Public Safety and to each of the officials and agencies that are listed in the order. Id. art. 55.02 § 3(c). The court clerk may destroy the court records and files sixty days after the and before the first anniversary of that date of issuance unless the proceeding is open for inspection by a law enforcement agency and the prosecuting attorney on duty for another offense or civil case that arose out of the same transaction. Id. art. 55.01 § 5.
This statute’s purpose is to guard the “wrongfully-accused” people by removing a conviction from a person’s criminal record. In re State Bar of Texas, 440 S.W.3d 621 – Tex: Supreme Court 2014. However, the statute’s purpose is not to destroy all evidence of unlawful conduct, and the statute cannot be applied to all investigative files and records generated by a state agency. InreStateBarofTexas,440S.W.3dat626.InGomezv.Tex.Educ.Agency,anexception to an expungement order was that the police officer could give his eyewitness testimony in an administrative hearing, because the testimony relied on personal observations of the person’s conduct and not on the expunged records and files. 354 S.W.3d 905, 917-18 (Tex.App.-San Antonio 2011, pet. denied). In Bustamente v. Sheriff’s Civil Service Com’n, the court also held that the expunged records or files did not bar an officer’s testimony about their personal observations. 27 S.W.3d 50 (Tex.App.-San Antonio 2000, pet. denied). This process and examples give a novice, like me, a big picture analysis of how an ex-offender can achieve a criminal record expungement.
Texas and other states have designed several ideas to minimize the effects of a criminal record, especially those that can be retrieved digitally. “In 2011, the 82nd Texas Legislature amended the expungement law to expand eligibility for individuals . . . and to shorten the wait period.” Helen Gaebler, Senior Research Attorney at the William Wayne Justice Center for Public Interest Law at The University of Texas School of Law, Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas, (2013), available at https://law.utexas.edu/publicinterest/research/criminalrecords_report.pdf. The statute was revised in the following manner:
The amendments have received a vast amount of criticism that includes that the new “framework” is unclear, gives prosecutors and judges too much discretion that leads to inconsistent and unfair results, will lead to a strain on an overburdened criminal justice system by allowing a flood of baseless requests for discretionary expungements, and bans those who leave the 7 jurisdiction after release; also, the “waiting period expunctions” forces defendants to return for a full expungement after the statutes of limitation have expired, which makes this process more expensive and difficult for judicial and prosecutorial resources. Id.
The City of Austin and Travis County have enacted laws, called “ban the box,” which prohibit perspective employers from asking an applicant for a criminal history until after the initial interview; this provides all applications the opportunity to show their qualifications/skills to avoid rejecting applicants based on their criminal history. Id. Many states have statutory frameworks restricting the release of certain records, and allowing only law enforcement agencies and a limited number of other government agencies to have access to these records. Id. The key features of these statues include not releasing information about arrests that did not lead to conviction, not allowing emancipating information about conviction for a time period of about five or ten years, only allowing criminal justice agencies to view sealed records, and to disallow selling the criminal records to third party vendors. Id. States adopt these different ideas in order to minimize the negative consequences while ex-offenders are trying to find stability with a criminal record or waiting for a criminal record expungement.
Ex-offenders have sought to have a criminal record expungement and view it as a rebirth in society. An ex-offender has hope to find employment when requesting a criminal record expungement. In a study that was previously mentioned, 20 out of 40 individuals received a criminal record clearance, also known as a criminal record expungement; only two individuals out of the twenty were unemployed, and eleven individuals with a pending criminal record clearance were unemployed. Ericka Adams, Elsa Y Chen, and Rosella Chapman, Erasing the Mark of a 8 Criminal Past: Ex-offenders’ Expectations and Experiences with Record Clearance (2016), available at http://pun.sagepub.com/content/early/2016/04/21/1462474516645688.full.pdf.
In discussing the positive insights from this study and article, we can learn that a criminal record expungement does improve a person’s life. A great example is a gentleman, who once had seven convictions including armed robbery. Id. He was able to obtain employment as a security guard after the required background check returned with no discrepancies. Id. Another individual was previously continuously denied because of a grand theft conviction, but she was able to achieve her dream in working in schools after her criminal record clearance. Id. Lastly, the 38- year old father that could not enlist in the military became a drug counselor after his criminal record clearance. This proves that criminal record expungements can provide an ex-offender with more opportunities in employment and to be able to support their families.
Expungements offer an opportunity to move on from mistakes from the past and to restart their careers. By reintegrating into society and transforming to a law-abiding citizen, criminal record expungements could in fact reduce recidivism. Id. With these new opportunities, ex- offenders will look at life with more gratitude and refuse to jump back in the criminal cycle. As a final note, it has been proven that criminal record expungements increases tax revenue and reduces public assistance payments, and therefore, it benefits society and tax payers. Clifton B. Parker, Stanford Student Project Shows Public Benefit of Expunging Some Criminal Convictions, Stanford News Service (March 20, 2014), available at http://news.stanford.edu/news/2014/march/criminal- record-study-032014.html (quoting Mary Sprague, a senior lecturer in public policy at Stanford). Criminal record expungement can break cycles of recidivism.
1 Ericka B Adams, Elsa Y Chen, and Rosella Chapman, Erasing the Mark of a Criminal Past: Ex-offenders’ Expectations and Experiences with Record Clearance (2016), available at http://pun.sagepub.com/content/early/2016/04/21/1462474516645688.full.pdf.
2 Helen Gaebler, Senior Research Attorney at the William Wayne Justice Center for Public Interest Law at The University of Texas School of Law, Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas, (2013), available at https://law.utexas.edu/publicinterest/research/criminalrecords_report.pdf.
3Jeff Grabmeir, Higher Crime Rate Linked to Low Wages and Unemployment, OSU Research News, (April 10, 2002) http://researchnews.osu.edu/archive/crimwage.htm.
4 TEX. CODE CRIM. PROC. art. 55.01, 55.02
5 In re State Bar of Texas, 440 SW 3d 621 – Tex: Supreme Court 2014
6 Gomez v. Tex. Educ. Agency, 354 S.W. 3d 905, 917-18 (Tex. App.-San Antonio 2011, pet. denied).
7 Bustamente v. Sheriff’s Civil Service Com’n, 27 S.W.3d 50 (Tex.App.-San Antonio 2000, pet. denied).
8 Clifton B. Parker, Stanford Student Project Shows Public Benefit of Expunging Some Criminal Convictions, Stanford News Service (March 20, 2014), available at http://news.stanford.edu/news/2014/march/criminal-record-study-032014.html (quoting Mary Sprague, a senior lecturer in public policy at Stanford).