Records Expungement Isn’t Really Expunged

The State of North Carolina recently introduced House Bill 863 that would bar convicted felons from running for the office of Sheriff. It seems like a no-brainer if one only reads the title. However, the fine print in the legislation mandates explicitly and clarifies that even if a conviction is expunged, the individual is still a felon. Why? Because the Governor has not pardoned the felony.

A pardon is a government decision to allow a person to be absolved of guilt for an alleged crime or other legal offense, as if the act never occurred. The pardon may be granted before or after conviction for the crime, depending on the laws of the jurisdiction.

Okay. That seems fair right? Perhaps. However, I would argue that if a conviction has been expunged, then shouldn’t that also indicate that the criminal record is no longer valid? I only bring up this particular issue because if Second Chance laws are passed around the nation to expunge criminal convictions does that imply that criminal records are indeed expunged? According to the North Carolina General Assembly that answer may be a short “no” and a concern for the validity of Second Chance laws across this nation.

A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called “executive clemency”) does not “erase” the event; rather, it constitutes forgiveness.

A particular question to be addressed is, “why is it the business of the legislature to determine who can or cannot be elected as a citizen?” It isn’t as if the people of North Carolina suddenly rose up in protest to voice a person shouldn’t be able to become Sheriff. After all, the office and duty of Sheriff is an elected position by the people. It is highly unlikely in a YouTube and Twitter world that the most skilled reporter or journalist wouldn’t vet any person seeking a political office. However, the more profound concern is that such laws creeping into policy will eventually make anyone ever convicted of a crime, even if it is erased, unable to seek political office. It seems like a law for the elite rather than for the will of the people.

On July 1, 2010, the North Carolina General Assembly passed House Bill 1307 that allowed the voters to decide on an amendment to the North Carolina Constitution (N.C. Const. art. VII, ยง 2). This amendment was passed by the voters in November 2010, officially amending the North Carolina Constitution (Attachment 1). Until this amendment, there was no constitutional provision prohibiting a convicted felon from being elected or appointed sheriff. This amendment prohibits anyone that has been convicted of a felony from serving as sheriff, which applies to both a sheriff elected or appointed. Also, the individual does not have to be convicted of the felony in North Carolina, rather any conviction, anywhere qualifies.

Personally, I am concerned about the passing of this bill. On the one hand, we have our constitution that allows people to govern and seems to have been working for hundreds of years. On the other hand, we are beginning to micromanage, who is constitutionally protected and applicable for a position that has been around for centuries. Legislatures should be in the business of fixing government for the people rather than breaking it. It appears that the unnecessary micro details are easier to perform than the macro duties we elected them to settle in the first place.

In the common law legal system, an expungement proceeding is a type of lawsuit in which a first time offender of a prior criminal conviction seeks that the records of that earlier process be sealed, making the records unavailable through the state or Federal repositories

Criminal Records Reforms: Questionable Outlook

Let’s suppose that you are an American and want to view a criminal record from a long time ago. Some states enacted Sunshine laws that allow anyone to see a criminal record typically located by the state agency that oversees incarceration, probation, or criminal convictions. Other states may not have an open source of documents and require a few simple steps for requests. But there are plenty of information hubs on the internet that track citizens down quicker than a boy puttin’ on pants at a girlfriends’ house when her dad pulls up in the driveway.

Sunshine law (noun): a law requiring certain proceedings of government agencies to be open or available to the public.

But with all the talk and noise about justice reform, and it is a very valid argument, there must be room to discuss the bigger picture. Our nation is made up of laws that we as citizens must abide by. In contrast, as a nation founded upon capitalism, it is businesses that have a differing set of policies and regulation. For example, many towns and municipalities have begun implementing the “ban the box” initiative for job applicants with a criminal conviction. Just because it passes doesn’t mean that companies will follow it. Before ban the box, some policies automatically waivered criminal convictions over ten years old. Yet, companies continued to skirt its implemented plan just because it could. Companies have the prerogative to act any way it chooses as long as it follows the law. But companies well aware of undetected methods embracing the at-will employment clause as its permanent and unchallenged safety net.

Ban the Box is the name of an international campaign by civil rights groups and advocates for ex-offenders, aimed at removing the check box that asks if applicants have a criminal record from hiring applications.

If justice reforms miraculously passed tomorrow by the legislature of the State of Anywhere, it could never be useful towards a real clean slate. The internet, search engines, databases, unofficial registries, mugshots, news articles, social networking, tax records, and transparent sunshine laws will forever keep a tarnish on most measures in real criminal records reforms.

If the registry somehow became a police only tool, it would manifest similar to how Colorado provides a printout to anyone that asks. Additionally, the U.S. SMART office maintains a federalized database linked to state, federal, and international sharing platforms. As long as these tools remain in effect allowing third parties to capture, query, or possibly exploit information, then justice reforms will somewhat be stuck in the mud for decades to come.

The Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) provides jurisdictions with guidance regarding the implementation of the Adam Walsh Act, and providing technical assistance to states, territories, Indian tribes, local governments, and to public and private organizations. Individuals found responsible and sanctioned for university or college campus sexual misconduct policy violations will begin importing information even if no criminal charges are assessed.

If you are against the sex registry or public criminal records exposing felony convictions from decades ago, I support your efforts and stand by you. But ridding of the public registry and/or criminal databases has a major stuck point. Our nation has allowed tax records, social security information, job applications with sensitive family information, genealogy networks, credit reporting, banking records, and police records to be stored on cloud networks and collocation servers with data continually exposed and maintained without applicable laws to protect it’s present or future. If a telemarketer from a foreign country can call home with all your relevant information today leaving you with few options to stop spam calls, imagine a world where those same calls become services providing avenues of information no longer available if a registry or criminal database is closed to the public. Inevitably society and companies will find a workaround.

The days of “do the crime, pay with time” are long gone. They have been replaced with “we keep a list, so you won’t be missed.” I have repeatedly suggested that crime does pay in America. Criminal justice and the legal system will always be an enterprise state monopoly creating layer upon layer of bureaucracy. Yes, there are bad people out there that do bad things โ€” but eliminating a specific stigma to discover data resides elsewhere will remain a constant issue as long as information connectivity of warehoused data remains infinitely searchable.

While transparency will undoubtedly be contentious in justice reform legislation so will discussions on how to address criminal records reforms. The lobbying of many well-funded businesses, victim advocacy organizations, and corporations that partner providing sale and services certainly will be armed and ready to viciously defend justice reforms is an attack on companies. Currently, the analytics of law and social policy do not align nor will in the short term. To rid of a mammoth service with ample support backing the current conditions combined with the complexity of laws, safety provisions, and states rights has disaster written all over it. It is not to suggest throwing in the towel. Instead, it should be interpreted with the discovery of a practical method of middle ground of compromise allowing a format for diplomatic discussions to continue.

Perhaps a cautionary warning is what I am suggesting. There is a common adage of “be careful what you wish for” to be applied here. Bellowing out the injustices of registries or criminal records without an alternative may allow the rearing its ugly head of something much more catastrophic. As smart device applications, facial recognition software, vehicle telematics, augmented reality, RFID, NFC, and other technologies surpass traditional web-based platforms, the registry and similar criminal records databases may be headed towards a new frontier that could arguably evince registry styled platforms as practical for the time being.

Dwayne Daughtry is a Ph.D. student of Public Policy and Research Fellow at Liberty University in Lynchburg, Virginia. Dwayne graduated with a master’s degree of public policy from The University of South Dakota where he was a research analyst assigned to the federal government for compliance and ethical review. He is a graduate of Arizona State University and has certifications in database, archival, non-profit, and “white hat” vulnerability systems administrations.

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