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I would argue that if a conviction has been expunged, then shouldn’t that also indicate that the criminal record is no longer valid?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, § 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

Ethics of Undercover Stings

Today I spoke with a neighbor about what I do as a researcher, student, and advocate for justice reform. I summed my duties by this phrase. “I learn, apply, research, and continue to learn about the cause and effects of criminal justice by applying a dialog of reason, discourse, and compromise.” My neighbor responded with, “that sounds complicated.” I replied, “it sure is because there is no easy way to explain it.” We continued to talk more openly, and she finally shared a story about someone she knows that is currently incarcerated. She began to escalate her tone because she felt the sentence her friend received was excessive and unfairly applied. I chimed in to say, “what would have been fair?” She paused but couldn’t provide an answer. Instead, she said, “all I know is his sentence was too much and not in line for the crime he committed.”

I then began sharing the stories of many people currently on the sex offender registry. I started a story about the thousands of registrants that were caught up in police sting operations of underage porn or similar circumstances. I began explaining that “police posed as an underage person, but there was no underage person harmed or physically present. Sure, the intent may have been to meet an underage person, but nobody was harmed. However, the individual is listed either for life or a period for a crime that could have happened, but in actuality didn’t because it was a crafted operation to net people.” She began to understand those sex offenses are often not offenses at all. Instead, it is a method to target a crime with deception but to charge individuals with an age bracket of a fictitious person. It is as if someone in authority creates an operative of a “Teenage Mutant Ninja Turtle” but gives that character an age with a mental underlying and false image, those netted have pedophilic tendencies. Naturally, law enforcement nor district attornies attempt to do their part to educate the public better. In fact, it could be assumed that both law enforcement and district attorneys encourage such thoughts and rhetoric? However, society only sees teenage even if the person is of legal adult age but from the viewpoint of society, not the perpretrator, the teen age is viewed as early teen ages. The net has been cast to capture as many potential people as a threat to communities because the actor is posing as a 15-year-old, but in actuality, there is no 15 year old at all. Instead, the actor is a 37-year-old police officer targeting any age possible through the internet. Eventually, something will be caught in the net, exposed, and criminally charged. While the operation intends to capture illegal underage solicitations the act alone brings ethical question if the person accused could in actuality be targeted by a guilty plea of a person that is not actually 15, but 37? Sure, it is a stretch of the imagination. But if illegal drugs test not to be unlawful or harmful, arent the charged dropped? This may be orange to apple issue, but I certainly would like to understand how we can return to ethical behaviors on both sides of the justice coin.

Law enforcement officials are expected to comply with a code of ethics outlining general guidelines to ethical behavior of police professionals. To be effective, the code of ethics should become part of each officer’s demeanor and officers should learn to live and think ethically in order to avoid conflicting behaviors. The failure by police professionals to act ethically could result in the loss of public trust, jeopardize investigations, or expose agencies or departments to liability issues.

Naturally, I am not attempting to justify that underage solicitation is not severe. I am only raising the issue that I find it puzzling that a person that is not an actual age is being charged for solicitation of age – even with electronic evidence. It would seem more prudent and perhaps ethical that the criminal charge would be attempted solicitation of a minor because no real minor was present. Other charges could be escalated if there was indeed an actual minor present and naturally if other indiscretions occurred, then additional charges would be applicable. All I am suggesting is a better truth in reporting scheme.

There will always be water-cooler debates about how laws should be enforced or applied. There is no real clear answer or remedy to tackle these issues that appear to be ordinary day by day. However, these are the discussions that we should be having about criminal justice reforms and how to perhaps recodify our policies.

Charge stacking” is a process by which police and prosecutors create a case with numerous charges or numerous instances of the same charge to convince the defendant that the risk of not pleading guilty is intolerable.

Lastly, laws and policies seem to be stacked by the prosecution as a universal benefit. An example is when an initial charge is introduced at the highest felony charge possible to dwindle for a potential plea bargaining agreement. Additionally, many prosecutors will stack charges by adding other unnecessary charges to accompany additional charges. It is somewhat similar to a drug charge, but adding a paraphernalia charge on top of distribution with the intent to do something else mambo-jumbo. The court goes through a gambit of offers to scale back the charges as if it is benefiting the defendant? Not true! It is always helping the prosecution because they will always have the leverage to play outside the rules of law to get their way. Similar to how underage sex sting operations are handled. It’s a big lie with the intent to sell a fear that never happened. It is perhaps something we should also be discussing how to return a bit of truth into criminal justice reforms?

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