Before Christmas a suicidal idiot massacred children and teachers at an elementary school. All of us felt the impact.
One of the many reactions to the tragedy has been a spike in applications for gun permits. Quite a few of those applications were denied. A long forgotten conviction showed up on the criminal history, shocking the applicant.
I thought it might be helpful to address some of the myths concerning criminal records.
Of course, we keep criminal records so that law enforcement, the courts and the general public will know if they are dealing with a person who has in the past broken the law. The information is important to potential employers. It matters to the military. It guides immigration officials. We need the information when we recommend sentences to the court.
Of course, it is important to the defendant, too. A felony conviction impacts him long after the sentence ends. Often, one of the major goals of the defense team is to minimize the negative impact of a stained criminal history.
So, some opt to enter a plea under the First Offender Act. If the accused has no prior conviction for a felony the court has the discretion to apply that Act. The defendant is punished, just as if he were convicted. But, if certain conditions are met, there will never be an official conviction for the crime. The defendant can honestly tell anyone—a potential employer, a military recruiter, a university admissions committee—that he has not been convicted of that crime.
Here’s the problem. The record will still show the arrest Often a simple inquiry will reveal that the individual was placed on probation or incarcerated after a court appearance. So it looks like the individual lied when he denied having a criminal conviction. And somebody else gets the job or is accepted into the school.
What the person with the prior arrest really wants is to have all records of the arrest and everything that followed it erased. The legal term for that process is “expungement.”
Until July 1, 2013, expungements are difficult to obtain. If a defendant was convicted or pled guilty (even under the First Offender Act) the law doesn’t permit the arrest record to be expunged. That is true most of the time even if the trial verdict was “not guilty.” Expungement of an arrest record is reserved for instances when there was never probable cause to support an arrest in the first place and charges were dismissed before a grand jury indicted the case.
After July 1, the requirements for expungement will relax considerably. House Bill 1176, passed last legislative session, will take effect then. I’m not yet familiar with all of the provisions. Those who are say that it is one of the more liberal expungement laws in the country.
So, it may be possible to erase the effects of a stupid mistake that continues to haunt the offender decades later. The process begins by completing a form at the agency that arrested the defendant.
But, wait until after July 1 to try.
Oh, and if the arrest was for a sex offense, forget it. The law isn’t THAT liberal.