BY CHRISTOPHER SWEENEY, ESQ., PHILLIP WESTRY, ESQ., AND JASON WRIGHT
The Justice Reinvestment Act (JRA) was signed into law in 2016, to much fanfare from justice reform advocates with the hopes of reducing the prison population, violent crime, and recidivism. Such large-scale change to the justice system requires monitoring and targeted reforms. The JRA was a major step forward, additional positive changes occurred in subsequent years, and we are hopeful about future improvements that continue to strengthen our justice system and our communities.
THE MARYLAND VOLUNTEER LAWYERS SERVICE (MVLS) celebrated the passage of the JRA because we work with hundreds of clients every year seeking expungement. Additionally, our Workforce Development Project has longstanding partnerships with occupational training programs in Baltimore City. These programs provide job skills training and certification in welding, machine operation, nursing, pharmacy tech, construction, and weatherization. These programs prepare Baltimore residents for in-demand jobs and a brighter future. MVLS offers wrap-around legal assistance to program participants to ensure legal barriers to employment are removed. Many of our workforce development clients receive expungement help.
Before the JRA, our Workforce Development Project connected with many clients who were struggling to find work or housing because of guilty dispositions that were, in some cases, decades old. When these individuals would ask about expunging their old charges, noting that they hadn’t had any run-ins with the law since, we at MVLS would have the unfortunate task of informing them that despite their demonstrably good behavior, the law stated that the charges would never go away. With the implementation of the JRA, some of these clients found a pathway to expungement that had previously been impossible. Given a 10- or 15-year waiting period with no subsequent convictions, guilty dispositions for certain crimes could now be removed. One specific client of ours comes to mind when considering the opportunities this legislation has afforded. Randall reached out to us and shared that he had recently pursued work as a security guard, but that his efforts had hit a snag when his would-be employers ran his background check. After finding a few guilty charges from well over 30 years prior, Randall was told that so long as the charges remained, they would not be able to offer him the position, despite how desirable as a candidate he otherwise was. Having worked with Randall on expungement before the implementation of the JRA, he immediately called us to see if anything could be done. After a bit of research into the specifics of his charges, we were overjoyed to inform him that we would be able to get all his charges removed, and file them all simultaneously, as they were all now applicable to do so under the JRA. Randall, along with many others, can now pursue their future knowing that those parts of the past will no longer weigh down their efforts at a better life.
Although the JRA dramatically improved Randall’s life, we have continued to advocate for changes that would improve the lives of clients who fall through the cracks of the JRA. Fortunately, a few recent bills address some of those concerns. We found that many of our clients had issues gaining employment after participating in workforce programs because their driver’s license is not in good standing. A missed payment of fines and fees or simple infraction could lead to their driver’s license being suspended. Being able to get to and from a reentry program, access childcare, shop for groceries, go to work, or attend school often requires the use of a car. A positive step towards the goal of JRA was the recent passage of a bill, which removes the possibility of incarceration for driving on a suspended license and presents new opportunities for expungement. For our clients, those suspended licenses were not due to ignoring citations, but being unable to afford the fees to avoid suspension. For those facing financial hardships, driving on a suspended license is often not a matter of disregard for the law, but a choice between risking being pulled over to put food on the table, or skipping a shift and potentially losing their job. Additionally, in our experience, we most often see Black and brown clients facing these difficult decisions. We have seen hundreds of clients where a single suspended license charge was the sole reason other charges were unable to be expunged. This is a major improvement for those clients. Additionally, Marylanders charged with fourth-degree burglary now have the ability to file for expungement of their criminal record. While fourth-degree burglary is a misdemeanor offense, that has long been a hurdle for Marylanders seeking to expunge their criminal records until now. These are wins and that should be celebrated.
The JRA has been a paradigm-shift in how Maryland treats criminal record expungement. In the years since the act’s passage, the legislature has continually expanded expungement access, and advocates have regularly called for even more improvements. This past legislative session, the General Assembly passed automatic expungement, something that advocates have long fought for. Cases where all charges resulted in a nolle prosequi, acquittal, or dismissal will be automatically removed from a person’s record after October 1, 2021. Though the law as it currently stands helps thousands of Marylanders move forward with their lives by erasing criminal cases, it can be useful to set our sights even higher. Expungement of convictions is one area that could be further improved.
The rules for expungement of criminal convictions fall under § 10-110 of the Criminal Procedure Article. This statute contains an enumerated list of specific criminal violations, both misdemeanor and felony, and singles them out as potentially expungeable if the petitioner meets certain requirements. This is essentially a mirror image of the “non-conviction” statute, Criminal Procedure § 10-105, which allows for expungement of cases based on disposition alone, without specifying the type of charge. If we want to re-think the expungement of convictions, we should look to the original § 10-105 for guidance.
The expungement of convictions could be simplified and expanded by changing the statutory model to an “all cases, with exceptions,” much like § 10-105. Though this sounds broad, even radically so, at first, such a model could appease those on both sides of the aisle. Opponents, or at least skeptics, of expungement expansion reasonably point out violent and disturbing offenses that a person should not be able to hide from their record. A statute that allowed for expungement of all misdemeanors, subject to the same or similar prerequisites that exist now, would avoid flirting with the types of cases that typically make people uncomfortable in these conversations. And it’s possible that a statutory scheme allowing the expungement of felonies, with many particularly offensive cases excepted, would be even simpler than what exists now.
The current § 10-110 is beleaguered by an extensive list of very specific crimes, many of them “white collar” or having to do with violations of obscure administrative or licensure requirements. In the attempt to create a comprehensive list of “minor” convictions that should be eligible for expungement, many common items were left out. Advocates will be familiar with the much-discussed omission of fourth-degree burglary, despite the inclusion of first-, second-, and third-degree burglary (this was corrected in the most recent legislative session). Other incongruities are the inclusion of second-degree malicious burning of property but not misdemeanor malicious destruction of property, or the inclusion of public intoxication but statutory vagueness on allowing expungement of “open container.” Though the discussion on which crimes to exclude would be vibrant, a statute that took an “all of these, except . . .” instead of an “only these” approach would greatly simplify the expungement process and avoid some of the unusual pitfalls of the current model.
The JRA was an act of comprehensive criminal justice reform, expungement being only a piece of the larger picture. For those inside the legal services community, the expansion of expungement has been one of the most impactful legal developments of the last few years, allowing attorneys to assist thousands of clients in clearing their criminal records. As Maryland continues to see the benefit that expungement has for people looking to move forward with their lives, we hope to see continued advocacy on this issue. Expungement is a relatively simplistic legal area that can have an immense effect on a person’s life, possibly being the difference between gaining or losing employment. A clean criminal record can also mean access to housing. Expungement benefits communities by allowing people to move on from their pasts and seek stable lives. Employment and housing means reduced recidivism, stable families, and community empowerment. In this way, not only those receiving expungement benefit—society as a whole benefits from having stable communities and employable citizens.