Thought That Record Was Sealed? Not Quite.

Adam Liptak has a thought-provoking article in today’s New York Times, Criminal Records Erased by Courts Live to Tell Tales, in which Liptak examines the growing problems associated with the modern myth of “expunged” criminal records. Liptak explains:

“[R]eal expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector. Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.”

Liptak adds that the regular sharing of criminal history information from agency to agency compounds this problem of keeping up with subsequent expungement and sealing orders. I would add that some court systems themselves will sell criminal history information to the public, including information about pending cases that have not yet resulted in a conviction.

This issue had become a big quandary by the time I left practice in 2005 – more and more clients were reporting that their sealed and non-criminal case dispositions were returning to haunt them in employment, housing, education and the like. These clients were not ex-felons seeking to relieve themselves of the civil disabilities of their convictions; these clients were told by their lawyers and even the court that their case dispositions, often accepted in lieu of a trial, simply would not become or remain part of the public record. I was struck by a comment quoted in Liptak’s article by Magaret Colgate Love, a past national pardon attorney, of “how perilous it is to build a public policy on a lie.”

Liptak's piece highlights just one of a multitude of potential collateral consequences to criminal convictions. For an examination of a wide range of these issues, check out Michael Pinard's recent posts at blackprof.com.

Update: Liptak's article apparently is one in a series by the Times called Times Served, "exploring what happens when convicts leave and return to their communities."