Can ‘clean slate’ laws really erase criminal records from public view?

Excerpted from a Sacramento Bee story by Miranda S. Spivack

Anyone who has used a dating app knows the value of an Internet search before showing up for coffee. So do employers and landlords, who will scroll on their own for insights and information they may have missed in an interview, or that a formal background checker did not include.

Online searches can turn up hidden work history, criminal records, and credit history, information that the prospective employee or tenant may not always offer up, nor be required by law to provide. But what would happen if the U.S. follows Europe and enacts “Right to be Forgotten” and other record-expungement laws, allowing individuals to get their Internet profiles scrubbed of negative information?

Yet can anyone really get rid of records in the digital age? Online databases and searches have grown so large and unwieldy, many experts are skeptical that a person’s past can ever really be forgotten.

Those who support the growing movement in the U.S. to give people with criminal records a second chance and the opportunity to re-enter society say it is imperative to make these online background searches more difficult. And they are gaining substantial support from a diverse coalition that includes the Chan-Zuckerberg Initiative, the Ford Foundation, Koch Industries and the American Conservative Union Foundation.

Before the Internet, it was relatively easy to avoid stigmatization once a sentence was served or a fine paid. Now, Google and the background check industry make actions of the past hard to leave in the past. Searching for someone’s name can bring up their picture on profit-oriented mugshot websites for years after they serve their sentence.

Depending on the state, criminal records may either be expunged or sealed. An expunged record is destroyed, leaving no trace of a person’s conviction in the state’s hands. When a record is sealed, it is not destroyed, but withdrawn from public view.

The public typically has limited or no access to a sealed record, but police, prosecutors and judges retain access. Forty-five states, the District of Columbia and Puerto Rico offer some form of record removal of criminal records — and that means, in theory at least, that the information will also disappear from the Internet.

But getting a record removed from public view either through sealing or expungement can be costly, often requires going to court, and may take several years to accomplish. In the dozens of states where there is no automatic system to get rid of records, getting a record erased or put into a digital lockbox with only certain people allowed access (usually police, prosecutors and judges), is an expensive undertaking.

HUGE TECHNICAL CHALLENGES TO REMOVING CRIMINAL RECORDS
The movement to make it easier to get rid of a record has been linked by supporters to police practices that result in large groups of people having records for relatively minor violations that nonetheless continue to prevent them from getting a job, finding a place to live, and even volunteering in their child’s school.

Public criminal records are especially problematic for people of color, especially Black and Hispanic people, who disproportionately are arrested and convicted in the U.S. — in what critics have said is often a direct result of overzealous policing and a criminal justice system that for decades has been weighted against them.

Brent Smoyer, lobbyist for the Professional Background Screening Association, said the technical challenges of record removal can be overwhelming.

“Because of the web of agencies involved in sealing a record, an employer may still find out about a sealed or expunged conviction because one or more local or federal agencies has not updated its system,” Smoyer said.

“In addition, companies that harvest justice system records may not purge information they had previously gathered; consequently, an individual looking for a job or promotion may appear to be lying or misleading about a past offense, jeopardizing his or her chances for the job,” he said.

Furthermore, employers can often find information about arrests and convictions from the Internet without ever conducting an official background check.

“This may lead employers to make decisions based on incomplete or unreliable information, such as arrests on charges that were later dismissed, or even inaccurate reporting,” said Smoyer.

Smoyer said screeners who do research for clients have come upon records that should have been automatically sealed or destroyed by court order or under a state law, but remain available because no person or computer program actually got rid of them.

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