Expunged Criminal Records Live to Tell Tales
By ADAM LIPTAK The New York Times: October 17, 2006http://www.nytimes.com/2006/10/17/us/17expunge.html
In 41 states, people accused or convicted of crimes have the legal right to rewrite history. They can have their criminal records expunged, and in theory that means that all traces of their encounters with the justice system will disappear.
But enormous commercial databases are fast undoing the societal bargain of expungement, one that used to give people who had committed minor crimes a clean slate and a fresh start.
Most states seal at least some records of juvenile offenses. Many states also allow adults arrested for or convicted of minor crimes like possessing marijuana, shoplifting or disorderly conduct to ask a judge, sometimes after a certain amount of time has passed without further trouble, to expunge their records. If the judge agrees, the records are destroyed or sealed.
But real 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.
Thomas A. Wilder, the district clerk for Tarrant County in Fort Worth, said he had received harsh criticism for refusing, on principle, to sell criminal history records in bulk.
"How the hell do I expunge anything," Mr. Wilder asked, "if I sell tapes and disks all over the country?"
Private database companies say they are diligent in updating their records to reflect the later expungement of criminal records. But lawyers, judges and experts in criminal justice say it is common for people to lose jobs and housing over information in databases that courts have ordered expunged.
These critics say that even the biggest vendors do not always update their records promptly and thoroughly and that many smaller ones use outdated, incomplete and sometimes inaccurate data.
Lida Rodriguez-Taseff, a lawyer in Miami, tells her clients that expungement is a waste of time. "To tell someone their record is gone is essentially to lie to them," Ms. Rodriguez-Taseff said. "In an electronic age, people should understand that once they have been convicted or arrested that will never go away."
Judge Stanford Blake, whose court often enters expungement orders, said his inability to make them effective had left him feeling frustrated and helpless.
"It's a horrible situation," said Judge Blake, the administrative judge of the criminal division of the Eleventh Circuit Court in Miami. "It's the ultimate Big Brother, always watching you."
The rise in the availability of criminal histories has been accompanied by a surge in demand for them. Since the attacks of Sept. 11, 2001, criminal background checks have become routine in many employment applications.
"Something like 80 percent of large- or medium-sized employers now do background checks," said Debbie A. Mukamal, the director of the Prisoner Reentry Institute at John Jay College of Criminal Justice in New York. "Employers need to know about job-related convictions to make a nuanced, responsible decision so that they can protect themselves and the public and give people a fair shot at employment."
But the current system, Ms. Mukamal added, is not working. "It's unfettered," she said. "It's not regulated. There's misinformation."
ChoicePoint, one of the larger database companies, performed nine million background checks last year, said Matt Furman, a spokesman. The company's error rate is very small, Mr. Furman said. "One out of every thousand background checks has led to a consumer contact" disputing or complaining about the information provided, he said, "and one of a thousand contacts results in a change."
There have been only a few lawsuits taking issue