Monday, December 18, 2000

Offenders find records hard to erase

Errors, technology can make old convictions show up

By Dan Horn
The Cincinnati Enquirer

Deborah L. Armstrong lost her job.
(Glenn Hartong photo)
| ZOOM |
        Deborah L. Armstrong was thrilled a few years ago when a judge cleared her criminal record of an assault conviction from 1985.

        The judge's decision should have meant the old misdemeanor would no longer haunt Ms. Armstrong when she applied for jobs or loans.

        It should have meant she could make a fresh start.

        But when her employer did a routine check last year, the crime was still on her record. She was fired a few weeks later.

        The Finneytown bus driver is learning what hundreds of other first-time offenders already know: It's harder than ever to get a second chance from Ohio's legal system.

  • Only first-time offenders who did not commit violent felonies are eligible to have their records sealed.
  • Those convicted of misdemeanors — the least-serious crimes — must wait one year after their sentence to apply for expungement. Those with felonies must wait three years.
  • Offenders pay a $50 fee to apply for expungement. They then go before a judge, who reviews the case and listens to any objections from prosecutors.
  • If the expungement is granted, at least 13 government agencies must be notified so records can be sealed.
  • The expunged records are not destroyed, however, and can be revealed to some employers, including those who work with children and the elderly.
        The second chance is called an expungement, a legal term for a court order that essentially wipes out the criminal record of a first-time offender.

        The theory behind expungement is that people who make one mistake should not be saddled forever with a criminal record.

        But as Ms. Armstrong and others have found, an expungement is no longer a guarantee those old records will stay secret.

        Ohio's expungement law is being eroded by clerical errors, advances in technology and new laws that make many expunged records available to the public.

        For those with expunged records, that availability can mean the loss of jobs, friends and reputations.

        “It's a huge problem,” said Tom Gould, an administrator for Hamilton County Clerk of Courts Jim Cissell. “There's an illusion that expungement provides the kind of protection it used to provide.

        “But it doesn't.”

        Judges grant more than 1,000 expungements a year in Hamilton County, and the numbers keep going up.

        Most of the expunged crimes are minor — an old bar fight, shoplifting, smoking marijuana — and many occurred when the offender was a young adult.

        An expungement wipes the slate clean so the old charge doesn't prevent someone from getting a loan or landing a good job.

        “It's a question of whether someone convicted of a minor crime is ever going to be able to clear himself,” Mr. Cissell said. “Whether he can move on to a decent job and rehabilitate himself.”

        The problem, Mr. Gould said, is that expunged records are not as secret today as they were 10 or 20 years ago.

        The process of expunging a record used to be relatively simple: Take the file off the shelf and lock it away. But today, a vast array of government agencies, private firms and computer networks carry information about criminal cases.

        To expunge a record, the case must be cleared from all of those sources. And that doesn't always happen.

        A few years ago, Mr. Gould conducted an audit that found about 2,500 expunged cases still listed in public court records. Those records have since been sealed, but new problems have arisen.

        Expunged cases routinely show up on the records and Internet sites of other agencies, from police departments to prisons.

        The Ohio Department of Rehabilitation and Correction, which runs the state's prisons, recently discovered that more than 100 of the former inmates on its web site had been granted expungements.

        “This happens all the time,” said Toby Ann Bennett, who works in the correction department's records bureau. “The telephone started ringing when we put things on the Internet.”

        She said most of the calls are from former inmates who thought their past was hidden away forever. One caller said his children stumbled onto his record while surfing the Internet.

        “They put in their dad's name,” Ms. Bennett said. “And there he was, on our web site.”

        The problem became serious enough last year for the correction department to send a letter to every county clerk in Ohio, asking for more help in clearing files of expunged records.

        “When expungement came into being, there were no computer records and there was no Internet,” said correction spokesman Joe Andrews. “It was much easier to just file it away. Now anybody can download this stuff.”

A changing law

        As Ms. Armstrong learned last year, clerical errors are not the only way an expunged record can become public.

        The 47-year-old school bus driver lost her job when her employer ran a background check through the Ohio Attorney General's computer system.

        The check revealed that Ms. Armstrong had been charged with felonious and misdemeanor assault. She said she was charged after a relative saw her strike her 12-year-old son for stealing.

        Ms. Armstrong was acquitted of the felony but convicted of misdemeanor assault and sentenced to probation. She stayed out of trouble and was granted an expungement years later.

        She was stunned when the old charges came up last year.

        “I just don't understand,” said Ms. Armstrong, a bus driver for 13 years. “I never did anything before (the assault charge) or anything after that.”

        The release of her expunged record was not a mistake. Recent changes in Ohio law make sealed records available to some employers, most notably those who work with children or the elderly.

        The law does not require employers to fire employees with a record, but it does require the release of those records. Ms. Armstrong's former employer, First Student, declined to comment.

        Hamilton County Prosecutor Mike Allen said the release of some expunged files is necessary to protect the public. He said the key is striking a balance between privacy and the public's right to know.

        “You do have to have some standards,” Mr. Allen said. “There are some situations where records should not be expunged.”

        Critics of the new laws say the recent changes make little sense because expungement is only granted to first-time offenders whose crime was minor enough to warrant a second chance.

        “The law takes into consideration that people sometimes make one mistake,” said Kenneth Lawson, Ms. Armstrong's attorney. “The law was enacted to forgive.”

A fresh start
               Cincinnati lawyer William Gallagher said he's seen clients rebuild their lives after getting an expungement. One of those clients went to court a few years ago after his record was given out by mistake.

        The client won, and has since gone on to become a high-ranking business executive.

        “He didn't want information to get out about his past,” Mr. Gallagher said. “Once you pay the price for (a mistake), it shouldn't follow you around for the rest of your life.”

        But Mr. Gallagher and others say the future of expungements is threatened by new laws and technology.

        Mr. Cissell said one of the biggest threats is from private firms that do background checks for employers and credit agencies. Every month, he said, those firms download thousands of records from county computers.

        Once those records are released, however, there's no way for the county to retrieve them. So even if an expungement is granted, the records held by the private firms still list the expunged crime.

        Mr. Gould said he gets a few calls every month from offenders who thought their records had been cleared, only to have their old crime turn up on a background check.

        “It's like Hester in The Scarlet Letter,'' Mr. Gould said. “If she could wipe away the letter, her sin would not be apparent.”

        Whether records are released by mistake or because of a new law, the cost to the offender is great. Mr. Gould said the callers to his office often talk about lost jobs and damaged reputations.

        One caller nearly got fired from his job at a bank after a few co-workers discovered an expunged theft conviction on the Internet. Like Ms. Armstrong, he didn't think his old conviction would hurt him after so much time.

        “I didn't honestly believe I could get fired for this,” Ms. Armstrong said. “People deserve some kind of second chance.”


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