A Second Chance

A Second Chance

by Erika Rucker

  • Introduction

A new Alabama law effective July 6, 2014 allows criminal offenders to petition to have their record expunged under limited circumstances. Under Code of Ala. § 15-27-1, a person can file a petition to have their criminal record expunged.[1] An expungement order is “the erasure of a person’s criminal record.” The term often refers to the complete destruction of a physical record and deletion of an electronic record.[2]

Prior to the enactment of what is being referred to as Alabama’s “expunging law”, the legislature was inconsistent at best on what powers the courts had to expunge a criminal’s record. Prior to the current law, the statute provided that an offender that was subsequently released without any charges or if the offender was cleared of the offense through the judicial system, then the agency involved would make a report to the central record-keeping agency. After such report, the offender’s information relating to the offense would be expunged or eliminated. The authority granting such power, however, provided an inconsistent approach to the expunging of records.[3] The new expunging law, however, explicitly grants the circuit court such authority.[4]

  • Overview of the Expunging Law

An offender can petition to have their criminal record expunged under four limited circumstances.[5] First, if the charge was dismissed with prejudice.[6] Second, if the grand jury determined that the offender should not be indicted on the charges due to insufficiency of evidence.[7] Third, if the person was found not guilty of the charge.[8] Last, if the charge was dismissed without prejudice over two years ago, has not been refiled, and the petitioner has not been convicted of any other criminal violation within the prior two years.[9] The law allows the offender to petition to expunge a wide range of violations from traffic violations to non-violent felony offenses.[10]

The offender must meet the expungement requirements and file a petition in the circuit court where the offender was charged with the offense. Additionally, the petitioner must pay a $300 filing fee (plus any related court costs) and provide the court with a case action summary or certified copy of the arrest and disposition of the case.[11] The district attorney and the victims involved in the offense have 45 days to file a petition opposing the expungement. If, however, no one objects to the record expungement, the court will review the petition to determine whether or not to grant the expungement of the petitioner’s criminal record.

If the court approves the petitioner’s request for the expungement of the record, the information relating to the offense, including an arrest record, is considered erased. However, the Alabama Criminal Justice Information Center will keep an archived record in a protected file.[12] This enables law enforcement and judicial officers access to a person’s criminal record.

  • Effect of the Law

Although offenders may embrace the new expunging law, others worry that this new law can create serious risks to public safety. In addition to fears of public safety, members of the community are also divided over whether the county or the city should be in charge of handling the petitions for expungement. Lastly, concerns over the relevance of the law in today’s age of technology are also raised.

Those in opposition of the law express concerns over whether the law will implicate public safety issues concerning complete access to an offender’s criminal records. The information relating to an offender’s criminal record allows the public to obtain information relating to a particular person’s prior criminal history and this law in effect erases the availability of this information. Margaret Love, former chair of the American Bar Association’s Criminal Justice Standards Committee Task Force on Collateral Sanctions, wrote in a 2003 law journal article that the policies underlying expungement of records “requires a certain willingness to ‘rewrite history’ that is hard to square with a legal system founded on the search for truth.”[13]

Supporters of the law counter the opposing argument by emphasizing that the information is only unavailable to the public, but can be made available to law enforcement and judicial officers. Additionally, the law excludes the expunging of violent felony charges including: capital murder, murder, manslaughter, assault, kidnapping, rape, sodomy, robbery, burglary, arson, stalking, sexual abuse and domestic violence 1 and 2.[14] This limits the scope of the law to extend only to misdemeanors and non-violent felony offenses.

In its current form, the expunging law grants the circuit court in the county where the petitioner was charged exclusive jurisdiction. The effect of granting the circuit court exclusive jurisdiction gives the county where the offense occurred all court costs and other proceeds associated with the petition for expungement. Even if the offense was adjudicated through the municipal or city courts, the circuit court will have sole jurisdiction over the expungement. Some municipal court systems had hoped the expungement process would be an additional avenue for local courts to raise revenue. However, supporters of granting the circuit court exclusive jurisdiction argue that the city does not have time or resources to handle petitions for expungement.

Finally, concerns over the relevance of the expunging law in the ever-developing age of technology surface as the law’s effective date nears. The effect of the internet emphasizes that once something goes viral, it never truly disappears. During the most advanced age of technology, it is difficult to understand how information can actually disappear without a trace. If the purpose of the law is to clear a person’s record, the question remains of how effective such law can be when information is never really lost once it has gone viral. Although a criminal record may be expunged by the state, other unofficial records and information relating to the offense will not be erased. The potential irrelevancy of the expunging law begs the question of whether the law is enacted to serve the public or whether it is more of a cash cow scheme for the government.

While there are valid concerns and supporting arguments for the new expunging law, the true effects of the law will be unknown until the law becomes effective July 6, 2014.

 

[1] Code of Ala. § 15-27-1.

[2] 19 CommLaw Conspectus 123, 124.

[3] 35 Cumb. L. Rev. 385, 386.

[4] Code of Ala. § 15-27-1.

[5] Code of Ala. § 15-27-1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Code of Ala. § 15-27-2.

[11] Code of Ala. § 15-27-1.

[12] Brian Lawson, Alabama Legislature approves measure to expunge criminal records, al.com, April 3, 2014, http://blog.al.com/breaking/2014/04/alabama_legislature_approves_m.html.

[13] 19 CommLaw Conspectus 123, 124.

[14] Code of Ala. § 12-25-32.

One thought on “A Second Chance

  1. […] green lighted an expungement measure that could offer a fresh start to qualifying residents. Under Code of Ala. § 15-27-1, enacted July 7, 2014, those persons charged with -but not convicted of- misdemeanors or nonviolent […]

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