PART I: The Impact of an Arrest on Your Record
Leaving for another day the much larger debate regarding the proper method of reforming the criminal justice system, a major area of interest to legal reformers and reform-minded elected officials alike is the impact a criminal record can have on an individual’s quality of life. Public records contain a history of convictions as well as criminal charges that never resulted in a criminal conviction; these public records can have a profound impact of an individual’s quality of life, specifically as it relates to housing and employment. The laws surrounding the expungement of public records vary from state to state, specifically: (1) y what records can be expunged; (2) the effect of expungement (i.e., are the records sealed or destroyed); (3) how long an individual must wait before they can receive an expungement; (4) whether or not a judge has discretion in deciding whether to expunge a record; and (5) what administrative procedures are required prior to expunging a record.
In North Carolina, there are 12 kinds of criminal record expungements available, which include the expungement of criminal charges that didn’t result in a conviction pursuant to North Carolina General Statutes 15A-146. (N.C. GEN. STAT. § 7B-3200 (2015); id. §§ 15A-145 to -149). Section 146 provides individuals with the ability to expunge the records of criminal charges that: (1) were dismissed; (2) resulted in a finding of not guilty, or (3) resulted in findings that the accused was not responsible. The majority of expungements that were granted in North Carolina, were expunged pursuant to section 146. (N.C. ADMIN. OFFICE OF THE COURTS, 2016 EXPUNCTIONS REPORT 3 (2016)). The section 146 expungement statute is unlike other expungement statutes in North Carolina in that: (1) It does not provide the judge with discretion to deny the expungement request, and (2) it subjects potential recipients of an expungement to a required waiting period, often requiring a fee. However, a section 146 expungement is not granted automatically when a criminal charge is dismissed, or the criminal charge results in a finding of not guilty or that the accused is not responsible for the crime; the individual must petition the Court to have these records expunged, and some individuals are prohibited from seeking expungement under section 146 altogether.
In 2015, a bill was passed by the North Carolina General Assembly, and has the potential to vastly increase the ability of a North Carolina citizen to have their non-conviction charges expunged. The North Carolina General Assembly pass Senate Bill 233 in 2015, which expanded North Carolina’s Criminal Procedure Act §15A-147 (expungement of identity theft resulting in criminal charges) to include charges brought and eventually dismissed because those charges were premised on a case of mistaken identity. Senate Bill 233 also provided for the automatic expungement of a criminal record, where the Court entered a finding that the case was a result of mistaken identity.
As recently as July 2017, The North Carolina passed Senate Bill 445, which eradicated a previous hurdle to obtaining section 146 expungements. Before this bill was passed, any individual who had already received a section 146 expungement were categorically barred from receiving a subsequent expungement under section 146. Senate Bill 445 eliminated this absurd restriction.
This two-part article will address: (1) A brief background regarding the significant impact that a criminal charge, which didn’t result in a conviction, can have on an individual’s quality of life, and (2) a brief overview of the current laws surrounding expungement in North Carolina.
- A Brief Background on The Impact of Criminal Charges, Not Resulting in Criminal Conviction Have on Quality of Life
At the outset, it should be noted that an unbelievable number of Americans that have been arrested for one reason or another within the last twenty years; approximately 250 million U.S. citizens, or one-third of all adults in this country (regardless of whether the arrest resulted in a conviction) are recorded in the Federal Bureau of Investigation’s (“FBI”) master criminal database. (Gary Fields & John R. Emshwiller, America Busted: As Arrest Records Mount, Consequences Last a Lifetime, WALL ST. J., Aug. 19, 2014, at A1.) In 2012 alone, the FBI reported that approximately 12.2 million individuals were arrested by law enforcement across the country. Each of these arrests are recorded in the FBI master criminal database, and these records of these arrests take several formats, including: (1) Court records, (2) rap sheets, and (3) commercialized databases; the internet makes these records, whatever their form, significantly easier to access and disseminate by people who do not understand the nuances of the law. Specifically, many lay persons can access an individual’s record without understanding that an arrest or criminal charge don’t mean that the arrestee or the accused committed the crime; nonetheless, people act on their lack of understanding to the detriment of the arrestee or accused. Studies show that over the past 2 decades, the number of employers (expressed as a percentage of employers) has drastically increased. A 1996 study showed that nearly 50% of employers did not conduct criminal background checks for prospective employees. However, by the year 2009, the number of employers who did not conduct criminal background checks on some prospective employees had dropped to roughly 8% (92% of employers conduct criminal background on some employers) while 73% stated that they conducted criminal background checks on every candidate for employment. (JAMES B. JACOBS, THE ETERNAL CRIMINAL RECORD 9-11 (2015).
The Fair Credit Reporting Act (“FCRA”), which is the federal statutory scheme regulating what information can, and cannot, be include in a criminal background check is not particularly helpful to people who have been arrested or charged with criminal conduct; the FCRA only prohibits the inclusion of arrest records not resulting in a conviction of those arrest records are more than 7 years old. (15 U.S.C. § 1681c(a)(2), (5) (2012)). For people who are struggling, 7 years is a very long time. Many criminal background reports, which show an individual’s arrest record, do not include the outcome of that arrest (for example, the charge was dismissed); this information can have a significant impact on an individual’s ability to obtain gainful employment (As noted above, nearly all employers conduct criminal background checks on prospective employees) as well as their ability to find a home or receive a loan. It is unfortunate but record of an arrest are bound to have a negative impact on hiring decisions.
While it may come as a surprise, there is no Constitutional right to prohibit non-conviction criminal charges from appearing on an individual’s criminal background check. As a general matter, when a criminal charge results in a jury finding of not guilty, a jury finding that the individual was not responsible for the crime, or an outright dismissal of their case, that person’s criminal record does not get destroyed or sealed absent a specific North Carolina statute mandating expungement.
In 1976, the Supreme Court of the United Stated (“SCOTUS”) set the precedent for how Courts handle criminal records not resulting in a criminal conviction. In Paul v. Davis, the Defendant Edward Charles Davis III had been arrested and charged with shoplifting; the charge was ultimately dismissed. During the period of time between the arrest and the dismissal, the local police department put out a flyer of “active shoplifters”, which included Edward Charles Davis III; this flyer was disseminated to approximately 800 shops in the Louisville, Kentucky area. In determining that Davis did not have a Constitutional claim arising out of the police department’s distribution of information wrongfully classifying Davis as a shoplifter, the majority stated that “reputation alone, apart from some more tangible interests such as employment, is [n]either ‘liberty’ [n]or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.”
Over the last 40 years, many lower Courts have found a Constitutional right to expungement in very limited circumstances, resulting in a slap-shod scheme of common law falling far short of establishing a broad precedent granting individuals a right to have their records expunged. Many Federal Courts of Appeal have claim the “inherent power to expunge criminal records when necessary to preserve basic legal rights,” (United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976); see also Menard v. Saxbe, 498 F.2d 1017, 1023 (D.C. Cir. 1974); United States v. McLeod, 385 F.2d 734, 749-50 (5th Cir. 1967) they have made abundantly clear that “expunction of criminal court records is an extraordinary remedy” to be reserved “to extreme circumstances.” (United States v. Noonan, 906 F.2d 952, 956 (3d Cir. 1990). In order for the Court to require the expungement of arrest records, something more than an arrest not resulting in a conviction is required. For example, the Court required that an arrest record be sealed where there was no probable cause for an arrest. (See United States v. Rowlands, 451 F.3d 173, 177 & n.1 (3d Cir. 2006) (citing Menard, 498 F.2d at 1019; Sullivan v. Murphy, 478 F.2d 938, 971 (D.C. Cir. 1973); McLeod, 385 F.2d at 744, 750) (listing several circuit court cases granting expunctions and noting that each turned on facts that undermined the validity of the initial arrest).
In light of the unwillingness of Courts to mandate automatic expungement of arrests not resulting in conviction, and the profound impact an arrest can have on your record, it is important to understand what options North Carolinians have in combatting the impact of their arrest records on their quality of life. In the next article, we will discuss what options are available to obtain an expungement in North Carolina. If you or a loved one is seeking an expungement of their records, the attorneys at NC Record Expungement are experienced in vigorously advocating on their client’s behalf and obtaining outcomes that will assist them in avoiding the severe consequences that accompany an arrest record.
For more, check out part 2 of this article, here.