Right to Know (or) Right to a Clean Slate?

What’s more important—public access to criminal files, or citizen’s right to clear their names of crimes they’ve been absolved of?

By Jessica Campbell December 13, 2008 Published in the November 2008 issue of Seattle Met

ONE EASY GOOGLE SEARCH gets you all the dirt that’s been dished on Bellevue attorney and former pro tem judge Richard Llewelyn Jones: multiple offenses, from criminal mischief to burglary, that he was supposedly convicted of or charged with, and how he was booted off the bench. But Jones’s story is both more and less than meets the eye. He was presiding in the drunk-driving case against King County Council member Jane Hague last year when Hague’s election challenger, a perennial candidate renowned for raking up muck on adversaries, alerted court officials to Jones’s criminal history. Jones was removed from the case and barred from further judicial service.

Richard Jones had fallen into the legal crevasse that yawns between two revered government goals: protecting the privacy of innocent people, and protecting public safety and official accountability by disclosing the criminal records of the not-so-innocent. The charges against him were brought by his estranged wife; such charges are a frequent side effect of contentious divorces like his. Jones insisted they were malicious and unfounded, and they were dismissed or he was acquitted in every case save one: Without admitting guilt, he accepted a reduced charge of trespassing in the alleged burglary of personal items from his former home. The local bar association cleared him of misconduct in the incident. He’s since been working to get the record corrected so the discredited charges don’t haunt him further.

Good luck. Washington has an established process for clearing the names of innocent citizens who’ve been acquitted or otherwise cleared of criminal charges, or arrested in cases that never even merited charges. They can petition a court to direct the Washington State Patrol, the clearinghouse and repository for statewide criminal data, to correct any inaccurate or outdated information. The patrol then provides the corrected version to local agencies.

“In my experience, the process has worked as it should.” —Erik Kupta, Attorney, Aberdeen, Washington

“Nineteen times out of 20,” says criminal defense attorney Kurt Bennett, the State Patrol “does a really great job. And they will diligently take it out of public view.” Erik Kupka, an Aberdeen attorney who helps clients try to clear their records, concurs: “In my experience, the process has worked as it should.” But it can take years and entail jumping through various hoops set by a judge even before beginning the extensive paperwork required.

Meanwhile, other agencies—from local law enforcement, county probation offices, and the courts to the FBI—also maintain criminal records. And private companies, such as the major credit-rating firms, collect their own data and sell it to employers and landlords running background checks. After the State Patrol sends out corrections, these entities often fail to enter them into their databases—sometimes for reasons that are merely semantic. When federal agencies expunge criminal records, they clear them completely, shredding paper files and deleting computer files. Washington State purges only certain juvenile records, and merely “vacates” adult convictions; the obsolete records remain in the files. As Seattle attorney Bennett puts it, “We create a legal fiction that it never occurred.” A judge signs an order declaring that the legal proceedings in question never happened, and that order is added to the file in which those legal proceedings are recorded. Alas, federal, local, and private officials sometimes overlook such notices because they don’t understand the term “vacation.” Even if they do understand it, they may ignore it, and the vacated notice comes at the end of the file, after they’ve read all the dirt. What elementary school wants a parent volunteer who was mixed up in a domestic violence case, vacated or not?

This can be a nasty shock for people like Richard Jones who thought they’d put legal mischances behind them years ago. Any record—a conviction, a charge, or merely an arrest—may mean that “you don’t work, you don’t get a place to live, you can’t adopt or be a foster parent…on and on and on,” says ACLU attorney Nancy Talner.

The fallout might not be so bad if companies performing background checks relied on the State Patrol’s database. But many “don’t even bother anymore,” says Jennifer Shaw, another ACLU attorney. “They go right to the court records because it’s cheaper,” says Talner—and because those records are more comprehensive. Or they go online, where information brokers sell records even more cheaply. Between these brokers and Google, a potential employer or landlord may end up with heaps of inaccurate and outdated information. As Jones has learned, getting your name out of the legal records doesn’t get it out of the public eye; reports of his arrests bounce like wayward Ping-Pong balls around the Internet.

“When all the Internet court records came along, the regulation system fell apart.” —Nancy Talner, Attorney, American Civil Liberties Union of Washington

No one sees an easy solution for the problem. Civil liberties lawyers are torn between two sometimes antithetical goals, protecting individual privacy and maintaining access to public records. “We’re constantly trying to decide what our position is on different issues because we have both of those mandates,” says the ACLU’s Shaw. (The dilemma extends to civil case files: A 2006 Seattle Times investigation found that hundreds of civil cases in Washington counties had been illegally sealed.)

Rather than trying to get arrest and court records purged, the ACLU attorneys wonder whether it might be possible to have limits imposed on how those records are used. As Shaw puts it, the law might “allow them to be out there, but not allow them to be used against people.” Some cities bar their managers from asking job applicants to disclose convictions unrelated to the jobs they’re seeking. But as defense attorney Bennett notes, it’s hard to know, much less regulate, how information is being used, especially in the private sector. He proposes standardizing the terminology—no more expungements and vacations jostling in the semantic marketplace—and developing “a uniform system” of recording and reporting criminal records that would cut across jurisdictions and agencies. Anyone investigating an applicant’s background would “get the same quantity of information from every entity,” all of it fully updated.

That approach sounds promising to Richard Jones. As he wades through his own legal morass, he’s come to think that purging bogus and outdated records is a vain hope. The best hope is to correct them. “We shouldn’t expunge and hide, but maintain and reevaluate,” he says. “Don’t hide the record. Get it right.”

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