Representing People with Criminal Records: Expungements

1. Representing People with Criminal Records: Expungements Sharon Dietrich, Community Legal Services, Inc. Scott Williams, North Penn Legal Services August 12, 2010

2. Expungement Cases are Important for Clients! • Criminal records are insidious barriers to employment. • Removing criminal cases makes a person immediately more employable. It is a capital investment in that person’s life. • Expungement cases are relatively quick and easy, especially for such important results. • Client satisfaction is high.

3. What We Will Cover Today • What are the sources of criminal records, and how do you get one from the AOPC website; • Applicable law for expungement cases; • How to handle an expungement case.

4. Starting at the Beginning: How to Find Out What is on a Criminal Record • For instantaneous results, check AOPC’s website: http://ujsportal.pacourts.us/docketsheets/cp.aspx • Website demonstration. • Arrests without convictions show up. • District Justice actions appear separately.

5. Other Source’s of Your Client’s Criminal Record • Pa. State Police - “PATCH.” https://epatch.state.pa.us/Home.jsp Costs $10; not instantaneous if record. Does not show arrests. Mandated in certain fields (esp. health care workers). • FBI records – available only if required by law (child care, school employees, casino workers).

6. Private Companies Also Prepare Criminal Background Checks • Usually based on court records. • Will include more recent arrests (7 year limit). • Often inaccurate. • Usually what employers use. • Governed by the Fair Credit Reporting Act.

7. What Can Be Expunged? • Arrests without convictions • Diversionary programs (ARD, probation w/o verdict) • Summary offense convictions where no arrest in 5 year period • Some juvenile cases • Underage drinking (after age 21) • Client is 70 and no arrests in 10 years • Client has been dead for 3 years

8. Convictions Can Almost Never Be Expunged, But Must Be Pardoned • Case goes before Board of Pardons, Governor. • Takes years, not months. • Plea for mercy, not legal case. • Our clients really need advocates to help them prepare good petitions. • Brief discussion of standards.

9. Expungement of Arrests – Legal Standards • Continuum between right to expungement and little hope. • Right: acquittals, pardons. • Little hope: plea deals. • In between: Likely if no convictions; less likely the more that is on the record (esp “mixed record” of convictions and dropped charges).

10. Discretionary Case: Know the “Wexler standards” • Strength of state’s case; • Reasons state wants to retain record; • Petitioner’s age, employment and criminal record; • Time between arrest and petition; • Specific adverse consequences to petitioner. State has burden of proof.

11. Right to Juvenile Expungement • Charges dismissed – will be expunged. • Consent decree – 6 months since discharge from supervision – will be expunged. • Over age 18 – DA consents – court will order expungement. • 5 years have passed and no conviction or adjudication – expungement granted in 30 days unless good cause shown. Juvenile Law Center manual: http://www.jlc.org/publications/1/juvenile-records-expungement/

12. Standards for Expungement of Summaries • 2007 amendment to Section 9122(b): (3)(i) An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years following the conviction for that offense. • Examples of summaries: retail theft, disorderly conduct, harassment (see handout listing known summaries) • What does the statute mean? Wubbe decision – 5 years before the filing of the petition, not subsequent to the conviction.

13. Expungement practice: The Life of a Case • County idiosyncrasies • Steps on getting expungement order (from filing to court order) • Getting the expungement order implemented • Counseling clients on responding to employment application