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A Clean Slate vs. Open Records – Weighing and Balancing

The end of the 2016 session of the Maryland General Assembly is rapidly approaching. Spring is in the air and because of the “blizzard of bills” that has been introduced, bills are now receiving either unfavorable votes in committee or winding their way through the labyrinth of procedural steps in the General Assembly. This year, there has been significant and sustained interest in a topic that affects all of us: the balance between the opportunity for a person to start over after making bad choices and the need for the public to access court records freely. All of this interest has been intensified by our collective use of and reliance on the internet as a way to get information quickly and easily.

This issue finds expression in some basic questions:

  1. To what degree should the public have unfettered access to court records?
  2. When, if ever, is it appropriate to permit a person convicted of a criminal offense to ask the court to expunge (in other words to wipe away) the public record of the conviction?
  3. Is it important to have a permanent paper record in a court file of cases filed but, at the same time, limit publication of these court cases on the internet?

The General Assembly has grappled with these questions in more than a dozen bills dealing with the topic of expungement of court and police records.

Proponents who favor expungement argue that criminal records that cannot ever be erased create unreasonable barriers to jobs and housing. Such barriers prevent the successful re-entry of offenders into the community after they have paid their debt to society and ultimately may lead to poverty and recidivism.

Opponents of expungement who favor maintaining open court records argue that in a world where information may not always be credible, court records remain a reasonably reliable source not only to understand individual cases and controversies, but to evaluate policies and procedures to improve our system of justice. They further argue that it is helpful to refer to court records to ascertain patterns that may indicate a propensity for interpersonal violence and make important and potentially life altering decisions with access to this information.

It is likely that some of the bills related to expungement will pass through the General Assembly this session and be considered by the Governor. How the General Assembly will strike the proper balance between two competing – and compelling – philosophies will unfold soon.