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Prosecutors support shield law for minor crimes

Md. Judiciary, Chamber of Commerce oppose provisions of bills

ANNAPOLIS – Maryland Attorney General Douglas F. Gansler led a group of local prosecutors Tuesday in support of legislation to allow people convicted of some nonviolent misdemeanors to shield those convictions from public view three years after serving their sentences, including parole or probation.

The proposed Maryland Second Chance Act would ameliorate the discrimination generally faced by job applicants with public criminal records, Gansler told the Senate Judicial Proceedings Committee. Employment gives hope to ex-convicts and reduces the likelihood that they will commit additional crimes, he added.

“We have a revolving criminal justice system here in Maryland,” Gansler said, referring to the recidivism rate. “This [bill] provides them with an opportunity to get a job.”

The legislation would allow individuals convicted of specified misdemeanors to ask a court to “shield” the conviction from public view beginning three years after they have completed their sentences.

The listed offenses include disorderly conduct, disturbing the peace, failure to obey a lawful order, malicious destruction of property, marijuana possession, driving with a suspended license and prostitution.

The legislation, Senate Bill 1056, would allow local prosecutors and victims of the crimes to object to a motion to shield the record.

Shielded records could still be accessed by law enforcement agencies for “legitimate criminal justice purposes” or by employers who are statutorily authorized to ask about an applicant’s criminal background, such as companies with security clearances.

The Maryland Chamber of Commerce and the Maryland Judicial Conference oppose the legislation.

Gansler voiced reservations about one provision of the bill, which would permit people convicted of theft of less than $1,000 to seek shielding five years after completing their sentences. Retailers might have a strong interest in knowing if the job applicant has ever been convicted of stealing before they put him or her “at the cash register,” Gansler told the Senate committee during Tuesday’s hearing on SB 1056.

State’s attorneys Scott D. Shellenberger and John McCarthy voiced support for the bill but also said that five years after completing a sentence might be too soon to shield a theft conviction.

Shellenberger, of Baltimore County, noted that theft of between $100 and $1,000 used to be a felony. He said the waiting time for shielding a theft conviction should be longer if not dropped from the legislation entirely.

McCarthy, of Montgomery County, said a 10-year wait might be more appropriate to ensure that the convicted thief has truly abandoned a life of crime.

Employers at risk

McCarthy also objected to the bill’s provision that would make it a misdemeanor, punishable by a fine of up to $1,000, for would-be employers to reject a job applicant due to the applicant’s failure to answer a question about whether he or she has a criminal record that has been shielded.

McCarthy said it “offends my sensibilities” to criminalize an employment decision.

Baltimore City State’s Attorney Gregg L. Bernstein praised the measure for striking “a reasonable and fair balance” between a nonviolent offender’s opportunity to find employment and a prosecutor’s chance to challenge the motion if necessary to protect public safety.

In written testimony, the Maryland Chamber of Commerce criticized the bill as interfering with the ability of businesses to screen job applicants effectively.

“The bill would require shielding of a number of offenses that are relevant to businesses’ hiring decisions, such as disturbing the peace, failure to obey a reasonable and lawful order, malicious destruction of property, misdemeanor theft, drug possession and distribution offenses, and offenses that involve fraud and dishonesty,” the chamber wrote. “The bill also runs counter to the fundamental concept that court records are public records in that it attempts to remove a segment of court records from any public view.”

The Maryland Judicial Conference stated in written testimony that the bill’s goal is noble but its execution is faulty.

“The Judiciary understands the wishes of persons convicted of minor crimes to not publicize their past, as well as the laudable goal of preventing discrimination in the workplace,” the conference stated.

“Nonetheless, there appear to be conflicting intentions in this legislation,” the conference added. “It is contradictory to shield from the public information about a person’s past criminal convictions while permitting state units to view the information, yet at the same time not allowing the information contained in the record to influence a decision,” such as an application for a driver’s license.

SB 1056 has been cross-filed in the House of Delegates. The House Judiciary Committee also held a hearing Tuesday on its version, House Bill 1006.