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Partial expungement proposal provokes concerns, opposition

John P. Morrissey, Chief Judge, District Court of Maryland. (The Daily Record/Maxmilian Franz)

District Court Chief Judge John P. Morrissey says the Judiciary still does not have the technical capacity to execute partial expungements but that he hopes that will soon change. (The Daily Record/Maximilian Franz)

ANNAPOLIS — The Maryland Judiciary continues to oppose legislation that would allow for partial expungement of criminal records until courts can be sure their technology and staff will be up to the task.

House Bill 13, introduced by Del. Erek Barron, D-Prince George’s, would allow crimes an individual was not convicted of to be expunged even when one or more charges arising from the same incident resulted in a conviction. Normally, the “unit rule” prohibits part of a case from being expunged if the individual was found guilty of any of the offenses.

“This is about non-convictions,” Barron told the House Judiciary Committee Tuesday. “This is about the expungement of charges that are otherwise expungeable but for a quirk unique to Maryland, the so-called ‘unit rule.’”

Barron has sponsored similar legislation in the past, and while many support the idea, it has been met with logistical obstacles. A previous version passed but differing versions between the House and Senate stalled in conference due to feasibility concerns, Barron said.

District Court Chief Judge John P. Morrissey told the committee the bill requires courts to “technologically obliterate” the existence of a charge, which the Judiciary’s various systems do not allow for, though he is hopeful for the future.

“I would love to have this capability,” he said. “I feel it’s the responsibility of the Judiciary to get this capability.”

The Maryland Electronic Courts (MDEC) project is scheduled to be completed by 2021, which is the effective date for Barron’s bill. The majority of the state is using the case management system with Baltimore, Montgomery and Prince George’s counties and Baltimore city remaining to switch over.

A new version of Maryland Judiciary Case Search is intended to roll out when all jurisdictions are using MDEC. Morrissey said he hopes it will be capable of accomplishing partial expungement.

State Court Administrator Pamela Harris said the judiciary is “sympathetic to the overall goal of this legislation and the problems it seeks to address” but said case search is case-driven, not charge-driven. The program does not allow the Judiciary to remove records at the charge level.

Employment barriers

Advocates testified that the presence of a charge, regardless of whether it resulted in a conviction, can cause an individual to lose employment and education opportunities.

Mary Denise Davis, an attorney with the Maryland Office of the Public Defender, said “the landscape of expungement law has vastly changed” since she began representing clients in expungements more than 10 years ago, but more work is required.

Employers and laypeople do not understand legal dispositions like “nolle prosequi” when the state declines to prosecute, Davis said. The charge’s presence in a public record can be a barrier.

Nicole Hanson, executive director for nonprofit Out for Justice Inc., agreed.

Caryn York, executive director of the Job Opportunities Task Force, said the General Assembly has adopted a number of policies to eliminate barriers of criminal convictions for employees, but partial expungement addresses non-convictions.

Eliminating the unit rule would be “a means of increasing employability of individuals who have criminal records that did not result in a conviction,” she said.

Maryland Legal Aid runs regular expungement clinics, and attorney Christina Ochoa said that at every one at least one client learns about the unit rule and is told he or she cannot have non-convictions expunged.

“We see so many people who are desperate to be contributing members of society yet because of the unit rule they’re still paying for crimes they were never convicted of,” she said.

Law enforcement opposition

Some law enforcement officers and prosecutors opposed to the bill said they have concerns about costs and public safety if they have to remove records relating to a crime.

Caroline County State’s Attorney Joe Riley said the law would expand the “universe of cases” eligible for expungement and dramatically expand the petitions that prosecutors have a limited time to object to, if they choose.

Deputy Baltimore County State’s Attorney John Cox said “almost every single case ever in the state of Maryland ever is eligible for expungement” under the bill. He also questioned whether victims seeking restitution or pursuing a civil case would be impacted if charges can be removed from public record.

Cox said he has never pursued a charge he did not believe he had cause to, citing ethical obligations of prosecutors, but he and his colleagues stressed that they sometimes offer plea agreements that involve dropping charges they believe they have evidence to prove.

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