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Can Criminal Records Ever Truly Be Expunged in the Internet Era?

by Matt Clarke 

Expunction of criminal records is a traditional method of protecting those falsely arrested, falsely convicted, or deemed deserving of a second chance after completing probation. But with the prevalence of mugshot sites and other Internet-based methods of disseminating public information, which are not subject to expunction laws, can a criminal record ever truly be expunged? 

Alan, a 51-year-old New Jersey IT professional, was arrested in his house in June 2017. He was booked and fingerprinted for failure to appear in court. This puzzled him since he was unaware of any court date. Five days later, a judge dismissed the pending charges after discovering that the summons to a municipal court had been sent to the wrong address and Alan had never received it. The judge offered to expunge the arrest record. 

Alan received his “automatic” expunction order four months later. But when he Googled himself, he found his booking photo listed on dozens of online mugshot galleries. He was also shown on the local police apartment’s public PDF file of arrests and the county jail’s roster of released prisoners. 

Alan tried contacting website administrators but received no response from the government officials responsible for the websites. He had limited success in getting his mugshot removed from some of the private galleries. He also was suddenly inundated with email from “reputation management” websites offering to remove his mugshot for hefty fees. 

Alan stopped professional networking and dating because of his search results. He is up for a promotion at work but is scared his employer will find the online mugshots. He also is worried that his problems will hurt his kids. 

His woes are typical of those faced by millions of arrestees each year. Even with expunction orders in place, it is legal for criminal justice and private websites to maintain the expunged criminal records online. The only requirement is that they be made public prior to the date of the order. Most law enforcement agencies release arrest information on a weekly basis—much faster than any arrestee could receive an order to expunge. 

There is a huge private market for criminal justice information largely driven by salacious mugshots and financed by advertising. Private websites are not subject to expunction orders as that would violate the First Amendment guarantee of free speech. Some mugshot sites will remove a mugshot for an exorbitant fee, often only to repost it on an associated website. 

In November 2018, the Clean Slate campaign was announced as a push to leverage technology to make expunction work. Clean Slate is supported by the Center for American Progress, the Chen Zuckerberg Initiative, and Koch foundation groups. It argues that automated, data-driven processes should be used to ensure effective expunction of records. It is lobbying states to adopt policies similar to Pennsylvania’s progressive record-clearing legislation that automatically expunges certain types of arrests and convictions after a set period of time. Clean Slate offers policy guidelines and talking points. 

The problem with Clean Slate is that the approach of sealing records that have already been made public is unlikely to work. It seems to be centered on the idea that there is only one record. But there are dozens of records for each arrest. Once a record has been made public, it can be relayed to a massive number of private websites, none of which are subject to expunction. 

The only way for expunction to work would be to reclassify some of the pre-conviction records non-disclosable—similar to the protection provided to juvenile records. Federal law enforcement agencies no longer disclose booking photos, a policy upheld by the Sixth Circuit in 2016. It is time for state and local agencies to follow suit. Otherwise, the public disclosure of government records necessary for a healthy democracy will continue to cause anxiety to those the criminal justice system has deemed worthy of a clean slate. 



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