Reducing barriers to employment: EXPUNGEMENT

Training at Cozen O’Connor- October 15th, 2014

Sharon Dietrich, Esq.- Litigation DirectorMichael Hollander, Esq.- Staff Attorney

Jamie Gullen, Esq.- Staff Attorney

Agenda• Overview- how expungements help our clients

become employed • Explanation- what can be expunged and how– Substantive law– Procedures for filings, hearings, etc.

• Demo- how to find criminal records, draft expungement petitions, and file with the courts

• Questions

Why Clear a Criminal Record?

• USDOJ estimates 100 million American adults, or 1 of 3, have a record.• Applying this ratio to Philadelphia, conservative

estimate of 400,000 people.

• 2011 Arrest Statistics in Philadelphia• 61,032 arrests with 354,951 charges• 52,193 charges ended in conviction (15%)

Why Clear A Criminal Record?• Though “innocent until proven guilty,” non-conviction

charges remain on a criminal record until expunged.– Courts sell this data to background check companies who

sell it to employers.– Society for Human Resource Management study: 87% of

employers look at criminal records when hiring.

• Under PA and federal law, employers should NOT consider arrests without convictions, but they often DO.

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 20130

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CLS Employment Unit Intakes 2000-2013

Intakes Number of Criminal Record Intakes Rejections

Year

Expungement Movement• Whether someone has been convicted or not,

clearing up a record as much as possible is KEY to helping people become employed.

• We have had many clients who have been able to get jobs after an expungement.

• The need is HUGE and the more we can expand expungements the more we help lift individuals and communities out of poverty.

What is on a criminal record?

• Convictions: plea agreements & guilty verdicts

• Charges resulting in a not-guilty verdict

• Charges that were dismissed, withdrawn, etc.

• Charges resulting in a diversion program like Section 17 or ARD

• Juvenile adjudications- in some cases may stay on record

Non-Conviction DispositionsDisposition Definition

ARD/Section 17 Pre-trial diversion programs. After completing requirements, participant (usually) receives completion letter and should attach letter to petition for expungement.

Withdrawn Motion by the Commonwealth to remove the charge(s) from a bill of particulars. Usually made when witness fails to appear.

Dismissal Motion granted by Judge for a variety of reasons, including lack of evidence and lack of prosecution.

Nolle Prossed Pa.R.Crim.P. 585 – Voluntary withdrawal of charges by the DA (legally speaking for a lack of evidence).

Not Guilty A finding of non-culpability following a trial before Judge or Jury.

Acquittal A finding that the Commonwealth failed to carry its evidentiary burden that a crime was committed or that the defendant was involved.

Conviction Dispositions

Disposition Definition

Guilty A finding of culpability against the defendant following a trial before a Judge or Jury.

Guilty Plea A defendant’s formal answer in court to the charge(s) admitting that he or she did in fact commit the offense(s) listed.

Nolo Contendere A defendant’s formal answer in court to the charge(s) stating that he or she will not contest the charge(s), but neither admits guilt nor claims innocence.

Grading of offenses

Felonies Misdemeanors Summaries

• Most serious• May include:– Aggravated assault– Drug dealing– Burglary– Robbery

• Less serious• May include:– Simple assault– Drug possession– Some types of theft

• Least serious• May include– Traffic citations– Low-level retail theft–Disorderly conduct

Where Can You Find Criminal History Record Information?

• Court records: available for free online at https://ujsportal.pacourts.us/docketsheets.aspx

• PA State Police Report ($10 fee)• FBI Record ($36 fee)• Report from private background

check companies

Eliminating Criminal Record Information

• Expungement: Completely remove an arrest from a criminal record. Generally only for non-conviction charges.

• Redaction (partial expungement): Removal of non-conviction charges only from an arrest where some charges resulted in a conviction. The conviction(s) will remain on the record.

• Pardon: The process by which felony and misdemeanor convictions may be expunged from a criminal record.

Cleaning Up Your Record: Expungement• Expungements: A relatively short process

(approximately 6-10 months) • Under 18 Pa. C.S.A. § 9122, expungement is

possible for:• Non-convictions (charges withdrawn, dismissed,

nolle prossed, or not-guilty)• ARD/Section 17 if the program was completed• Summary convictions if arrest-free for five years• Felony & misdemeanor convictions if you are 70+

and have been free from arrest for 10 years

Sample CHR (Expungement)

Sample CHR (Redaction)Redaction/Partial Expungement

Can’t be expunged

Sample CHR (Redaction)Redaction/Partial Expungement

Sample CHR (Redaction)Redaction/Partial Expungement

Can be expunged

Drafting and Filing Expungements• An expungement petition and order must be

created for each case you want to expunge/redact.• Pa.R.Crim.P 490 & 790 list what information is

required- but we have automated the process through the expungement generator.

• Once the petitions and orders are drafted and you have reviewed them for accuracy, they can be e-filed with the court.

What Happens After Filing?

• Just because someone is eligible to have a record expunged does not mean it will be expunged.

• The District Attorney is given an opportunity to object to all expungement petitions at a status listing before a trial commissioner.– If the DA does NOT object, the petition is granted.– If the DA does object, the case is listed for a hearing

before a judge.

Legal StandardCommw. v. Wexler, 494 Pa. 325 (1981)

– At the hearing, the DA has the ultimate burden and must present specific compelling evidence justifying the retention of the record.

– If they do so, then the DA’s interest is balanced against the petitioner’s right to expungement.

Legal Standard Cnt’d

Under Wexler, the court must weigh several factors including:– Strength of the Commonwealth’s case and reason

for wanting to retain the record– Criminal record history of petitioner– Age and employment history of petitioner– Adverse consequences to the petitioner caused by

the record

Exceptions to this general framework:– Charges that resulted in “not guilty” or “dismissed for

lack of evidence” should almost always be expunged.• Commw. v. D.M., 695 A.2d 770 (Pa. 1997)• Commw. v. Rodland, 871 A.2d 216 (Pa. Super. Ct. 2005)

– Charges associated with a guilty plea: DA has to prove by “clear and convincing evidence” that the charges were dropped in exchange for pleading guilty. • Commw. v. Lutz, 788 A.2d 993 (Pa. Super. Ct. 2001)

Common Objections• The DAs tend to object if the charges were “serious,”

“recent,” or if there are multiple cases that show a “pattern of criminal behavior.”– None of these are legally recognized objections.

• To show a “pattern of behavior” under the case law, the DA must prevent evidence of a modus operandi.– See Commw. v. McKee, 516 A.2d 6 (Pa. Super. Ct. 1986).

• If petitioner is on probation or owes court fines and costs- may complicate case.

After Expungement Is Granted

• Orders are sent to us (and we send to client)– Expunged information comes out of court system

quickly• Court sends orders to the PA State Police and

Phila Police who then expunge their records– Confirmations are sent to us (and we send to client)– This process can take up to six months or more

Demonstrations• How to review and download criminal records

online.• How to draft expungement petitions using the

Expungement Generator• How to e-file expungements and request

hearing dates.• For an in-depth demonstration:– https://www.youtube.com/watch?v=7iT5pXGIOzc