Reducing barriers to employment: EXPUNGEMENT

Training at Cozen O’Connor- October 15

th

, 2014

Sharon Dietrich, Esq.- Litigation Director Michael 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.

CLS Employment Unit Intakes 2000-2013

1800 1600 1400 1200 1000 800 600 400 200 0 2000 2001 2002 2003 2004 2005 2006

Year

2007 2008 2009 2010 2011 2012 2013 Intakes Number of Criminal Record Intakes Rejections

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plea agreements & guilty verdicts • Charges resulting in a not-guilty verdict • Charges that were dismissed, withdrawn, etc.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

Disposition

ARD/Section 17 Withdrawn Dismissal Nolle Prossed Not Guilty Acquittal Non-Conviction Dispositions

Definition

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

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

Motion granted by Judge for a variety of reasons, including lack of evidence and lack of prosecution. Pa.R.Crim.P. 585 – Voluntary withdrawal of charges by the DA (legally speaking for a lack of evidence).

A finding of non-culpability following a trial before Judge or Jury. A finding that the Commonwealth failed to carry its evidentiary burden that a crime was committed or that the defendant was involved.

Disposition

Guilty Guilty Plea Nolo Contendere Conviction Dispositions

Definition

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

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

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

Sample CHR (Redaction)

Redaction/Partial Expungement Can’t be expunged

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 Standard

Commw. 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