Some members of the Arkansas legal community regard state laws that allow criminal records to be sealed as a snarl of confusing, overlapping and sometimes contradictory statutes that should be scrapped and rewritten.
“I find them Byzantine at best,” said Little Rock District Court Judge Alice Lightle, who was a member of a working group that studied possible changes but eventually abandoned the effort.
Little Rock Traffic Judge Vic Fleming has asked attorneys to argue in his courtroom next month the constitutionality of Act 626 of 2011, which allowed for expungement or sealing of misdemeanor drunk driving convictions.
The law also allows for the expungement of other misdemeanor convictions, among them sexual assault in the fourth degree, negligent homicide and battery in the third degree.
While Fleming tries to determine the constitutionality of the law, some in the legal community say he is just scratching the surface of a larger problem.
Rep. Darrin Williams, D-Little Rock, chairman of the House Judiciary Committee, suggested that a working group that met several times in 2010 with hopes of streamlining and simplifying the expungement statutes to begin anew considering proposals and make recommendations for the 2013 legislative session.
Brad Cazort, administrator of the Arkansas Crime Information Center, said the statutes are “internally inconsistent and the benefits (they) give on one hand (they) take away on another.”
“There are like seven or eight different expungement in Arkansas for various situations and they are not uniform,” Cozart said. “In my mind, they need to start with a blank sheet of paper, write the law they way you want it to be and repeal everything else.”
Expungement, in fact, are addressed in nine separate statutes in the Arkansas Code.
To illustrate the confusion in the expungement laws, Benton lawyer J. Brent Standridge, who in 1995 was a deputy attorney general and helped the Legislature draft the rules for applying for expungement, points to Act 346 of 1975, the First Offender Act, and Act 531 of 1993, which deals with alternative sentencing/community punishment.
The First Offender Act requires a judge to grant an expungement request as long as the applicant meets certain criteria. The applicant, however, can only request an expungement once under the that act. The alternative sentencing/community punishment statute, on the other hand, gives the judge discretion and allows defendants to make multiple requests for expungement.
The statutes “have little distinctions between them, which are there, but the question is, should they be there?” Standridge said. “Certainly I think it could be improved, if nothing else just re-codified and tweaked and it would be a lot better and I think a lot more useful to people, which I think now isn’t the case.”
Unlike many states, expunging or sealing a criminal record in Arkansas does not mean that the conviction is erased from the person’s record, Cazort said.
“When you get a record sealed or expunged it gets electronically sequestered in our system, and then generally does not return when they do an employment background check,” he said.
State law provides exemptions so the sealed criminal records can be released during background checks for some jobs, such as police officers, teachers, or nursing home or daycare workers, he said.
Until Aug. 1, 2011, when Act 626 took effect, those eligible for expungement included certain pardoned criminals — not those pardoned for offenses against minors, sex offenses or offenses resulting in death or serious injury — and first time offenders with misdemeanor driving offenses and minor drug offenses who had successfully completed terms of probation.
Adults convicted of non-violent felonies while they when they were juveniles and people charged but never convicted also could seek to have the charges expunged from their records.
In 2010, Lightle organized a series of meetings involving judges, lawyers, lawmakers and others interested in the state’s expungement laws to discuss the hodgepodge of statutes and see if there was a way to simplify them and possibly combine them into one.
The working group met during the summer and fall of 2010, Lightle said.
“We really had a good group who understood the law and knew the issues and the problems,” but the group could not come to a consensus, she said. “What it boiled down to was, we didn’t want to come up with just a piece-meal kind of fix.”
The group decided ended its meetings and start again after the 2011 session.
That year, Rep. Jim Nickels, D-North Little Rock, who participated in the meetings in 2010, filed a bill that allowed judges to expunge misdemeanor DWI convictions, as well as misdemeanor negligent homicide, battery in the third degree, indecent exposure, public sexual indecency, sexual assault in the fourth degree and domestic battery in the third degree.
The legislation was approved and signed into law as Act 626.
Nickels said he filed the legislation because he thought the committee agreed that state law should be more clear on what misdemeanors should be eligible for expungement.
“We could not reach agreement on a global-type piece of legislation, so I came up with this because it seems like everybody had agreed on the misdemeanor piece of it,” he said.
“I was just trying to bring some clarity to the expungement area …(but) I don’t necessarily think I have,” he said, acknowledging that Act 626 “seems to have caused confusion” among some lawyers and judges.
He said the working group should go back to the drawing board.
Under Act 626, the person requesting the expungement must have fulfilled all sentencing obligations and must have stayed out of trouble for at least five years.
Fleming said he has set a hearing on Act 626 for July 12.
The traffic judge said last week that two people have come before his court asking to have their misdemeanor DWI convictions expunged, but that he is unsure of his duties under Act 626.
He wants attorneys to argue the constitutionality of the law, specifically how it relates to DWI convictions.
He said he is not sure the Legislature can require a judge to expunge a person’s record, and that he also has questions about the act’s requirement that a judge determine “clear and convincing evidence” before granting the expungement.
“I don’t know whether that is unconstitutionally vague or not,” Fleming said. “I just don’t know. I’m going to figure it out. We’re going to do our best to figure it out and make a ruling.”
Williams said he hopes to schedule a joint meeting of the House and Senate Judiciary Committees to discuss the expungement laws.
“We do plan to look at that and see if we can’t streamline that process and have some uniformity among the different statutes that are out there,” he said.
The House judiciary chairman said he wants to “make sure that those folks who are experts in those areas really have input and know how this will have a practical impact on the judicial system before we move forward on it.”