Expungement and Limiting Public Access to Alaska Criminal Case Records

Expungement and Limiting Public Access to
Alaska Criminal Case Records in the Digital Age

Armstrong, Barbara; & Periman, Deborah. (2015). "Expungement and Limiting Public Access to Alaska Criminal Case Records in the Digital Age." Alaska Justice Forum 32(1): 2-9 (Spring 2015). A criminal record results in a number of different barriers to reentry into the community for former offenders. These barriers — also called collateral consequences — can be mitigated by reducing the extent to which criminal records are visible to employers, landlords, and others. This article provides an overview of the complexity involved in limiting public access to criminal records, processes adopted in other states, and recent legislative proposals and current options in Alaska.
Links to publications mentioned in this article last verified 23 Aug 2016.

A criminal record results in a number of different barriers to reentry into the community for former offenders struggling to become productive members of society. Employment and safe housing are two of the most important factors in reducing the likelihood that such individuals will reoffend. Yet the existence of a criminal record is a formidable barrier to securing work and a safe place to live. Offenders often find it difficult to get a job or rent a home or apartment because their “record” makes them a poor risk in many people’s eyes for employment or tenancy. At both the state and federal level, these individuals are also at risk of losing public assistance and other government benefits, including the right to vote. (See “Collateral Consequences and Reentry in Alaska: An Update,” Alaska Justice Forum, Fall 2013/Winter 2014.) These barriers—also called collateral consequences—can be mitigated by reducing the extent to which criminal records are visible to employers, landlords, and others.

This article is a very brief overview of the complexity involved in limiting public access to criminal records, processes adopted in other states, and current options in Alaska. Issues include identifying the types of records that may be shielded from view and the mechanisms for limiting access. Although the process of limiting public access to criminal records is multilayered and poses challenges, abundant evidence demonstrates that it is a critical factor in assisting offender reentry.

Background

Historically the process of limiting public access to an individual’s criminal record has been termed expungement or expunction of record. Black’s Law Dictionary defines expungement as: “The removal of a conviction (esp. for a first offense) from a person’s criminal record.—Also termed expunction of record; erasure of record” [emphasis in original]. As traditionally used, expungement generally referred to:

the expurgation, extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system by removal, deletion, erasing, sealing, destroying and other processes.

Expungements: Freedom from the Disability of a Legal Record (3rd ed.)
edited by J.D. Eastman (2005), p. 19.

In her article “Starting Over with a Clean Slate,” reentry expert Margaret Colgate Love recounts the development of the movement for expungement and the spirit of reform that accompanied it. Expungement or sealing of criminal records by states largely began in the 1940s and was first focused on youth offenders. These individuals were seen as impressionable persons, not necessarily prone to criminal behavior, who needed assistance in the rehabilitation process and who should not be stigmatized by a criminal record. A decade later, the “clean slate” concept was applied to federal offenders between the ages of 18 and 26 years of age. The National Conference on Parole and the National Council on Crime and Delinquency were among the first groups in the 1950s to encourage expungement of criminal records “by which the individual will be deemed not to have been convicted.” In 1962, a “more nuanced way of dealing with restoration of rights and status” for offenders was proposed by the American Law Institute (ALI) as part of the Model Penal Code (MPC). The MPC section called for allowing the sentencing court to “reliev[e] ‘any disqualification or disability imposed by law because of the conviction.’ After an additional period of good behavior, the court could issue an order ‘vacating’ the judgment of conviction.” Love notes that, under the MPC approach, an offender whose rights had been restored or conviction vacated was not justified in stating that he had not been convicted of a crime “unless he also call[ed] attention to the order [of relief].” (See “The Model Penal Code,” below.)

This issue continued to be the focus of national commissions and professional organizations over the next two decades. Approximately 20 years after the MPC proposal, the American Bar Association (ABA) and the American Correctional Association (ACA) joined the call for reform. In 1981 both groups urged state and federal lawmakers to adopt “a judicial procedure for expunging criminal convictions, the effect of which would be to mitigate or avoid collateral disabilities.”

Despite widespread knowledge of the social costs of collateral consequences related to criminal convictions, Love notes that “during the 1980s and 1990s, new collateral sanctions and disqualifications were introduced into state and federal laws to augment and reinforce what remained of the old.” Unprecedented levels of incarceration in the United States due to the war on drugs and other “get tough on crime” policies made these barriers to reintegration—keeping millions unemployed and homeless or marginally housed—a national problem. As part of the newly coined Smart Justice movement of the post-millennium, lawmakers began looking at ways to reduce recidivism by easing known barriers to successful reentry. The expungement mechanisms recommended by the ALI, ABA, and ACA, and adopted by some states, became an important part of the discussion.

As conceived in the twentieth century under the ALI, ABA, and ACA models, expungement involved removing a criminal record from view—erasing it, as it were. In some rare instances, the record could actually be physically destroyed. In practice, states used varying methods of handling records, and differing criteria for qualification to have records sealed or otherwise hidden from view. No standard process developed nationwide. (Alaska, as discussed below, does not provide any process for an offender to request that access to criminal records be limited, except in the instance of proven mistaken identity or a false accusation.) Nor has standard terminology developed to describe these processes. As one recent study noted, “the process of limiting disclosure of criminal records to the public may be referred to as ‘expungement,’ ‘expunction,’ ‘sealing,’ ‘setting aside,’ ‘destruction,’ ‘purging’ or ‘erasure’” (“Expungement and Post-Exoneration Offending” by Amy Schlosberg, et al.—see “Expungement Resources,” p. 8). Because the above terms used to signify expungement vary and their definitions differ depending on the jurisdiction, in this article we will use the terms limiting access, limiting disclosure, and sealing to refer to the process by which access to an offender’s records is restricted and the records made unavailable to the public, including employers and landlords.

Criminal Records in the Digital Age: National Overview

Challenges Associated with Electronic Dissemination and Storage

With the advent of the digital age and data being cached or stored by private companies, controlling access to information regarding a criminal record has become highly problematic. Although it is possible to identify which justice system agencies hold criminal records, and limit access to those digital and physical records, it is impossible to know where else the data may exist. Criminal history records may be stored on multiple databases or in different formats by various agencies and by private companies or individuals. Many employers routinely request background checks and receive criminal history records. If those records were retrieved and sent to an employer or cached in a commercial database before entry of an order to seal or limit access to the records, that data remains subject to electronic circulation. It is important to remember that it is only in rare cases that any state’s statute calls for the physical destruction of the record, and the data from the record may have been released prior to the instruction to destroy it. Thus, even actual physical destruction will not necessarily prevent potential employers or landlords from accessing information already on the Internet or in privately held databases.

In addition, although a court case record may be designated as subject to limited access, sealed, or confidential (depending on the term used by a jurisdiction), and access to the court record consequently limited, the underlying arrest and other criminal history records held by a law enforcement agency may not be covered by that designation. In the article “When Cleansing Criminal History Clashes with the First Amendment and Online Journalism,” Calvert and Bruno underscore the complexity of these problems, including the fact that news stories containing arrest and charging information remain searchable on the Internet indefinitely. They also highlight some of the constitutional issues associated with controlling access to digital data. Although managing digital data is difficult, and measures to limit access to records of criminal cases may be imperfect, there is an emerging consensus that such measures—imperfect though they may be—are critically important as one step toward facilitating employment and safe housing for former offenders.

Processes and Criteria for Limiting Access

In most states, an individual seeking relief from the collateral consequences of a criminal record must file a request with the relevant court asking to have the case record designated for limited access or sealing—depending on the jurisdiction’s definition and requirements. The criteria under which such requests are evaluated vary considerably from state to state. The most common category of offenses that qualify for some type of protection from public access are misdemeanors, first-time low level offenses, nonviolent crimes, and offenses eligible for suspended imposition of sentence (SIS). (Congress has recently taken up this issue as well, and is presently considering legislation that would allow for expungement of certain nonviolent or juvenile federal offenses; see “Federal REDEEM Act of 2015,” p. 4.)

The point at which public access to a record is limited or prohibited is an important factor in the efficacy of relief. The longer a criminal record or court case record is available to the public, the less effective subsequent action limiting access will be for purposes of reducing collateral consequences. Recognizing that a delay in protecting records may vitiate the effect of subsequent action, eight states and the District of Columbia made changes between 2009–2014 that “eliminated, lowered, or changed the calculation for the waiting period before certain offenders are eligible for expungement or sealing [of criminal records],” according to the 2014 Vera Institute for Justice report Relief in Sight? States Rethink the Collateral Consequences of Conviction, 2009–2014. Some states have gone further, adopting mechanisms that make “expungement or sealing remedies automatically or presumptively available.”

Prohibition Against the Sale of Criminal Records

One of the greatest challenges to shielding criminal records from public view in the 21st century lies in the growth of “for profit” businesses engaged in the sale of arrest and conviction information. The background check industry retains vast repositories of such information in privately held databases, the owners of which have an economic incentive to promote review of criminal records by potential employers and landlords. In his State of the Judiciary 2014 address, the chief judge of the New York State Unified Court System discussed proposed legislation “to make New York’s criminal history record policies fairer and more rational,” and announced a new court policy on the sale of criminal history information. Court information on “misdemeanor convictions of individuals who have no other previous criminal convictions and who have not been re-arrested within 10 years of the date of conviction” would no longer be disclosed as of April 2014.

Finding Best Practices: Resources for Analysis and Comparison

The Vera Institute has published a nationwide summary of the 2009–2014 legislative developments aimed at reducing the collateral consequences of convictions. The National Association of Criminal Defense Attorneys (NACDL) Restoration of Rights Resource Project has also reviewed national practices and produced an extensive chart showing the current policies in all the states on “Judicial Expungement, Sealing, and Set-Aside.” This chart provides a detailed statutory overview and allows comparisons among the states (see Table 1, p. 5). The State of Sentencing 2014 study by The Sentencing Project provides additional information and focuses on actions by states regarding sentencing, probation and parole, collateral consequences, and juvenile justice. According to the study, Alabama, Illinois, Minnesota, and Ohio have all recently modified or expanded their policies regarding public access to criminal records. The authors note that, “The policy changes highlighted in this report represent approaches that lawmakers can consider to address state sentencing policy and collateral consequences.”

In addition, the National Center for State Courts provides information on privacy policies for court records in all 50 states, as well as resources about court public access web sites, rules on bulk data, online court records, and criminal background checks. According to the Center, the most common information that is excluded from public access in court records includes personal identifiers for witnesses, defendants, and jurors; address; phone number; social security number; date of birth; financial account information; and names of minor children.

Table 1. Judicial Expungement, Sealing, and Set-aside in Five States
 Table 1. Judicial Expungement, Sealing, and Set-aside in Five States - Click through for a full-sized table in PDF format.

Expungement and Criminal Records in Alaska

The traditional remedy of expungement does not exist in Alaska. Although, as discussed below, the Alaska legislature has looked at this issue several times in recent years, no Alaska statute, regulation, or rule of court establishes a procedure for erasing or destroying a criminal record. Whether the Alaska courts have inherent authority to expunge records, either through their power to preside over criminal trials and sentencing or through their power to enforce constitutional protections, remains an open question. (The federal courts have long exercised such power, as do a number of other state courts.) The Alaska Supreme Court has refrained from deciding this question. It has made clear, however, most recently in Farmer v. State (2010), that if such judicial power exists it is appropriately exercised only in “exceptional or extraordinary” circumstances.

Record Collection and Availability

In Alaska, criminal records are maintained by the Alaska Court System and the Alaska Department of Public Safety (DPS). Both the Court System and the DPS store information in several different locations across the state, as well as in electronic databases. Court records with information on the disposition of a case—the final outcome—are held by the Court System and are available for free to the public on the court’s online database, CourtView. (See “Data on CourtView,” below. Information on cases filed before 1990 is available from the court where the case was originally filed.) Two administrative rules, Alaska Court Administrative Rules 37.8 and 40, protect certain kinds of information from publication on CourtView. Administrative Court Rule 37.8 outlines types of case information that cannot be made available to the public on CourtView or in electronic format, such as social security numbers and contact information for witnesses. Administrative Rule 40 lists categories of cases that are not available online such as cases designated as confidential, criminal cases dismissed for lack of probable cause, cases dismissed because of misidentification of a person, and cases involving a minor wrongly charged as an adult. (See “Alaska Court Rules of Administration,” p. 7, for excerpts from rules on types of cases and information excluded from CourtView.)

Also excluded from CourtView under Rule 40 are certain petitions for domestic violence, stalking, and sexual assault civil protective orders. In domestic violence protective order petitions, if the case was “dismissed at or before the hearing on an ex parte petition because there is not sufficient evidence that the petitioner” meets the statutory definition of victim of domestic violence or “there is not sufficient evidence that the petitioner is a household member” as defined by statute, the record is excluded from CourtView. Similarly, in stalking or sexual assault cases, if the case was dismissed at or before the ex parte hearing because of insufficient evidence that “the petitioner is a victim of stalking as defined by AS 11.41.270 or sexual assault as defined in AS 18.66.990(9),” the record will not appear on CourtView.

Juvenile delinquency cases are confidential, as are certain other cases, and details from such cases are also excluded from CourtView. Cases dismissed for any other reason than those listed in Administrative Court Rule 40 remain on CourtView.

Except for those cases falling within the protection of Rule 40, data typically available on CourtView include the case number, names of the plaintiff and defendants, names of the attorneys for the parties, hearing dates, filings in the case, and case disposition. (Note that case records maintained in CourtView are distinct from the criminal justice information and records collected by DPS in the Alaska Public Safety Information Network (APSIN). APSIN is the primary source for criminal history record checks.) Until recently, sentencing information was also online. The Alaska Court System announced in April that due to budget constraints, lack of personnel, and training costs, sentencing information would no longer be entered into CourtView effective April 11, 2015. Court personnel had also monitored sentencing information on CourtView and noted any changes; the Alaska Court System will no longer be able to monitor sentencing changes, and has also announced that as of April 11, sentencing information on cases already entered online will be removed. Sentencing information can be requested from the court location in which the original case was filed.

A member of the public can also request to see the physical file of a case on CourtView by submitting a request to the court. For cases deemed confidential, only the attorneys of record, the parties, and court personnel can see the file. These confidential records are kept in color-coded folders. Confidential records, or any court record normally not available to the public, can, however, be opened by an order from the court authorizing access.

In addition to criminal case records held by the Court System, DPS also maintains a repository of criminal history information, as noted above. DPS records are electronically stored in the APSIN database. Certain data in the repository are available to the public upon submission of a written request and permission of the subject of the record. State criminal history record information is available with the submission of the record subject’s fingerprints and specific statutory authority to obtain the information. Fees are charged for all requests. The data in APSIN are not available online directly to the public.

The background report on an offender that is available upon request and after meeting the above requirements includes current/open criminal charges and charges that resulted in conviction, excluding sealed records. Background checks requested by entities and individuals that license, employ or permit a person to have “supervisory or disciplinary power over a minor or a dependent adult” exclude sealed records, but include current/open criminal charges, as well as all other charges regardless of conviction status (AS 12.62.900). Individuals can request information on their own records and sealed records will be included. Information on background check requests is available on the Department of Public Safety website.

Information in the APSIN database that remains in a person’s criminal record history includes:

  • arrests and criminal charges, even if the charge was later dismissed or declined for prosecution; and
  • criminal convictions, even if the conviction resulted in a Suspended Imposition of Sentence (SIS) and the conviction was “set aside,” and the judge imposed probation or other conditions instead of jail time.

If there is an error in the criminal history report, a Request to Correct Criminal Justice Information can be filed. Categories of errors for which a request for correction may be made are listed as “Mistaken Identity/Falsely Accused,” “Charge Information in Error,” “Missing Court or Prosecutor Disposition,” “Wrong Court or Prosecutor Disposition Information,” and “Set Aside Information Is Missing.”

Under certain circumstances, individuals may also submit a Request to Seal Criminal Justice Information to the DPS Criminal Records and Identification Bureau. Subsection (b) of AS 12.62.180, “Sealing of criminal justice information,” provides that a request may be made for sealing information in a record that “beyond a reasonable doubt, resulted from mistaken identity or false accusation” [emphasis in original].

Nascent Efforts to Reduce Barriers to Employment

Recidivism rates in Alaska are high. It is projected that by 2016, the state’s prisons will be overcrowded and the state will be required to spend millions of dollars building new correctional facilities. (The Goose Creek Correctional Center opened in 2012 at a cost of $250 million for construction and has an annual operating budget of $50 million.) Based on these projections, the Alaska legislature has established reducing recidivism through improving access to employment and safe housing as a state priority. (Note also that Alaska’s U.S. District Court is currently working to implement a new federal reentry court aimed at reducing recidivism in the state.)

In 2014, then-Governor Sean Parnell signed into Alaska law an omnibus crime bill, SB 64. This new law focuses on the urgent need to review criminal sentencing law and practices and initiate more cost-effective approaches. (See “Senate Bill 64—Omnibus Crime Bill,” Alaska Justice Forum, Spring/Summer 2014.) The new law also established the Alaska Criminal Justice Commission (ACJC) which is tasked with evaluating and recommending improvements in “criminal sentencing practices and criminal justice practices, including rehabilitation and restitution.” (See “The Alaska Criminal Justice Commission: A Legislative Call for Action,” Alaska Justice Forum, Spring/Summer 2014.)

During the same legislative session that produced the ACJC, the legislature passed a bill, SB 108, that would have limited access to some criminal case records. However, this bill was vetoed by the Governor amidst concern that it was overly broad in making several categories of cases “confidential” and unavailable to the public. As noted above, only parties and certain other people have access to cases designated as confidential.

At about the same time that the legislature was discussing access to case records on CourtView, the Alaska Court System, in an unrelated effort, was also debating a court rule change in response to concerns about certain categories of information on the court’s publicly available website. As a result, Administrative Rule 40 was amended in May 2014 to exclude certain types of records from public availability on CourtView. (See “Alaska Court Rules of Administration,” p. 7.)

In accord with the legislative priorities established in 2014, the Alaska Department of Corrections submitted a report to the governor in March 2015 recommending a multifaceted approach to reducing recidivism in Alaska. A key feature of this report, The Alaska Department of Corrections Recidivism Reduction Plan, is a plan to improve the state’s offender management and accountability planning process (OMP). The report recommends the plan be implemented “with an emphasis on safe, affordable housing and employment” [emphasis added].

The current Alaska legislature is fully cognizant of the role a criminal record plays in impeding access to employment and housing. As of this writing, HB 11, “An Act restricting the publication of certain records of criminal cases on a publicly available Internet website; and providing for an effective date,” has been passed by the Alaska House and moved to the Senate. It follows several recent efforts by the Alaska Legislature to address issues involving public access to criminal records. (See “Recent Legislative Proposals on Criminal Records in Alaska,” p. 4.) HB 11 includes a statement of legislative intent specifying that:

to the extent practicable, the Alaska Court System remove from its public Internet website records of criminal cases that were disposed of before the effective date of this Act by acquittal of all charges, by dismissal of all charges, or by acquittal of some charges and dismissal of the remaining charges, to the extent that AS.22.35.030, enacted by sec. 2 of this Act, requires that the records may not be published.

The bill reads:

The Alaska Court System may not publish a court record of a criminal case on a publicly available website if 60 days have elapsed from the date of acquittal or dismissal and

(1) the defendant was acquitted of all charges filed in the case;

(2) all criminal charges against the defendant in the case have been dismissed and were not dismissed as part of a plea agreement in another criminal case under Rule 11, Alaska Rules of Criminal Procedure; or

(3) the defendant was acquitted of some of the criminal charges in the case and the remaining charges were dismissed.

Although certain cases would not appear on CourtView under the terms of this proposed legislation, the public would have the option of seeing a physical copy of the case file by submitting a request to the court.

As noted above, Alaska does not currently have a process for requesting that access to a criminal record be limited other than to request that a record in APSIN be corrected or sealed if it contains misinformation. The request is submitted to the Alaska Department of Public Safety. In the Alaska Court System online database, if there is erroneous information on a record in CourtView, an individual may submit a request to the Alaska Court System to correct the information. In CourtView, shielding of records that are designated as “confidential” according to statute, order, or court administrative rule is automatic, and access is limited. Administrative Court Rule 40 also addresses other instances in which names of parties may be shielded from public view, usually at the discretion of a presiding judge.

If HB 11 is ultimately signed into law, cases ending in dismissal of all charges or acquittal, will not be published on the Court System’s “publicly available website if 60 days have elapsed from the date of acquittal or dismissal…” and if other criteria in the bill are met.

Going Forward

Local, state, federal, and private agencies are coming together across the country to explore ways to assist offenders with transitioning back into their communities. These efforts have far-reaching social and economic ramifications, and are part of the Smart Justice and Justice Reinvestment movement aimed at finding more cost-effective ways to deal with offenders and the problem of high recidivism and ballooning incarceration rates. Housing and employment for released offenders are critical issues in this effort. Inability to access these essentials can result in offenders cycling in and out of the justice system.

Resistance to legislation designed to facilitate reentry by limiting public availability of criminal records, such as Alaska’s 2014 SB 108, typically rests on one or more of four frequently voiced concerns. These are summarized by Margaret Colgate Love in her article “Starting Over With a Clean Slate”—they include concern that erasing a criminal record “rewrites history,” that limiting access to records may impair public safety, that government measures to limit access will be ineffective in the digital age, and that society is not ready to “change its views toward former offenders.” All of these need to be taken into account when considering ways to limit access to criminal records. While challenging, the accompanying tables illustrate that many states have already looked at or implemented various solutions to the problem.

In Alaska, the Court System and the legislature have both recently made efforts to address the reentry barriers caused by widespread public access to criminal records. The Alaska Court System has amended Court Administrative Rule 40 and expanded the types of cases that are not published online. Currently, HB 11, as noted above, has been sent to the Alaska Senate for consideration. The Alaska Criminal Justice Commission is also proceeding with its work, and has requested information on what other states are doing to limit disclosure of criminal record information to the public. The issue will be under consideration by the commission during its three-year tenure.

Notwithstanding changes to the way information is disseminated by the Alaska Court System, criminal history records available in the Alaska Public Safety Information Network (APSIN) administered by the Alaska Department of Public Safety may continue to pose reentry barriers. The current proposed legislation addresses only case records in the Alaska Court System online database, CourtView. In the coming months, this and the concerns above will be part of the ongoing conversation about limiting public access to criminal records. As states across the nation grapple with this issue and come to their own solutions, Alaska has the opportunity to review those efforts and craft a policy that best balances the need to facilitate employment and safe housing for former offenders with the public interest in open records and access to government documents.

Barbara Armstrong is the editor of the Alaska Justice Forum. Deb Periman, J.D., is a member of the Justice Center Legal Studies faculty and coordinator of the Legal Studies Program.


The Model Penal Code

The Model Penal Code (MPC) was developed to improve and promote uniformity in American criminal law. It was drafted by a committee of lawyers, judges, and law professors at the American Law Institute (ALI) in the early 1960s. The ALI was founded in 1923 in response to concerns about uncertainly and complexity in the law. The ALI website notes, “The Purpose of the Model Penal Code was to stimulate and assist legislatures in making a major effort to appraise the content of the penal law by contemporary reasoned judgement—the prohibitions it lays down, the excuses it admits, the sanctions it employs, and the range of authority it distributes and confers. Since its promulgation, the Code has played an important part in the widespread revision and codification of the substantive criminal law of the United States.” Legislatures and courts look to the MPC for guidance, but do not necessarily adopt all the recommendations. The American Law Institute continues to review the MPC and is currently looking at sentencing issues (another sentencing draft is due out in 2016), as well as revising provisions dealing with sexual assault and related offenses.

Reference

American Law Institute. (2015). “Model Penal Code.” (website). Retrieved 4 Jun 2015.


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