The unfairness of California’s record sealing statute
If you were arrested and tried for a crime where there wasn’t even “reasonable cause” to believe you committed the crime, you could be left with a criminal record that could prevent you from getting a job, housing, volunteering in the classroom of your children, and other basic things that those with clean criminal records can do. All of this damage comes from a crime you clearly did not commit.
California Record Sealing Statute, Penal Code Section 851.8. is designed to prevent this gross injustice by allowing people who are factually innocent to have all arrest and court records sealed and destroyed. In most situations, the law successfully balances the state’s right to protect information against an individual’s right to protect their reputation. However, in a large number of situations, wrongfully accused persons are left with lifelong damages caused by the records of arrests or court cases when they were factually innocent, but the statute allows the records to be sealed.
The California Department of Justice (CDOJ) maintains a complete criminal record of every person who has ever been arrested or charged in court with a criminal offense. This report is commonly called a rap sheet or background report. Among other things, the rap sheet shows the date, place, and reason for the arrest or court case. Even if a person is found not guilty or if the charges are dropped, the record of the arrest and any court case appears on the person’s rap sheet.
Unlike reports kept by the credit bureaus or the Department of Motor Vehicles, which only show a negative history for a limited number of years, once something appears on CDOJ’s rap sheet, it stays forever; unless the person successfully petitions to have the record of the arrest and trial sealed. Successful petition to seal record expunging all evidence of arrest or court case from CDOJ’s rap sheet.
CDOJ will provide rap sheets only to authorized government agencies for limited purposes or to the person who requests their own rap sheet by petitioning, submitting fingerprints, and paying a nominal fee (which may be waived for individuals who cannot they can afford the fee). Despite the apparent attempt to keep the rap sheet from public disclosure, rap sheets are widely used for private purposes. According to a 2006 study by the Society for Human Resource Management, 80 percent of medium to large employers have performed criminal background checks to screen potential employees. That’s up 26 percent from 1996. Rap sheets are frequently requested by a wide range of other individuals and organizations, from landlords to Little Leagues.
The information contained in rap sheets often determines which applicant gets things like housing, a job, or the opportunity to spend time with their children. There is no law in California that prohibits making these decisions based on arrests or charges of which the person is factually innocent. Accordingly, it is good public policy for rap sheets to be accurate and contain no information that would falsely harm an individual. California’s record sealing law gives most wrongfully accused citizens a way to clear their rap sheet of negative information.
The procedure is described in section 851.8 and reads:
“in any case where a person has been arrested and a plea of indictment has been entered, but where there is no conviction, the defendant may at any time after the dismissal of the plea apply to the court which dismissed the plea for a finding that the defendant is factually innocent on the charges for which the arrest was made.”
If the person is successful, the statute reads:
“The court also orders the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of all arrest records they have provided to any local, state or federal agency, individual or entity.” Any state or local agency, individual or entity within the State of California receiving such a request shall destroy its records of the arrest and the request for destruction of those records, except as otherwise provided in this section.”
One of the main problems is that this statute does not expressly permit partial sealing of a detention record. Courts have not yet interpreted PC 851.8 to permit “surgical excision of certain portions of custody records.” People v. Matthews 7 CA 4th 1052 (1992). So if a person who is charged with two crimes is found not guilty of one and guilty of the other, no part of the record can be sealed. Consider this scenario that leads to an unfair and unexpected result:
A couple is having a heated argument. A neighbor who fears violence calls the police. When the police arrive, one of the suspects, in a fit of rage, falsely accuses the other of sexual assault. The police arrested the accused for sexual assault and disturbing public order. An hour later, the accuser calms down, loses his temper and gives up his testimony to the police. A wrongful charge of sexual assault is never brought to court. However, the accused went to court and pleaded guilty to disturbing the peace and was fined $200. Unbeknownst to this defendant, like most defendants, is that there is another life sentence they will have. Every time someone else sees their rap sheet, they will see that the accused has been arrested on a sexual assault charge. The accused will have to spend a lifetime hoping that people will believe the explanation for the negative story in the rap sheet and dealing with the possibility that it will cause unfair prejudice.
This unfair and unexpected outcome hurts the individual and society by placing major lifelong obstacles in the way of a person trying to reach their personal and professional potential.
The legislative history makes it clear that the legislature found it unfair to burden a citizen with an arrest record for a crime that was not committed. There is nothing in the plain language of the law or in logic to suggest that the legislature would tolerate the unfair burden of a single charge simply because the defendant is fairly burdened by a separate charge.
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