Criminal records bill hits snag

Lawmakers debate requiring a waiver to have uncharged crimes erased

General Assembly

March 28, 2007|By Andrew A. Green | Andrew A. Green,Sun reporter

A bill that would allow automatic expunction of criminal records for those who are arrested but never charged with a crime ran into opposition in the state Senate yesterday, where some lawmakers questioned whether people whose records are wiped out should retain the right to sue police.

Last year, more than 21,000 Marylanders were arrested, booked, fingerprinted, photographed and detained - but never charged, leaving records that can stymie job searches and applications for mortgages, financial aid and other assistance. Most of these arrests were in Baltimore.

Under current law, those who are arrested but not charged either must sign a waiver saying they won't sue the police department or wait three years for the statute of limitations to expire before applying for expunction.

Del. Keith E. Haynes, the Baltimore Democrat who sponsored the bill and steered it through easy passage in the House of Delegates, told members of the Senate Judicial Proceedings Committee in a hearing yesterday that striking the waiver requirement from the law is one of the most important aspects of the bill.

State law now says "to an individual, a victim, that `I have to give up a legal right to restore a legal right that to no fault of my own was taken away from me,'" Haynes said.

But the waiver provision has drawn the opposition of the state Fraternal Order of Police, which has pushed senators to reinstate it.

"I'm really torn," said Sen. James Brochin, a Towson Democrat. "If somebody is treated fairly and humanely but arrested by mistake ... and we let everybody sue, it's going to be a field day for attorneys."

Sen. Larry E. Haines, a Carroll County Republican, said he was fully supportive of the bill until he heard from the FOP.

Sen. Nancy Jacobs, a Harford County Republican, asked Haynes whether he would prefer to accept the waiver requirement or see the bill die.

If the bill maintained the current waiver requirement, people who are arrested would still be able to avoid an application process and a processing fee, but they either would have to promise not to sue the police or wait three years for expunction.

Baltimore State's Attorney Patricia C. Jessamy, a supporter of the bill who observed yesterday's hearing, said keeping the waiver provision is "just not justice."

"If you stand the chance of losing your job or not being able to get a new one, you want it to be immediate. You don't want to have to wait three years," Jessamy said.

The House of Delegates approved the bill 130-9. In addition to Jessamy, Baltimore Mayor Sheila Dixon and Baltimore Police Chief Leonard D. Hamm support the bill.

Gov. Martin O'Malley issued written testimony in support of the bill yesterday. "When the state makes such a mistake, citizens should suffer no detriment from the erroneous action," he said in the statement.

Similar legislation has failed in the Senate before. Nearly all members of the Judicial Proceedings Committee said yesterday that they are sympathetic to Haynes' effort, though some questioned whether his legislation tries to relieve symptoms of a problem in Baltimore without tackling the root cause.

"I appreciate what you're trying to do. If someone is innocent, they shouldn't have anything on their record," said Sen. Alex X. Mooney, a Frederick County Republican. "But either the police are doing something wrong, or the people [who are being arrested] are doing something wrong, and the state's attorney just chooses not to prosecute because they don't feel like doing it."

In Baltimore, a representative of the state's attorney's office reviews cases before they go to a court commissioner, except in instances in which an officer made an arrest based on a warrant.

In all, the office declined to prosecute about 16,000 of those cases last year. In 6,300 of those, the office decided the offenses - typically crimes such as open-container violations and disorderly conduct - were "abated by arrest."

In other cases, the office concluded that police had provided insufficient information for prosecution.

Hamm instituted additional training in 2005 to improve the charging documents police file, resulting in a reduction in cases in which people are released without charges.

Jessamy said there are plenty of cases in which people should not have been arrested. But that's beside the point of this bill, she said.

"This is not about who's right and who's wrong," Jessamy said. "It's about justice."

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