Alabama Expungement Statute is Almost Useless

When the law passed, the current Alabama expungement statute was received with great fanfare. However, the statute was too heavily amended on the floor of the Senate to be very effective. Having a broad expungement statute is so beneficial.

AL.com published article detailing the collateral consequences of arrest in Alabama generally but specifically if the person is wrongfully accused.

After felony charges against Steven McDowell were dropped and another person turned himself in for the crimes, the Army reservist from Huntsville still wasn’t free. McDowell was left with thousands of dollars of debt, struggled to find a job and lived without utilities for over two months. That’s because even though prosecutors now consider him innocent, being falsely accused comes with a cost.

One study found that “the record clearing intervention boosts participants’ employment rates and average real earnings.”

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential.

The article further details the costs and hurdles to clear his record in Alabama.

To be eligible for expungement, the charges have to end with a not guilty verdict, a dismissal or through completion of a diversion program. The defendant completes an application and the judge will set a hearing date. Prosecutors may contest the expungement, but the final decision lies with the judge.

Steven McDowell was lucky. He wasn’t charged with a violent crime. If so, he would not have been eligible for expungment regardless of the baseless of the charges. (UPDATE: A violent felony can be charge can only be dismissed if the person is actually found to be not-guilty; a dismissal will not suffice.) For instance, I represented a young man charged with a Class A felony, Discharging a Firearm into an Occupied Dwelling; the charges were dismissed at the preliminary hearing. Nevertheless, this conviction will remain on his “record” until the Legislature modifies the statute. Can people be charged with “violent” crimes as frivolously as drug charges? Absolutely.

If you have actually been convicted of a crime, you cannot have your record expunged under the statute.

The expungement process is not easy or inexpensive generally.

Prosecutors may contest the expungement, but the final decision lies with the judge. To apply, the defendant must pay the state of Alabama $300 for each charge that is to be expunged and pay for copies of a $25 certified criminal history (one for each charge) and fingerprint cards from the Alabama Law Enforcement Agency. McDowell paid about $25 for his fingerprint cards, he said.

According to Al.com, “here’s the way it’s supposed to work, according to the language in the bill:”

Who’s eligible? A person who has been charged with a misdemeanor criminal offense, a traffic violation, or a municipal ordinance violation – if the charge was dismissed with prejudice, no-billed by a grand jury, the person was found not guilty of the charge, or the charge was dismissed without prejudice more than two years ago and has not been refiled.

What about felony charges? The act allows for expunging non-violent felony charges, in the event of a no-bill by a grand jury, a dismissal of the charge with prejudice, a finding of not guilty, and one year after completion of a diversion program like drug treatment, mental health treatment or veterans court. A person is also eligible, if the charge was dismissed without prejudice more than five years ago, has not been refiled, and the person has not been convicted of any other felony or misdemeanor crime, any violation, or any traffic violation, excluding minor traffic violations, during the previous five years.

What felony charges are not eligible to be expunged? Violent felonies listed in the Alabama code are not eligible, including: capital murder, murder, manslaughter, assault, kidnapping, rape, sodomy, robbery, burglary, arson, stalking, sexual abuse and domestic violence 1 and 2.

How will it work? A petition has to be filed with the circuit court in the location the charge was filed. The petition has to include: – a sworn statement that the person meets the expungement requirements; – a case action summary or certified copy of arrest and disposition; – a certified copy of the arrest record from the Alabama Criminal Justice Information Center; – description of the charges to be considered for removal and description of the agencies involved in the arrest and any incarceration; – the filing fee is $300 plus any court costs; – all court fees, restitutions, fines and fees have been paid.

Who has to be notified? A copy of the petition submitted to the circuit court also has to be provided to the district attorney’s office, the law enforcement agency and the clerk of court. The DA’s office is expected to review the petition and make an effort to notify any victims in the case.

Can the request be opposed? The DA’s office and the victims have 45 days to file a petition opposing the expungement. If the objection is filed, the court is to set a hearing date at least 14 days after the filing.

What if nobody objects? The court can review the petition and rule without a hearing.

If the court approves the request, what happens to the records? The court is to order the expungement of all records in the custody of the court and any records held by any other agency or official, including law enforcement records, except privileged investigation reports by the Alabama Board of Pardons and Paroles and files of the district attorney. The related agencies are then to certify to the court within six months that the expungement has been completed.

What if somebody asks about the case after it’s been expunged? The proceedings regarding the charge shall be deemed never to have occurred,” the act says. The court and other agencies are supposed to reply to any inquiry that “no record exists on the matter,” and the person shall not have to disclose the related facts on job or credit applications and other applications.

So it becomes totally secret? The law says a petitioner has the duty to disclose the “fact of the record” to any government, regulatory or licensing agency, any utility or its affiliates or any bank or financial institution.

Will the record exist anywhere? The related agencies have to send the records to the Alabama Criminal Justice Information Center which will archive them in a protected file. The records cannot be used for a non-justice purpose and can only be made available when a criminal justice agency provides notice of an investigation of the individual.

What records are expunged? Arrest records, booking or arrest photos, index references for public records searches and other documents or electronic files concerning the arrest or charge.

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