Winning in court took nearly five years for Rafael Smith, 39, after he was arrested for assault and sexual assault – but even a not-guilty verdict wasn’t enough to clear his name.
On a recent Saturday, he arrived at the Plaza Road Academy, like more than 100 other people seeking to clear their criminal record.
Even though charges against Smith from 2017 were dismissed and he was found not guilty, the existence of his arrest record, he says, held him back financially and prevented him from finding a job.
“It just gives me hope that things can be moved from my past and…my character can’t be tainted, like, you know, being a criminal,” Smith said.
Smith, who was a massage therapist at the time he was charged, said the hardest part of having a charge dismissed in his case is that he feels like he’s being punished for something he didn’t do that he was not found guilty.
Employers will see the charge and turn him down for job opportunities he was qualified for, Smith said. He hopes the radiation will give him a clean slate.
Expungement applies to a range of criminal cases in North Carolina where a person is seeking to remove an arrest, court dismissal, or criminal charge from their criminal record.
For thousands of North Carolinians who are eligible for this clean slate under the state’s second chance law, they have yet to take full advantage of it due to a gap in which record types are erased.
Felonies could first be expunged in the state starting in 2011 and the expungement process was expanded last year. Expungement orders apply to government records – like police arrest slips and court documents – but a recent investigation by The Charlotte Observer finds that employers and landlords often still have access to criminal records, which compromises the effect of radiation.
In other words, private providers who provide background check services have access to state-held electronic court records and they are not notified by the courts or required to purge expunged cases from their databases – even arrests like Smith’s, which the state of North Carolina will effectively consider never to have happened once his expungement is approved.
With recent reforms, the state granted more expungements in fiscal year 2021 — a total of 16,390 — than at any time since 2016. And that figure doesn’t include the number of expungements that happen automatically when prosecutors decide to dismiss certain charges.
Karl Burch followed the same process as Smith to remove a load he’s worn for over 45 years.
For Burch, a strike means the freedom to get a good job and his finances in order, he said.
“It’s so hard, you can’t get out. You can’t get housing… you can’t get a car, you really can’t get anything with a criminal record. And I mean, it’s been so long, you know, I thought it would go away,” Burch said.
Now Burch is 60 and hopes to clear her record for her seven grandchildren and six great-grandchildren.
But even if Burch and Smith get the expungements they are legally entitled to, the way data companies keep their records may still ruin their second chance.
It has been that way for at least a decade or more, when heads of state first required background check companies wanting North Carolina court records to log electronically into the Administrative Bureau’s records system. courts. The goal, officials said at the time, was to ensure these companies have up-to-date records — to close the delisting loophole.
But even recent legislative updates haven’t solved the problem, say advocates and experts recently interviewed by the Observer.
Cancellation in NC
Mecklenburg County Assistant District Attorney Robyn Withrow said the North Carolina General Assembly has struggled to address expungements nearly every year for the past five years. And while there is talk of doing so in the future, so far nothing has been done about third-party information providers keeping records that have since been deleted.
Withrow said that because write-offs often happen quickly, third-party and private providers are often not notified of an individual’s change in status. She said it will probably take legislative action to correct that.
Maria Macon, founder and director of the Mecklenburg Council of Elders, said the council is pushing for the General Assembly to fix this loophole and notify private entities when the records have been removed. The Council of Elders is a nonprofit made up of 15 local organizations that hold quarterly clinics for people who need help expunging past arrests. The clinics are so popular that you have to register beforehand and they are often full.
Macon is particularly concerned about access to radiation for poor people. Because of the root causes of criminal behavior, she said, minors and adults living in poverty are more likely to have criminal histories – which, more often than not, will perpetuate multigenerational poverty as people age. they will lose job opportunities.
She said lawmakers should start looking at write-offs the same way they looked at payday loans when they passed legislation about it. Macon said it took a “groundswell cry” for this effort and he could pick it up with this loophole.
The Administrative Office of Courts, or AOC, a state agency, declined to be questioned by the Observer on the matter. According to the AOC website, only 70 private companies access the state database, compared to hundreds on the market.
Besides connecting to the Courts Administration Office system, any member of the public can obtain otherwise publicly available court records, but accessing a large volume is difficult without a database.
Joseph Laizure, a clinical programs staff attorney at UNC, who is part of the university’s law school, said that while the law currently does not require the state to notify private companies, people affected by an inaccurate background check may have recourse.
Private companies that conduct employment background checks or other background checks using public criminal records are regulated under the Fair Credit Reporting Act, Laizure said.
“Individuals who find themselves victims of inaccurate background checks conducted by private companies might consider speaking to a consumer attorney who can advise them of their rights under the Fair Credit Reporting Act and any other laws that may arise. ‘enforce,’ he said.
A second chance
In 2020, Governor Roy Cooper signed into law the Second Chance Law. According to the North Carolina Justice Center, a statewide advocacy organization, the law was bipartisan legislation that had been making its way through the legislature for nearly two years.
One in four North Carolina has a criminal record, according to the Justice Center. These records can make it difficult to obtain quality housing, employment and higher education.
The main provisions of the law include:
▪ Automatic removal of certain charges from a person’s record, such as a dismissed case.
▪ Raise the age of juvenile convictions, making more people eligible for expungement.
▪ Make expungement possible for all those whose charges have been dismissed and verdicts of not guilty, as well as for some who have been convicted of non-violent crimes.
▪ Allow prosecutors to request disbarments after a dismissal.
Habekah Cannon, managing partner of Habekah B. Cannon’s office, said the most significant expungement reform the state has made in recent years is the ability to remove multiple dismissed charges from a person’s record.
Dismissed charges occur when prosecutors drop a case against someone due to insufficient evidence, which they do not wish to prosecute, or due to mistaken identity. However, these charges are still on a person’s file.
“If your charges were dismissed, there shouldn’t be any record of them, there shouldn’t be this story that follows you,” Cannon said.
“Because if you were found not guilty, or if the state didn’t have enough evidence to prosecute the case, or if it was a case of mistaken identity, or if you earned your dismissal through a deferred program, you should not be penalized for this. And the way North Carolina enforced the law, before December 2021, was that people were punished even for being arrested.
While recent reforms proposed in the Second Chance Act have helped those seeking expungements, there are still loopholes in the law, in addition to the loophole that allows expunged documents to continue to haunt individuals through expungements. private entities.
Cannon says that with the change in the law, dismissals and not guilty verdicts are supposed to be automatically erased from a person’s record. However, she and her colleagues find that this is not always the case and their clients still have to file motions to strike.
One of the biggest hurdles that still exist in terms of reform is the cost of the process and its complexity, Cannon said.
It costs $175 to file an expungement of record, Cannon said. And, the process can be difficult to navigate.
A person must determine which affidavit to complete, then they must have it signed by the district attorney, who sends it to the clerk, and then it is sent to the state, Cannon said. This process usually takes four to six months, but it can take longer than that.
Under the new law, those who wish to expunge their conviction records must wait five years for a misdemeanor and ten years for a felony, Cannon said. She said that in the future, the state should consider shortening that time limit for misdemeanors even further.
“If you commit non-violent crimes, those are your, what I call petty charges, your larceny, your trespassing. Many of these charges criminalize poverty,” Cannon said.
The Council of Elders of Mecklenburg regularly organize radiation clinics. To sign up for their services, visit their website and fill out a form in English or Spanish.