Can an Expunged Criminal Record Be Made Public?

Generic mugshot.
By Richard Dahl on September 05, 2019 9:07 AM

The word “expungement” has such a tone of uncontestable finality to it.

Or so Daryous Taha thought over the course of the 13 years since a Pennsylvania court ordered the expungement of his arrest record after he spent a night in jail on charges of disorderly conduct.

Then one day a friend told Taha that he’d seen his photograph and arrest information on a website called Mugshots.com.

Launching an investigation, Taha learned that Mugshots.com had gleaned that information from the Bucks County Correctional Facility (where he’d spent that night in jail). The jail had been maintaining an “inmate lookup tool,” or ILT, on the county’s website that included the names and information of 66,799 individuals who had been booked there between 1938 and 2013. It also included the booking mug shots of about 47,000 of them.

Taha responded by filing a class-action lawsuit, and on May 28 of this year a federal jury awarded $68 million to the plaintiffs after finding that the county willfully violated state law in posting the information.

Expungement Doesn’t Necessarily Mean Erasure

But the question remains: How can arrest information or criminal information surface again after it’s been expunged?

The answer is that expungement doesn’t necessarily mean that it’s been erased.

It means that if a court grants the expungement of a criminal record, you could say “no” if a judge or an employer later asks if you were ever convicted of a crime. However, it has never meant that the record is removed from criminal databases.

The problem is that now, in the Digital Age, the likelihood that that record might be pulled out and made public has been greatly heightened.

Professor Jenny Roberts of the American University Washington College of Law points out that the Internet has changed everything in the last couple of decades.  “A common practical critique of sealing and expungement laws is that they are essentially useless in our current information environment,” she wrote in the Wisconsin Law Review. “Once information is released, it is disseminated into the digital world in so many potential venues that a person can never fully ‘expunge’ anything.”

Criminal Background Data and the Marketplace

There is heavy demand for criminal background information. A growing number of services are providing criminal background checks of job candidates and tenants for employers and landlords, but others who seek the information are “Mugshot” type websites who post the photos and information for free and then charge fees (usually $399) to remove expunged information.

If it sounds like extortion, you’re not alone. California’s attorney general, Xavier Becerra does too, and in May he filed extortion and money laundering charges against the website’s owners.

These websites have managed to continue operating on First Amendment grounds, which is apparently why Taha dropped Mugshots.com as a defendant in his Pennsylvania lawsuit. The liable party there was Bucks County – not because the criminal records (including expungements) existed, but because the county went too far in making them public. Specifically, Judge Wendy Beetlestone found that the defendant had “willfully” violated a state law requiring that “(o)nly state or local police departments shall disseminate criminal history record information to noncriminal justice agencies and individuals.”

People disagree on how much protection should be given to people on criminal databases, even if they have an expunged record. On one side, more than 20 states are adding or expanding laws to help people move on from their transgressions by being able to expunge their records, among other things.

But on the other side, many prosecutors and judges don’t think lawbreakers should easily get a clean slate. And neither do websites like Mugshots.com.

Meanwhile, if you have a criminal matter in your past you’d like to expunge, check what the laws are in your state. But if your record has been expunged, there’s no guarantee it won’t pop up someday on a website where you’ll need to expunge it a second time—for a fee.

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