Wednesday, September 17, 2014

Senate committee told to better regulate sale of criminal records

Sarah Pahl, a policy attorney at the Texas Criminal Justice Coalition, testified yesterday to the Texas Senate State Affairs Committee on the subject of "the widespread storage and sale of criminal records information." See her written testimony (pdf). Among her findings:

  • In Texas, nearly 12 million individuals are included in the state criminal history records.
  • Employers and housing providers often rely on inaccurate or incomplete criminal records. The Texas Department of Public Safety reported in January 2013 that only 81% of Texas adult arrests in 2011 had a reported disposition. In other words, nearly 1 in 5 of all Texas criminal records do not include final dispositions.
  • Various public agencies across Texas jurisdictions participate in selling criminal records to private entities. These include, but may not be limited to:
    • County and District Courts (Clerk’s Office)
    • Texas Department of Public Safety (DPS)
    • Criminal Justice Assistance Division (CJAD), a division of the Texas Department of Criminal Justice 
  • [P]rivate entities that purchase criminal records – whether from county and district courts, TDCJ, or elsewhere – are not routinely notified of updates reflecting orders of nondisclosure, expunction, or even final dispositions. Countless individuals are adversely affected by this practice that encourages the widespread dissemination of outdated and incorrect criminal records.
Sen. Eddie Lucio could hardly believe that 12 million Texans have criminal records in a state of 25 million or so. But her source is a federal Bureau of Justice Statistics report (pdf, see Table 1). In that document, she observed in a footnote, "The number of individual offenders in the state criminal history file was 11,824,200." I understand being surprised, though, that's a vast figure. I recall former state Sen. Elliot Shapleigh being similarly shocked when he learned that more than ten percent of Texans at any given time were wanted by the police. (Not to get sidetracked, but much of that has to do with the wretched Driver (Ir)Responsibility Surcharge.)

In any event, here are Pahl's/TCJC's IMO well-considered recommendations:
  • Restrict the sale of criminal history record information to private entities until a final case disposition is entered
  • Prohibit the bulk sale of criminal history record information and mug shots.
  • Alternatively, allow the Texas Department of Public Safety (DPS) to be the only clearinghouse for the sale of criminal records, which will ensure uniformity of all record sales and compliance with updates to records (e.g., orders of nondisclosure and expunction).
Further, Pahl suggested the state "Reform the qualifications and procedures related to orders of nondisclosure, which limit access to (vs. completely expunge) criminal records." In particular, they should:
  • Expand the eligibility criteria for nonviolent offenses and reduce waiting times before being permitted to petition for orders of nondisclosure.
  • Reform the e-filling system to allow for a streamlined web-based petition process that allows individuals to petition without an attorney.
  • Prohibit the forfeiture of the right to nondisclosure in plea agreements.
  • Prohibit third parties from asking individuals to request records that are subject to an order of nondisclosure.
On expunction, Pahl suggested the Legislature should:
  • Expand eligibility criteria required to expunge criminal records.
  • Provide automatic expunctions of arrest records for cases that do not result in a conviction.
  • Allow judges to automatically expunge records for those who successfully complete specialty court programs.
  • Require filing attorneys to be served with notice by anyone who files an answer to a petition for expunction.
  • Require the Texas Department of Public Safety (DPS) to certify compliance with orders of expunction.
Go here to see her full testimony, these are just top-line excerpts. 

In the interest of full disclosure, your correspondent is currently performing consulting work for TCJC on a separate matter. I suppose Grits should also mention that I testified at the same Senate State Affairs Committee meeting on behalf of the Texas Electronic Privacy Coalition regarding the committee's interim charges on requiring warrants for electronic metadata, which was a bit of a surreal experience. More later on how that went.

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