Should expunction burden fall on defendants when charges fall through?

When police and prosecutors make a mistake and pursue charges against a defendant they cannot prove, should the defendant have to pay out of their own pocket to get the records expunged or should it be the state's responsibility?

That's the crux of the question raised by HB 293 by Rep. Harold Dutton which was heard in a subcommittee hearing of the House Criminal Jurisprudence Committee this morning. (See the video here starting at the 7 min., 30 second mark.) While some significant questions were raised that could result in the bill's alteration, the legislation was relatively well received and the members mostly appeared to support it.

Dutton's bill would require automatic expunction in cases where the defendant was pardoned, acquitted, or the case is dismissed. As mentioned previously, the legislation would also shift the burden to the state to clear the defendant's name when accusations never come to fruition.

I testified for the bill on behalf of the Innocence Project of Texas because so many DNA exonerees have trouble finding jobs, housing, etc., even though they've been cleared by the courts and in many cases received pardons. State and private databases continue to dredge up information about their cases that causes employers and landlords to reject them.

Especially for lesser offenses, the collateral consequences of having bad information in public databases can be more serious, even, than incarceration or other punishments.

Several of Texas' DNA exonerees have told me they must carry newspaper clips about their exoneration to job interviews in order to explain why they still show up as violent felons in state and private databases. But even with that documentation, once their application is submitted, too often some bureaucrat in the Human Resources department will later run a database query that keeps them from getting a job.

The bill's main sticking point, as a functional matter, was whether it should include "dismissals" that occur after a defendant has been given deferred adjudication and successfully completed a community supervision stint. Some prosecutors said that such information should be kept in case the person commits more crimes in the future, but the subcommittee didn't seem exceptionally sympathetic to that complaint.

Rep. Paula Piereson, to her credit, spoke knowledgeably and forcibly about flaws in Texas' deferred adjudication statute, complaining that defendants took such deals because they were told there would be no "conviction" on their record, only to learn years later that employers, landlords and others could still access the information and they were not eligible for the information to be expunged. Piereson declared that Texas should either "do away with deferred adjudication" or allow the records to be expunged, as Rep. Dutton proposed. "Deferred [adjudication] does not work," she opined.

The subcommittee seemed inclined to identify a list of specific offenses - mostly violent crimes, sex crimes, and possibly family violence, to judge by the discussion - where records should not be expunged.

Another prosecutor concern dealt with whether an expunction would harm cases where charges are dismissed with the intent of later refiling them. It seems to me, though, this could be easily addressed by inserting language that requires a prosecutor to declare whether they intend to keep open the option for re-indictment, perhaps establishing a deadline beyond which, if no new charges are filed, the records would be expunged.

Neither of these seemed like insurmountable objections.

The only other significant concern raised about the bill was a lame argument that this would be an unfunded mandate. Of course, DAs have no problem paying to pursue these cases, they just don't want to pay to do right by the defendant after they make a mistake.

In terms of cost, the committee was told that some counties charge a court fee to apply for expunging records - in Harris County, e.g., the fee is $250 - plus the defendant must typically pay an attorney, perhaps somewhere in the range of $1,500 to file the motion with the court.

As drafted, Dutton's bill entirely places the onus on the state to pursue expunction in these cases, including the cost, but there was some discussion of whether a $250 fee to the defendant might overcome the "unfunded mandate" objection. On fairness grounds, I don't particularly like that idea. If the burden of proof in court is on the state to obtain a conviction, it seems only just that the state should be responsible for making the individual whole when they're unable to meet that burden.

If prosecutors have enough manpower to pursue a case, they should be willing to devote the manpower to see it through to the end, win or lose. HB 293 is a terrific bill and, with a few adjustments, I'm hopeful the committee and the Legislature will approve it.