Login | May 20, 2019

Supreme Court: Sealed records expand hope

KATHLEEN MALONEY
Supreme Court
Public Information Office

Published: March 14, 2019

When individuals end up in court because of poor choices or mistakes, big or small, they pay a penalty. They may serve community control, pay fines, or spend time in jail or prison. After finishing their court-ordered punishment, though, people often experience the negative stigma surrounding a conviction that presents obstacles to moving forward in their lives.

To build toward a more productive life, a person at a minimum will need some basics — housing, a job, maybe education. The ability to seal or expunge a criminal record helps those who’ve completed their sentence to make strides in new directions.

Consider someone convicted of shoplifting. That offense is petty theft, a misdemeanor, and categorized as a crime of dishonesty. Small as it may be, the conviction can carry lingering effects. The person may not be able to work in a long-term care or daycare facility or as a police officer, real-estate appraiser, or wildlife game protector. The person may not be able to obtain a teacher’s license, EMT certificate, or auctioneer license.

More serious crimes, not surprisingly, have more substantial consequences post-conviction. An aggravated assault conviction understandably may limit employment in law enforcement or at a preschool. But it also blocks the person from fundraising for a charitable organization for five years, prohibits employment as a bingo operator, and may prevent licensure as an athletic trainer.

Sasha Naiman, deputy director of the Ohio Justice and Policy Center, knows individuals with convictions who weren’t able to volunteer for events, such as serving a Thanksgiving meal at their children’s school.

“They go through so many steps – treatment, fines, probation – to put the past behind them. But actually it’s not a past chapter, because there are barriers whenever someone runs a background check,” Naiman said.

Sealing Limits Access to, But Doesn’t Erase, Criminal Records

The general public often misunderstands what sealing a record means. Delaware County Clerk Natalie Fravel notes that those with a record often believe that once sealed it will be erased and unavailable to anyone. Although sealing a record makes it inaccessible to the public, such as on an online court docket, the record still is retrievable by law enforcement and some government agencies.

When sealing a record, courts must remove both paper files and electronic records from public view. The records aren’t eliminated, though.

The first step in Fravel’s office when it receives an order to seal a record from the Delaware County Common Pleas Court is to time-stamp it. Then the staff removes the record from all the places it appears – in the physical journals of the court, from an electronic database, and from any microfiche records, said deputy clerk Melissa Stevens. They also take the paper documents and put them in an envelope that is locked in a secure location.

At the Cuyahoga County Clerk of Courts, employees move the physical file to an “under seal room” where all sealed records are secured, said Nailah Byrd, the clerk of courts. Only authorized staff on a team handling the sealed common pleas court records have access to the room.

Jim Boyle, manager of the criminal division for the clerk’s office, oversees the process. For records kept in an electronic format, a feature in the case management system removes the record from their database to shield it from public access, he explains. Some courts simplify the record-keeping by destroying the physical file after scanning the record to be stored electronically.

Who Must Seal Records, and Who Can Access Them

The clerks of courts typically notify outside entities about court orders to seal a criminal record. These groups can include prosecutors, probation departments, the Ohio Bureau of Criminal Investigation, the FBI, and local law enforcement connected to the particular case. They must ensure that the records are available only in the limited circumstances permitted by law. The defendant and attorneys also are given notice of sealing.

According to the Ohio Justice and Policy Center, which helps individuals apply to seal their records, courts, prosecutors, and police can access the records if there is an investigation into a new crime. Also, judges who are considering prior convictions when sentencing can view sealed records.

On the job front, employers may need to run background checks of job candidates or employees. Depending on the job duties/position and the criminal record, employers in these fields often have access to sealed records:

• law enforcement;

• organizations where employees work with children or the elderly, such as schools, daycare facilities, and health-care services;

• real-estate and financial institutions.

Most state professional-licensing boards, such as those for accounting, medicine, dentistry, nursing, and psychology, also may be able to view sealed records for the purposes of approving, denying, suspending, or revoking licenses.

Recent Legislation Expanded Crimes that Can Be Sealed

Last year, the General Assembly passed Senate Bill 66, which broadened who is eligible to have a court seal their record. The law, effective Oct. 29, 2018, promotes holding offenders accountable and protecting the public and also rehabilitating the offender. The Ohio Supreme Court created a bench card, updated early this year with the S.B. 66 changes, to help courts sort out the criteria for determining who is permitted to have their records sealed.

Eligible offenders now include any individuals convicted of no more than five fourth- and fifth-degree felonies if the offenses are non-violent and not felony sex offenses. The offender applies to a court to have the record sealed. If the court determines the offender is eligible (based on R.C. 2953.31(A)), it reviews additional factors:

• whether criminal proceedings are pending against the applicant;

• whether the applicant has been rehabilitated to the satisfaction of the court; and

• any objections from the prosecutor.

The court also must weigh the applicant’s interests in having the records sealed against the legitimate needs, if any, of the government to maintain those records.

How quickly a person can ask to seal a record depends on whether the person has completed all aspects of the sentence, has an unpaid fine or restitution that is collectible, and has other convictions or related charges.

Chief Justice Recommends Legislation to Give More Chances for Those with Low-Level Offenses

For individuals with low-level, non-violent, non-sex offenses, Chief Justice Maureen O’Connor has proposed expanding opportunities in Ohio to seal records. Chief Justice O’Connor recommends that those with low-level, non-violent, non-sex offenses be able to seal their record, regardless of the number of charges. For people with more serious felony offenses on their record, the chief justice proposes that they also should be given the chance to seal their records if they have no more than four misdemeanors and two felonies. She also suggests reducing the time people convicted of low-level felonies must wait before becoming eligible to seal their records from three years to one year.

“By allowing more people the opportunity to seal criminal records, we can help those who reform their lives to have greater access to employment opportunities,” Chief Justice O’Connor stated.

Once a record is sealed, Naiman said the person truthfully can mark “no” on forms, such as job or housing applications, that ask about a criminal record. If a sealed record erroneously shows up on an employer’s background check and an applicant isn’t hired or is fired because of the record, the applicant is entitled to review a copy of the background check, she adds. Then job seekers should have a chance to correct or clarify the mistake with an employer.

For jobs where employers can or must review sealed records, such as professions requiring a license or working with vulnerable populations, Naiman notes possible options. Individuals can apply to the Ohio Department of Rehabilitation and Correction for a certificate of qualification for employment (CQE). If the applicant completes the rigorous process, the CQE shows that the conviction alone isn’t enough to make the individual unfit for a professional license. According to an Ohio Justice and Policy Center guide, the employer still has discretion, but the certificate can help open doors.

Dismissed Cases and Not-Guilty Findings Are Part of Record

Clerks of courts maintain records of all court cases, but some cases don’t involve convictions. Someone found not guilty of a crime also can ask the court to seal the case record. Also eligible to request sealing are individuals named as defendants in dismissed matters – whether a complaint, a grand jury indictment, or an information (a prosecutor’s written accusation that a crime was committed).

In these situations, individuals can request to have their record sealed sooner, sometimes immediately in court when the matter is dismissed, said Judge Patrick Carroll of Lakewood Municipal Court.

Naiman stresses that it’s important to seal records of non-convictions. Imagine a person who has six offenses noted in court records – four dismissed or never pursued, and two convictions. Now the person applies to rent a house, and the landlord does a credit check.

“Those who see the six records may think different things,” Naiman said. “Despite the legal protections for non-convictions, the landlord might not rent to the person. The landlord might not be honest about why, and may instead say, ‘It’s not a good fit.’ But if the four non-convictions are sealed, it puts the two convictions in a different frame.”

As Laws Evolve, Courts Adjust

Courts continually adapt to legislative changes to ensure that sealing is done correctly.

After S.B. 66 went into effect last year, Lakewood Municipal Court had college students working at the court sift through earlier denials of requests to seal records, Judge Carroll said. Individuals with two misdemeanor convictions are now potentially eligible for sealing. If those two convictions were the only bar that had prevented sealing a record, a hearing was scheduled, he notes.

Judge Carroll, who helped develop the Supreme Court’s updated bench card on sealing records, typically discusses the options and timeframes for sealing records with defendants while they’re still in court dealing with the consequences of a crime. The municipal court handles many minor drug possession charges and thefts, such as shoplifting.

“It’s a 19-year-old who stole a candy bar, or a person who did stupid stuff earlier in life, and now they can’t get bonded to work in a bank or hired as an aide in a nursing home,” he said. “It’s nice to be able to tell someone who has committed a lower-level offense something encouraging.”

Few Criminal Records Can Be Erased, or Expunged, in Ohio

Although the word “expungement” is repeatedly used interchangeably with “sealing,” expunging a record in Ohio technically means to permanently erase it, making it no longer accessible to anyone. In Ohio, there are only a handful of situations when a case record can be expunged. People who are charged with certain offenses but are found to be victims of human trafficking are one group that has an opportunity to erase their case records.

Judge Heather Russell, who oversees a specialized docket for human trafficking in Hamilton County Municipal Court, reviews expungement requests from victims of human trafficking.

Like the sealing process, if the court concludes that a record can be expunged, the order is sent to the clerk of courts, which then notifies other government agencies, such as law enforcement. The groups are directed to “destroy, delete, or erase” the record, as state law mandates, Judge Russell said.

Her court even runs records checks afterward to see if an expunged record appears. Staff does this every few weeks, she notes. Sometimes the applicant will check, too, and alert the court if an expunged record shows up. The court then contacts the agency and lets them know that the record hasn’t been deleted but should be, Judge Russell said.

Changing Views Open Possibilities for Former Offenders

Allowing some case records to be sealed or expunged gives individuals an opportunity to move on without fighting recurring hurdles that arise after an earlier encounter with the courts.

“It shows our legislature’s desire to give people second chances,” Judge Russell said. “It’s a huge change in the criminal justice perspective, and everybody deserves a second chance.”

“When a person has done what the court has asked, we have to let it go,” adds Naiman. “Accountability for an offense can exist. But six years later, when someone wants to be a counselor for others with a drug problem, or wants to move to a neighborhood that’s good for their kids, we as a society want that.”

Watch CourtNewsOhio.gov for an article addressing online access to records that should be sealed.


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