overbroad and there is an open question as to whether it applies if a record has been sealed but not completely destroyed. In what ways can modern internet-based media complicate the efficacy of an expungement order? Are there any ways to mitigate this? A few states have information-sharing agreements with private companies that sell records – including juvenile records – online for a nominal fee. Online record check companies often use out-of-date information pulled from public court dockets and arrest or inmate reports with little to no concern for the accuracy of the information. Those initial reports rarely match the current status of the person’s record but are difficult to correct. The online services can charge to ‘research’ a request for correction but are unlikely to correct the mistake short of a legal action. Clients and counsel should always keep copies of any orders granting sealing or expungement to strengthen their argument if there are online mistakes. How can legal counsel act to ensure that a request for expungement has the best possible chance of success? Counsel can assist clients in gathering and presenting the request in the best light. The prosecutors are usually given notice and an opportunity to object to motions where the court has discretion in granting the request. As with any situation involving courts and prosecutors, clients are best served by having an experienced advocate to assist them. What legislative trends are you seeing in this area? Ban the Box ‘Ban the box’ legislation seeks to remove questions about criminal history from employment applications. Specifically, it seeks to eliminate the checkbox that asks if applicants have been convicted of a crime. Approximately 31 states, including California, have passed some form of ban the box legislation or fair chance policy. This generally requires that a conditional offer of employment be made prior to asking about convictions. 11 states also require private employers to remove questions from job applications that ask about previous criminal convictions. ‘Ban the box’ is currently focused on employment laws, but criminal records can negatively impact state or federal licensure, housing availability and education opportunities. If the goal is rehabilitation, forcing someone to wear a scarlet conviction for life prevents moving forward. Federal employers are also subject to ‘ban the box’ rules that prohibit asking about convictions unless a conditional offer of employment has been made. Anything involving security, transportation or like jobs are excluded from ‘ban the box’ rules. H.R. 6667 H.R. 6667, aka ‘The Fresh Start Act of 2022’, is a bill pending in Congress to allow expungement of federal non-violent offences. If passed, the law would require automatic granting of an expungement for certain federal offences seven years after completing the sentence for the offence and discretionary relief one year after completing the sentence. The bill has a low chance of passage given the newly elected Congress that will form in January, but it is a large step in the right direction. Federal law for expungement is sharply limited to first time possession cases if someone was under 21 at the time of the offence. Can you share any insights that you have gained from your own work regarding expungement? Courts and prosecutors are reluctant to grant the person a fresh start. Even convictions that should be automatically sealed require vigilance to make sure a person gets the relief they deserve on the local and state level. Some of my biggest fights on these cases come not from the local prosecutor, but the state Department of Justice failing to recognize the relief. 24 LAWYERMONTHLYDECEMBER 2022
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