Sunday, June 21, 2015

Gov. Abbott Vetoes Expunction Reform

Governor Greg Abbott has vetoed expunction reform. I have written here and here about expunctions and the mass collection of criminal history data by private companies for profit. HB 3579 expanded expunction rights by changing language in the statute which appellate courts have interpreted as tying expunction of records to the arrested for offense rather than the offense for which the person seeking expunction was actually sentenced.

 In an internet age in which criminal histories are available at a key stroke, reforming laws to allow for expanded expunction rights to arrestees, in certain situations, seems a no brainer.

Well I guess not to Governor Abbott. 

HR departments are not made up of lawyers and explanations such as "Yes I was arrested for Possession of less than 2 oz of Marijuana but after the prosecutors got it, they pled it down to a conviction for Attempted Possession of Marijuana and I only paid a fine" tend to fall on deaf ears. 

Governor Abbott's statement on the veto was as follows:
Pursuant to Article IV, Section 14, of the Texas Constitution, I, Greg Abbott, Governor of Texas, do hereby disapprove of and veto House Bill No. 3579 as passed by the Eighty-Fourth Texas Legislature, Regular Session, because of the following objections:
I previously signed Senate Bill 1902, which increases the ability of those who have been convicted of misdemeanors to have their criminal records sealed from public disclosure. 
The purpose of that legislation is to expand the employment prospects of individuals whose minor criminal records may be unduly limiting their ability to pursue an honest living. 
House Bill 3579 has a similar goal, but it goes too far by allowing courts to expunge dismissed criminal charges-including serious felony charges----even when the defendant was convicted of other, related charges. This would be problematic for two reasons. First, dismissal of a criminal charge is not necessarily an indicator of the defendant's innocence of that crime, particularly when a multi-charge arrest results in a plea agreement. Second, unlike orders of non-disclosure, which seal records from public view, expunction seals the records even from law enforcement. Under House Bill 3579, even those convicted of serious felonies could have parts of their criminal record expunged. This would deprive law enforcement of information about the offense history of habitual criminals, which may be useful in the investigation of future crimes. 
Since the Eighty-Fourth Texas Legislature, Regular Session, by its adjournment has prevented the return of this bill, I am filing these objections in the office of the Secretary of State and giving notice thereof by this public proclamation according to the aforementioned constitutional provision.
These reasons do not hold up to scrutiny. Governor Abbott's first reason for vetoing expunction reform is: "dismissal of a criminal charge is not necessarily an indicator of the defendant's innocence of that crime, particularly when a multi-charge arrest results in a plea agreement."  I agree dismissal does not necessarily mean the defendant is innocent of the arrested for crime. But many times it is an "indicator" the defendant is factually innocent of that crime, even if they plead to another crime arising from the same arrest for which there was evidence of guilt.

Further, the expunction statute as it is now written does NOT require "innocence of [the] crime" as a condition of expunction. The statute entitles defendants acquitted by the trial court (except in a very narrow circumstance) to expunge the arrest for which they were acquitted. As any first year law student will attest, acquittal is not the same as innocence.  More significantly the statute as currently written does allows a category of convicted defendants a right to expunction: Defendants convicted but later pardoned for the offense for which they were convicted. These defendants are explicitly granted the right to expunge under existing law.

Both these categories of expunction eligible defendants under current law demonstrate this justification for veto is illusory.

 Moreover, a prosecutor is in the best position to assess the relative strengths and weaknesses of a case. If they decide to dismisses several cases in exchange for a plea of guilty to a stronger case arising from the same arrest, there is no good reason not to allow expunction rights on the dismissed charges. The prosecutor determined justice was served by dismissing in exchange for a sentence on other cases. Expunction rights would have flowed under the reformed statute.

How about DWI? Let us use a hypothetical 21 year old student at Texas A&M majoring in engineering who is pulled over and arrested for DWI. They cooperate fully, look good on standardized field sobriety tests, consents to a blood draw that months later comes back with BAC of .08. The prosecutor reviews and offers dismissal (or not to file) the DWI in exchange for a plea of guilty and 9 month deferred adjudication to Obstruction of a Highway or Passageway with alcohol conditions as part of the conditions of deferred. This guy or gal cannot under the current appellate interpretation of the law expunge the DWI arrest. The reform bill passed by the legislature would have allowed expunction of the DWI arrest but not the deferred to Obstructing a Highway.

As to the Governor's next justification for the veto,  "... even those convicted of serious felonies could have parts of their criminal record expunged." Well, not really Governor. The offenses on which the felon was convicted could not be expunged. That conviction is and will be available to law enforcement and the public.

As to the Governor's last reason for vetoing expunction reform: "This would deprive law enforcement of information about the offense history of habitual criminals, which may be useful in the investigation of future crimes." Possibly, but not entirely likely. Moreover, if a felony prosecutor has made a informed decision that a case should be dismissed, then why should it not be expunged? I am going to have to look again at the current statute, but if such a deal is struck post indictment, the arrested for offense, even if dismissed, may not be expunction eligible anyway.

So to you mothers and fathers of college students, when you ask me about expunction of some misdemeanor arrest your son or daughter caught that a prosecutor later reduced to another charge - other than a Class C deferred misdemeanor - it is your elected Governor who is responsible for that dismissed arrest not being eligible for expunction.

 Call him. Write him. I know he would be glad to hear from you.

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