Tom Coale: Automatic Expungement and the Presumption of Innocence

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Most Marylanders understand our judicial system as binary: guilty or not guilty.  The jurors or judge make their findings of fact and the accused is either set free or receives a sentence.  Those who have found themselves on the business end of our judicial system know a much different story.  There are arrests with no convictions.  Pleas without judgment.  Charges being placed in limbo (i.e., stet) after a prosecutor determines that they do not merit prosecution, but also should not be dismissed.  

Despite the absence of the binary outcome expected by outsiders, the charges persist.  These individuals have never been found guilty, but bear the mark of having been accused and, in many cases, presumed guilty.  This is also true for those who have been found “not guilty” by a jury of their peers.

The only available recourse for those bruised, but not broken, by our judicial system is to seek expungement.  Under Maryland law, petitioners must wait three years before being able to expunge court records regarding acquittal, nolle prosequi, or dismissal.  For those cases placed on “stet”, petitioners need to wait until three years after final disposition of the charges, which may require additional filings in order to start the clock.  If an accused individual does nothing, these charges may remain electronically searchable for their entire life through Maryland Case Search and other background check systems.  Even worse, if the individual has an intervening conviction they are forever precluded from having previous charges expunged.

And lest I overstate the availability of an expungement, it involves a fairly significant amount of work.  Petitioners must obtain the requisite petitions, obtain detailed information about the charges at issue, and file a nonrefundable filing fee of $30 per case.  Individual petitions must be filed in each jurisdiction for which there were past charges and the petition may be opposed by putative accusers from the unprosecuted charges.  For those unfamiliar with the judicial system, or know such a system to only mean them harm, this burden is at the very least uninviting, but more often than not insurmountable. 

Our current system of expungement is fundamentally unjust; the cost of which fails primarily on the poor.  The American criminal justice system rests on the presumption of innocence.  Until that presumption is overcome, the accused remains unblemished in the eyes of the law.  At a time when so many citizens of Baltimore, and other jurisdictions, are picked up for nuisance charges that are rarely prosecuted, the punishment is the process.  The punishment is the charge.  When these individuals apply for employment, an unprosecuted charge may be the difference between them and an applicant with a clean record.  These charges may be the difference between them being seen as a law abiding individual, which they are, and a criminal, which they are not.

It is time for Maryland to adopt automatic and immediate expungement of acquittals, dismissals, and unprosecuted charges.  This is the only way to meaningfully enforce the presumption of innocence.  Such measures are commonly opposed by employers who believe they are entitled to all aspects of a prospective hire’s life, but to what end?  Unprosecuted charges tell you a person is unlucky or maybe was on the receiving end of someone else’s bad day.  They show you that this person may have grown up in an impoverished neighborhood with frequent, and commonly adverse, encounters with the police.  In Maryland, and many other states, they will show you that the applicant is black.  These are not legal grounds for refusing someone employment, but by merit of these empty charges they become one.  Is that the legal system we wish to endorse?

Governor Larry Hogan has recently emphasized his interest in doing more to help ex-offenders reenter the workforce and become productive members of society.  In doing so, Governor Hogan has the opportunity to improve the lives of thousands of Marylanders and lift our economy in the process.  A great place to start would be those who never “offended” in the first place.  We should allow people to move on with their lives.  We should adopt automatic expungement.


Tom Coale is an attorney in Ellicott City, Maryland.  He may be reached via e-mail at .

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