By Eric Mann
In response to a Lagniappe public records request, data released for the first time by the state’s Administrative Office of Courts shows that since the Alabama Legislature approved former Sen. Roger Bedford’s expungement bill in 2014, the state has received 586 petitions from people seeking to have their arrest records wiped clean. Of those, the state approved 413 petitions, or more than 70 percent.
The data was made available by the AOC several months after multiple requests to various state agencies seeking information the AOC is required by law to keep. Interest in the law was sparked by investigative journalist John Caylor’s legal troubles stemming from his publication of the expunged court record of Mobile-area attorney Thomas S. Smith III.
Caylor’s arrest shed light on the 2014 state law that allowed certain types of court documents and arrest information to be wiped from the public record. The law also criminalized publication of those records. In doing so, however, critics say the Legislature has created an unconstitutional “prior restraint” or censorship law.
In order to accurately report on the law and Caylor’s case, Lagniappe submitted a public records request to the AOC April 1 seeking expungement data for the period since the law took effect. Section 15-27-13 of the Alabama code says, if requested by the state Legislature, the AOC is expected to provide an annual report specifying the number of applicants requesting expungement, the number of expungements granted, a list of the offenses expunged and a list of offenses not expunged.
After more than a month, the AOC responded to the request in May, saying the data Lagniappe sought was not properly tracked by its data system. Also, Public Information Director Scott Hoyem said the AOC could not provide a list of offenses expunged because that data is deleted from its system and sent to the Alabama Law Enforcement Agency.
According to Hoyem, the only data available upon request through the AOC was the number of cases expunged, and determining that number would cost the newspaper $500 in programming fees.
However, after Lagniappe submitted a letter May 25 to the AOC demanding those records the office is required by law to keep, the AOC relented.
On June 30, the AOC supplied data related to the expungement law which showed the number of expungements in 2014, 2015 and 2016 to date as well as the types of records expunged, denied or left pending. The AOC did not charge for this information.
AOC attorney Chris Colee said the agency was able to “find a way” to produce the data, despite the agency’s previous claims its system was unable to track it.
The law allows misdemeanors, violations, traffic citations and municipal ordinance violations to be expunged. While some felony cases can be expunged, cases involving “violent felonies” are prohibited from expungement.
The law allows expungement in cases where the charges were dismissed with or without prejudice, no billed by a grand jury or in the case of an acquittal. The law also allows expungement of cases in which the defendant entered a deferred prosecution program which resulted in the charges being dismissed.
According to the data, this year to date there have been 132 total expungement petitions, 100 approvals and eight denials.
Among this year’s approved petitions are nine charges of second-degree theft, nine charges of possession of a controlled substance and six approvals each on charges of first-degree theft, public intoxication and third-degree criminal mischief. Among the eight denied petitions this year are charges of third-degree burglary, first-degree rape, first-degree robbery, driving under the influence, possession of a controlled substance and first-degree theft.
To date there are 133 expungement petitions left pending, including 18 charges for possession of a controlled substance and 12 for second-degree marijuana possession.
Attorney Patrick Prendergast said he hopes the Alabama Legislature will one day expand the law to allow for more serious charges to be expunged as well. Prendergast, of the Baldwin-based Dasinger Law Firm, has helped six clients file expungement petitions, none of which have been denied.
“I hope the Legislature will one day consider expanding the scope of what can be expunged,” Prendergast said. “What happens to someone falsely accused of rape, who is then acquitted or has those charges dropped? Right now, those people will always have that on their record. Those are the kinds of records that can really kill someone’s chance for employment.”
In order to file for an expungement, the petitioner must submit to fingerprinting by their local sheriff’s department, then send a completed application to the state, which will pull their criminal history to make sure they have not been arrested or charged with additional crimes since the charge they are seeking to have expunged. Then the petitioner must pay $300 and wait 45 days for approval by the court clerk, district attorney’s office and the arresting law enforcement department.
A judge then submits an order granting the expungement, which would typically require every record of the arrest to be removed from the public record, including mugshots, arrest reports and other court documents related to the case.
“It is like going back in time,” Prendergast said. “It is like the offense never happened. The expungement erases that history and state law even makes it a crime for people to expose the expunged record.”
In a previous interview, Bedford told Lagniappe the law was intended to protect people who made mistakes in their youth but were otherwise not convicted for those mistakes.
“For several years I had people calling me who applied for jobs but were not being hired because they had charges on their record that had been dismissed,” Bedford said. “These were people who had made a mistake in high school or college, or people who were in the wrong place at the wrong time. At the time, there was no mechanism in Alabama to have those records expunged.”
DATA FROM THE ADMINISTRATIVE OFFICE OF THE COURTS
Prendergast said before the law passed in 2014, young adults or teenagers often faced difficulty finding gainful employment because of simple misdemeanors.
“I’ve dealt with a lot of kids who come here on spring break or vacation, and they are good kids, but they get arrested for drinking on the beach or something like that,” Prendergast said. “When those charges are eventually dropped, those kids shouldn’t have their future jeopardized because of something like that.”
In 2014, the first year the data was collected, the majority of court records petitioned for expungement appeared to be drug related. That year 20 people sought to have their first-degree marijuana possession record expunged, with 12 approvals and eight petitions still pending. The same year 13 people petitioned for their arrest for possessing or receiving a controlled substance to be expunged, with four approvals and nine pending cases.
Possession of a controlled substance was the third most requested expungement, with 11 petitions and four approvals. Theft, possession of a forged instrument and selling marijuana near a school received six petitions each.
Also in 2014, one person’s arrest for bigamy was expunged.
The data is similar for 2015, when a combined 122 petitions were filed for charges related to possessing or receiving a controlled substance, possession of drug paraphernalia and first- and second-degree marijuana possession. Of those, 115 expungements were granted while five were denied and others remain pending.
Baldwin County Sheriff Hoss Mack said his department has handled roughly 25 expungement petitions since the law passed in 2014. The BCSO has not objected to any of those requests.
“The first year it passed we seemed to have a surge in petitions, but since then we handle maybe two or three a month,” Mack said.
Once approved by law enforcement, the state and a judge, the expunged records are kept by the Alabama Criminal Justice Information Center and accessible only with a court order. The records include arrest reports, booking and arrest photographs, as well as the state’s computer database records. The state retains a copy of the case indefinitely.
“We are able to maintain an investigative file in most cases, but what has been expunged is not available to the public,” Mack said. “If we do have to access that investigative file, we have to be able to show a court why we need that access.”
After an expungement, the court records in question are deemed to have never existed. The law requires court and law enforcement agencies to deny the existence of expunged court records. The law reads: “Except as provided in this chapter, the court and other agencies shall reply to any inquiry that no record exists on the matter.”
While the law’s critics have said it requires government agencies to essentially lie about their knowledge of expunged court records, Mack said that’s not necessarily true because expunged records are deemed to have never existed in the first place.
“We would never say something didn’t happen, but after an expungement there is no record of what happened,” Mack said. “So if someone asked us about an offense that had been expunged, we would have to tell them there is no record of the offense to comment on, which is the truth.”
Despite assurances from law enforcement agencies, some nationwide press freedom advocates such as the Reporters Committee for Freedom of the Press have criticized expungement laws for creating “Orwellian memory holes” where past offenses are deemed to have never occurred.
In a previous interview, RCFP legal director Gregg Leslie said states should not be allowed to treat real court proceedings as if they never existed. Leslie also warned against allowing government agencies to keep files on people without their knowledge.
“Expungement statutes should only keep the court from releasing them, but they don’t create an Orwellian memory hole where the information must be treated as if it never existed,” Leslie said. “Such statutes are a problem because the government, of course, keeps that information and can use it against people, while the statute just means that the people will not know what information the government keeps on citizens.”
Mack believes the Legislature “achieved a good balance” in passing the law in 2014. According to the sheriff, the law works because only certain nonviolent offenses can be expunged and there is a strict judicial review process.
Also, Mack said if investigators need to access an expunged file, the law allows for that to happen. In the event someone is charged but not convicted of a crime they actually committed, law enforcement agencies are still allowed access to those expunged files.
“Certainly, we know that sometimes when people get arrested but not convicted, that doesn’t always mean they are innocent,” Mack said. “It just means the victim dropped the charges, there wasn’t enough evidence to convict or they went through a pretrial diversion.”
Meanwhile Caylor is likely the first person in the state prosecuted for violation of section 15-27-16 of the Alabama code, which says anyone who knowingly divulges, gives access to or makes public the contents of an expunged court record without a court order is guilty of a Class B misdemeanor.
Caylor turned himself in for arrest to Daphne police on March 30 for publishing the record of Smith’s methamphetamine possession arrest from 2001 on his website, insider-magazine.com. According to the records published by Caylor, Smith had his 2001 drug possession arrest expunged after the state’s law was enacted. The records show Smith, a court clerk in federal judge Ginny Granade’s office in Mobile, completed a pretrial diversion program and was not convicted.
Caylor later became a fugitive when, instead of turning himself in on a second charge for the same offense, he fled the state. At the time, Caylor told Lagniappe he fled the state out of fear for his safety if he is jailed in Alabama because of the “investigative nature” of the content of his website.
Reached by phone July 11, Caylor told Lagniappe his life has been “a living hell” since he published the records, but said he does not regret doing so. Caylor claims he is a “First Amendment fugitive” and said he does not plan to return to Daphne Municipal Court for a scheduled August court hearing in the case.
“I don’t regret for one second what I published and I would do it again in a heartbeat,” Caylor said. “It will be a cold day in hell before I return for that court hearing. I absolutely will not return to Alabama for that matter. I won’t let them take my freedom away.
“It is only a damn misdemeanor,” he continued.
Since fleeing the state, Caylor said he has undergone heart surgery, had high blood pressure spikes and been robbed by a roommate, and claims he is now out of money. Currently, he said, he is “flat broke” and living “somewhere in Florida.” He claims he still fears for his life every day.
“That’s the price I paid for standing for the First Amendment,” Caylor said. “If we don’t stand for our rights, we will absolutely lose them.”
Alabama’s Interim Speaker of the House Victor Gaston has said he sent the section of the law criminalizing publication of expunged records back to the Judicial Committee for review because of concerns it could constitute a prior restraint. While other states have criminalized the release of expunged records, Alabama appears to be the only state that has made it illegal for them to be published.