TX- Sealed records give Texas offenders a second chance, but 1,500 were charged again

A glass is half-full or it is half-empty? The flip side is, 90% of those adjudicated were able to start over and are paying taxes and rents by being employed, and there fore not a drain on society. Why would that be ignored? Those that do reoffend will be punished accordingly, and if their records were not sealed, that is no deterrent to reoffending.

12-15-2008 Texas:

AUSTIN – More than 1,500 Texas offenders who had their records sealed from public view were charged with new crimes in the past two years.

And about 10 percent of their 2,300 alleged new offenses were violent, including a handful of killings and sexual assaults.

"Wow, that's a pretty high level of recidivism for a category that the Legislature was claiming were rehabilitated and not a danger to society anymore," said Williamson County District Attorney John Bradley. "I'm surprised that there are so many violent crimes."

The statistics, obtained by The Dallas Morning News from the Department of Public Safety under state public-information law, offer the first glimpse of behavior in the "free world" by 14,000 people who invoked a 2003 law to have their records sealed. It also raises tricky questions about whether society, wielding an eraser or a court seal, can help give first-time offenders a fresh start without impeding law enforcement and perhaps creating safety risks.

Some criminal justice experts caution against reading too much into the statistics, which don't track convictions on the new offenses.

Austin defense lawyer Keith Hampton, who said he wants judges to have wider latitude to expunge records and was skeptical that the 2003 "seal" law would work, called it a roaring success. Few if any other criminal rehabilitation efforts see a huge majority of offenders avoiding rearrest in the first year or two after they're freed, he said.

"In the age of the Internet, where accusations cling on people the same way the scarlet letter did 300 years ago, these nondisclosures are really, really significant," said Mr. Hampton, chairman of the Texas Criminal Defense Lawyers Association's legislative committee.

Lawmakers who crafted the measure tried to steer a course between total disclosure of everyone's pasts – aided by a proliferation of electronic, instantly searchable criminal history databases – and destruction of low-risk defendants' records after a period of demonstrated good behavior. Prosecutors oppose destroying records, saying some will reoffend and deserve stiffer punishments.

The seal law lets certain offenders pay $28 and ask a judge to order law enforcement agencies not to disclose their criminal histories. Police, prosecutors and certain employers screening applicants for sensitive jobs still can obtain the records.

Those accused of violent or dangerous offenses are not eligible. The privilege also is restricted to offenders placed on deferred adjudication who complete community supervision without incident. Depending on their crime's severity, some also must avoid being convicted of another crime for two or five years.


Safeguards

Although deferred adjudication means the offense won't count on a person's criminal history if he successfully completes community supervision, some civil liberty and inmate rights advocates say the benefits faded with greater use of background checks after the 9/11 terrorist attacks.

Sen. Royce West, D-Dallas, the seal law's author, said the background checks pick up a person's original arrest. That scares many potential employers and landlords from hiring or renting to an offender, "even if he's kept his nose clean" and is eager to become a productive citizen, he said.

Under the law, "law enforcement still has the right to look under that seal," said Mr. West, a former prosecutor. He said "reasonable safeguards" are in place to ensure "no one is getting into sensitive positions with a criminal record."

Mr. West noted he's the one who asked DPS to track the subsequent behavior of deferred adjudication defendants who get their records sealed, to check the program's effectiveness.

DPS says that in 2006 and 2007, fresh charges were brought against 1,544 of the 14,116 offenders who obtained "nondisclosure orders" since 2003.

"This is of concern," said George Allen, executive vice president of the Texas Apartment Association, whose members ask potential renters about arrests and convictions.

"Even if it's only 10 percent, that's significant in our book," he said.


Raises questions

Mr. Bradley, a leader in the state prosecutors' group, said although it's unclear if sealed records have harmed anyone, "it does raise the question about the legitimacy of closing to the public information that might help them assess whether or not these people should be given jobs or places to live that could endanger other people."

Mr. West, though, said the greater good is served by shielding some information.

"It's sound public policy to give people a second chance," he said.

Angie Klein, manager of DPS' criminal history processing bureau, which provided the numbers, said her study didn't track convictions and acquittals on the new charges. Nor did DPS look at recidivism during the first three years the law was in effect, so saying just 10 percent or 11 percent reoffended "would not be correct," Ms. Klein said.

Tony Fabelo, a researcher for the Council of State Governments who used to run the state's now-defunct Criminal Justice Policy Council, said it would be useful to know if the law creates risks to public safety.

But he said that would require thorough studies of recidivism by those seeking seals of their records and a larger group of deferred adjudication defendants who do not.

Carl Reynolds, administrative director of the Office of Court Administration, said 135,000 of the 938,000 criminal defendants whose cases were resolved in 2007 were placed on deferred adjudication.

"You're not convicted, though you're still exposed to the full range of punishment if you screw up," he said. "That's part of why it's so widely used."

HOW IT WORKS

How it works: A judge issues an order that seals your record from public view.

Cost: $28

Who's eligible: Some offenders who were placed on deferred adjudication and later completed a term of community supervision without further incident.

Who's done it: More than 14,000 people from 2003 through last year.

Who's not eligible: People charged with murder, kidnapping, crimes that require sex offender registration, domestic violence, stalking or violating a protective order, injury to a child or an elderly or disabled person, or child abandonment or endangerment. Also disqualified is anyone convicted of another crime while under community supervision or during a waiting period.

Waiting periods: If your crime was a minor misdemeanor, you may petition for sealing your record immediately after discharge from community supervision. For serious misdemeanors, the wait is two years from the time of discharge; for felonies, it's five years.

Who still sees your record: Law enforcement still may share your record with prosecutors and other law enforcement officials, occupational licensing agencies, school districts, public or nonprofit hospitals, fire departments, commercial transportation companies, children's shelters, and state and community agencies serving vulnerable people.

Who can't see your record: The majority of employers, apartment managers and private individuals.

SOURCE: Texas Department of Public Safety; Dallas Morning News research. ..News Source.. by ROBERT T. GARRETT / The Dallas Morning News