Legislation Would Let Those Convicted of Misdemeanors and Felonies Petition to Seal Their Records

On the ballot last year a measure which would have legalized medical marijuana, and expunged the records of those convicted of marijuana offenses in the past, failed on the statewide ballot.

But the issue isn’t dead. State Rep. Shannon Roers Jones, a Republican from Fargo, is proposing two pieces of legislation to address those issues. One is a marijuana decriminilazation bill I mentioned in my Sunday print column.

The other is a bill which would establish a process through which those convicted of crimes – felonies and misdemeanors – can petition the courts to have their records sealed.

Here’s an excerpt showing the grounds for a petition:

Note that section 2 would disallow petitions for offenders who have to register with the state.

A sealed record would be unavailable to the public, except by way of a court order. Petitioners would have to include their complete criminal history, including offenses committed in other states, and those who are unsuccessful wouldn’t be to file again for three years.

The legislation would also prohibit employers from using sealed records for hiring decisions:

I like the spirit of the bill. I want to support efforts to make room for redemption in our society. If someone steals a car in their 20’s, should they carry what amounts to a scarlet letter around with them for the rest of their lives? Isn’t it possible for that person to be someone better in their 30’s or 40’s? Shouldn’t we want that sort of rehabilitation to be easier than it is now?

That being said, I have some concerns about this legislation.

For one, as a practical matter, how helpful is this? While the state can seal its records, that doesn’t mean media reports about a crime and conviction disappear. I’m not sure how useful sealed records are in this digital age.

Which brings up another problem. How can the state tell employers to disregard a sealed felony conviction, for example? If you’re considering someone for employment, and an internet search turns up a news article showing that person was convicted of embezzlement, but when you go to get the records it turns out the case is sealed, can we really expect that employer to disregard? And why should they have to disregard it? It exists. It’s a thing that happened. Can the law really ask an employer tasked with a hiring decision to ignore reality?

We must also consider the public’s right to now, which is not unimportant. The law addresses this when enumerating the basis for a judge grating a petition:

It seems to me there’s a benefit to every petitioner to having their criminal records sealed. That’s always better for them than having it unsealed, right? But when does that interest outweigh the public’s right to know?

I guess we’re leaving it up to the subjective opinion of judges.

Again, I like where this bill is heading, but there are some serious implications to consider before we jump ahead.