The System Works as it Should: Spring Break and Louisiana Expungement Law

Intro

Every day there was freshly brewed coffee in the kitchen, and every day we arrived late, with our Starbucks in tow. The possibility of insufficient creamer, or of having to make a new pot of coffee for ourselves, justified our risk-averse behavior. Our collective task was to learn the letter and practice of Louisiana's Expungement Statute, explain it in laymen's terms, and recommend strategies for helping people with arrest and criminal records who are trying to improve their lives. The task required Starbucks, long lunch breaks at wonderful restaurants, and accommodations at one of NOLA's trendiest hotels.

Sixteen people made up CLS's informal New Orleans (NOLA) Spring Break delegation to the Student Hurricane Network (SHN), a national association of law students formed to provide legal assistance to communities affected by Hurricanes Katrina and Rita. Six of us (three 1Ls and three 3Ls) were assigned to Safe Streets: Strong Communities, a community-based organization aimed at reforming NOLA's criminal justice system. Safe Streets shares a building with three similar organizations and is located in a neighborhood replete with buildings in various stages of disrepair and decay. A (disaster) tourist might assume that Katrina spawned such dilapidation. But there are no signs of spray painted quadrants or water lines.

The Objective

Safe Streets was planning "Expungement Day: The Road to True Public Safety," an all-day event at a local community center to provide information and free legal consultation to hundreds people seeking to "clear" their criminal records. The event flyer asked if the reader had been turned down from a job or from public housing due to an arrest, charge or conviction. A Safe Streets Co-Director explained that a key ingredient to reducing NOLA's crime rate (which is responsible for the city's reclaimed title as the nation's "murder capital") is removing such collateral consequences by criminal records expungement.

Expunging an arrest record that did not lead to a conviction is tantamount to destroying it. Expunging any other type of criminal record (i.e., charges and convictions) consists of removing it from public access so that the record becomes confidential and remains available to law enforcement, criminal justice and certain employment licensing agencies.

When asked if mass expungements would perversely affect the public safety objective behind Expungement Day, the Co-Director proffered that people will be less likely to engage in criminal activity if they have access to decent jobs and housing. Among the largest Southern cities, NOLA has the lowest percentage of its population in the labor force and Louisiana has an incarceration rate higher than Tennessee, Georgia, North Carolina, Texas, and Alabama.

Because the Clerk Told Me So

Ray Clifford was arrested and subsequently not charged with forgery (a felony) in 1999. He thanked me for calling and told me that he did not need expungement application assistance. Although he had never filed a motion to expunge the arrest, the New Orleans Parish Clerk of Court had told him that his arrest record is "clear." Seven of the thirty potential expungees I spoke with, including Ray, had attempted to obtain the necessary paperwork for an expungement motion from the Clerk of Court and had either been given incomplete paperwork or nothing at all.

The expungement application procedure is tedious and expensive. It includes archaic legalese, several court documents, and a $325 fee per criminal record. I called potential expungees in order to: encourage them to attend Expungement Day, ensure that they get the necessary paperwork to evaluate their eligibility for expungement, and get additional information about their criminal records. The Louisiana Expungement Statute states that arrests for misdemeanor and felony offenses without a conviction remain on a person's record even if charges are never brought, unless s/he meets the eligibility requirements and successfully moves to have the record expunged. The statute limits expungement eligibility to cases in which: (1) no prosecution was instituted; (2) the proceedings were disposed of by dismissal or acquittal; or (3) a conviction is dismissed following the successful completion of the requirements of a deferred sentence. Convictions for misdemeanors and only certain (i.e., non-violent) felony offenses are expugnable. Only one felony conviction may be expunged in a five-year period.

No Conspiracy Here

The 3Ls prepared a memo summarizing the letter and practice of expungement law in NOLA. The memo states that the NOLA police department has only one officer who processes expungements. This officer is overwhelmed and unable to process expungement orders in a timely fashion. The memo discusses expungement processing problems caused by inter-district arrests and convictions not being entered into a centralized database. Moreover, the memo cites the common and unlawful exercise of discretion by state police in refusing to process judicial orders granting expungements.

The memo's conclusion states that "alleged [police] misconduct" regarding expungements appears to be merely "procedural." "[T]he system works as it should" because expungement orders that do not adhere to the statute are likely the same orders that police officers refuse to enforce. Prior to the memo's conclusion, it mentions statutory language stating that those who do not comply with a judge's expungement order can be held in contempt.

Conclusion

In our final meeting with the Co-Director, a 3L told her that the failure of police officers to process judicial expungement orders can be seen as a "self-correcting mechanism" that informally prevents the illegal expungement of criminal records. By that point, the Co-Director had sat through a full week of "check-in" meetings wherein the same 3L had repeatedly told her that Expungement Day's objectives were misguided and problematic from a legal perspective. She responded to his "self-correcting" analysis with a momentary blank stare. Then, she abruptly ended the meeting and left the office shortly thereafter without saying "goodbye."

When a 1L remarked that the Co-Director's departure was rude, the aforementioned 3L quipped, "That's why we never drank this place's nasty coffee." When the 1L asked how the 3L knew what the coffee tasted like, the 3L responded, "Whatever."