General Assembly Kills Bill That Would Have Expunged Certain Arrest Records
Those arrested in Baltimore on charges of loitering, littering, and peeing in public will have to wait at least one more year to get their arrest records automatically erased, free of charge, without giving up their right to sue the police for false arrest. On March 24 the last General Assembly bill calling for “automatic expungement” of some arrest records died by one vote in a House of Delegates committee.
“I think it’s a travesty,” says David Rocah, a staff lawyer for the American Civil Liberties Union of Maryland, who has testified on behalf of the expungement bills. “Everybody—with one exception—who testified before the committee agreed that legislative reform was necessary.”
In fact, the bills had several opponents, including the state police and the Maryland Department of Public Safety and Correctional Services. But political observers expected an expungement bill to pass this session. Disparate groups, from the ACLU to Baltimore State’s Attorney Patricia Jessamy to Mayor Martin O’Malley’s office, testified in favor of automatic expungement for those arrested but released without charge. There were three different bills relating to the measure in the House of Delegates. A special subcommittee grafted the three House bills together into a single bill, but then, in a move that surprised many, the House Judiciary Committee declined to pass it. The bill received 11 votes but needed 12 to go to a vote in the full House.
“In the interest of justice this should have passed,” says Margaret Burns, Jessamy’s spokeswoman.
Burns says Jessamy favored the bill by Baltimore Del. Keith Haynes (D-44th District), which was pre-filed before the legislative session began. Haynes’ bill, the result of months of negotiation with sometimes bickering parties, was “by far the most detailed,” Burns says.
The Judiciary Committee voted down Haynes’ bill on March 22, although Haynes says his bill was to form the basis of the later, even more detailed bill that failed two days later.
Asked what happened, Haynes chooses his words carefully. “I was not on the work group,” he says. “But . . . sometimes you can have a crisp, clean, straightforward bill, but when you try to incorporate other sponsors, components of other bills, it can get bogged down.”
In fact, the final bill, House Bill 1363, differed in several ways from the one Haynes put forward. For instance, it called for the expungement of criminal records prior to 1975. It also broadened the definition of cases eligible for automatic expungement to include anything but a straight “guilty” verdict. A “fiscal note” from the state Department of Legislative Services put the annual cost of HB 1363 at more than $3.1 million. Haynes’ bill would have cost only about $300,000, according to the fiscal note.
But the cost of the bill did not cause its demise, says Baltimore Del. Jill Carter (D-41st), who became the lead sponsor of the final legislation that failed.
“We were told by Legislative Services that HB 1363 as amended would likely be in the $250,000-$300,000 range,” she wrote in an e-mail to City Paper. The higher figures were based on the cost of the broader definition of records to be expunged, she explained; those broad definitions were to be amended out of the bill later.
Two sources suggest that the bill died because Carter, who has taken the lead on the issue of “false arrests” in Baltimore, is not well liked in the House of Delegates. The sources, both of whom worked on the issue for more than a year, did not want to be quoted disparaging a legislator.
Carter, an uncompromising advocate for those arrested and jailed without criminal charges, has for several years tried to get legislation passed that would allow automatic expungement of not just those records, but also people acquitted at trial; those receiving a “stet”—or indefinite postponement—of the trial; and even those who receive “probation before judgment,” an adjudication typically given to first- or second-time offenders who promise to get drug treatment. Carter’s bills failed, but they helped to galvanize advocates for expungement, including homeless service providers and the state Office of the Public Defender.
Last year, the advocacy community approached Haynes, says one source in that community, who crafted a narrower bill designed to cover only those arrested but never prosecuted—some 12,000 people per year in Maryland.
Haynes’ bill, with amendments, was expected to pass both houses of the legislature. But Carter was made co-chair of the subcommittee that combined the three bills into one. The resulting bill, according to the fiscal note, was “identical” to a bill Carter introduced in 2004, which was gutted before passage and as a result did not offer automatic expungements.
Carter blamed supporters of Mayor O’Malley for the bill’s demise in committee, telling an internet news outlet that his administration supported expungement as a public-relations ploy only.
“O’Malley supporters worked behind the scenes with the chairman (Delegate Joseph F. Vallario) to kill the bill,” Carter told Countyvibe.com in an interview she then e-mailed to City Paper. “There was no respect for process. No respect for the work and input of the subcommittee.”
“Consider the source,” replies O’Malley spokesman Steve Kearney when the issue is raised with him. “Does she offer any proof?”
Carter says the proof is in the process, which was unlike the normal method of combining bills in committee. She says her co-chairmanship was a figurehead position, and that those around her took control of the bill even as they affixed her name to it.
Carter says she was told by one of the “inner circle, back-room delegates on the committee” that Prince George’s Del. Anthony Brown (D-25th), who is running for lieutenant governor on O’Malley’s ticket, and Baltimore County Del. Robert Zirkin (D-11th) convinced Prince George’s Del. Vallario (D-27A) and Baltimore Del. Sandy Rosenberg (D-41st) to kill the bill.
“Reason—because Carter has taken the lead on the issue of illegal arrests in the city, and she is not supportive of the mayor in his bid for governor,” Carter writes in an e-mail to City Paper. “They wanted to send a message that only legislators who are supportive of the mayor will be helped (with passing legislation) and those who do not support the mayor will be hurt.”
For whatever the reason, advocates of the automatic-expungement process say the Baltimore delegation, in failing to work together, let them down.
“It was surprising,” Burns says. “How shortsighted to not take some version of this bill and pass it. It’s mind-boggling.”
Asked what Jessamy will do about it, Burns replies, “Try again, try again, try again.”
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