The Injustice of California's Record Sealing Statute

If you were arrested and tried for a crime whereCalifornia that prevents these decisions being
there was not even "reasonable cause" to believemade on the basis of arrests or charges for
that you committed the crime, you can be leftwhich the person was factually innocent.
with a criminal record that will prevent you fromAccordingly, it makes good public policy sense to
getting a job, housing, volunteering in yourhave rap sheets be as accurate and free of
children's classroom, and other basic things thatinformation that would wrongly prejudice an
those with a clean criminal record can do. All thisindividual. California's record sealing law gives most
damage comes from a crime that you clearly didwrongfully accused clearing their rap sheet of
not commit.negative information.
California's record sealing statute Penal CodeThe procedure is put forth in section 851.8 states:
section 851.8. is designed to prevent this gross"in any case where a person has been arrested,
injustice by allowing people who are foundand an accusatory pleading has been field, but
factually innocent to have all records of the arrestwhere no conviction has occurred, the defendant
and court case sealed and destroyed. In mostmay, at any time after dismissal of the action,
situations, the statute successfully balancespetition the court which dismissed the action for a
state’s right to preserve informationfinding that the defendant is factually innocent of
against an individual's right to preserve theirthe charges for which the arrest was made."
reputation. However, in a large number ofIf the individual is successful the statute states:
situations, wrongfully-accused individuals are left"The court shall also order the law enforcement
with life-long damage caused by the records ofagency having jurisdiction over the offense and
arrests or court cases where they were factuallythe Department of Justice to request the
innocent, but the statute does allow for thedestruction of any records of the arrest which
records to be sealed.they have given to any local, state, or federal
The California Department of Justice (CDOJ)agency, person or entity. Each state or local
keeps a complete criminal history on everyagency, person or entity within the State of
person who has ever been arrested or charged inCalifornia receiving such a request shall destroy its
court with a criminal offense. This report isrecords of the arrest and the request to destroy
commonly referred as a rap sheet or backgroundsuch records, unless otherwise provided in this
report. Among other things, the rap sheet showssection."
the date, location, and reason for the arrest orOne of the major problems is that that statute
court case. Even if a person is found innocent orwill not allow for the partial sealing of a record.
if the charges are dropped, the record of theCourts have refused to interpret PC 851.8 as
arrest and any court case is shown on theallowing "surgical excision of certain parts of arrest
individual's rap sheet.records." So if an individual who is charged with
Unlike reports kept by credit bureaus or thetwo crimes is found factually innocent of one the
Department of Motor Vehicles who only reportcrimes and guilty of the other, no part of the
negative history for a limited number of years,record be sealed. Consider this scenario that leads
once something appears on the CDOJ rap sheet,to an unjust and unexpected result:
it stays forever; unless the individual successfullyA couple is having a heated argument. A neighbor
petitions to have the record of the arrest and trialwho fears violence calls the police. When police
sealed. A successful petition to have a recordarrive one of the suspects, who is in fit of rage,
sealed with wipe clean any evidence of the arrestwrongfully accuses the other of sexual assault.
or court case from the CDOJ rap sheet.The police arrest the accused for sexual assault
The CDOJ will only release the rap sheet toand disturbing the peace. An hour later, the
authorized state agencies for limited purposes oraccuser calms down, loses the anger and recants
to the individual who requests their own rap sheetthe testimony to the police. The wrongful charge
by filing paper, submitting fingerprints, and payingof sexual assault is never filed in court.
nominal fee (which can be waived for individualsHowever, the accused goes to court and pleads
who cannot afford the fee). Despite an apparentguilty to a misdemeanor of disturbing the peace
attempt to keep the rap sheet from publicand is sentenced with a $200 fine. Unbeknownst
disclosure, raps sheets are widely used for privateto this defendant, and most defendants, is that
purposes. According to a 1996 study by thethere is another sentence that they will have for
Society for Human Resource Management, 80life. Whenever some asks for a rap sheet, they
percent of mid-size to large employers conductedwill see that the defendant was arrested for a
criminal background checks to screen potentialfelony count of sexual assault. The defendant will
employees. That is up 26 percent from 1996. Raphave to spend a lifetime hoping people believe the
sheets are often required by a wide range ofexplanation for the negative history on the rap
other individuals and organizations, from landlordssheet and dealing with the likelihood that it will
to Little Leagues.cause unfair prejudice.
The information contained on rap sheets oftenThis unjust and unexpected result hurts the
determines which applicant gets such things asindividual and society by placing large, life-long
housing, employment, or the ability to interactobstacles to a person reaching their personal and
with their children.� There is no law inprofessional potential.