Most of those arrested will almost certainly be released without charges or have their charges dropped. Others will face charges and may be convicted. Regardless of the outcome, the mere fact of an arrest will leave a person with a criminal record in most states, creating long-term barriers to employment and housing, and in other areas of daily life. Protesters should not wind up with a lifelong criminal record.
States should provide for automatic expungement of records that do not result in a conviction, particularly where the government does not even bring charges. States should also expand the availability of relief for convictions.
Since May 26, people have been arrested for a range of conduct during and after protests: some for property destruction and violence, but most for participation in peaceful demonstrations, news reporting or innocuous activities in the vicinity of protests.
In Los Angeles, the city with the largest number of arrests, the bulk were for failure to disperse or for violating curfew. The city’s curfew order has been dropped, and Los Angeles officials announced they would not pursue criminal charges for curfew and dispersal orders.
But no one has explained what will happen to the records of those arrests.
An Atlanta woman arrested for being a "pedestrian in a roadway” and “refusing to comply when asked to leave” told the Guardian newspaper, “Now I have my mugshot taken, my fingerprints taken and my eyes scanned. Now I’m a criminal over an illegal arrest.” The same report quoted a Minneapolis man who said he was cleaning his neighborhood sidewalk of rubber bullets and teargas canisters when he was arrested and detained for 48 hours, with no probable cause ever given.
Failure to clear arrest records such as these is not only bad policy but also an ironic outcome for protesting excessive policing. It will likely serve as a deterrent not just to free speech and assembly but also to media coverage of protest events.
In most states, arrest records remain in place unless the person becomes eligible for expungement under the laws of the state in question. Even then, an eligible person usually must navigate a complex court or administrative process to obtain relief. Studies show that because of procedural hurdles and other barriers, only a small percentage of those eligible to apply for expungement in fact do so.
Until and unless they are expunged or sealed, arrest records are generally distributed to government officials and the public through digitized record systems, background screening services and the Internet. They are available to employers, schools, licensing boards, housing providers, social services agencies and law enforcement. Even after they are expunged, they can still surface in Internet searches and on background reports.
Our research indicates that automatic or expedited expungement of many non-conviction records is available in 15 states, thanks to recent reforms. Thirty-three additional states expunge or seal certain non-conviction records, but only after a person completes a court or administrative process, often with restrictive eligibility requirements and burdensome procedures, including waiting periods and even contested hearings.
Ironically, in most of these states it is harder to seal the record of an uncharged arrest, which does not find its way into a court document, than to seal charges that are dismissed or acquitted.
The District of Columbia, a center of the protest movement, has one of the most restrictive record-sealing laws in the country, and certainly the most complicated. Two states, Arizona and Wisconsin, do not expunge non-conviction records at all, and there is no statutory authority to expunge federal arrest records. Most states allow some convictions to be sealed, but eligibility criteria and procedural requirements tend to be restrictive.
Fortunately, legislative trends favor automatic expungement of non-conviction and minor conviction records in a growing number of states. In the wake of the current protests, lawmakers should accelerate this process.
Last year, we worked with a bipartisan group of practitioners, policy experts and scholars to issue a Model Law on Non-Conviction Records, showing how states can promptly expunge non-conviction records without putting the burden on individuals to apply. We are studying further recommendations for expanding expungement for convictions.
Lawmakers should at the very least provide for the prompt and automatic expungement of records when prosecutors do not even file charges or later drop them. Doing so would reduce some of the inequities of over-policing and should be one of the key agenda items for police reform.