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Tuesday, December 7, 2021

Relief from a past criminal record

Question: A few years ago, I was involved with sex work and arrested. I’m trying to move forward in life, but my criminal record is holding me back. Is there anything I can do?

Yes, there are number of legal options to address criminal records in Maryland. However, the options that are available depend on several factors, including the outcome of any criminal case brought after the arrest and the type of crime. If a person was engaged in sex work around the time when they were arrested, additional relief may be available if the person can show their experiences meet the legal definition of human trafficking.  

Every arrest in Maryland— regardless of how it happened, or whether the arrest leads to formal charges or a conviction— is a matter of public record. If an individual has been arrested, the public can access certain records through the Maryland Judiciary’s Case Search website, and employers, landlords, and agencies often request background checks from the Maryland’s Criminal Justice Information System (CJIS), the FBI, and private agencies. Criminal records can have a life-long impact and may prevent a person from getting a job or securing an apartment, factor adversely in child custody proceedings, and negatively affect eligibility for loans or credit, among other consequences. While recent changes to Maryland law have removed certain records from Case Search, these records still legally exist and can be accessed through background checks and by government agencies.

In Maryland, a person can petition the courts for criminal record relief through expungement and shielding to reduce the collateral consequences of involvement in the criminal legal system. For example, an employer may not require that a person disclose information about expunged or shielded criminal records on job applications or during interviews. 

Expungement— Expungement is the removal of police and court records from a person’s record. A person can petition the court to expunge certain criminal and incarcerable traffic offenses, while non-incarcerable traffic offenses are automatically expunged after three years. Determining if a record is eligible for expungement can be challenging given the differing requirements for types of case outcomes and offenses. If a criminal case ends in a dismissal, a finding of not guilty, or a nolle pross, the record is eligible to be expunged immediately, provided the petitioner signs a waiver of liability giving up their legal right to sue for damages associated with that case. If the petitioner does not wish to sign the waiver, they must wait three years to expunge the charge. Other outcomes, like a stet or probation before judgement, have a three-year waiting period (or completion of probation, whichever is longer) before they may be expunged. Convictions for certain types of crimes, including misdemeanors such as prostitution, drug possession, and trespass, may be eligible for expungement after a 10 (or more) year waiting period. To learn more about expungement, visit MDExpungement.com (https://www.mdexpungement.com/). 

Shielding— Maryland also allows a person to shield convictions for certain crimes, which hides those records from public inspection. This is a very limited remedy that can only be requested once in a person’s lifetime— more information about shielding can be found at MDCourts.gov in the self-help section (https://mdcourts.gov/district/selfhelp/secondchanceactshieldinguide). 

Vacatur— Vacatur is a remedy that wipes out a conviction in a criminal case and puts the person in the same legal position as if they had never been arrested in the first place. In Maryland, this remedy is available if a person can show their experiences meet the legal definition of human trafficking – i.e. that they engaged in sex work (or another type of labor) due to force, fraud or coercion, and that there is a link between their experience being trafficked and their criminal convictions. Human trafficking can look like someone pressuring a person to engage in sex work by using physical force, threats, lies, or by taking advantage of a person’s need for food, shelter, drugs, or other survival needs. Trafficking can have a devastating, life-long impact on survivors, the trauma of which is commonly compounded by numerous interactions with the criminal legal system where the survivor is treated as a criminal rather than a victim. Vacatur is one way to right these wrongs, let survivors take back and tell their stories, and remove barriers to future safety and security. More information about this remedy can be found at MVLSLaw.org/HT (www.mvlslaw.org/ht). 

Regardless of the type of remedy, it is always helpful to consult with an attorney who can fully review a person’s record, explain options for criminal record relief, and answer questions about eligibility for vacatur. Free legal assistance with criminal record relief and other civil legal issues can be accessed through Maryland Volunteer Lawyers Service MVLSlaw.org (www.mvlslaw.org) and the Human Trafficking Prevention Project, a partnership between MVLS and University of Baltimore School of Law. 

Heather Heiman, Esq., manages the Human Trafficking Prevention Project at Maryland Volunteer Lawyers Service, and focuses her practice on criminal record relief for survivors of trafficking, individuals trading sex for any reason, and those placed at increased risk of future exploitation due to past trauma or violence, substance use, housing instability, or other inequities.

Do you have a question you would like to see addressed in this column? Email [email protected] to submit your question to the Baltimore Times’ legal tip column.

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