Commentary: Expungement eligibility change would remove obstacles to jobs, housing

One measure currently before the Maryland General would close a gap in the state’s criminal record expungement eligibility.

The bill, HB0073, would change the definition of terms in the Maryland code, clarifying that the timeline for expunging an eligible state criminal record begins at the completion of the sentence — meaning the “time when a sentence has expired, including any period of probation, parole or mandatory supervision.”

Why is such a small clarification so critically necessary? The need arises from a 2022 appellate court opinion in response to an expungement petition filed by Abhishek Isaac, who pleaded guilty to a misdemeanor theft charge in 2008 and was given a suspended sentence of one year’s incarceration, plus one year of supervised probation.

During his probation, Isaac was found to be in possession of cannabis products, placing him in violation. His probation was closed “unsatisfactorily” and he was sentenced to four days in jail.

Under current Maryland law, a conviction for misdemeanor theft is eligible for expungement five years after the sentence is “satisfied.” So, if a person in Isaac’s position today were to receive a year of probation for the offense, they could file a petition for expungement of the conviction five years after completing their probation.

Alternatively, if the person was sentenced to a period of incarceration for the offense, they could file the petition five years after the incarceration ended. The Court of Appeals, however, interpreted the word “satisfied” differently. It said the statute meant that anyone whose probation is closed “unsatisfactorily,” even if that person received a subsequent sentence of incarceration for the violation and satisfied that sentence, is disqualified from seeking expungement of the conviction.

According to the court, the person did not “satisfy” their original sentence of probation. Therefore, they will never be eligible for expungement.

The Maryland General Assembly first enacted legislation providing for criminal record relief through expungements in 1975. As a state appellate court wrote in 2006, this process was to “help protect individuals seeking employment or admission to an educational institution, by entitling them to expungement of unproven charges, so that those individuals could avoid being unfairly judged during their application processes.”

Expungement eligibility has expanded greatly since that time, most notably with passage of the Justice Reinvestment Act in 2016, which made certain convictions eligible for expungement, and the REDEEM Act of 2023, which reduced the wait times between conviction and expungement eligibility.

Regarding the purpose of the REDEEM Act, Del. Sandy Bartlett, one of the bill’s sponsors, testified last year that the “result of passing [the REDEEM Act] will be employment opportunities for many people who are currently considered unemployable because a background check will reveal a 10-year-old or 15-year-old misdemeanor. Without that opportunity, the odds of recidivism and re-incarceration increase drastically.”

Expungement is an indispensable step toward ameliorating the harmful collateral consequences of criminal legal system involvement. It allows a person who has made mistakes years in the past to start fresh so they can move forward in life.

Expungement recipients gain access to better employment opportunities and more housing options, both of which are critical to helping them move toward a more successful future after incarceration.

HB0073 would remedy the language in the Maryland code that gave rise to the Isaac opinion by clarifying that the wait time for expungement eligibility begins upon the “completion,’’ rather than “satisfaction,” of the sentence. This distinction would ensure that people whose cases are closed and who have waited the number of years required by the expungement statute are no longer prevented from receiving an expungement because their sentence was completed, but not “satisfied.”

Individuals who violate probation may have to wait a bit longer to become eligible for expungement, but will not be prevented from ever satisfying the requirements to obtain an expungement. The change will ensure that Maryland’s expungement process will be able to achieve its purpose of ameliorating the harm of a criminal record and reducing recidivism.

George Townsend is a workforce development attorney at Maryland Volunteer Lawyers Service. Allison Stillinghagan is a staff attorney at the Human Trafficking Prevention Project. To learn more or get assistance, visit mvlslaw.org or htprevention.org.

The Baltimore Banner welcomes opinion pieces and letters to the editor. Please send submissions to communityvoices@thebaltimorebanner.com or letters@thebaltimorebanner.com.

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