You can expunge your arrest record in North Carolina — but there’s a catch
Winning in court took close to five years for 39-year-old Rafael Smith after he was arrested on charges of assault and sexual battery — but even a not-guilty verdict wasn’t enough to clear his name.
On a recent Saturday, he arrived at the Plaza Road Academy, as did more than 100 other people seeking to expunge their criminal records.
Even though the charges against Smith from 2017 were dismissed and he was found not guilty, the existence of his arrest record, he says, has been holding him back financially and keeping him from finding a job.
“It just gives me hope that things can be moved off my background and ... my character can be not blemished, as, you know, being a criminal,” Smith said.
Smith, who was a massage therapist at the time he was accused, said the most difficult part of having a dismissed charge on his record is that it feels like he is being punished for something he didn’t do and wasn’t convicted of.
Employers will see the charge and turn him down for job opportunities he was qualified for, Smith said. He hopes the expungement will give him a clean slate.
Expungement applies to a range of criminal cases in North Carolina where a person seeks to remove an arrest, court dismissal, or criminal charge from their record.
For thousands of North Carolinians who are eligible for this clean slate under the state’s Second Chance law, they’ve yet to fully benefit due to a gap in which types of records are scrubbed.
Felonies could first be expunged in the state beginning in 2011 and the expungement process was expanded last year. Expungement orders apply to government records — like police arrest sheets and court paperwork — but a recent investigation by The Charlotte Observer finds that employers and landlords often still have access to criminal histories, undermining the effect of expungement.
In other words, private vendors who supply background check services have access to state-maintained electronic court records and they aren’t notified by the courts or required to purge expunged cases from their databases — even arrests like Smith’s, which the state of North Carolina will effectively consider never even happened once his expungement is approved.
With the recent reforms, the state granted more expungements in fiscal year 2021 — a total of 16,390 — than any other time since 2016. And that figure doesn’t include the number of expungements that happen automatically when prosecutors move to dismiss certain charges.
Karl Burch went through the same process as Smith the remove a charge he has carried for over 45 years.
For Burch, an expungement means freedom to get a good job, and his finances in-order, he said.
“It’s so hard, you can’t get out. You can’t get housing ... you can’t get a car, you really can get nothing with a criminal record. And I mean, it’s been so long ago, you know, I figured it would just go away,” Burch said.
Now, Burch is 60-years-old and hopes to clear his record for his seven grandchildren and six great-grandchildren.
But even if Burch and Smith are granted the expungements they’re legally entitled to, the way data companies keep their records may still ruin their second chance.
It’s been this way for at least a decade or more, when state leaders first mandated that background check companies wanting North Carolina court records connect electronically to the Administrative Office of the Courts’ record system. The goal, officials said then, was to ensure these companies have updated records — to address the expungement loophole.
But even recent legislative updates haven’t fixed the problem, say advocates and experts recently interviewed by the Observer.
Expungement in NC
Assistant District Attorney for Mecklenburg County, Robyn Withrow, said North Carolina’s General Assembly has made an effort to address expungements nearly annually for the past five years. And while there is some talk of doing so in the future, so far nothing has been done about third-party information vendors that hold onto records that have since been expunged.
Withrow said because expungements often happen quickly, third-party and private vendors often aren’t notified of an individual’s status change. She said it will likely take legislative action to correct this.
Maria Macon, founder and director of the Mecklenburg Council of Elders said the council is pushing for the General Assembly to fix this loophole and to notify private entities when records have been expunged. The Council of Elders is a non-profit made up of 15 grassroots organizations that holds quarterly clinics for people who need help getting past arrests expunged. The clinics are so popular, prior sign-up is required and they are often full.
Macon is particularly concerned about access to expungements for people who are poor. Due to the root causes of criminal behavior, she said, juveniles and adults living in poverty are more likely to carry criminal histories — which most often will continue multi-generational poverty as they lose employment opportunities.
She said legislators should begin to look at expungements in the same way they looked at payday loans when they passed legislation regarding that. Macon said it took a “groundswell cry” for that effort and it may take that again with this loophole.
The Administrative Office of the Courts, or AOC, a state agency, refused to be interviewed by the Observer about the issue. According to the AOC’s website, only 70 private companies access the state’s database, compared to the hundreds on the market.
Aside from the connection to the Administrative Office of the Courts’ system, otherwise publicly-available court records can be obtained by any member of the public but accessing a large volume is difficult without a database.
Joseph Laizure, a staff attorney with UNC’s Clinical Programs, part of the university’s school of law, said while the law currently doesn’t require the state to notify private companies, individuals who are impacted by an inaccurate background check may have some recourse.
Private companies that do back employment background checks or other background checks using public criminal records are regulated under the Fair Credit Reporting Act, Laizure said.
“People who find themselves the victim of inaccurate background checks conducted by private companies might consider speaking with a consumer attorney who can help advise them of their rights under the Fair Credit Reporting Act and any other law that might apply,” he said.
A second chance
In 2020, Governor Roy Cooper signed the Second Chance Act into law. The act was a bipartisan piece of legislation that had been working its way through the legislature for nearly two years, according to the North Carolina Justice Center, a statewide advocacy organization.
One in four North Carolinians have criminal records, according to the Justice Center. These records can make it difficult to obtain quality housing, employment, and higher education.
The main provisions of the act include:
▪ Automatic removal of certain charges from a person’s record, such as a dismissed case.
▪ Raising the age on juvenile convictions, making more people eligible for expungement.
▪ Making expungement possible for all with dismissed charges and not guilty verdicts, as well as some who were convicted of non-violent crimes.
▪ Allowing prosecutors to seek expungements after a dismissal.
Habekah Cannon, managing partner at the office of Habekah B. Cannon, said the most significant expungement reform the state has made in the past few years is the ability to have multiple dismissed charges removed from a person’s record.
Dismissed charges occur when prosecutors drop a case against someone because of insufficient evidence, they do not wish to proceed, or because of a case of mistaken identity. However, these charges are still on a person’s record.
“If your charges were dismissed, there should be no record of them, there should not be this history that follows you,” Cannon said.
“Because if you were found not guilty, or if the state did not have enough evidence to pursue the case, or was a mistaken identity, or you earned your dismissal by going through a deferred program, you should not be penalized for that. And the way that North Carolina was applying the law, prior to December 2021, was that people were being punished for even being arrested.”
Gaps in reform
While the recent reforms put forth in the Second Chance Act have helped those seeking expungements, there are still gaps in the law, in addition to the loophole that allows expunged records to continue to haunt individuals through private entities.
Cannon says with the change in the law, dismissals and not guilty verdicts are supposed to be automatically expunged from a person’s record. However, she and her colleagues are finding that this is not always the case and their clients still have to file expungement petitions.
One of the biggest barriers that still exists in-terms of reform is the cost of the process and how complicated it can be, Cannon said.
It costs $175 to file for a record expungement, Cannon said. And, the process can be difficult to navigate.
An individual needs to determine which affidavit they need to fill out, then they have to have it signed by the District Attorney, who sends it to the clerk, and then it is sent to the state, Cannon said. This process usually takes four to six months but it can be even longer than that.
Under the new law those wishing to expunge their records of convictions must wait five years for a misdemeanor and ten years for a felony, Cannon said. She said in the future, the state should look at shortening this time even more for misdemeanors.
“If you’re doing nonviolent misdemeanors, these are your, what I call petty charges, your misdemeanor larceny, your trespass. Lots of these charges criminalize poverty,” Cannon said.
The Mecklenburg Council of Elders regularly hosts expungement clinics, to sign up for their services visit their website and fill out a form in English or Spanish.
This story was originally published May 9, 2022 at 6:00 AM.
