Welcome To The Rap Sheet California

Most non-criminal defense lawyers have never seen an actual, true-to-life, rap sheet. It’s a bundle of jargon and numbers, largely incomprehensible to untrained eyes, that tells a story of prior arrests, convictions and dispositions. And warrants.

The New York Times tried to decipher Nicholas Bowen’s rap sheet nightmare. Bowen as busted for trespassing at a friend’s home in the projects, because the cops could.

Though Mr. Bowen’s criminal citation was eventually dismissed (on the condition that he not commit a crime for a year), State Supreme Court in the Bronx, for unknown reasons, issued a warrant for the charge. Mr. Bowen claims he never knew about the warrant until almost three months later when he received a call about it from the police. Shortly after the call, he said, he went to court again, and on Feb. 11, 2009, a second judge determined that the warrant was erroneous and the matter was dismissed.

Annoying, time-wasting, stupid and wrong? Sure. Problem solved? Not quite.

“I thought it was over,” Mr. Bowen, now 58, said the other day. “But it just went on and on and on and on.”

Bowen was arrested four more times on a bench warrant issued in error for an arrest that ended in an ACD, an adjournment in contemplation of dismissal. After six months of clean living, it should go “poof” and magically disappear. Whether it did or not is unknown, but the open warrant didn’t. And Bowen paid for the mistake four times over. He eventually went to federal court to get an order to compel the state to remove the open warrant. Few people will take things that far.

Two nationally known reporters, Wesley Lowery of WaPo and Ryan Reilly of HuffPo, were arrested in Ferguson, Missouri, for not understanding how compliance with cops’ commands works. Bad as that was, they later learned that warrants were issued for their arrest. They shouldn’t have been, but they were. Reilly twitted to mock Ferguson’s incompetence.

Reilly twit

What he may not have realized is that his rap sheet will now have a bench warrant on it. Even if it was issued in mistake, and is vacated, the rap sheet may show “warrant ordered” with a subsequent notation, “vacated.” They may use different verbiage in Missouri, but that’s not important. What’s important is that it never occurred to them that this warrant, right or wrong, could follow them forever.

Should they ever get busted again, the judge may see this warrant on their rap sheet, which tells the judge they can’t be trusted to return to court, and get them bail, or higher bail, to assure their return. Based upon something that never should have happened, and should be removed from their rap sheet.

Welcome to the system.  It doesn’t always fail, but it makes tons of mistakes. Negative data gets put into the system lest any murderer walk away because some clerk somewhere neglected to make sure the rap sheet told the bad story, but there is little incentive to clean up the mess afterward, when the mistaken warrant is vacated, the case dismissed, the defendant acquitted.  Why waste scarce funds on clerks to remove bad or erroneous info when the job is to keep the bad dudes under wraps?

And then there’s the secondary system, NCIC, the National Crime Information Center, which is the law enforcement database developed to keep a bad dude in one state from looking like a clean dude in another because they don’t have his rap sheet.  By definition, it’s no better than the state database, and usually worse, because it offers twice as many chances to screw up the data. Even when the state corrects its errors, they can remain uncorrected on NCIC because it somehow never makes it through.

Remember Charles Belk?  He was the black man arrested for being Black on Wilshirebelk

Respected by those who knew him.  But Charles Belk was one more thing: tall, bald head, black male.  And that cursory description, which would likely describe, oh, say a few million people, was sufficient for the police to seize him and turn his walk to his car into his worst nightmare.

He not only took umbrage to being arrested, but to his having a rap sheet based upon this arrest, so that he would be perpetually haunted by a criminal history based on cops whose existence disproved Darwin.  Belk started an organization, Fitting The Description, to advocate for #AutoErase, the passage of laws mandating the automatic expungement of erroneous criminal history.  A press release announced that Colorado was the third state to enact such a law:

Colorado becomes the third state to pass #AutoErase legislation which requires that arrest records are automatically erased of innocent individuals wrongfully arrested due to mistaken identity. The bill, HB16-1265 [is called] – “Expungement of Arrest Records Based On Mistaken Identity.”

#AutoErase legislation has been signed into law in both North Carolina and Illinois, and is currently pending legislation in 11 other states (Rhode Island, Connecticut, Michigan, Tennessee, Pennsylvania, Wisconsin, Missouri, Kansas, Arizona, South Carolina, and Nebraska).

Expungement of erroneous criminal history should be a no-brainer. There is no justification for a rap sheet that wrongly impugns someone.  Sure, that it notes an arrest happened may be true, but when its basis was completely erroneous, it should be expunged (with a letter of apology and a free lunch at a restaurant of your choice, at minimum).

But like so many good ideas, passing a law doesn’t mean it actually happens. Somebody still has to care enough to correct the database, and that depends on some clerk, whether at the police station or courthouse, physically doing it and actually getting it right. GIGO, baby.

It would be even more helpful if the people creating the error in the first place, like the judge issuing erroneous warrants or the cops making erroneous arrests, didn’t do so, but getting things right has proven impossible. And besides, they don’t suffer for their mistakes, so why should they lose sleep over it?

The question isn’t whether Belk’s expungement law should be enacted. Of course it should. But that’s just the first step in cleaning up a system replete with errors that cause undeserving people horrible problems.  After that, it involves people doing their jobs, giving a damn, cleaning up the mess and, mostly, correcting mistakes. Since the system denies making mistakes, that’s always proven to be a problem.

And should Lowery or Reilly end up before a judge some day, who sets high bail because of their bench warrant history, they can just explain that it was all a big screw up.  After all, who’s the judge going to believe, two criminal defendants or their rap sheet?

40 comments on “Welcome To The Rap Sheet California

  1. Richard G. Kopf

    SHG,

    Given the increasing population of Hispanics, and the use of multiple surnames, this can be a significant problem when checking the rap sheet for a Hispanic person charged with a crime. While not common, it is not surprising when one finds a rap sheet for a particular Hispanic contains a reference to an entirely different person. This happens not only with regard to minor stuff but felony convictions also.

    All the best.

    RGK

    1. SHG Post author

      In state court, the problem is far more common. There are an awful lot of guys named Jose Perez around, and more than a few share the same birthday. The judge is more than happy to let defense counsel sort it out when we tell the court that our guy isn’t that guy (as if we have any control over the crap in the computer), but then they ship him to the Rock while we do so. Just in case.

  2. Billy Bob

    You can check out, but you can never leave. (The Eagles?)
    Oh wait,… there’s a solution to this problem: Just vote em out. Or how
    about, “Just tell the judge….!”
    Warrants never die, they just fade away. You just ruined our day.

        1. losingtrader

          See, there you judges go again.
          Where is the double-blind scientific study showing snowflakes are all unique?
          Do you have a database of snowflake shapes?

  3. Dave

    There is one huge problem with trying to set up any sort of automatic expungement, be it of arrests or convictions (which is now come under my purview, for better or worse). The database systems themselves provide no way to alert one to where a “trigger” for one may be appropriate, nor a way to propagate this to all of the other related, but unfortunately unconnected, databases. Each county in my state has its own separate system. Probably most, if not all other states are the same. Then the state has its own separate system. The feds have their own separate system. Ultimately, the only way to clean this up and make sure that not only you can have a fighting chance to have good data, but have a way to actually fix bad data, is to have a single, integrated system that covers local county, state, and federal information for convictions and arrests. And that will cost mondo dollars (hundreds of millions per state, if not more), and to get it all integrated nationwide will require the feds to both require it and fund it. It is how we got an integrated child support enforcement system (something I also worked on-that too used to be individual county systems, separate from state, separate from federal). It took years of painful work and hundreds of millions of dollars (with a strong-arm from the feds) to do it, but it was done. Now a single system covers the whole state, used by all the counties, and set up to integrate electronically and automatically with the federal system. So it can be done for criminal records as well. But unless this sort of Manhattan Project for criminal records nationwide is done, you can pass all of the auto-expungement laws you want–they won’t actually work because they can’t, given the current systems in place to keep track of arrests and convictions. (And yes, I know, you said passing an auto-expungement law is just the first step, but what I am saying is that I disagree – the first step has to be a new, nationwide, integrated system, or no other steps will do anything but perhaps make some legislators and activists feel good about themselves.)

    1. SHG Post author

      Good that there’s only one huge problem, and it has nothing to do with paragraph breaks. Since the potential for a “Manhattan Project” level recreation of the nationwide, multi-jurisdictional database is kinda slim, it seems more likely to go for smaller fixes, even though they are incomplete. You’re right, the entire database/system needs to be recreated from the ground up. But what do we do until hell freezes over?

      1. Dave

        I don’t disagree with you that hell will likely freeze over before such a thing is done, though the fact that a similar sort of project has already in fact been done (with the child support databases) gives me some small hope.

        But my point is you can’t take small steps, or any steps at all, for an automatic process for expungement, absent the big overhaul. It is simply not possible with the current systems. There is no incremental way to deal with it. Maybe realizing that will help push for that big upgrade. Maybe it will also help that an upgrade of that sort will have many other benefits for courts nationwide – having a uniform and up to date docketing and records system is something most courts are sorely lacking.

        But absent that, only a manual process, where individuals file something with the court asking for an expungement (and so it is not automatic) is possible. And that still has the propagation problem (plus the problem of finding out the wrong records exist in the first place).

        1. SHG Post author

          Thank you for repeating your point, since it’s always more fun the second (and often the third!!!) time. And thank you for the paragraph breaks. And I mean that.

          1. Dave

            You’re welcome. I should say I was going to put in paragraph breaks for the first one, then stupidly hit send before I did. And now back to the 150 expungement applications on my desk.

      2. CJT

        California already tried and failed. After wasting $333.3 million, they scrapped the CCCMS (California Court Case Management System) project. Now, each county selects and funds their own system, which is how most states operate. Instead of hiring a consulting firm to build a system from the ground up, they pick an existing software system and customize it. There aren’t a ton of choices out there, either.

        The only feasible scenario for a nationwide Case Management Database would be for the vast majority jurisdictions to independently select the same vendor, and for that vendor to integrate their independent databases. It’s not going to happen next week, but unlike the “Manhattan Project” approach, it’s actually a real possibility.

        1. SHG Post author

          Fifty states, one fed, god knows how many local/city, jurisdictions all agreeing on something and coordinating their efforts is more a real possibility than, say, the feds taking charge of a unified national system?

          1. CJT

            After CA abandoned the CCCMS project in 2012, 29 counties were suddenly in the market for court management software. All but 2 selected the same vendor.

            So yes, agreement between a vast majority of jurisdictions is a real possibility.

            And come on, don’t shut down the optimistic among your readers so quickly! On rare occasions like this one, our hope is actually based in reality.

            1. Dave

              Using the same vendor really doesn’t address the primary problem – which is not using a single, integrated system, which means a single, integrated database. And it can introduce problems all its own which I won’t get into.

              Suffice it to say that the child support systems for the various counties in my state were all from the same vendor. It didn’t really make that much difference. It HAS to be a single, integrated system for it to really work. And you can only get that from the heavy-handed, top down shoving-down-the-throat by the feds.

  4. wilbur

    Defendants have been known to give the name, DOB and address of a relative or acquaintance when arrested without ID on their person. If the officer does not know the defendant, the defendant gets booked into jail under these false identifiers. If the defendant bails out, or (more commonly) is released to some pretrial service program, he or she will often not show up for court, leading to the issuance of an arrest warrant for the wrong individual.
    Usually the victims of this learn about what has happened when they receive an avalanche of mail from defense attorneys, soliciting their business after “their arrest”. When the fraud is discovered that early, it can usually be remedied easily before the arraignment but they still have jump through several, time-consuming hoops to get it fixed.
    I’ve dealt with unfortunate people who have lost jobs, not been hired for a job, lost their voting rights, and so on under this scenario, when it is discovered well after it occurred. The remedy they usually most want is five minutes alone in a room with the defendant, armed with a ball bat.

    1. SHG Post author

      They usually catch that when the prints come back, though that doesn’t mean it doesn’t haunt the poor bastard whose name they used as well. But can we blame the system for that, or the defendant who gave the false info?

      1. REvers

        In my neck of the woods, the two names get linked as aliases and there is absolutely no way of correcting the database. If I got arrested and gave the name Scott Greenfield Richard Kopf, we would forever be one and the same person. The best the local cops could do would be to give you a letter on official pork stationery that says “This Scott Greenfield Richard Kopf isn’t the other Scott Greenfield Richard Kopf.”

        To their credit, they will do this. But you have to keep the letter on your person until doomsday. And sometimes you will get your ass hauled to jail anyway.

        1. SHG Post author

          Hope you don’t mind, but I made a small change to your comment. Just don’t want to give anyone ideas.

  5. wilbur

    From his prints, Corrections will see the defendant identified under a different name in previous arrests, but they’ll just regard this new name as an alias, and take no affirmative steps to notify anyone about it. This elicits the same reaction from those in the system from arrest through sentencing, unless the victim learns of it and pipes up.

    Ultimately, the defendant is to blame. And he gets an added felony charge for his cleverness. But the system needs a lot of tweaking to deal with a situation like this.

      1. Dragoness Eclectic

        When one or two people make a mistake, they’re doing it wrong. When dozens of people over years of posts make the same mistake, it’s just possible you have a user interface design problem.

        1. SHG Post author

          So maybe I should change the “reply” button to another language? Because you’re right, it’s clearly too hard for people to figure out.

          1. wilbur

            I realized halfway through my comment above that I had not hit the “reply” button. Blithely, an “Oh, well” swept over me and I continued on.

            I’ll say an Act of Contrition and three Hail Marys.

        2. Billy Bob

          Thanx for pointing this out to us. Yes, it’s an easy/common mistake which gets under the Host’s skin. We have been guilty more than once. It’s like failing to put the cap back on the toothpaste tube. If you catch our drift? Or failing to flush the toilet when finished!
          (How many here brush their tooth? All Rise!)
          We don’t call it an “interface problem”. We call it an hyperactivity-compulsive disorder, (of the highest degree). Just ask the Wife?
          FinaLLy, User-Interface Designs R Us. (cOULD nOT rESIST.)

  6. OEH

    Should just do like they did with the FCRA and make any locality that reports inaccurate arrest history liable for damages regardless of resulting harm. They’d figure out how to fix the database problems much faster than just asking them to please not make the databases suck.

    1. SHG Post author

      That’s not a bad idea, with a minimum penalty of, say, $5000, so action can be brought in small claims court.

      1. Troutwaxer

        And make sure the law allows multiple suits by one person against the offending locality, just in case they “forget” to correct the record, which will happen frequently.

  7. wilbur

    I’m of the belief that nothing much changes in this area because the responsible parties (excluding the main perp) are not affected by it. After all, it’s not their name used or their butt sitting in jail. Why would they care? It’s only some faceless member of the public.

    When it happens to some U.S. senator’s son, the we’ll see some changes.

    1. SHG Post author

      That’s pretty much true of all crim law issues. No one gives a shit until it touches their life. It’s one of my fundamental themes here.

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