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.
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 Wilshire.
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?