Opinion: Bill to ease expungements shifts burden onto victims, prosecutors
by Guest Columnist Joshua Marquis
Updated May 05, 11:34 AM; Posted May 05, 6:00 AM
In an April 21 op-ed, Multnomah County District Attorney Mike Schmidt joined the head of the Metropolitan Public Defender in support of making it even easier to erase criminal records and convictions – even those involving felonies and violence to people (“Ease expungement of past crimes and help people gain second chances”).
The two write that the further erasure of criminal convictions is needed to allow “loved ones, friends, and neighbors … to move on from their past mistakes.”
What is telling from their quote is that they view the felons – not the victims – as their loved ones and neighbors. Those victims, who usually are appalled to find the crime against them erased from the perpetrators’ records, are by considerable proportion women, children, the poor and people of color.
Oregon’s law on “expungement” has been around a long time. The original, and worthy, intent was to allow people who had committed lower-level crimes, but otherwise had conducted themselves lawfully, to have the single stain on their record erased by a judge if they had no further arrests in the subsequent three years. I am very familiar with the process, having worked primarily as a prosecutor but also as a defense attorney for four decades. The law typically allowed crimes like shoplifting, vandalism, bad checks and possession of drugs to be erased.
But there has been “system creep” through the actions of criminal defense lawyers, their allies in the Legislature and now a district attorney who speaks like a public defender. Since those halcyon days, the ability to erase convictions after a certain number of years has extended to felony assault, virtually all drug crime – including major drug trafficking – and crimes like perjury, tampering with a witness and coercion (which often involves threatening violence to a witness to ensure they don’t testify). Arrests without conviction have always been eligible for erasure, even for murder.
Senate Bill 397, which Schmidt and his co-author, Carl Macpherson, support, would make the permanent erasure of past crimes even easier by shortening waiting periods for people to erase certain convictions and cutting fees.
It would also completely shift the burden to prosecutors and victims to prove why, for example, a man convicted of beating two girlfriends should have his record erased. The language changes are subtle, but seismic.
Currently, it’s up to judges to determine whether applicants’ behavior in the years since their conviction merits granting the expungement. But under this bill, the court must grant a request for expungement to eligible applicants unless “the court makes written findings, by clear and convincing evidence, that the circumstances and behavior of the person … do not warrant granting the motion due to the circumstances and behavior creating a risk to public safety.”
This is an upside down world, where victims are suspects and criminals are heroes. Burglaries are now eligible for extinction, as are – despite claims to the contrary – virtually all gun felonies, from a convicted felon in possession of a firearm to unlawful use of a firearm.
To get a real-life example of how the law already is too lax, we need only look at cases like that of convicted murderer Joel Terence Abbott. In 1993 Abbott was convicted of murdering his once-girlfriend, Carolann Payne. That wasn’t the first time he hurt her – he was convicted in the mid 1980s of felony assault after stabbing her. But he had that conviction expunged, meaning in the eyes of the law, it never happened. Unfortunately, while his record was erased, his violent ways were not.
Marquis retired as Clatsop County district attorney in 2019 after 25 years in office. He is a past president of the Oregon District Attorneys Association and previously served on the Oregon Criminal Justice Commission. He lives in Astoria.
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