Expungement Crisis: The Long Wait to Restore ‘Ruined Lives’

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Troy Burner (in black shirt) welcomed by his mother Jancie and his cousin Reginald Norwood after his release from prison in 2018. Photo courtesy Mid-Atlantic Innocence Project.

On April 8, at a virtual hearing by the Committee on the Judiciary and Public Safety in the District of Columbia, Troy Burner, a 49-year-old D.C. native, testified in favor of two bills that would expand the number of eligible offenses for record sealing.

“I stand before you an exonerated man who still feels the effect and the stain of a record,” said Burner, who was speaking in support of two companion acts proposed by the D.C. Council: Second Chance Amendment Act of 2021 and the Criminal Record Expungement Act of 2021.

“I found that even though I was released, ultimately my liberties were still being restricted.”

Record expungement or sealing usually refers to the physical destruction or deletion of a criminal record. While this is the case in certain states and localities, many simply have the record sealed, or hid from public view, with the courts still having access to it.

For example, one of the bills Burner was advocating for, the Criminal Record Expungement Amendment Act of 2021, simply expands the number of offenses that are eligible for record sealing, from the one that is currently eligible under D.C. law.

According to the Center for American Progress (CAP), “Between 70 million and 100 million Americans—or as many as one in three—have a criminal record.” Many of these cases include low level offenses and people who were arrested but never actually convicted of a crime.

Burner received a sentence of 30 years to life by the District of Columbia Superior Court in 1994 for the 1990 murder of Michael Wilson, when Burner was just 17. Burner was implicated by nothing more than false testimony in a trial that lasted a week.

After decades in multiple medium and maximum security prisons across the U.S., Burner filed his own motion in 2015 under the Innocence Protection Act.

With representation from the Mid-Atlantic Innocence Project(MAIP), Burner was finally released on parole in 2018.

Yet, despite being out of prison for over three years, being acquitted and having his charges being dropped, Burner has not yet received his certificate of innocence, which would allow him to have his record sealed and seek monetary compensation for a wrongful conviction.

During his testimony at the April hearing, Burner stated that that as a D.C. Reentry Action Network Intern, “I’m the direct line of defense for trying to assist people in reintegration into society…I’ve found that, whether its organizations or employers, everybody is treating us as if we should just feel lucky that we had this opportunity at a second chance…and they act as if…we have to be beholden to things of our past.”

Nine in 10 employers, four out of every five landlords, and three out of every five colleges and universities now use background checks to screen out applicants with criminal records, according to the CAP.

“Often called ‘collateral consequences,’ the resulting barriers to employment, housing, education, and other basics put economic stability, let alone upward mobility, out of reach for tens of millions of individuals and families,” CAP said.

Although the movement towards broader expungement has grown, the inconsistent application of its rules has ensnared thousands of individuals like Burner.

Roberta Meyers-Douglas, Director of State Strategy and Reentry for the Legal Action Center, a non-profit law and policy organization, told The Crime Report that since there’s no federal standard for record expungement, where you live determines whether or not someone can ever piece their life back together again after having contact with the legal system.

Meyers-Douglas  told TCR: “To me it feels outrageous that we sat back and allowed this to happen.  The last 20 years there’s been a piece of legislation introduced every session, trying to get federal expungement because it doesn’t exist, but the effort has picked up.”

Meyers-Douglas continued, “I think a lot more people are beginning to understand not only the historical aspect of it and how it’s tied to racial oppression and the systematic operation of collateral consequences, but also just how a criminal record could serve as a life sentence for someone in terms of limiting opportunity in so many different ways.”

A number of states are contemplating or adopting “clean slate” policies, which allow for automatic record sealing after the person has not committed a crime for a certain number of years, effectively streamlining the process.

Pennsylvania which was the first state to enact a clean slate law in 2018, has sealed more than 36.7 million cases by automation since it went into effect in June 2019, directly affecting a million people.

Four new clean slate campaigns have been launched in 2021 in New York, Texas, Delaware, and Oregon as well.

At the federal level, the bipartisan, bicameral Clean Slate Act would give more than 70 million Americans with low-level and non-violent criminal records to have their records cleared.

Waiting in Limbo

Burner came close to never seeing the day when he would be formally exonerated.

A year after being released on parole, Burner became ill in January of 2019. He went into a coma for a month and a half, flatlined for 15 seconds, got the flu and pneumonia, and needed rehabilitation to learn to walk and talk again.

He was released March 22, 2020, and four days later D.C. Superior Court Judge Robert Rigsby reversed Burner’s conviction. Then, in August, prosecutors decided to not retry the case, and Burner was acquitted and found innocent of all charges.

Seth Rosenthal, an attorney at Venable LLP who represents Burner as part of the MAIP, told TCR, “Having his record sealed is important and getting a certificate of innocence which will make him eligible statutorily for compensation for his wrongful conviction will be a game-changer for a life that was ruined by 25 years in prison.”

According to Rosenthal, despite Burner still waiting for the D.C. Superior Court judge to grant his certificate of innocence, getting a favorable ruling within three years of taking a post-conviction case is relatively quick. Rosenthal said that the courts are more overwhelmed than usual because of the lifting of restrictions since the pandemic.

A June 2020 study by the Harvard Law Review found that only 6.5 percent of those legally eligible for expungement obtain it within five years.

With his story still developing, Burner would like to continue to try to inspire change in a criminal justice system that casts millions of people aside in perpetual degradation.

Burner told TCR, “I’m still in limbo waiting for this order, it definitely is an ongoing feeling. Twenty-five years is a lifetime, but I can’t dwell on it… The ability to make something from everything that I lost, that goes a long way, and trying keeping the story alive rather than letting it die.”

Dane Stallone is a TCR contributing writer. He welcomes comments from readers.

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