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Expungement: prosecutorial discretion?

There was an interesting case out of the 8th a couple of weeks ago on expungement.  As most lawyers know, the expungement statutes have been substantially whittled down over the last decade or so:  the number of crimes which can be expunged have been greatly reduced, and the requirements for obtaining expungement -- the definition of "first offender" status, for example -- have been made much more restrictive.  And every lawyer around here knows that the county prosecutor's office is uncompromisingly diligent in enforcing the limitations of the statute.

Two weeks back, in State v. Boddie, the court reversed a trial court's grant of an expungement, but far more interesting than what the court did is what it said.  The result was compelled by the fact that the trial court had not conducted a hearing on the application, and the statute specifically requires that.  But the state had also appealed on the grounds that the defendant didn't qualify as a first offender, because he had "subsequent misdemeanor convictions for drug abuse and 'open container prohibited' in the City of Cleveland." 

Judge McMonagle, writing the court's unanimous opinion, found that there was "no evidence in the record to support that," but then went on to suggest that maybe it shouldn't matter anyway.  After noting that "expungement is an act of grace created by the state" and that "the expungement provisions are remedial in nature and must be liberally construed to promote their purposes," Judge McMonagle suggested that perhaps the prosecutors office should take that into consideration:

We note further that whether to prosecute and what charges to file are decisions that generally rest in the prosecutor's discretion. A prosecutor should remain free to exercise his or her discretion to determine the extent of the societal interest in prosecution. This discretion is no less important when applied to issues such as expungement.

That's a gutsy decision.  Nobody ever lost an election by being labeled as hard on crime, and there's no question that the reduction of the expungement remedy reflects that.  But whether any societal interest is served by requiring someone to drag a felony record around for the rest of his life simply because he happened to subsequently get busted with pot or an open bottle of beer is a legitimate question, and kudos to the court for putting that question in play.

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