government's ability to convict. Thus, there is a factual basis to support and reinforce the defendant's entrapment defense as well as the presumption of innocence accorded the defendant.
E. The Continuing Harm To The Defendant Caused By The Record of Arrest And Conviction Is Of A Serious Nature.
Courts, commentators, and state and federal legislators have become increasingly sensitive to the unjust harm that criminal records cause.
Although never found guilty of a crime, the constitutional benchmark to the infliction of punishment, a person who becomes entangled with the criminal justice system is forever unable to extricate himself even if completely exonerated. At one time courts were totally unbending in their approach to the issue of expungement,
however, changing notions of privacy,
along with the introduction of computerized information and storage and retrieval systems
have transformed the nature of the harm inflicted by criminal records and has led to increasing sensitivity to the problems of the exonerated yet punished defendant.
The magnitude of the problem of criminal records will not permit it to be ignored. A government study has indicated that "about 50% Of the male children living in the United States today will be arrested for a nontraffic offense sometime in their lives."
This statistic in light of the fact that arrests fall more heavily on the young and members of minority groups who have traditionally faced difficulty in obtaining credit, insurance, employment, and justice in the courts, augments the hardship and unacceptability of present practices.
The disabilities flowing from a record of arrest have been judicially recognized. First, there is serious harm to a person's reputation, psychological health, and ability to obtain employment, insurance, credit, and entry into various professions.
Although the concern has at times been expressed as pertaining to the "injury to the reputation of the individual if (records are) allowed to fall into the wrong hands," United States v. Dooley, 364 F. Supp. 75, 78 (E.D.Pa.1973), it is not merely a matter of "falling" into the wrong hands. Although supposedly confidential, it is a well known fact that such records are disseminated to virtually anyone.
Furthermore, regulations of the Attorney General allow dissemination to government agencies, railroad police, insurance companies, and most banks.
An example of the dissemination of arrest records can be found in Menard v. Saxbe, 162 U.S.App.D.C. 284, 291, 498 F.2d 1017, 1124 (1974), in which the arrest records involved in that case had been furnished to the United States Marine Corps and the National Agency Check Centers.
The effect of arrest records on one's ability to find a job has been recognized and documented. In Kowall v. United States, Chief Judge Fox observed that "economic losses themselves may be both direct and serious. Opportunities for schooling, employment, for professional licenses may be restricted or nonexistent as a consequence of the mere fact of arrest, even if followed by acquittal or complete exoneration of the charges involved." In support of this statement, Chief Judge Fox cites a survey by the New York Civil Liberties Union indicating that 75 per cent of New York area employment agencies would not accept for referral an applicant with an arrest record,
and another study in which 66 of the 75 employees interviewed indicated that they would not hire a man who was arrested for assault and battery.
As pointed out in Kowall, an arrest record at least encourages an employer to further investigate, and if it is convenient to fill the space before the investigation can be completed, the arrested person will not be able to obtain the job. 53 F.R.D. at 215 n.17 Citing Hess & LePoole, Supra note 11, at 496. The arrested individual will most likely not be given the opportunity to explain away the arrest.
Second, an arrested individual is also burdened with regard to any future interactions with the law enforcement system. One with a record will be the first suspected and the last eliminated whenever a crime has occurred. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157, 159 (1972). Prosecutors use arrest records to determine whether to formally charge an accused. Id. An arrest can serve as a basis for denying release prior to trial or appeal, Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486, 491 (1970), and may be considered by the Judge in sentencing.
An arrest record will interfere with a defendant's ability to testify at trial. See United States v. Hudson, supra at 11. And, if the arrested person is subsequently sent to jail an arrest record will influence the parole board in its decision whether or not to grant parole. Id.
This harm to arrested people is most difficult to square with a fundamental maxim upon which our criminal justice system operates, namely that every accused is presumed innocent. Moreover, the present state of affairs with regard to arrest records breeds cynicism and contempt for our American system of justice, and contributes to the high rate of recidivism and crime in general.
This case presents an additional factor. The defendant in this case is a resident alien who has lived in the United States since he was ten years old. Under 8 U.S.C. § 1182(a)(23) any alien whom the consular officer believes is or has been an illicit trafficker in drugs is ineligible to receive a visa and is excluded from entering the United States. Although the defendant is in the United States at the present time, if he should ever leave this country and want to return, his arrest record would enable the consular officer in an exclusionary proceeding to prevent him from re-entering the United States, without, under present law, permitting the courts to review this determination.
If the defendant should ever travel internationally,
he could be refused re-entry, and thus be deprived of "both property and life, or all that makes life worth living." Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S. Ct. 492, 495, 66 L. Ed. 938 (1922) (Brandeis, J.).
The arrest and illegal conviction record would also interfere with the defendant's ability to become a citizen. In order for an alien to become a United States citizen, he must demonstrate good moral character.
Although some general standards are provided in the statute, the determination is still made on a case-by-case basis,
and an arrest would adversely influence that determination.
The flagrant illegal activity of the government in this case along with the past and prospective harm and denial of fundamental freedom to the defendant has led the Court to carefully examine the relevant precedents in order to do justice in this case which involves what has been recognized as a "particularly sensitive area of law, concerning the developing relationship between values of individual privacy and the record-keeping functions of the executive branch." Tarlton v. Saxbe, 165 U.S.App.D.C. 293, 298, 507 F.2d 1116, 1121 (1974).
THE COURTS HAVE A DUTY TO REDRESS AN INJURY AND HAVE THE INHERENT POWER TO EXPUNGE CRIMINAL RECORDS NOTWITHSTANDING STATUTES REQUIRING THEIR ACQUISITION AND RETENTION
The Attorney General of the United States is required by 28 U.S.C. § 534(a) (1970) to acquire, retain, and disseminate criminal records. No federal statute provides for the expungement of arrest records. United States v. Schnitzer, 567 F.2d 536 at 597. However, despite this statutory scheme courts have recognized the inherent power which lies within the court's sound discretion to order the expungement of criminal records. Kowall v. United States, 53 F.R.D. 211 (W.D.Mich.1971), contains one of the more complete discussions of the effect of such statutes on the contours of the court's power to expunge. First, the court noted that any challenge to the inherent power of a federal court to enter an order expunging arrest records is foreclosed by prior decisions. Kowall v. United States, supra at 213, Citing United States v. McLeod, 385 F.2d 734 (5th Cir. 1967); Hughes v. Rizzo, 282 F. Supp. 881 (E.D.Pa.1968); Wheeler v. Goodman, 306 F. Supp. 58 (W.D.N.C.1969); United States v. Kalish, 271 F. Supp. 968 (D.P.R.1967); See Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017, 1023 (1974).
In addition to the authority of prior rulings, the Court in Kowall relied on "the natural law of remedies" which "does not set arbitrary limits on a federal court's jurisdiction to right wrongs cognizable by the common law within the jurisdiction of the court." Kowall v. United States, supra at 213. In support of its jurisprudential justification for its power, the court quoted Mr. Justice John Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60: "The very essence of civil liberty certainly consists in the rights of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." The rationale behind all expungement decision, as expressed by Judge Wisdom, to a great extent explains the foundation underlying the power:
in order to grant full relief in this case, we must see that as far as possible the persons who were arrested and prosecuted . . . are placed in the position in which they would have stood had the county not acted unlawfully. . . . Of course no court order can completely eradicate the effect of the country's (Sic ) actions. . . . The Court can and must, however, do all within its power to eradicate the effect of the unlawful prosecutions in this case.
United States v. McLeod, 385 F.2d 734, 749-50 (5th Cir. 1976).
Statutes requiring the maintenance, acquisition, and dissemination of criminal records have not eradicated the equitable remedy of expungement. The government agents in this case injured the defendant and the law provides a remedy.
A request for expungement must be examined on its merits to determine the proper balancing of the equities. The decision to expunge a record must be based on the facts and circumstances in each case. United States v. Schnitzer, 567 F.2d at 599 (2d Cir. Nov. 30, 1977); United States v. Bohr, 406 F. Supp. 1218, 1219 (E.D.Wis.1976); United States v. Seasholtz, 376 F. Supp. 1288, 1298 (N.D.Okl.1976); United States v. Rosen, 343 F. Supp. 804, 809 (S.D.N.Y.1972); Kowall v. United States, supra at 214; United States v. Kalish, supra at 968; Doe v. Commander, 273 Md. 262, 329 A.2d 35, 44 (1974); Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); In re R.L.F., 256 N.W.2d 803 (Minn.1977); Gay v. United States, 259 A.2d 593 (D.C.App.1969); Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584, 589 (1976); See Sullivan v. Murphy, 156 U.S.App.D.C. 28, 58, 478 F.2d 938, 968 (1973) ("The principle is well established that a court may order the expungement of records, including arrest records, when that remedy is necessary and appropriate in order to preserve basic legal rights.").
THE RECORD OF THE DEFENDANT'S ILLEGAL CONVICTION SHALL BE EXPUNGED BECAUSE OF THE SERIOUS INTENTIONAL UNCONSTITUTIONAL ACTIONS OF THE GOVERNMENT IN THIS CASE
Record keepers are required to indicate the subsequent disposition of arrests and convictions. Tarlton v. Saxbe, 165 U.S.App.D.C. 293, 507 F.2d 1116 (1974); Shadd v. United States, 389 F. Supp. 721 (W.D.Pa.1975). If the record of the defendant's conviction indicates that it has been overturned, the damage to the defendant will be somewhat assuaged. However, the public, including employers, insurers and lenders, will not be able to appreciate the reason for reversal. The public may feel the defendant was freed on the basis of a "legal technicality" and is "guilty" of the offense for which he was convicted. Other courts have recognized the inadequacy of merely indicating that an illegal conviction has been overturned.
In Grandison v. Warden, 423 F. Supp. 112, 116 (D.Md.1976), the court observed that "clearly, a notation that the conviction has been vacated would not be effective to erase the impact of the conviction itself." The court proceeded to order the record expunged "so that no trace of his void convictions remains." Id.
In United States v. McLeod, 385 F.2d 734 (5th Cir. 1967), Judge Wisdom ordered the expungement of records of convictions when they were obtained for unconstitutional purposes. See also Kowall v. United States, 53 F.R.D. 211 (W.D.Mich.1971) (illegal conviction record expunged).
As detailed earlier in this opinion, the defendant's conviction was overturned after it became apparent that the government had destroyed evidence, misled this Court, and for six years ignored an order of this circuit's court of appeals. The Court feels that the effects of the illegal conviction should be as far as possible completely eradicated. There is another reason that expungement of the record of defendant's conviction is appropriate in this case. As mentioned earlier, this Court sentenced the defendant under the Youth Correction Act, 18 U.S.C. § 5021 (1970). Under this act the defendant could have been eligible to have his conviction, had it been valid, expunged. See Tatum v. United States, 114 U.S.App.D.C. 49, 51, 310 F.2d 854, 856 n.2 (1962). It would be anomalous indeed, if a valid conviction would be expungable, whereas an unconstitutional conviction would endure to haunt the defendant.
Therefore, the Court orders the government to turn over all records of the defendant's conviction to the clerk of this Court as specified in the order issued of even date herewith.
THE ARREST RECORD ALSO SHOULD BE EXPUNGED BECAUSE THE COURT FINDS THAT UNDER THE CIRCUMSTANCES OF THIS CASE THE ARREST WAS DEFECTIVE
A. Where An Arrest Is Defective Expungement Of The Arrest Record Is Readily Granted.
There are numerous cases in which individuals arrested without probable cause have had their arrest records expunged. E. g. Menard v. Saxbe, 162 U.S.App.D.C. at 292, 498 F.2d, Supra at 1025; Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938 (1973); Urban v. Breier, 401 F. Supp. 706 (E.D.Wis.1975); Washington Mobilization Committee v. Cullinane, 400 F. Supp. 186, 217 (D.D.C.1975) Aff'd in part and rev'd in part, 184 U.S.App.D.C. 215, 566 F.2d 107 (1977); Hughes v. Rizzo, 282 F. Supp. 881 (E.D.Pa.1968).
A lack of probable cause is not the only defect that constitutes a sufficient rationale to expunge an arrest record. A logical relationship between the injury and the requested remedy is what is necessary in all expungement cases. See United States v. McLeod, 385 F.2d 734, 749-50 (5th Cir. 1967). Of course, just because a defendant is not convicted is not sufficient reason to expunge the arrest record because it remains a defect-less historical fact. See United States v. Schnitzer, 567 F.2d 536 (2nd Cir. 1977); Coleman v. United States Department of Justice, 429 F. Supp. 411, 413 (N.D.Ind.1977); United States v. Seasholtz, 376 F. Supp. 1288, 1289 (N.D.Okl.1976); Hammons v. Scott, 423 F. Supp. 625, 626 (N.D.Cal.1976); Shadd v. United States, 389 F. Supp. 721, 722 (W.D.Pa.1975); United States v. Dooley, 364 F. Supp. 75, 78 (E.D.Pa.1973); United States v. Rosen, 343 F. Supp. 804, 809 (S.D.N.Y.1972); Matter of Alexander, 259 A.2d 592, 593 (D.C.App.1969).
In cases in which special circumstances are presented such as the special injury to the defendant along with the reprehensible government conduct in this case, an arrest can be expunged when illegal government behavior taints the validity of the arrest. There are many cases illustrating this principle in which arrest records have been expunged notwithstanding a probable cause basis for the arrest when the arrest is for some other reason defective. United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) (arrests were carried out in order to intimidate black citizens in their attempts to encourage others to vote); Kowall v. United States, 53 F.R.D. 211 (W.D.Mich.1971) (arrest for failure to report for induction based on statute later declared unconstitutional); United States v. Kalish, 271 F. Supp. 968 (D.P.R.1967) (arrest for refusal to step forward to report for induction into the armed forces based on the advice of counsel); United States v. Jones, Crim. No. 36388-69 (D.C.Ct.Gen.Sess., 1970) (mistaken identity); United States v. Hudson, Crim. No. 49590-74 (D.C.Super.1978) (arrest for murder later coroner determined that cause of death was suicide); Wheeler v. Goodman, 306 F. Supp. 58 (W.D.N.C.1969) (police misuse); United States v. Bohr, 406 F. Supp. 1218 (W.D.Wis.1976) (arrest on basis of Grand Jury indictment for use of mails with intent to defraud source of embarrassment to attorney's reputation); Grandison v. Warden, 423 F. Supp. 112 (D.Md.1976) (youth wrongly tried as an adult).
As set out earlier in this opinion, massive and serious violations of the law by the DEA and its agents hindered the defendant's ability to affirmatively demonstrate that he had been entrapped. Under these extreme circumstances, including the strong factual showing made by the defendant, it is fair and just, for the limited purpose of deciding whether the defendant's record should be expunged, for the Court to assume that had the defendant received a fair trial he would have established entrapment and would have been exonerated.
One entrapped into criminal behavior has suffered a defective arrest in the same sense that one arrested without probable cause, based on an unconstitutional statute, because of mistaken identity, or the product of harassment has suffered a defective arrest. An entrapped defendant would have a stronger case for expungement than the defendant in Menard v. Saxbe, 162 U.S.App.D.C. 284, 291, 498 F.2d 1017, 1024 (1974). In Menard, the defendant, a young man, was arrested while sleeping in the middle of the night on a park bench. The police were called to the scene after the defendant was seen peeking through the windows of an old age home and the officers, as they approached the defendant, found a wallet not belonging to the defendant, near the bench where he was found sleeping. The U.S. Court of Appeals for the District of Columbia ordered the record expunged after the defendant could not be connected with any crime despite the circumstances apparent at his arrest. An entrapped individual, also could not be connected with any crime despite the circumstances apparent at his arrest. Thus, he would have suffered a defective arrest and therefore there is ample authority to order the records of an entrapped individual expunged. This conclusion is enforced by the realization that entrapment has an added element not present in cases like Menard, namely, that entrapment always encompasses the added factor of government misbehavior which is inextricably involved in this case.
In deciding whether a record of arrest is to be expunged, the Court must balance the harm to the defendant of the retention of the records as compared to the needs of the government for the records. United States v. Schnitzer, supra at 599; United States v. Kowall, supra at 214; United States v. Bohr, 406 F. Supp. 1218, 1219-20 (E.D.Wis.1976). In this case, the records could cause the defendant to be excluded from citizenship and force him to be separated from his wife and child along with the continuing harm to his ability to find work, credit, etc. He has already spent months in jail for a conviction that was overturned. Any further harm is intolerable. The government's need for maintaining these records should not be exaggerated. Recent statutory enactments by both the states and the federal government have restricted the maintenance and dissemination of records. See note 8 Supra. On balance, justice and fairness in this particular case require that the arrest record be expunged. The same order with regard to the record of conviction shall be applied to the arrest record.
An order in accordance with the foregoing will be issued of even date herewith.