Within today’s New York Times most emailed articles is this gem: Expunged Criminal Records Live to Tell Tales. It chronicles the difficulties folks have when facing an employer armed with a criminal background check when they have a minor offense on their record, and even when they were granted an expunction.

(R)eal expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector.

Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.

Just google “criminal background check”, and you’ll find hundreds of private companies willing to sell someone’s criminal history (for a fee, of course).

In Texas, the right to an expunction only accrues to someone who is acquitted, or whose case was dismissed. Sometimes my clients in Austin find themselves arrested for a “minor offense”, where the real punishment potentially comes not from what the judge will give them if they are convicted, but from the lifetime of explaining that DWI, Assault, Theft or Marijuana arrest on their record.

Unfortunately, the Texas Expunction statute only applies to governmental agencies, and does not reach the private companies that gathered the data between arrest and dismissal. I’ll have more soon on expunctions, and what can be done to “erase your criminal history”.