House Bill 189 — Criminal history records disclosure

House Bill 189 — Criminal history records disclosure

by
Parrish Miller
February 25, 2021

Bill Description: House Bill 189 would allow an individual to petition for shielding the record of a single criminal offense under specific circumstances.

Rating: 0

Analyst Note: House Bill 189 attempts to counter the negative consequences of overcriminalization, but it does so in a limited and convoluted manner that may cause as many problems as it solves. 

Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

House Bill 189 amends Sections 67-3004 Idaho Code by adding a lengthy subsection (11), which describes a process for shielding certain criminal records under specific circumstances. 

The concept is that an individual may petition the court to shield his criminal record and thereby fully move past the negative and ongoing repercussions caused by having a criminal record. The bill creates a number of obstacles to attaining this outcome, however. 

  • The process can only take place if the offence committed is a "nonassaultive or nonviolent misdemeanor" or "felony possession of a controlled substance under section 37-2732(a), (c), and (e), Idaho Code."
  • Numerous misdemeanors are questionably characterized as "assaultive or violent" by the bill, including "violation of a protection order or no contact order," "telephone harassment," and "excessive driving under the influence." 
  • To be eligible for having the records shielded from disclosure, the petitioner must wait at least 5 years after completing the sentence, including all ordered probation, parole, fines, and restitution.
  • Additionally, during that 5-year period, the petitioner cannot have had any subsequent felony or misdemeanor convictions, cannot be on probation or parole for a subsequent conviction, cannot be the subject of any pending misdemeanor or felony cases, and cannot be the object of a restraining order.
  • The petitioner may have only one petition granted during his lifetime and only for one eligible crime (multiple crimes committed "in a single incident or transaction" may be treated as one crime for this purpose). 
  • A petitioner may be represented by an attorney but shall not be provided an attorney at public expense.

Even if someone is able to negotiate all of these obstacles, approval is not automatic. A court must agree to hold a hearing and determine that "the petitioner has been held accountable and that shielding the petitioner's record from disclosure would not compromise public safety or the safety of any victims" before any relief will be granted. 

Though the process is arduous, it does provide the potential of some relief for those whose lives have been harmed by the state’s ongoing pinchent for overcriminalization. 

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Does it in any way restrict public access to information related to government activity or otherwise compromise government transparency or accountability? Conversely, does it increase public access to information related to government activity or increase government transparency or accountability?

Does completing the process outlined above mean that the petitioner’s criminal record is deleted? No. The record is removed from public indexes, but is retained in "a special index" that "may be accessed at any time" by "law enforcement personnel" and "court officers." No limits are placed on how or why these records may be accessed by these exempted entities.

Additionally, "upon a subsequent felony conviction and upon request by the prosecutor," the shielding will be revoked. Even a subsequent misdemeanor conviction may result in the shielding being revoked as a component of the sentencing, if the prosecutor requests it. 

So what does record shielding accomplish? The bill explicitly says it doesn't restore firearm rights. It doesn't make it easier to become a peace officer, either, as "the licensing process for peace officers" is still allowed access to the shielded record. 

The answer is found at the end of subsection (d) where it says that, other than the many exceptions and exclusions detailed above, "the proceedings in the petitioner's case shall be deemed never to have occurred, and the petitioner may lawfully reply accordingly to any inquiry in the matter."

In other words, the petitioner is given government permission to lie to an employer, a partner, or a spouse. That's effectively all this bill accomplishes. The law enforcement establishment still knows. The court still knows. In fact, both are explicitly protected from "civil or criminal liability for the unintentional or negligent release" of the shielded record. The shielded records can be unshielded in the event of any future convictions. 

How would an employer feel when an employee with no criminal record suddenly has a retroactive criminal record after a future conviction? How would that employer's customers feel? How would a deceived spouse feel? Even without a future conviction, a negligent release could occur, or someone with an old newspaper article or a screenshot taken of the Idaho repository before the shielding could expose the deception. 

Put simply, House Bill 189 adds a subsection containing 103 lines of code to create a convoluted process allowing some people to deceive, at least temporarily, key people in their lives. This is not an effective way to address overcriminalization or to institute meaningful criminal justice reform. 

Instead of addressing the root cause of overcriminalization, or even creating a way to legally reverse questionable verdicts or coerced guilty pleas, House Bill 189 creates a system based on concealing information from some people. The harm caused by overcriminalization is real, yet this bill could actually discourage reform as lawmakers may argue (even if only to themselves) that creating new crimes isn’t that harmful, considering that a labyrinthine escape hatch exists, which might eventually benefit the aggrieved.

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