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The Injustice of California’s Record Sealing Statute

If you were arrested and tried for a crime where there was not even “reasonable cause” to believe that you committed the crime, you can be left with a criminal record that will prevent you from getting a job, housing, volunteering in your children’s classroom, and other basic things that those with a clean criminal record can do. All this damage comes from a crime that you clearly did not commit.

California’s record sealing statute, Penal Code section 851.8. is designed to prevent this gross injustice by allowing people who are found factually innocent to have all records of the arrest and court case sealed and destroyed. In most situations, the statute successfully balances state’s right to preserve information against an individual’s right to preserve their reputation. However, in a large number of situations, wrongfully-accused individuals are left with life-long damage caused by the records of arrests or court cases where they were factually innocent, but the statute does allow for the records to be sealed.

The California Department of Justice (CDOJ) keeps a complete criminal history on every person who has ever been arrested or charged in court with a criminal offense. This report is commonly referred as a rap sheet or background report. Among other things, the rap sheet shows the date, location, and reason for the arrest or court case. Even if a person is found innocent or if the charges are dropped, the record of the arrest and any court case is shown on the individual’s rap sheet.

Unlike reports kept by credit bureaus or the Department of Motor Vehicles who only report negative history for a limited number of years, once something appears on the CDOJ rap sheet, it stays forever; unless the individual successfully petitions to have the record of the arrest and trial sealed. A successful petition to have a record sealed with wipe clean any evidence of the arrest or court case from the CDOJ rap sheet.

The CDOJ will only release the rap sheet to authorized state agencies for limited purposes or to the individual who requests their own rap sheet by filing paper, submitting fingerprints, and paying nominal fee (which can be waived for individuals who cannot afford the fee). Despite an apparent attempt to keep the rap sheet from public disclosure, raps sheets are widely used for private purposes. According to a 1996 study by the Society for Human Resource Management, 80 percent of mid-size to large employers conducted criminal background checks to screen potential employees. That is up 26 percent from 199?. Rap sheets are often required by a wide range of other individuals and organizations, from landlords to Little Leagues.

The information contained on rap sheets often determines which applicant gets such things as housing, employment, or the ability to interact with their children. There is no law in California that prevents these decisions being made on the basis of arrests or charges for which the person was factually innocent. Accordingly, it makes good public policy sense to have rap sheets be as accurate and free of information that would wrongly prejudice an individual. California’s record sealing law gives most wrongfully accused clearing their rap sheet of negative information.