The Maryland State Fraternal Order of Police?s call for Baltimore Mayor Martin O?Malley to release his bar application is nothing more than politically motivated gamesmanship. The organization endorsed Democrat O?Malley?s opponent in the race for governor, Republican Robert Ehrlich.
It is irrelevant whether O?Malley put his 1987 arrest for a DUI on the bar application ? a charge for which the mayor was later acquitted. Bar applications are supposed to be truthful, and yes, incomplete applications may be used against the applicant. But it is not the prerogative of the Maryland FOP to get involved in such things ? that is up to the Maryland State Bar Association and the Court of Appeals in a disciplinary matter.
The real question is why an arrest record, in which a person is simply arrested for a crime, but not convicted, may be used against him in a job application, or in this case, a gubernatorial candidacy.
Nearly all job applications ask a candidate about whether he has been convicted of any crime, a fair question, but many also ask of applicants the question whether they have been arrested, too. Sadly these arrest records are often used against applicants.
According to a federalpublic defender I spoke with, prosecutors believe it is important to keep a record of the number of times a person has been arrested as a possible indicator of a pattern of bad behavior. The theory is that if a person is frequently arrested, then that person is more likely than not to have committed a crime. But this theory has many holes.
For example, a resident may live in a neighborhood in which criminal activity is a frequent occurrence. If the resident even lives near the site of a crime, and is seen by a witness near the crime, the resident could be arrested after identification by the witness.
The person may have had nothing to do with the crime. He could be released without ever having been convicted, often with the charge “no papered” ? not even put on paper by the prosecutors ? and yet the arrest could still negatively impact the resident?s chances of winning a job.
There is an expungement process in which one may file to get an arrest removed from a record ? but often prosecutors will fight this on the grounds of record-keeping. Since this is an administrative action, assistant public defenders are not legally required to assist in the filing of expungements. So the result is that often poorly equipped, uneducated defendants, innocent of their charges, lose out strictly due to filing deadlines or poor writing skills when an expungement is otherwise warranted.
If someone is “no-papered” for a crime after an arrest then the charge should automatically come off for first-time arrestees, and within five years for all others. There should be a departmental policy that the state will support all calls for expungement on “no-papered” arrestees and for automatic expungement of one?s arrest record for those acquitted of crimes, like O?Malley.
The Maryland State Bar seeks to have applicants who are truthful ? and don?t try to cover up mistakes of the past. Yet, why should an applicant even have to list something as a mistake when not convicted of it?
The state does have a need to keep records, but at the same time, to be fair to defendants. As most companies today conduct background checks, more often than not, they know exactly what a person?s record looks like.
It is hard enough for most people to find work without an unfair arrest record held against them, but especially hard with it.
Tom Moore hosts “The AES Tom Moore Show,” from 10 to 11 p.m. Saturdays. His Web site is www.tommooreradio.com. He holds a juris doctor degree from the University of Baltimore, 2006.
