The Maryland Supreme Court is set to decide whether some people who mess up on probation are permanently barred from having their case removed from court and law enforcement records, a process known as expungement.

The justices agreed on Dec. 19 to hear the case of a man who sought to expunge two convictions for possession with intent to distribute cannabis. Under Maryland law, people must wait a certain period for eligible convictions to apply for expungement after they satisfy their sentence, which includes probation and parole.

But a Harford County judge denied his request, ruling that she was constrained to do so under the law.

That’s because the Appellate Court of Maryland, the state’s mid-level appeals court, ruled in 2022 that people whose probation was unsatisfactorily closed after a violation cannot receive an expungement. And that’s what happened to the man, 32, of Edgewood, after he admitted to failing to get permission before changing his address and making himself available for home visits.

“The effect of this is really disproportionately and illogically harsh for people,” said Abby Moskowitz, senior attorney for impact and appellate litigation at Maryland Legal Aid, the state’s largest provider of free civil legal services, who represents the man. “You’re not supposed to have life sentences for these offenses.”

He’s only identified by his first name and last initial in court records before the Maryland Supreme Court.

‘Over-convictions and over-sentencing people to jail terms is not serving anyone’

Under the ruling, Moskowitz said, people who are sentenced to straight jail or prison time can act out in custody without that having any effect on expungement. But others who only get probation and mess up could be barred from clearing their record.

People on probation are trying to rehabilitate themselves and come out in a better position to not reoffend, Moskowitz said. Violations, she said, are “par for the course, honestly.”

In 2022, 43% of people did not successfully complete the terms of their supervision, according to data from the Maryland Department of Public Safety and Correctional Services’ Division of Parole & Probation.

Moskowitz said her client was almost finished with his sentence. That’s when he was assigned a new probation agent who claimed based off notes in the file that he’d failed to show up to multiple meetings.

But the man asserted that his previous probation agent told him that “things were closed” and he “didn’t have to do anything else.” He later admitted to technical violations of probation, and a judge unsatisfactorily closed his supervision.

He’s a laborer. His convictions are a “significant impediment” to more desirable employment, Moskowitz said.

Besides the fact that the decision is illogical from a legal and policy standpoint, Moskowitz said, it’s contrary to the direction the legislature has been moving in with expungement.

“Part of this is with an understanding that over-convictions and over-sentencing people to jail terms is not serving anyone in the community,” Moskowitz said. “It doesn’t help their children. It doesn’t help their neighborhood where they’d be paying taxes. It doesn’t help the workforce that they could’ve been a part of otherwise.”

Arrests and convictions pose ‘significant barriers’

Katie Kronick, an assistant professor of law at the University of Baltimore School of Law, filed a friend-of-the-court brief on behalf of its Center for Criminal Justice Reform and the Criminal Defense and Advocacy Clinic, where she serves as director.

That’s along with the Clean Slate Initiative, a national nonprofit organization that works to pass laws that automatically clear criminal records of people who’ve finished their sentences and stayed out of trouble.

The decision, she wrote, “produces a terrible constraint on the ability of hundreds of thousands of Marylanders to clear their records, causing personal, moral, and economic implications contrary to the public policy interests inherent in expungement and undermining the purpose and intent of the statute overall.”

In 2019, Kronick said, approximately 1 million adults in Maryland — or about 22% — had some form of a criminal record. And people of color are disproportionately affected.

Arrests and convictions “present significant barriers to employment, housing, education, and social reintegration,” Kronick said.

The U.S. economy, she said, loses an estimated $78 billion to $87 billion each year due to people with criminal records participating less in the workforce.

“We urge this Court to grant the petition in this matter to consider whether one mistake on probation, no matter how trivial, should prevent the full benefits afforded to someone with a criminal record who could otherwise receive an expungement,” Kronick said.

The Maryland Volunteer Lawyers Service also submitted a friend-of-the-court brief and urged the justices to hear the case in the “interest of equity and justice.”

Meanwhile, the Maryland Office of the Attorney General asked the court to hold off on deciding whether to take up the case until after the 2025 legislative session.

In court documents, Assistant Attorney General Jer Welter wrote that lawmakers were expected to consider legislation to address the decision. And if it passed, he said, that would “render this Court’s review unnecessary.”

A spokesperson for the Maryland Office of the Attorney General, Kelsey Hartman, declined to comment.

Legislation is ‘very much in the works’

Del. Sandy Bartlett, a Democrat from Anne Arundel County, and state Sen. Jeff Waldstreicher, a Democrat from Montgomery County, said they’re planning to introduce bills to address the ruling.

Bartlett described the legislation as “very much in the works.” Lawmakers are trying to be as thorough as possible, she said.

It’s unknown how the state’s highest court will rule. But in the meantime, Bartlett said, “we’re going to do what we can in the legislature.”

Legislators, she said, are working with the governor’s office.

In a statement, Carter Elliott IV, Gov. Wes Moore’s press secretary, said the administration is “working with all partners involved to ensure that we are continuing to put forward legislation that will make Maryland safer, more affordable, more competitive, and the state that serves.”

Waldstreicher said he will be calling his bill the Abhishek Reform Act, after the name of the opinion.

That’s to send a signal to the high court that the intent of the bill to overturn the decision, he said.

“I think there is strong political support for second chances,” Waldstreicher said. “My sense is that Marylanders believe that those who have minor violations of parole or probation should still at some later point be able to expunge those records — and start with a clean slate.”