One Month Out: A Conversation with Expungement Attorneys Mike Barfield and Lori Silberman | DCLAW Students

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Expungement experts Mike Barfield and Lori Silberman sat down with Communications Director Pamela Garlick to discuss the rewards and challenges of running an expungement clinic. Here’s what they had to say.

LSIC: It’s been a month since you set up shop on Mondays in Landlord Tenant Court. As you bring your experience to a clinic setting, what have you learned so far?

MIKE: People don’t like to come to court for intakes. We do more intakes in an hour in the community than we do in a day in court.

LORI: We’ve learned that we need to be connected to service organizations where people already are committed. We need to work with people who are willing to go out of their way to improve their lives. If they’re not trying to get a job or doing something proactive, they are not going to reach out to us.

And legally, we’ve confirmed what we already know and that is how horrible this law is—it doesn’t help many people at all. We’ve met with 70 people this month and only 6 are eligible for expungements.

LSIC: It must be hard not to get discouraged…

LORI: I was hoping to help more people—and that the law would help people. Our clients often can’t get housing, can’t get a job, and can’t get public benefits because of a criminal record that can be decades old.

LSIC: What is the sticking point?

LORI: A complete ban for any felony conviction.

MIKE: And there’s the interplay of that felony rule. So, if you have a felony conviction and you have a bunch of little stuff, sometimes you can’t even get the little stuff off your record because you have a felony conviction.

LSIC: Is it still worthwhile to go through the determination process for a felony record?

MIKE: Yes, because sometimes you can get a partial seal.

LORI: For example, we have one client with 36 charges on his record. Under DC law, 27 of those charges are able to be sealed.  While some convictions cannot be sealed, we can at least clean up his record and make it easier to explain to an employer or landlord.

LSIC: Speaking of sealing, please explain how it differs from expungement.

MIKE: With an expunged case, all records are permanently destroyed—electronic records are deleted and papers are shredded. Even the defendant is unable to access the records after an expungement is granted. What this means, though, is erroneously expunged records can never be recovered.

Sealing, on the other hand, governs who may access records of a criminal case. Generally, a defendant may only seal, rather than expunge, records of a case in the District of Columbia.

Defendants who can prove they were innocent receive nearly all the benefits of a fully expunged record with the exception that a single hard copy of the records is maintained. No member of the public is permitted access to it other than the defendant him or herself without a court order.

Defendants who cannot prove their innocence may still seal their records from the “public” if they meet certain eligibility criteria and a judge agrees that it is unfair for the public to know the defendant was arrested. The “public” generally means all persons other than police, prosecutors, courts, schools, and certain licensing boards.

LSIC: What’s it like for your clients when they come to you?

LORI: They’re unbelievably frustrated.

MIKE: They’re hopeless. I haven’t met a client who has had anything good to say about his prior attorney or isn’t frustrated with the system.

LORI: The reason they’re coming to us is because something has happened. They’ve been denied from employment and they’re upset and angry. And no one seems to have sympathized with them or listened to their story.

LSIC: Their lawyers, too?

LORI: Most people are upset with their lawyers, but that’s just the reality of practicing law.

MIKE: It’s usually not the lawyer’s fault that the law isn’t on their side. For example, we get a lot of people mad at us because there’s nothing we can do about felony convictions.

LSIC: What questions do you hear the most?

LORI: Who can see my criminal record? What do I have to disclose to employers about my record? The answer depends on the type of motion that we are able to file.

MIKE: Procedural stuff, too. How long is this going to take? And the answer is always six months. Many clients want to know why their record is what it is, and that’s always hard to answer. They may have faulty memories or they are drug addicts or they have a mental health issue.

LORI: Many people are also not eligible to seal because they still have open cases. They are often surprised when we tell them that they have a warrant out for their arrest and must talk to an attorney.

LSIC: So you’re getting them back on track.

LORI: Yes. For the 60 people we couldn’t help, we can at least show them or provide them with a copy of their criminal records. For many of them, no one has ever taken the time to explain what certain dispositions mean. For example, many people we see with bench warrants assume their case was dismissed.

LSIC: So you go in thinking you’re going to help someone seal their record, but you end up helping them get their case deposed?

MIKE: It happens all the time. We get their case to the point where they can walk down the street and not fear being arrested.

LSIC: What’s your biggest hurdle?

MIKE: Getting clients. We’re offering a free service, but we have trouble getting clients because only 10 percent of the people that we meet with are eligible for expungements under DC law.

LSIC: Sounds like an enormous effort. What drives you?

MIKE: It’s the right thing to do. Once you’ve served your time, you’ve served your time. There are a lot of terrible things that happen to people in prison and there are a lot of other terrible consequences that people are dealing with.

And as a practical matter, even if you don’t agree that we should punish people, you’re really just hurting society by making these people unemployable—because they’re going to commit more crimes. That people can’t get behind this really frustrates me. This is critical work that I really enjoy doing.

LORI: I think what we are doing really helps people improve their lives and peace of mind. I really enjoy working with clients and showing them that someone cares.

LSIC: I imagine you need to build a lot of trust when working with clients.

LORI: We’re going straight to their souls. With expungement work and the occasional pardons we write, our clients are mainly asking for forgiveness for their past crimes. The motions require us to show that our clients “deserve” an expungement or pardon. Asking “why do you deserve this” is always an emotional question.

MIKE: They all break down and cry. Every time. There’s only so much you can do. It’s tough.

LORI: One man that I talked to had just been released from prison after serving 20 years. He had no idea how a computer works. He came to me so excited. “I’m off papers,” he said. “I want to expunge my record.”

I wish. You deserve it. You worked so hard for so long to do your punishment, but we can’t. Sometimes it’s really hard.

LSIC: Despite the challenges, are you feeling optimistic?

MIKE: Definitely.

LORI: It’s been a lot of work, but we’re establishing partnerships with great organizations. With the help of law firm associates, we can build a great program and help a lot of people who really deserve a fresh start.

Learn more about the clinic and our community partners: Samaritan Ministries, St Matthew’s Cathedral, Skyland Workforce Center, Strive DC, Jubilee Jobs, and Image Works.

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