More states rely on judicial expungement to avoid collateral consequences

Oklahoma is the most recent state to expand its expungement laws to make more people eligible fOklahomauntitledor record-clearing at an earlier date.  While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records.  Details of Oklahoma’s law are available here.

Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee.

Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records.  Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive.  The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.)  The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement.

The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on removing legal barriers and providing reassurances to employers and other decision-makers.  Judicial certificate programs have been enacted in the past year by Vermont and Rhode Island, following similar programs enacted in 2012 in Ohio and North Carolina. This more transparent “forgiving” relief tends to apply to a broader range of offenses than expungement, and may meet less resistance from law enforcement, business and the media than record-closing laws.

Mainstream law reform organizations like the Uniform Law Commission and the American Law Institute have adopted the “forgiving” as opposed to the “forgetting” model of relief represented by expungement and sealing statutes.  Vermont is the first state to enact the Uniform Collateral Consequences of Conviction Act in its entirety, as described here.  The ALI’s approval of the Model Penal Code: Sentencing collateral consequences provisions is described here.

A 50-state summary chart of judicial relief provisions, prepared for the NACDL Restoration of Rights Project, is available here.  The Wall Street Journal will publish a national study of expungement laws sometime in the next few weeks.

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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