Expungement expansion round-up (2016 edition)
More and more states are enacting new expungement and sealing laws, or expanding existing ones, some covering convictions for the first time. The first four months of 2016 alone saw courts given significant new authority to limit access to criminal records in four states, and bills have been introduced in several others that promise more new laws in months to come.
In April, Kentucky authorized expungement of felonies for the first time, while New Jersey reduced waiting periods for some offenses and made expungement automatic for some others. Also in April, Maryland’s Governor Hogan signed that state’s Justice Reinvestment Act, permitting expungement of misdemeanor convictions for the first time. Beginning in November, Pennsylvania courts will have new authority to seal misdemeanor offenses, and follow-up bills have been introduced in both houses to make sealing automatic for most non-felony records after a waiting period. There are also several pending proposals to significantly expand existing expungement laws in Oklahoma, Missouri, and Rhode Island.
We take a closer look at each of these new expungement authorities below.
The new laws evidence the growing momentum behind second-chance reforms. They also show how expansion of expungement and sealing mechanisms can be an incremental process. For example, the legislatures in Maryland and Pennsylvania first tested the waters by giving courts new authority to mitigate low-level conviction records in relatively limited ways, with both following up shortly after with proposals to increase both the availability and effectiveness of those mechanisms. Meanwhile, states with fairly robust expungement mechanisms already in place, like New Jersey, Missouri, and Kentucky, have taken steps to make relief available sooner and to more people. Relatedly, in the first four months of 2016, six more states enacted or expanded state-wide ban-the-box laws limiting inquiry about criminal records at early stages of the hiring process, bringing the total to 23.
Perhaps the most significant thing about these legislative initiatives is the almost total absence from the debate of objections based on public safety concerns. Indeed, to the extent the principal purpose of expungement laws is to increase employment opportunities for people with a criminal record, their proponents argue that they actually reduce recidivism. As legislators and their constituents witness firsthand the additional benefits provided by each small expansion of expungement authority, they are increasingly willing to take those reforms a few steps further. For a review of expungement laws in all 50 states, see here.
Newly enacted and newly effective legislation:
Kentucky – HB-40
In April, Governor Matt Bevin signed HB-40, giving people convicted of certain non-violent Class D felonies or who have had received a full pardon the opportunity to petition to have their convictions vacated, charges dismissed, and records expunged. Previously, expungement was only available for misdemeanors. A waiting period of five crime-free years applies, and vacatur and expungement may only be sought once in a person’s lifetime (though multiple eligible felonies stemming from the same incident may be expunged under a single petition). Expunged records are deleted from official databases (including law enforcement), will not show up in background checks, and need not be acknowledged. The court and other agencies “shall reply to any inquiry that no record exists on the matter.” Felony expungement also restores the right to vote. The law will take effect in July.
The law’s short waiting period and broad effect are good news to anyone with an eligible conviction, but the high $500 filing fee required to apply could make relief unattainable for many Kentuckians. The irony is that the people most likely to benefit from the new law — those who have difficulty finding employment because of their record — are the same people least likely to be able to afford the fee. High filing fees have come recently under fire in Tennessee, where the $450 filing fee for expungement has become so prohibitive that groups have resorted to creating private funds to pay the fees on behalf of petitioners.
New Jersey – P.L. 2015, c. 261
In April, P.L. 2015, c. 261 went into effect, authorizing immediate expungement following successful completion of drug court or court-ordered rehabilitation, allowing for early expungement of youthful drug offenses, reducing the waiting period for expungement of both misdemeanors (or “disorderly persons offenses,” as they are known in the Garden State) and felonies (“indictable offenses”), and allowing felonies and misdemeanors to be expunged at the same time. The new law also makes expungement of non-conviction records automatic and immediate.
The law’s drug court expungement provision is expected to have the greatest impact. According to one article, “in the last 15 years, nearly 20,000 people have been enrolled in the state’s Drug Court program.” Under the new law, anyone who successfully completes a court-ordered rehabilitation program under NJSA § 2C:35-14 may have the record expunged immediately upon discharge. Expungement is mandatory “unless [the court] finds that the need for the availability of the record outweighs the desirability of having the person freed from any disabilities associated with their availability.” The law is retroactive, so that people who were successfully discharged prior to the new law’s effective date can petition the convicting court for expungement.
Expungement under this provision is not necessarily permanent, though: Acess to the record may be restored if the person is subsequently convicted of a crime, and “no future expungements shall be granted.” In effect, this gives individuals only one bite at the expungement apple.
The new law also allows persons convicted of low-level drug offenses when they 21 years old or younger to petition for expungement just one year after completion of their sentence if they have no other convictions and no probation or parole violations.
The presumptive waiting period for felony and misdemeanor expungement through the normal route remains ten and five years, respectively. However, the new law offers an “early pathway” to expungement: If the court finds that expungement “is in the public interest, giving due consideration to the nature of the offense, and the applicant’s character and conduct since conviction,” then the court may expunge a felony after five years and a misdemeanor after three. Though a person may only seek expungement once, up to three misdemeanors may be expunged at the same time, and, under the new law, up to two misdemeanors may be expunged at the same time as a single felony. Previously, expungement of a misdemeanor precluded felony expungement, and conviction of a felony precluded misdemeanor expungement. If multiple offenses are expunged at once, the waiting period runs from the date of the latest conviction.
The legislature had originally proposed to reduce the waiting periods for felonies and misdemeanors outright (five years for felonies and three years for misdemeanors). The discretionary waiting period reduction that found its way into the new law was the result of a compromise with Governor Christie, who vetoed the original proposal in January, saying:
As written, this bill would cut in half the presumptive waiting period to expunge indictable offenses, often felonies, from ten years to five years, and eliminate an important safeguard which allows a judge to consider whether granting an expungement is in the public’s interest. The current public interest exception to the presumptive waiting period is an effective and efficient way to help ex-offenders combat the collateral consequences of their offense, while also ensuring that public safety is not compromised.
Taken as a whole, the new law represents a major overhaul of New Jersey’s expungement scheme, making it easier for people to clear their records and allowing them to do it sooner. Unfortunately, the new law did not expand upon the list of offenses that are eligible for expungement through the usual route. In addition to violent felonies, most first and second degree non-violent drug crimes remain ineligible.
You can view our guide to restoration of rights, pardon, expungement & sealing in New Jersey here. A “New Law Advisory” on the changes published by the Administrative Office of the Courts is available here.
Maryland – Justice Reinvestment Act (SB-1005)
Just this month, Maryland Governor Larry Hogan signed the Justice Reinvestment Act, a comprehensive criminal justice reform bill that authorizes courts to expunge misdemeanor offenses for the first time. The new expungement authority follows closely on the heels of a law enacted last year that allowed for “shielding” of certain misdemeanors. Records expunged under the new bill are subject to more expansive protections than those that are merely “shielded;” however, the waiting period for sealing is much longer.
Under the new law, over 100 enumerated misdemeanors are eligible for expungement after ten crime-free years. Eligible offenses include second degree assault, drug possession, prostitution, theft, disorderly conduct, various fraud offenses, and various regulatory offenses. Second degree assault and “domestically related offenses” are subject an an extended 15-year waiting period. Only 12 non-violent misdemeanors are eligible for shielding under the law enacted last year, but a record may be shielded after only three years. Expungement under the new law is discretionary, and a court can only grant a petition if sealing “is in the best interests of justice,” and the person does not pose a public safety risk. Shielding is similarly discretionary, but may be granted under a lower “good cause” standard.
Records that are expunged are afforded more protection than those that are shielded, which explains the heightened eligibility requirements that apply to expungement. A record that is expunged may only be opened by court order and is destroyed after three years. A person may not be required to disclose information about an expunged records to an employer, educational institution, or government licensing agency. Additionally, a person cannot be denied employment or licensure solely because of a refusal to disclose an expunged record. Shielded records are afforded far less protection in comparison: Though they are not publicly available and may not generally be used by employers or licensing boards, any employer or licensing agency that is required or authorized by law to inquire into a person’s criminal record may access a person’s shielded record, as may health occupation boards, child care facilities, and the medical marijuana commission, and others.
Prior to the enactment of the new shielding and expungement laws, there was no way to hide or get rid of any adult criminal conviction, with small exceptions for nuisance offenses, decriminalized offenses, and pardoned non-violent first-offender convictions. In spite of the legislature’s recent flurry of action, all felonies remain ineligible for expungement or shielding.
The new law will take effect on October 1, 2017.
Pennsylvania SB-166 (2015)
Beginning on November 14, Pennsylvanians will be able to seal the records of 2nd and 3rd degree misdemeanors and ungraded offenses under an “order for limited access,” thanks to a law enacted last year. As was the case in Maryland before the passage of the shielding law, there was previously no way for Pennsylvanians to seal or expunge their conviction records (with narrow exceptions for certain elderly applicants and pardoned convictions).
Sealing will be available after a ten-year waiting period, during which time the petitioner may not have been arrested or prosecuted for another offense. People with certain convictions, including simple assault (except in the 3rd degree), four or more offenses punishable by imprisonment of one or more years, and any offense punishable by more than two years’ imprisonment, will be ineligible. Sealing appears to be discretionary, though the law provides no standards to guide the court’s discretion.
Sealed records will not disappear and will not be entirely confidential. They will remain available to state professional and occupational licensing agencies and to agencies such as the Department of Human Services for child protective services uses, as well as to criminal justice agencies. However, sealed records will be unavailable to the general public, including private employers and landlords, and, unless requested by an agency to whom disclosure is already authorized, “no individual shall be required nor requested to disclose information about the person’s [sealed] criminal history records.”
The limited effect of sealing is understandable from a political perspective given that this is Pennsylvania’s first general authority for sealing convictions. What is less understandable is the fact that an arrest for conduct not proven in court resets the ten-year waiting period — itself already relatively long compared to the waiting periods for sealing of minor convictions in other jurisdictions. As discussed in the next part, the legislature is already considering broadening the effect of sealing, but there have been no proposals to amend the law to address the effect of arrests.
You can view our guide to restoration of rights, pardon, expungement & sealing in Pennsylvania here.
Twin “Clean Slate” bills introduced in April would follow up on last year’s sealing bill by making make sealing automatic upon satisfaction of an eligibility waiting period: Ten years for misdemeanors, five years for summary offenses, and seven years for juvenile adjudications. Sealing of non-conviction records will be automatic and immediate. The bills would also eliminate the exception under the current law that allows for most occupational and licensing boards to consider records that have been sealed. tisan sponsorship. According to Community Legal Services of Philadelphia, both bills have received broad bi-partisan support, and indeed the Senate passed its bill unanimously not long after its introduction.
On May 11, the Missouri legislature passed a bill that would significantly reduce the waiting periods for both felony and misdemeanor expungement. The bill is currently awaiting action from Governor Nixon, who said he will give it serious consideration. The bill would reduce the waiting period for felony expungement from 20 years down to seven. Misdemeanor waiting periods would be reduced from ten years to three. If the bill is approved, it is expected to drastically increase the number of expungement applications filed in the state. One report notes that, “according to a financial analysis of the proposal, the additional number of people filing for expungement could trigger the hiring of hundreds of workers to process the requests.”
The benefit of reduced waiting periods would come with a trade-off, though: Under the proposed law, a person would only be able to expunge one felony or two misdemeanors in their lifetime (although, multiple offenses resulting from the same indictment would be treated as a single expungement of the highest-level offense). Under current law, there is no limit on the number of convictions that can be expunged, with the odd caveat that a person cannot receive more than one expungement order from the same court.
You can view our guide to restoration of rights, pardon, expungement & sealing in Missouri here.
House Bill 2397, which is currently in conference in Oklahoma’s Senate, would reduce the expungement waiting period for people sentenced to a term of imprisonment or suspended sentence from ten years down to five. Additionally, people convicted of misdemeanors would be allowed to seek expungement immediately upon satisfaction of a fine of $500 or less, so long as imprisonment or a suspended sentence was not ordered. The bill would also allow those convicted of up to two non-violent felonies that have been pardoned to seek expungement.
You can view our guide to restoration of rights, pardon, expungement & sealing in Oklahoma here.
Two separate expungement bills are now in committee in the House and Senate. The bill in the House, H-7536, would authorize courts to expunge up to five misdemeanors if a person has remained conviction and arrest-free for ten years and has never been convicted of a felony. The current law only allows for expungement of first-offender misdemeanors. The bill is chiefly backed by Attorney General Peter Kilmartin, a former police officer.
The bill in the Senate, S-2111, would permit courts to expunge records related to a deferred sentence immediately upon compliance with all of the terms of the deferral agreement so long as the person has never been convicted of a crime of violence. Deferred sentencing records can be sealed under the current law, but expungement provides a slightly higher degree of protection than sealing.
Under both bills, expungement would be contingent upon a person demonstrating “good moral character.”
You can view our guide to restoration of rights, pardon, expungement & sealing in Rhode Island here.
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