California poised to become third state to adopt “clean slate” record relief

On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation.  If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize “clean slate” record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.)  AB 1076 creates a parallel eligibility scheme that overlaps but is not exactly coincident with the petition-based system, as well as a new procedure for automatic relief.  The specific provisions are described generally below, and more fully after the break.

AB 1076 would not modify eligibility for relief under California’s existing scheme of judicial remedies for people with criminal records, via sealing as well as dismissal and set-aside.  Rather, effective January 1, 2021, it would create a new process obviating the requirement of an individually-filed petition or motion in most cases.  If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession).

A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records:  it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law.  As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository.  This would change in 2021, if this law is enacted.  (Most non-conviction records are now eligible for sealing by petition under California law.)  Note that, like most state repositories, California’s repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users.

The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce “barriers to employment and housing opportunities for millions of Californians.”  They point to the key findings of J.J. Prescott and Sonja Starr’s 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court.  While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan.

If California’s new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions.  For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic.  (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.)  For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense.  Prosecutors and probation officers may object to automatic conviction relief in individual cases on “based on a showing that granting such relief would pose a substantial threat to the public safety,” and such an objection may be tested in a court hearing.

A major shortcoming of AB 1076 — in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only.  That is, relief is automatic only for arrests and convictions occurring after the law’s effective date.  Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief.  Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021.  Presumably these changes were based on financial and logistical considerations.  The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year.  Moreover, the bill’s effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it “would need the implementation date to be delayed to July 1, 2023 for proper implementation.”  Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021.

Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted.

We will now describe in detail California’s clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105.

Arrests

A person arrested on or after January 1, 2021, is eligible for automatic relief if any of the following is true:

  • The arrest was for a misdemeanor and either the charge was dismissed, the person was acquitted of any charges, or at least 1 year has elapsed since the arrest and there is no indication that criminal proceedings have been initiated;
  • The arrest was for a felony punishable by imprisonment in county jail, and either the person was acquitted of any charges, or at least 3 years have elapsed since the arrest and there is no indication that criminal proceedings have been initiated; or
  • The person successfully completed one of various specified diversion programs.

Cal. Penal Code section 851.93.  (Note: this excludes an arrest for a felony punishable by imprisonment in state prison and dismissed cases where the arrest was for a felony punishable by imprisonment, unless the person successfully completed a specified diversion program.)

The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with arrest records that are eligible for relief, and “shall grant relief” if such information is present in the records.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of arrests granted relief and the percentage of arrests for which the state summary criminal history information does not include a disposition.

Effect of relief

Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “arrest relief granted,” and the date.  The arrest “is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to that arrest accordingly,” except that relief does not affect:

  • a person’s obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer;
  • the ability of a criminal justice agency to access and use records, or a district attorney to prosecute an offense within the applicable statute of limitations;
  • a person’s authorization to own or possess a firearm;
  • any prohibition from holding public office; or
  • the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria.

Starting on February 1, 2021, courts “shall not” disclose information concerning the arrest or case to any person or entity, in any format, except to the subject of the arrest, a criminal justice agency, or under one of the exceptions above.

Convictions

A person convicted on or after January 1, 2021, is eligible for automatic relief if otherwise eligible under existing law, and if each of the following conditions are also true:

  • the person is not required to register under the Sex Offender Registration Act;
  • the person does not have an active record for local, state, or federal supervision;
  • based on information in the DOJ record, it does not appear that the person is currently serving a sentence for any offense and there is no indication of pending criminal charges; and
  • there is no indication that the conviction resulted in a sentence of incarceration in state prison, and either: (1) the defendant was sentenced to probation, and, based on DOJ’s records, appears to have completed probation without revocation; or (2) the defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based on DOJ’s records, appears to have completed their sentence, and at least 1 year has elapsed since the judgment.

Cal. Penal Code section 1203.425.  Nonetheless, even if a person is eligible, the prosecutor or probation department may file a petition to prohibit automatic relief “based on a showing that granting such relief would pose a substantial threat to the public safety.”  The petition must be filed by 90 days before eligibility, and the court must give notice to the defendant and conduct a hearing within 45 days.  (A person denied automatic relief can still petition for relief under existing law.)

The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with conviction records that are eligible for relief, and “shall grant relief, including dismissal of a conviction,” if such information is present in the records, unless a petition to prohibit relief has been granted.  On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted.  The DOJ must annually publish statistics for each county regarding the total number of convictions granted and prohibited from automatic relief.

Effect of relief

Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “relief granted” and the date.  A person granted relief “shall be released from all penalties and disabilities resulting from the offense of which the person has been convicted,” except that the relief does not affect:

  • the provisions of Section 13555 of the Vehicle Code;
  • the obligation to disclose a criminal conviction in response to a direct question contained in a questionnaire or application for employment as a peace officer, public office, or for contracting with the California State Lottery Commission;
  • the ability of a criminal justice agency to access and use records;
  • the jurisdiction of the court over a subsequently filed motion to amend the record, petition or motion for postconviction relief, or collaterally attack a conviction;
  • a person’s authorization to own or possess any firearm;
  • a prohibition from holding public office;
  • the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria;
  • eligibility to provide, or receive payment for providing, in-home supportive services; or
  • pleading and proof of the prior conviction in any subsequent prosecution of the defendant.

Starting on February 1, 2021, courts “shall not” disclose information concerning the conviction to any person or entity, except to the person granted relief, to a criminal justice agency, or under one of the exceptions above.  In addition, a sentencing court “shall advise” a defendant of the provisions of this section, as well as the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon.

Finally, by amendments to Cal. Penal Code section 11105(p)(2)(A) that are effective January 1, 2021, the state records repository system is prohibited from disclosing conviction records that have been dismissed or set aside, whether automatically or by petition, in response to certain requests for background information to be used for employment, licensing or certification.  Exceptions in existing law where background checks are authorized by law apply (including law enforcement employment, health care licensure, and a variety of other authorized situations).

When effective, these non-disclosure provisions apply without regard to when or by what process relief was granted.

Both sections of the clean slate law make clear that they do not limit any petitions, motions, or orders for relief authorized or required under existing law.

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