This is the third in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief.  The full report on 2019 laws is available here.

Criminal record relief (expungement, sealing, set aside)

As in past years, the reform measure most frequently enacted in 2019 was record relief, i.e. expungement, sealing, or other mechanism to limit access to criminal records or set aside convictions.  This past year, 31 states and D.C. enacted no fewer than 67 separate bills creating, expanding, or streamlining record relief.  This total does not include a dozen other new laws authorizing non-conviction dispositions that will be eligible for record-clearing under existing law.  A trend we observed in our 2018 report toward “a growing preference for more transparent restoration mechanisms” that limit use of a criminal record, as opposed to access, does not appear so obvious to us this year.  If anything, jurisdictions appear to be looking for new efficiencies in clearing records.

In 2019, 27 states and D.C. made certain classes of convictions newly eligible for expungement, sealing, or vacatur relief.  Five of those states enacted their first general authority for expunging or sealing convictions (North Dakota, New Mexico, West Virginia, Delaware, Iowa), making record relief available for the first time to thousands of people.   Nonetheless, most potential beneficiaries of these new relief schemes find them hard to navigate:  eligibility criteria are frequently complex and unclear, and court procedures are usually intimidating, burdensome and expensive.  These and other barriers to access have been shown to discourage the law’s intended beneficiaries.

To obviate the need for individual applications, in 2019 three states followed the example set by Pennsylvania’s 2018 “Clean Slate Act” by enacting automatic relief for a range of conviction and non-conviction records (Utah, California, New Jersey).  Specific provisions of these important new laws are described in the following pages, and in greater detail in the relevant state profiles in the Restoration of Rights Project.  Six additional states focused automatic relief provisions on specific offenses or dispositions (

, Illinois, New York, Virginia, Nebraska, Texas).

Also notable were bills providing relief for victims of human trafficking and for marijuana offenses.  Seven states and D.C. authorized relief for victims of human trafficking, allowing them to vacate, expunge, and seal a range of criminal records resulting from their status as a victim.   Seven other states—all of which have legalized or decriminalized marijuana—authorized record relief for certain marijuana offenses, including two automated relief measures (New York and Illinois).

In addition to these marijuana measures, which often extend to arrests and other non-conviction records, eleven states extended relief to certain non-conviction records for the first time.  Most far-reaching, new provisions in New York’s annual budget bill limited access to cases in which there has been no docket entry for five years; precluded the inclusion of such undisposed cases in background check reports; and extended New York’s automatic sealing of non-convictions to cases decided prior to the enactment of that relief in 1992. 

Finally, thirteen states enacted 18 laws to streamline and/or make more effective the procedures for obtaining relief under existing mechanisms.  Three states (Colorado, Washington, and New York) made particularly noteworthy and broad-based procedural reforms to their criminal records laws.

***********

To summarize the bounteous haul of record relief laws enacted in 2019, we have organized them into three categories: (1) new automatic relief schemes; (2) new petition-based relief; and (3) improved procedures and effect of existing record relief mechanisms.

1. New automated “clean slate” relief

In 2019, efforts to automate criminal record relief gained widespread attention as a response to what scholars have called the “uptake gap” or “second chance gap” in petition-based schemes.  The “gap” refers to the large percentage of a law’s intended beneficiaries who never even apply for relief, deterred by multiple barriers to access that include unclear eligibility criteria and burdensome court procedures.  Automated schemes close the gap by requiring the government to grant relief to all individuals deemed eligible by the legislature, without requiring individuals to ask for it.

Initially inspired by the need for large-scale relief in the wake of marijuana legalization, automation entered the law reform mainstream in 2018 when Pennsylvania passed its Clean Slate Act, providing a term that is now generally understood to refer to automated schemes (though is not in  practice always so limited).  While Pennsylvania’s automated sealing law did not extend relief much beyond cases that had been previously eligible (capped at the misdemeanor level), the law was unusually ambitious in its retroactive application to millions of state records accumulated over decades.

While a few states have for years made sealing mandatory for non-conviction and juvenile records, until Pennsylvania’s law none had attempted to make sealing relief self-executing and retroactive.  By mid-2020, when the statutory implementation schedule is complete, more than 32 million non-conviction and misdemeanor records held by the Pennsylvania courts and state police will have been closed off to the public.  Extensive cooperation between the Commonwealth’s records custodians and courts was necessary to make this law operational, and to implement a system of notifying those whose records had been sealed.  Pennsylvania’s automated process, which will be completed for older cases in mid-June 2020, is described in detail in the Pennsylvania profile from the Restoration of Rights Project.

In 2019, three more states joined Pennsylvania in enacting “clean slate” automatic sealing laws of their own.

• Utah’s clean slate law will provide for automatic expungement of a variety of non-conviction, infraction, and misdemeanor criminal records (and deletion of certain traffic records) when the law takes effect on May 1, 2020, and will apply retroactively to cases adjudicated prior to its effective date (HB 431). (Utah provides sealing relief to almost all convictions, excluding only serious felonies, so its automation feature applies only to cases on the lowest tier.)
• California’s 2019 clean slate law provides for automatic record relief in the form of dismissal or set-aside certain convictions and arrests occurring after the bill’s effective date of January 1, 2021. The new law supplements but does not supplant the existing system of petition-based relief (eligibility criteria are slightly different).  While its automatic feature is prospective only, for the first time prohibits courts and the state repository will be prohibited from disclosing information about conviction records that have been dismissed or set aside under either the new automatic process or the older petition-based system. The new law does not impose new limits on disclosure of arrests and other non-conviction records occurring prior to the law’s effective date, which must still be sealed under the existing petition-based system. (AB 1076)
• New Jersey’s clean slate law, the final record relief measure signed into law in 2019, directs the State to develop and implement a process by which all but certain convictions, as well as non-conviction records, will be automatically made “inaccessible to the public” ten years after completion of the sentence imposed for the most recent conviction. The retroactive application of the law must be completed by mid-June 2020.  The law also extends eligibility and improves procedures for petition-based discretionary relief from courts, which (as under Pennsylvania’s law) is available to a broader range of cases than those eligible for automated relief (S4154).

These three clean slate laws are described in greater detail in the relevant state profile from the Restoration of Rights Project.

In addition to these large-scale automation projects, five states enacted automatic relief measures focused more narrowly on marijuana offenses, pardoned offenses, non-conviction records, and juvenile records.

• Florida directed its state records repository to develop a system for automatic sealing of the non-conviction records that are eligible for petition-based relief from the courts under existing law (HB 7125). See Fla. Stat. § 943.0595. (Existing Florida law also provides for expungement of certain records, including those that have been sealed for 10 years.) Unlike the other more general automated systems discussed above, Florida’s new law appears to contemplate expanding the class of records eligible for sealing, since it omits restrictions related to prior convictions or record relief.
• Illinois’s marijuana legalization bill authorized the automatic expungement of arrests and convictions for “minor cannabis offenses” (not more than 30 grams, no enhancements, and no violence); and petition-based expungement for more serious marijuana convictions (HB1438; SB 1557).
• New York extended its automatic sealing of non-conviction records to cases decided prior to the enactment of that relief in 1992 (A7584), and to undisposed cases after five years of inactivity. (S1505).  It also authorized automatic vacatur and expungement of convictions for possession of two ounces or less of marijuana, with a presumption that a plea to such an offense was not knowing, voluntary, and intelligent for purposes of avoiding immigration consequences (S6579; S6614).
• Nebraska enhanced its procedures for automatic sealing of juvenile records (LB 354).
• Texas directed juvenile courts upon entering a finding that charges are unfounded, to seal all records immediately and without a hearing (HB 1760).
• Virginia provided for automatic expungement for persons granted an “absolute pardon” (exoneration) (HB 2278).

The Clean Slate Initiative reports that several states are considering automated “record-clearing” laws in the 2020 session.  Among the issues that must be worked out are how to simplify eligibility criteria for algorithmic treatment, and how to notify those whose records have been cleared.

2. New petition-based relief

The second category of record relief laws expanded the availability of petition-based relief to new classes of persons. Twenty-four states and D.C. enacted no fewer than 41 laws that authorize people to apply for relief for convictions or dispositions that were previously ineligible.

Five states made particularly dramatic changes to authorize relief for a range of non-conviction records, misdemeanor convictions, and felony convictions.

• North Dakota passed that state’s first general authority for sealing conviction records: it authorizes people with misdemeanor or felony convictions to apply after a charge-free waiting period of three and five years, respectively, with certain exceptions, and a seven year period for DUIs (HB1256; HB1334).
• New Mexico enacted a comprehensive law authorizing expungement of most non-conviction records after a one-year waiting period, and of conviction records in all but the most serious violent and sexual crimes after conviction-free waiting periods ranging from two to ten years upon a finding that “justice will be served” (HB 370).
• Delaware, which previously only authorized expungement for pardoned misdemeanors, enacted a dramatic expansion of this record relief, making it mandatory for cases “terminated in favor of the accused” and certain less serious misdemeanors, and discretionary for more serious misdemeanors and eligible felonies. Mandatory relief is administered by the state records repository, while discretionary relief is administered by the courts, with variable waiting periods and limits on number of offenses. See SB 37.  Delaware’s new law stops short of automating relief in “mandatory” cases, since people must apply to the repository before their cases will be considered.
• West Virginia, which previously only authorized expungement of convictions for youthful misdemeanor first offenses, expanded eligibility to include most misdemeanors and some non-violent felonies, with waiting periods of up to five years (SB 152).
• Kentucky made class D felonies, with some exceptions, eligible for expungement after a five-year conviction-free period, along with charges dismissed without prejudice after five years (SB 57).

Seven states and D.C. passed laws authorizing vacatur, sealing, and/or expungement relief for victims of human trafficking:

• District of Columbia (expungement and vacatur for convictions for all offenses except a list of ineligible serious offenses; expungement of non-conviction records for any offense) (B22-0329).
• Delaware (pardon or vacatur and expungement of non-violent convictions) (HB 102).
• North Carolina (expunction of most nonviolent misdemeanor or low-level felony conviction) (H198),
• Tennessee (expungement of prostitution conviction along with other non-violent offenses) (SB 577).
• Texas (non-disclosure of conviction or deferred adjudication for certain prostitution, theft, and marijuana offenses) (SB 1801).
• Utah (vacatur for juvenile prostitution and related offenses) (HB 108).
• Vermont (vacatur and expungement of offenses other than serious violent offenses; this bill also revises the broader expungement and sealing scheme, reducing some waiting periods and expanding the number of eligible conviction offenses) (H 460).
• Nevada expanded the list of eligible offenses for vacatur and sealing relief for victims of human trafficking (SB 173).

Relatedly, Hawaii authorized vacatur of prostitution offenses (SB1039).

Five states provided for petition-based relief for marijuana offenses, over and above the two automatic marijuana sealing measures enacted by Illinois and New York, discussed above.

• New Hampshire provided for annulment of arrests or convictions for marijuana possession of ¾ of an ounce or less (HB 399).
• Hawaii decriminalized and provided for expungement of marijuana possession of three grams or less (HB1383).
• Delaware decriminalized youthful marijuana possession and made clear than a prior conviction for such an offense can be expunged (SB 45).
• Oregon authorized expedited set asides and reductions of offense classifications for qualifying marijuana convictions (SB 420; SB 975).
• Washington authorized expedited vacatur of misdemeanor marijuana convictions for conduct committed at age 21 and older, with no waiting period or other eligibility criteria (HB 5605).

Additional laws authorized sealing and expungement of felony, misdemeanor, first, youthful, decriminalized, and pardoned offenses, as well as wrongful arrests.

• Iowa enacted its first authority to expunge conviction records, covering certain misdemeanors, with an eight year waiting period as well as other requirements, including that a person may be granted only one expungement, unless multiple charges arose from one incident (SF 589).
• Oklahoma made more felonies and pardoned offenses eligible for expungement (HB 1269; SB 815).
• Mississippi extended sealing to more felonies and larceny of motor fuel, and repealed the loss of one’s driver’s licenses due to a drug conviction (HB 1352; HB 940).
• Missouri authorized expungement for several property crimes (SB 1).
• Montana expanded eligibility for misdemeanor expungement (HB 543).
• Maryland authorized expungement of misdemeanor boating offenses (HB259).
• Nevada provided for sealing of decriminalized offenses, expungement of wrongful arrests, and set aside of conviction after completion of specialty court program (AB 192; AB 222; AB 315).
• Vermont authorized expungement of records of juvenile diversion cases after two years without a subsequent conviction and payment of restitution (S 105).
• Louisiana made entitlement to a first offender pardon the basis for filing a motion for expungement, except for violent or sexual crimes (SB 98).
• North Carolina authorized expungement of criminal court records when a case is remanded for juvenile adjudication (S413).
• Texas authorized nondisclosure of certain deferred adjudications for intoxication offenses and for veterans, as well as expunction of the records of completion of a mental health court program TX (HB 3582; HB 714; SB 562).
• Arizona eased restrictions on setting-aside convictions: previously, a conviction was ineligible if there was a victim under age 15; a new law specifies that non-felony offenses with such victims are eligible (HB 2480).
• Oregon authorized the sealing of pardoned offenses (SB 338).

3. Procedural reforms in existing relief schemes

Thirteen states enacted 18 laws to streamline and make more effective existing relief mechanisms, making them more accessible and effective.  Three states made particularly noteworthy and broad-based reforms.

• Colorado repealed, reorganized, and reenacted its entire chapter on criminal records: major changes include shortened waiting periods and reduced filing fees for sealing less serious drug convictions; a significantly simplified process for sealing uncharged arrests and non-conviction records; expanded eligibility for conviction relief; expanded mandatory juvenile expungement; authority for judges to discontinue juvenile registration; and direction to a commission to take recommendations on automatic sealing and alternatives to incarceration for drug offenses. (HB 1275; HB 1335; SB 8).
• Washington substantially amended its eligibility requirements, including consolidating waiting periods and easing requirements to satisfy financial obligations. Now the necessary conviction-free period will be coextensive with the otherwise applicable waiting period, and a person need not have paid all court debt in order to qualify for relief if five years have elapsed since release from custody and all non-financial requirements are met.  The bill also makes eligible for the first time certain assault and robbery felonies, as long as they did not involve a firearm or “sexual motivation” (HB 1041).
• New York, in addition to providing for automatic sealing of marijuana convictions (see above), extended relief to cases in which there had been no docket entry for five years; precluded the inclusion of such undisposed cases in background check reports; and clarified that eligibility for sealing of petty offenses does not depend on the initial offense charged(S1505; A7584).

Additional states reduced or eliminated waiting periods and filing fees, streamlined procedures, and expanded the effect of relief.

• Arkansas eliminated the 5-year waiting period for certain felonies and the 60-day waiting period for misdemeanors and infractions to become eligible for record sealing, eliminated the $50 filing fee for petitions to seal, and declared this as “the first step in a multi-step process to attempt to make the sealing of certain records of a person’s criminal history that involve nonviolent and nonsexual offenses an automatic operation” (HB1831).
• Louisiana provided that only one filing fee is required in an application to expunge multiple offenses resulting from the same arrest (HB 9).
• Illinois extended a pilot program in Cook County for waiving filing fees for sealing or expungement of non-convictions (SB482).
• California prohibited the charging of a fee for sealing juvenile records (AB 1394).
• Indiana and Utah specified that that records of a collateral actions (i.e. forfeiture) related to an expunged criminal record is also subject to expungement (IN SB 235; UT HB 212).
• Florida rolled-back a scheduled repeal of the confidentiality of treatment court records (HB 7025).
• New Hampshire created a “confidential” category of criminal history information, including non-convictions and annulled convictions, to be subject to restrictions on public access (HB 637).
• Tennessee authorized the disposal of juvenile records after the young person reaches age 28; repealed a $180 fee for petitioning for an expunction of certain criminal offenses and a $350 fee for applying for expunction following diversion; and required sentencing judges to notify those convicted of misdemeanors about eligibility for expungement (SB 214; SB 797; SB 778).
• Wyoming improved its rules for expungement of juvenile records and the records of minors, including authorizing the prosecutor to seek expungement, eliminating filing fees, and authorizing expungement of a minor’s records of diversion, deferral, or non-conviction (HB 44).