Editor’s Note:  We are delighted to post a description of the broad new record relief bill now awaiting Governor Northam’s signature, by an attorney-advocate who was actively involved in the campaign to secure its passage. Rob Poggenklass describes the ambitious new law and how it came to be enacted, as well as likely next steps for record clearance in a jurisdiction that is swiftly becoming one of the nation’s leaders in record reforms. In addition to automatic sealing, the bill’s provisions for appointment of counsel, elimination of a fingerprint requirement for petitions, and regulation of private screening companies are particularly significant for reducing access barriers and ensuring effectiveness.

The Virginia General Assembly has passed transformative legislation to allow sealing of convictions, including low-level felonies, for the first time in the Commonwealth, and to establish a system of automatic sealing of police and court records for many offenses. About 1.6 million Virginians have a criminal record, which creates significant barriers to employment, housing, education, and other necessities of life.

The legislation reflects a compromise between an automatic expungement bill sponsored by Del. Charniele Herring and a mostly petition-based one brought by Sen. Scott Surovell. It also reflects the sustained work of directly impacted individuals and other advocates who organized and insisted on far-reaching, automatic, and equitable expungement legislation.

The legislation must be signed by Governor Ralph Northam before it becomes law, but the governor is expected to sign it. After the House and Senate could not agree on record sealing legislation during a special session in the fall of 2020, the governor hired a mediator to help negotiate the compromise bill that passed both chambers in 2021.

The legislation includes five key provisions. The bill:

1. Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession.
2. Allows for contemporaneous sealing of felony acquittals and dismissals with the consent of the prosecuting attorney.
3. Provides for sealing a broad range of misdemeanor and low-level felony convictions and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation.
4. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process.
5. Forces private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so.

Most provisions of the bill are not currently set to take effect until July 1, 2025, to give the Virginia State Police and the courts sufficient time to update their computer systems. Increased funding or other future action by the General Assembly could change the effective date.

A push for racial equity gave rise to criminal legal reforms

Virginia’s criminal legal system has disproportionately targeted Black people since colonial times. Virginia executed 185 Black people and 46 white people between 1900 and 1969. And while Virginia executed 73 Black people for non-murder offenses, the commonwealth never executed a single white person for a non-murder offense. As of 2018, Black people were 3.4 times more likely to be arrested for marijuana possession in Virginia. Although Black people comprise only 19% of Virginia’s population, 57% of all prisoners housed by the Virginia Department of Corrections are Black. Racial disparities are arguably worse for Virginia’s youth. A majority of children who are suspended from school and detained in local youth jails in Virginia are Black, as are 72% of young people committed to the Department of Juvenile Justice.

Years of relentless advocacy from people impacted by the sordid state of Virginia’s criminal and juvenile legal systems finally moved Virginia to act, as well as a constellation of other factors: the global pandemic, the killing of George Floyd, sustained protests of the police in the capital city of Richmond, a new Democratic majority in the General Assembly, and a governor eager to move on racial justice issues because of an embarrassing blackface scandal. In a series of seemingly nonstop legislative sessions since January 2020, Virginia has passed bills to abolish the death penalty, decriminalize and then legalize marijuana, end jury sentencing, end driver’s license suspensions for court debt, end pretextual stops, end presumptions against bail, and dozens of other criminal legal reforms. Because of differing approaches taken by the Virginia House and Senate on expungement reform, however, the lifelong consequences of a criminal record that follow from racially disparate contact with the criminal legal system threatened to remain unaddressed.

What’s allowed under current law

Virginia is one of seven states that does not allow any record clearance for convictions. Since 1977, the commonwealth has provided for expungement of non-convictions, but only if the subject of the record files a civil suit in circuit court, gets fingerprinted at a law enforcement agency, and convinces a judge that continued dissemination of the record would constitute a manifest injustice.

In a 2020 study, the Virginia State Crime Commission found Virginia courts issue an average of 4,000 non-conviction expungement orders each year, in a state where 1.6 million people have at least one criminal record.

How this record sealing legislation came about

Directly impacted individuals have pushed for many years to update and expand Virginia’s outdated expungement law. Rep. Don McEachin, who previously served as a state senator, introduced a bill in 2010 that would have allowed individuals to expunge numerous convictions after a five-year waiting period. The bill failed in committee, 13–1 (McEachin was the lone dissenting vote).

After Democrats recaptured the Virginia House in the fall of 2019, an opportunity arose. Legislators filed two dozen expungement bills in the 2020 regular session, most of which aimed to moderately expand the existing petition-based expungement process. A Senate bill that would have allowed expungement of alcohol and marijuana possession convictions for offenses before age 21 was sponsored by the Senate minority leader and passed that chamber unanimously. But the speaker of the house referred all 24 record clearance bills, including the Senate bill, to the Virginia State Crime Commission, a legislator-led body with full-time staff, to study and report back on the issue.

When the governor called a special session in the summer of 2020 to address the pandemic and ongoing protests of police following the death of George Floyd, the list of racial justice issues to address in the criminal legal system was long but the ability to expunge past convictions was among them.

During the special session, the Crime Commission produced a report on automatic expungement and a draft bill modeled after Pennsylvania’s Clean Slate Act. Herring carried House Bill 5146, which would have established a system of automatic expungement for non-convictions and more than 100 convictions, including some low-level felonies. The list of eligible convictions was revised by the time the bill reached the House floor, but the bill gathered bipartisan support and passed, 59–37.

The Senate bill more closely resembled the bill that had passed the Senate during the 2020 regular session than the House bill. It sought to moderately expand the petition-based system to a few misdemeanor convictions. It passed, 38–2. A committee formed to reconcile differences between the two bills was unable to reach an agreement, and both bills died in the fall of 2020.

Advocates supported the automatic expungement approach because of its potential to help more people. Sheba Williams, a Richmond woman whose experience in Virginia’s criminal legal system influenced her to start her own nonprofit, Nolef Turns, testified in support of Herring’s bill during the special session but urged the inclusion of even more offenses. Consumer protection advocates also warned that if the legislature passed a sweeping record clearance overhaul without regulating the private market for criminal records, Virginians would be no better off.

After the special session, individuals directly impacted by criminal records organized to form the Virginia Expungement Council. The group held pro-automatic expungement rallies in Richmond and Charlottesville. Members of the group met with individual legislators and educated them on how their records continued to serve as barriers years after they had served their sentences.

In January, the General Assembly returned for its regular session, this time in a Virginia election year. Herring introduced the same automatic expungement bill that passed the House during the special session but added a section to regulate private companies that buy and sell criminal records. Surovell introduced a very different bill to expand the petition-based system to include misdemeanor and low-level felony convictions. The House bill passed again with bipartisan support, 60–39, while the Senate bill passed on party lines, 21–18.

Rather than wait for a committee of conference, in a highly unusual step Governor Northam stepped in to help the two patrons resolve the differences between the two bills. Herring and Surovell announced a compromise record sealing bill in mid-February. All Democrats and a handful of Republicans voted for the measure in each chamber, sending it to the governor’s desk.

What the bill does, explained

The bill defines sealing as restricting dissemination of any records related to an arrest, charge, or conviction held by either the Virginia State Police or the court system. Once sealed, records cannot be accessed by most private and public employers, landlords, home sellers, or insurance companies. Those entities will not be able to ask individuals about the existence of sealed records, nor will individuals be required to disclose them.

The record sealing portions of the bill can be divided into three types: 1) automatic sealing, 2) contemporaneous sealing, and 3) petition-based sealing.

   1)  Automatic sealing: Under the legislation, charges that qualify for automatic sealing include:

• Charges involving mistaken identity or unauthorized use of identifying information;
• Deferred dismissals for possession of marijuana and underage possession of alcohol;
• Convictions for the following misdemeanors: underage possession of alcohol, petit larceny, concealment, trespass after having been forbidden, instigating others to trespass, trespass on posted property, possession with the intent to distribute marijuana, possession of marijuana, and disorderly conduct; and
• Misdemeanor non-convictions (excluding traffic infractions). There are some exceptions for non-convictions, such as when the charge is dropped as part of a plea agreement. Non-convictions that do not qualify for automatic sealing can still go through the petition-based process.

To qualify for automatic sealing, seven years must have passed since the conviction or deferred dismissal, the person must not have any new convictions during that time, and on the date of disposition, the person must not have been convicted of another offense that is ineligible for automatic sealing.

    2) Contemporaneous sealing: Felony acquittals and dismissals with prejudice can be sealed by the court immediately at the time of disposition, without filing a petition, if the Commonwealth’s attorney consents. If the prosecutor refuses or contemporaneous sealing is denied by the court, the individual can still petition to clear the record.

   3) Petition-based sealing: The greatly expanded petition-based sealing portion of the bill covers a broad range of offenses. Nearly all other misdemeanor convictions, except DUI and domestic assault, are eligible if the person was not convicted of a new crime in the seven years after conviction or release from incarceration.

Class 5 felonies (1–10 years in prison), Class 6 felonies (1­–5 years in prison), and felony larceny convictions (except certain DUI offenses) are eligible for petition-based sealing if the person has not been convicted of any offense in the ten years after the conviction or release from incarceration, whichever is later. Other conditions apply to petition-based sealing. For example, there is a lifetime limit of two on the number of sentencing events that an individual can have sealed. A person must also never have been convicted of an offense that carries a maximum of life in prison if they want another low-level felony or misdemeanor conviction sealed.

Deferred dismissals for offenses other than marijuana and alcohol possession are also eligible for petition-based sealing. This is a change from the existing expungement law, which was designed to assist “an innocent person’s ability to obtain employment, an education and to obtain credit.” This is significant in light of a 2020 expansion of the deferred disposition law to include crimes against property for anyone not previously convicted of a felony.

Court-appointed legal assistance:  Individuals who cannot afford an attorney for help with the petition-based sealing process can request one. The bill establishes a Sealing Fee Fund, which will collect filing fees from individuals who can afford them and use that money to pay court-appointed attorneys.

Court debt no barrier:  Notably, court debt will not be a barrier to record clearance under the legislation. Clerks will continue to have access to records for the purpose of collecting court debt owed by individuals on sealed offenses. The legislation also removes the requirement that individuals seeking record clearance go to a law enforcement agency to get fingerprinted as part of the petition process. The prosecutor will supply that information instead.

Regulation of private background screeners: The other major component of the bill addresses the regulation of private companies that buy and sell individuals’ criminal records. As advocates warned during the 2020 special session, these records can continue to appear on private background checks long after the public records have been sealed or expunged.

The bill takes several steps to alleviate this problem. First, private companies (defined as “business screening services” under the bill) have an obligation to delete sealed records and must take steps to ensure they do not maintain sealed or inaccurate records. Second, these companies must register with the Virginia State Police to receive electronic copies of sealed records. Third, the companies must include the date they collected an individual record when they disseminate it. Fourth, the companies must allow individuals to request a copy of their own criminal history record information from the company. Finally, individuals or the attorney general may initiate a civil action to enforce this section of the legislation, and the companies may be forced to pay damages if they violate it.

What’s next for record clearance in Virginia

Advocates and legislators are already looking at ways to improve on the transformational bill that just passed. Del. Herring announced in late January that petition-based sealing of more serious offenses is “up next” in 2022. Other potential reforms include moving up the 2025 enactment date, eliminating the lifetime limit on offenses that can be sealed, reducing the waiting periods, and expanding the list of offenses that are automatically sealed to include more charges that disproportionately target Black people.

Rob Poggenklass is an attorney at Legal Aid Justice Center in Charlottesville, Va., where he works on policy reforms and represents individuals impacted by the Virginia criminal and juvenile legal systems. He also teaches the Child Advocacy Clinic and Civil Rights Clinic at the University of Virginia Law School.  Previously, Rob led the Race Equity Project at Iowa Legal Aid, where he worked on reducing barriers to employment, housing, education and transportation for people with previous criminal legal involvement in his home state of Iowa.  We first met Rob several years ago when he invited CCRC to file an amicus brief on a petition for certiorari from the Iowa Supreme Court, in a case involving court debt as a bar to sealing that he was arguing while at Iowa Legal Aid. We are happy to see him transplanted to a jurisdiction evidently eager to become a national leader in record clearance.