Last year, 20 states enacted reforms expanding access to expungement, record-sealing, and other forms of record relief. Many legislatures, including the District of Columbia Council, are considering reform proposals this session. Given the progressive steps taken by the District in the past year to expand opportunities for people with a criminal record to vote and obtain occupational licensing, we are optimistic that the Council will enact significant improvements to its lagging record-sealing law.

Compared to states across the country, DC’s record relief law is very prohibitive and unusually complex. First, its non-conviction sealing scheme is “one of the most restrictive” in the country (as we described it in our Model Law on Non-Conviction Records). Second, to seal a misdemeanor conviction, an 8-year waiting period must be satisfied (far longer than most states), and then a series of rules exclude individuals based on a long list of ineligible offenses and a variety of disqualifying prior and subsequent records. Finally, DC allows only a single specific felony conviction to be sealed,¹ while 34 states allow a range of felonies to be sealed or expunged.

This post explains how DC’s law on sealing of non-conviction records in particular does not fare well in the national landscape.

Summary

Current DC law is out of step with national trends toward automatic and expedited sealing of non-conviction records at or shortly after disposition (approaches enacted last year in Kentucky and North Carolina, for example). It is also more complex and restrictive than analogous laws in almost every state in three primary areas:

• The waiting period before a person may apply for sealing a non-conviction record is longer than in most states, and the effect that a prior or subsequent conviction has on extending the waiting period is unusually severe.
• The provision ruling out sealing for a successfully completed deferred sentencing agreement based on the person’s other record is counterproductive and harsher than the norm.
• The procedures and standards that apply in proceedings to seal a non-conviction record are more burdensome and restrictive than in any state, differing little from the procedures and standards that apply to sealing a conviction record.

D.C. law on sealing of non-conviction records

Like most states, DC law makes arrests and charges that do not result in conviction potentially eligible for sealing relief. Like half the states, DC law also requires individuals seeking to seal an arrest record to return to court to file a petition for relief, even if no charges were ever filed. On top of this, DC law requires a two-year eligibility waiting period when the arrest was for a less serious misdemeanor, a four-year waiting period if the arrest was for many misdemeanors and any felony, and a three-year waiting period even if no charges were filed. See D.C. Code § 16-803(b)(1)(A).

In addition, many years may be added to the waiting period if an individual has an additional conviction record or pending charges. If the individual has ever been convicted of a felony, the waiting period is extended for a decade after completion of the felony sentence. See §§ 16-803(a)(1)(B), 16-803(b)(1)(B). These lengthy waiting periods may be waived by the prosecutor, but it is not clear how frequently this occurs.

While a few states have equally lengthy waiting periods before a felony arrest is eligible for sealing, and a handful of states still disqualify people from sealing non-conviction records if they have a prior felony conviction, DC law stands alone in extending the waiting period based on a long list of prior misdemeanor convictions, wherever and whenever obtained.

DC law also provides that non-conviction records resulting from successful completion of a deferred sentencing agreement with the government are never eligible for sealing if the person has a “disqualifying conviction,” defined to include many prior and all subsequent misdemeanors.  §§ 16-803(a)(2), 16-803(b)(2). This creates a substantial disincentive to participating in deferred sentencing agreements, bucking the national trend favoring diversion programs.

Comparison with state laws on effect of prior or subsequent record:  Of the 48 states that authorize sealing or expungement of non-conviction records,² 42 states authorize sealing of non-conviction records entirely without regard to an individual’s other criminal record.³ More than half of these states have a streamlined process: either making sealing of non-convictions automatic (16), expedited at disposition (4) or expedited administratively (3).

Most of the remaining 19 states authorize sealing of non-convictions within a year of disposition, and do not distinguish between misdemeanor and felony arrests. A few states require a conviction-free waiting period of three years or more before a petition to seal may be granted, and that there be no charges pending.⁴ But the only state whose analogous law rivals DC’s in complexity and severity is Alabama.

Where non-conviction records resulting from diversionary dispositions are concerned, a few states require a longer waiting period before sealing the record, many require that an individual have no pending charges at the time sealing is sought, and a few don’t allow sealing at all. DC law is on the more restrictive end, denying sealing for successful deferred sentencing dispositions if the person has an additional conviction record, including for many misdemeanors. As noted, the clear trend across the country has been to encourage participation in diversionary dispositions by offering sealing upon successful completion, which enhances their beneficial effect on reducing recidivism and enhancing labor market outcomes.

1 DC allows the sealing of a felony conviction for failure to appear.

² Only one state (AZ) makes no provision at all for sealing non-conviction records, and one other (ME) seals records in the state repository automatically but leaves non-conviction records in court systems open to the public.

³ Three states disqualify a person from non-conviction relief based on the person’s prior record, and two of the three (OK, WV) do so only for prior felony convictions. Only one state (FL) makes any prior conviction disqualifying, and then only if it was obtained in a Florida court. Three other states consider prior record in limited circumstances: One state (RI) disqualifies based on a prior felony conviction for dismissals only, and an additional two states (VA, WA) give courts discretion to deny non-conviction relief based on a person’s prior record.

⁴ Alabama, Maryland, Missouri, and Oregon.