Oregon’s expungement statute gets a much-needed overhaul

– Following George Floyd’s murder, NIKE and Metropolitan Public Defender, Oregon’s largest trial-level public defense service provider, became unlikely partners to improve Oregon’s expungement statute.

Oregon has allowed expungement of certain criminal records since 1972, but the law and process are so complicated and costly that only 5.5% of eligible residents ultimately obtain relief.  The statute is replete with exceptions, convictions block other convictions and non-convictions, the least serious convictions have a lengthy “look back” period of conviction-free conduct that regularly results in a 10-year waiting period, and non-person class B felonies have the longest waiting period in the nation (20 years). Even non-convictions are subject to the same 10-year look-back period as convictions, plus an additional three-year period of no other arrests, dismissals or acquittals.

The impact of Oregon’s dysfunctional system is felt most severely by its BIPOC community who are more likely to be arrested, charged and convicted.  Black Oregonians are almost four times as likely to have a criminal record as their white counterparts.  See Paperprisons.org.

Metropolitan Public Defender and NIKE’s pro bono group, frustrated by the complex law and process, were inspired by the Black Lives Matter protests following George Floyd’s murder.  They challenged themselves to create tangible change and co-wrote the proposal that became Senate Bill 397, with input from CCRC. Collaboration with prosecutors led to bipartisan support in the Oregon legislature (Senate 24-5, House 57-1) for the bill, which Governor Kate Brown is expected to sign. It will be effective January 1, 2022.

Waiting periods will now be aligned with other states and public safety data:

  • “No-Complaints” (arrests where no charges are filed) – 60 days
  • Dismissals and acquittals – no waiting period
  • Violations, class B and C misdemeanors, contempt orders – 1 year
  • Class A misdemeanors – 3 years*
  • Class C felonies – 5 years*
  • Non-person, class B felonies – 7 years*
    *from date of conviction or release from imprisonment, whichever is later

The Bill makes these additional changes:

  • Expungement of non-convictions will no longer be blocked by convictions
  • “Look back” periods of clear conduct will be aligned with the applicable waiting periods for convictions
  • Process will be simplified and accelerated; the Oregon Judicial Department will develop consistent, state-wide forms.
  • $281.00 filing fee will be eliminated
  • Prosecutor objection timeline will be set at 120 days
  • Burden in any proceeding will be on the State to prove that the applicant’s “circumstances and behavior” create a “risk to public safety” by a “clear and convincing” standard of proof
  • Criminal history data providers may not report obsolete (> 60 days old) data. Any violation will be an unlawful trade practice.

A Clean Slate Initiative-organized coalition of local non-profit organizations, including the ACLU of Oregon, supported the effort and plans to build on SB 397’s success with additional measures during the next legislative session.

Mary VanderWeele

Mary VanderWeele is a retired lawyer who focuses exclusively on pro bono work.  Most of her 35-year career was at NIKE, Inc. where she handled Sports Marketing matters and led the pro bono committee.

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