Tag: Automatic

Oklahoma enacts automatic record clearing law

On May 2, 2022, Oklahoma Governor Stitt signed into law a comprehensive process making expungement automatic for all otherwise eligible misdemeanors and a range of non-conviction records.  See HB 3316, enacting 22 Okla. Stat. Ann. § 18(C).  Oklahoma thus becomes the tenth state to join the bipartisan trend toward broadening the availability of record clearing to people with convictions, without requiring them to file a petition and go to court for relief.  In addition to these states, another 10 states now make expungement automatic for non-conviction records.  The Oklahoman reported that the “clean slate” bill passed the House and Senate with strong bipartisan support, with a combined five votes against, and it was promptly signed into law by Oklahoma’s Republican governor.  The bill’s primary sponsor Rep. Nicole Miller, R-Edmond, said that “There was certainly a general consensus that, you know, this this isn’t anything that’s partisan related; what it’s about is it’s about humans. So this is really a measure to help people.”  Under Oklahoma law expunged records are sealed, but remain available to law enforcement and may be used in subsequent prosecutions.  Any record that has been sealed may be ordered “obliterated or destroyed” after an additional 10 years.  § 19(K).  Oklahoma also authorizes its courts to expunge up to two non-violent felonies, andn also pardoned felonies, but these were not included in the new law (styled “clean slate”).  The law is effective November 1, 2022, and the process for automatic expungement is to commence three years after that date.    The Oklahoma process for expunging records without a petition is spelled out in a new § 19(B): the Oklahoma Bureau of Criminal Investigation must provide a list of eligible cases to the prosecutor on a monthly basis for a 45-day review.  The prosecutor mayh object only for specified reasons:  the case does not meet the definition of a clean slate eligible case; the individual has not paid court-ordered restitution to the victim; or “the agency has a reasonable belief, grounded in supporting facts, that an individual with a clean slate eligible case is continuing to engage in criminal activity, whether charged or not charged, within or outside the state.”  A list of cases as to which there has been no objection is then sent to the court for expungement.  The court must expunge all cases on the list sent to it, and notify all agencies holding records directing them to expunge as well.  The law does not provide for notifying individuals in case of prosecutor objection, or after their record has been expunged, al though the state supreme court and the BCI are authorized to make rules governing the process.  The BCI is required to provide to the legislature a list of individuals whose records have been expunged on an annual basis.  Oklahoma is the latest state to enact so-called “clean slate” relief, extending record clearing to all eligible individuals without requjiring them to file a petition and go to court. There are now five states that authorize automatic record clearing for a range of misdemeanor convictions: Oklahoma, Pennsylvania, Utah, South Dakota and Virginia.  Five additional states also authorize petition-less record clearing relief for a range of felonies (California, Connecticut, Delaware, Michigan, and New Jersey), though none of these schemes has yet come on line.  Five more states authorize record clearing for certain marijuana convictions.  Counting Oklahoma, there are now a total of 20 states that clear most non-conviction records without requiring their subject to file a petition, and another nine states that make non-conviction relief mandatory upon request.  See the 50-state chart in record-clearing from the Restoration of Rights Project.       Read more

Delaware governor signs automatic record-clearing law

Delaware lawmakers passed two bills this year that overhaul access to second chances, making it easier for more than 290,000 people to move beyond the collateral consequences of a criminal record.  The two pieces of legislation – Senate Bill 111 and Senate Bill 112 – expand access to Delaware’s mandatory expungement process effective January 1, 2022, and make mandatory expungement automatic (or “Clean Slate”) by August 2024. State Senators passed the bills unanimously in April and the House of Representatives followed suit — approving the bills by an overwhelming majority during the late stages of the legislative session in June. Both bills were signed into law by Governor John Carney on Monday, November 8, 2021 — making Clean Slate a reality in Delaware. (The specific records that will be subject to mandatory expungement starting in 2022 are described later in this post.) Delaware is most recent addition to the growing number of states in the nation to make record clearing automatic for at least some convictions, so that eligible individuals will no longer be required to complete a burdensome and expensive petition-based process to get their record expunged. (Several other states have automated expungement exclusively for marijuana convictions.) Sen. Darius Brown of Wilmington sponsored the bills, and a variety of stakeholders and advocates, including the Office of Defense Services, the Delaware Department of Justice, the ACLU of Delaware, the Delaware Center for Justice, the Game Changers, the Delaware Coalition for Smart Justice, the National Clean Slate Initiative, the Center for American Progress, Code for America, the R Street Institute, and JP Morgan Chase supported the bills’ passage. While the bills were being considered in the General Assembly, many impacted individuals came out to support SB 111 and 112 and provided critical testimony that resonated with lawmakers and pushed the bills forward. Advocates and directly impacted people organized coalitions of leaders in each of Delaware’s three counties in support of the legislation and held events across the state highlighting the collateral consequences faced by the estimated 400,000 Delawareans living with a record. Combined with previous legislative measures, SB 111 and 112 will have an enormous impact on people, families, and communities across the state. In 2018, the General Assembly passed a major juvenile expungement bill, giving Delaware Family Court the option to immediately expunge a felony arrest record if a child’s case is terminated in their favor. Then in 2019, the General Assembly passed a landmark bill expanding access to second chances for adult Delawareans by creating the mandatory and discretionary expungement processes for most misdemeanors and felonies after a 3-7 year waiting period (depending on the underlying crime) without another conviction. Prior to the enactment of the 2019 law, second chance opportunities for adults were very limited. Individuals could only obtain an expungement for an arrest that never resulted in a conviction or a small number of convictions after they received a pardon. The Paper Prisons Initiative estimates that up to 400,000 people in Delaware live with a record. With 9 out of 10 employers, 4 out of five landlords, and 3 out of 5 colleges running background checks, records create obstacles to accessing jobs, housing, and education. Records also prevent people from starting a business because they cannot access credit and impact individuals’ ability to fully participate in social and civic community life. Delaware has greatly expanded avenues to expungement in recent years, but the process is still complicated, time intensive, and cost prohibitive. The State Bureau of Identification, the agency responsible for processing mandatory expungements, states that 281,190 people with a record in Delaware are eligible for a mandatory expungement under the current law, which extends to non-conviction records and less serious misdemeanors. However, only .4 percent of eligible individuals (or just over 1100 individuals) obtained a mandatory expungement in 2020. Clean Slate legislation will eliminate this large gap between eligibility and true access to a second chance by automating the process and ensuring that people have access to the economic opportunities they deserve. Under SB 111 and 112, more than 20 percent of Delaware’s population – and 290,000 people overall – will have access to automatic expungements and Clean Slate. As the state moves forward with implementing SB 111 and 112, organizations such as the Delaware Office of Defense Services, Delaware Center for Justice, ACLU of Delaware, Game Changers and others are focused on community engagement and education. In addition, expungement events are in the works and will be held throughout the state. What the bills do: Senate Bill 111 automates Delaware’s pre-existing mandatory expungement process, making Delaware the most recent addition to the growing number of states in the nation to enact automatic record clearing applicable generally to at least some convictions. (Several other states have automated expungement exclusively for marijuana convictions.) As in other states, the implementing agencies in Delaware have several years to promulgate and establish procedures, with a deadline of August 1, 2024. Upon implementation, Delaware’s State Bureau of Identification must identify qualifying criminal histories for clearance monthly. Eligibility for Clean Slate is based on the state’s mandatory expungement provisions, which allow certain arrests, adjudications, and convictions to be expunged after set periods of time. Senate Bill 112 is a companion bill to Senate Bill 111 and expands the pool of records eligible for mandatory expungement. This bill, which is effective January 1, 2022, authorizes the clearance of certain low-level felony convictions through a mandatory expungement process, a first for Delaware. Previously, Delaware law required individuals seeking expungement of any felony conviction to pursue a more costly, complicated, and court-based discretionary expungement. Specifically, SB 112, amended by Senate Amendment 1, makes these felony convictions eligible after 10 years, unless otherwise noted: Drug possession (after five years have passed) Miscellaneous drug crimes Unlawful dealing in a counterfeit or purported controlled substance Maintaining a drug property Possession of burglar’s tools or instruments facilitating theft Forgery in the second degree Unlawful use of payment card Senate Bill 112 also allows for the expungement of convictions or adjudications for underage possession or consumption of alcohol; possession of marijuana; or possession of drug paraphernalia to be always expunged, regardless of a person’s prior criminal history. SB 112 takes effect on January 1, 2022. The bottom line: After August 1, 2024, every person eligible for mandatory expungement is also eligible for Clean Slate. This means that following the completion of an individual’s case or sentence Delaware will automatically expunge cases terminated in one’s favor, all violation convictions, certain misdemeanor convictions, and certain felony cases with a single conviction after a set period. Most juvenile arrests and adjudications are also eligible for mandatory expungement after certain timeframes. In general, the juvenile expungement statutes are more expansive than the adult statutes. Want to learn more about mandatory expungement? Eligibility for mandatory expungement in Delaware can be difficult to understand. Some general guidelines are below: First, a person needs to go to the State Bureau of Identification to obtain their certified criminal history. This costs $52. There are three locations across Delaware. Next, SBI shares an official determination of eligibility and will contact the individual via mail. If the person is eligible for a mandatory expungement, they must communicate to SBI that they would like to expunge their record within thirty (30) days. This request requires an additional $75. That process is completed by the SBI and the records are expunged. If their record is not eligible for mandatory expungement, they may petition the Court under the discretionary process. The bills passed this year did not change the discretionary expungement process. Generally, a person is only eligible for mandatory expungement in Delaware if the following things are true (new changes made by SB 112 are bolded): Cases terminated in favor of the accused or cases in which a person has not been found guilty or delinquent can always be expunged, regardless of a person’s criminal history. The person has been convicted or adjudicated of a qualifying offense, which are violations, certain misdemeanors, and a select group of felonies. Domestic violence-related offenses and driving offenses, such as DUI, do not qualify for mandatory expungement. Most adult felony convictions, and certain adult misdemeanor convictions are not eligible for mandatory expungement. However, Delaware has a court-based petition system for these offenses known as discretionary expungement. The individual does not have any pending cases. The qualifying conviction or adjudication is the only case on the individual’s criminal history (there are exceptions for non-convictions, violations, underage drinking, and marijuana-related offenses and juvenile adjudications). The person has completed the term of their sentence and paid any fines, fees, and restitution related to the conviction (fines/fees can be converted to a civil judgment). Jon Offredo is the Legislative and Communications Director for the Delaware Office of Defense Services. The ODS is the state agency that represents individuals who cannot afford an attorney. Previously, Jon worked as a reporter with the Delaware News Journal. John Reynolds is with the ACLU of Delaware as the Campaign Manager for Clean Slate Delaware. John is a committed advocate for racial justice and graduate of UCLA School of Law with a specialization in Critical Race Studies.   Read more

Virginia poised to enact “transformative” record clearance law

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: Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession. Allows for contemporaneous sealing of felony acquittals and dismissals with the consent of the prosecuting attorney. 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. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process. 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.     Read more

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. Read more