Tag: DC

DC enacts progressive new record-clearing law

Until last month, the District of Columbia had one of the most complex and restrictive record relief laws in the country. D.C.’s sealing law even applied the same burdensome petition-based procedures, extended waiting periods, and onerous burdens of proof to non-conviction records that applied to convictions. In testimony before the D.C. Council in 2021, CCRC’s Margaret Love noted: “Compared to states across the country, DC’s record relief laws are very prohibitive and unusually complex.” CCRC’s Reintegration Report Card published in March 2022 commented that “the restoration laws in the District of Columbia are noteworthy for a remarkable study in contrasts: D.C. has extraordinarily progressive laws in civil areas like voting, employment, housing, and occupational licensing, and among the most regressive laws in the Nation in every category of criminal record relief, likely reflecting the heavy hand of the federal authorities that are responsible for most prosecutions under the D.C. Code.” Last month, everything changed. The Second Chance Amendment Act of 2022 (D.C. Law 24-284, codified at D.C. Code § 16-801 et seq.), which became final after the required period of congressional review on March 16, 2023, gave the District one of the broadest record-clearing laws in the country, including both petition-based relief for all but the most serious violent felony convictions, and automatic relief for misdemeanors and non-conviction records.  D.C. now becomes the 11th U.S. jurisdiction to enact a “clean slate” law that applies to both conviction and non-conviction records. The new D.C. record-clearing law is the product of more than two years of hard work by the D.C. Council and a broad coalition of advocacy groups in the District. When coupled with the District’s progressive civil restoration laws referenced above, this new law propels DC from middle-of-the-pack to the top tier of jurisdictions in the Nation where fair treatment of justice-affected individuals is concerned. It will certainly advance DC’s candidacy for Reintegration Champion of 2023. Though D.C. Law 24-284 is enacted, it is unfunded, which means it cannot be used. Currently, the FY24 Budget Support Act of 2023 set the effective date for the Second Chance Act as 1/1/26 for most of the law and 10/1/29 for the automatic sealing provisions. The new law’s specific provisions are described in greater detail below, and in the DC profile from CCRC’s Restoration of Rights Project. The new D.C. law provides for petition-based sealing for all non-conviction records at disposition, for all misdemeanors after a five-year waiting period, and for all but a specified group of the most serious felony convictions after an eight-year waiting period.  The waiting period begins following completion of all aspects of the sentence, except that it does not require payment of fines and other court debt. The law also facilitates procedures: e.g., not all eligible records need be sealed at the same time, as under the old law, and there are no “disqualifying offenses” that could extend the waiting period even for non-conviction records. It also eases standards, particularly for sealing non-conviction records: it deleted a provision allowing the court to consider “the weight of the evidence against the person” and any priors sealings of arrest records.  It specifically directs the court in all cases to consider “The community’s interest in furthering the movant’s rehabilitation and enhancing the movant’s reintegration into society through education, employment, and housing.” As noted, D.C.’s existing sealing law extended to same burdensome procedures and standards to non-conviction records that applied to sealing of convictions. The new law makes sealing automatic beginning in 2027 for non-conviction records, and for most misdemeanor convictions after a 10-year waiting period. It also provides for automatic expungement of marijuana convictions effective January 1, 2025, and for expungement by petition on grounds of actual innocence. Provisions in existing law authorizing expungement for victims of human trafficking and sealing for juvenile defendants were not changed. D.C. now joins the 19 states that have enacted automatic record-clearing relief for arrest records and other non-convictions.  More than half of these state laws have been enacted in the three years since publication of CCRC’s Model Law on Non-Conviction Records, which advocated for automatic expungement of all non-conviction records, including records with no final disposition, except for pending matters. Like CCRC’s model law, which was cited as authority by several parties during the hearings before the D.C. Council, the new D.C. law recommends restrictions on accessing, inquiring about, and commercially disseminating non-conviction records. Sealed records are placed in a non-public file but remain available to law enforcement, courts, prosecutors, licensing agencies, public employers, and schools and child care facilities, to be used “for any lawful purpose.” Sealed records may also be used in civil litigation relating to the arrest or conviction, and may be made available to others “upon order of the Court for good cause shown.”  An individual whose record has been sealed may deny the arrest or conviction “for any purpose”, without penalty of perjury or other provision of the law for giving a false statement. This appears to be a change from the 2006 law, which required testimony about prior arrests and convictions “in response to an inquiry from one of the entities expressly authorized to access the records.” In other words, while certain entities may gain access to sealed records, the subject of the record may lawfully deny its existence without penalty. The 2022 law imposes certain requirements on “criminal history providers” that provide criminal history background screening reports, requirements that mirror those provided by the federal Fair Credit Reporting Act.  It requires providers to provide the subject of a background report with a copy of the report and identify the source of the report, and to use at least two identifiers (e.g., birthdate and name); prohibits reporting records that have been sealed, expunged or set aside; and pohibits reporting information that has not been updated within 30 days of the report.  Complaints of a violation of these provisions may be filed with the DC Office of Human Rights (but not in court), and fines are specified for violations. There are still ways that D.C.’s sealing law could be improved.  For example, there appears to be no good reason why sealed non-conviction records should remain available to employers and licensing agencies, and in most states they are not. Automatic relief should be extended to all convictions now subject to sealing by petition, and the waiting periods for both petition-based and automatic relief seem excessive by standards in recently enacted record-clearing laws.  See CCRC’s 2022 report on waiting periods, Waiting for Relief: A National Survey of Waiting Periods for Record Clearing (February 2022).  But those caveats aside, the new law represents the most substantial progress in record clearing of any U.S. jurisdiction since 2018, when North Dakota and New Mexico enacted a broad sealing scheme for the first time.  Congratulations to the D.C. Council!         Read more

DC’s non-conviction sealing law is uniquely complex and restrictive

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. Read more