Tag: marijuana

Clean slate expungement bill passes in Missouri

On May 15, the Missouri legislature gave bipartisan approval to a measure mandating automatic expungement of felony and misdemeanor drug possession convictions, and convictions for unlawful use of drug paraphernalia. If SB 1421 is approved by the governor, felonies will be expunged after three years without a new conviction, and misdemeanors will be expunged after one year.  A person is limited to three misdemeanor and two felony expungements under the bill, combined with existing expungement laws. The bill sets forth detailed provisions for its administration, both by the courts and by the state highway patrol.  It is to be effective “when technically feasible,” but “no later than January 1, 2027.” Since 2018, Missouri has provided for expungement by petition for a wide range of convictions, with some of the shortest waiting periods in the country.  In addition, in 2022 Missouri voters approved by ballot initiative one of the broadest marijuana relief laws in the Nation, legalizing possession of up to three ounces of marijuana, and at the same time authorizing expungement of more serious marijuana convictions and commutation of prison sentences imposed for crimes involving marijuana.  Missouri’s record clearing laws, including those approved in the 2022 balllot initiative, are described in detail in the Missouri profile from our Restoration of Rights Project. We will be back with further news when the governor takes action. Read more

Minnesota enacts four major record reforms in 2023

Thanks to a series of criminal-justice reforms enacted earlier this year, Minnesota has burnished its reputation as a national leader in reintegration and criminal record reform.  In a year in which there have been far fewer criminal record reforms than in the recent past, Minnesota’s performance stands out for the variety and breadth of relief granted, in many cases automatically. Here are the four major new laws: Expungement was made automatic for both non-convictions and a range of conviction records, effective January 1, 2025 The pardon process was entirely overhauled to make this relief more available, and expungement for pardoned convictions was made automatic Felony disenfranchisement was limited to periods of actual incarceration A law legalizing adult possession of cannabis made expungement automatic for a broad range of cannabis convictions. These four major new authorities are described below. We expect that the Minnesota legislature’s exemplary performance in enacting these important new provisions will be in for further recognition in our annual round-up of new record reforms. Automatic expungement First, as part of an omnibus criminal justice package passed in May (SF 2909), Minnesota made expungement automatic for a wide range of records already eligible for expungement by petition, becoming the 12th state to do so. Effective January 1, 2025, convictions for petty misdemeanors (aside from traffic and parking offenses), most misdemeanors, and many non-violent felonies will be automatically expunged, after conviction-free waiting periods ranging from two to five years. Non-conviction records, including cases involving deferred and stayed adjudication, will also be expunged automatically. (“Expungement” is used interchangeably with “sealing” in Minnesota, but a preexisting law provides for destruction of uncharged arrest records by the Bureau of Criminal Apprehension.)  These reforms will apply retroactively, and the law sets up a process by which the Bureau of Criminal Apprehension will identify eligible records within 30 days of the effective date, expunge its own records, and notify the courts so that they may take corresponding action. This wide-ranging reform builds on a 2014 law that established a petition process for people to expunge their records. Many—though not all—of the offenses that were previously eligible for expungement by petition will now be expunged automatically. For a full list of which offenses were excluded from the 2023 reform, see Minn. Stat. § 609A.015, subd. 3(b)(2-4). The 2023 law also amended the laws governing expungement by petition, reducing waiting periods and making additional drug convictions eligible for the first time. Pardon and clemency reform SF 2909 also dramatically overhauled the pardon system in Minnesota. Under the Minnesota Constitution, the state’s Board of Pardons is comprised of the governor, the attorney general, and the chief justice of the state supreme court. However, a state law required the Board’s decisions to be unanimous, a requirement that was upheld by the Minnesota Supreme Court in its 2022 decision, Shefa v. Ellison. In addition, the pardon process was opaque and cumbersome, tending to discourage applicants and produce few grants. The slate of reforms to the pardon process is evidently intended to reverse this trend. To begin with, SF 2909 does away with the requirement of unanimity, allowing the Board to approve pardons based on a majority vote, so long as the governor is in the majority. SF 2909 also created a new, nine-member Clemency Review Commission to hold hearings and advise the Board, replacing a system that effectively gave the commissioner of corrections veto power over clemency applications. As just one example of how applicants were discouraged, under the pre-existing process the board’s staff made a preliminary determination about an applicant’s eligibility for relief before they were even given an application form to fill out. Thanks to the 2023 law, applicants may generally seek clemency for any conviction five years after discharge, rescinding the 10-year eligibility waiting period that applied to certain more serious convictions. The new Commission was established effective August 1, 2023, and the new procedure will take effect on July 1, 2024. To better ensure due process and minimize arbitrary decision-making, the Commission must abide by an extensive list of criteria when evaluating applications and provide for open and public hearings. Moreover, once a conviction has been pardoned, Minnesota will now for the first time automatically expunge all records relating to that conviction. Expungement of pardoned convictions will be retroactive. The New York Times published a lengthy story about the operation of the Minnesota Pardon Board under the new law’s modification of the prior unanimity requirement, which is well worth a read. “‘I Want to Be Forgiven. I Just Want to Be Forgiven.’ When the Minnesota Board of Pardons meets, supplicants have 10 minutes to make the case for mercy.”  It remains to be seen whether the restructured pardon process, which will be fully effective in the summer of 2024, will make pardon more freely available than in the past. Restoring the right to vote In addition, under another newly signed bill (HF 28), individuals who lost their right to vote because of a felony conviction will have that right restored if they are not actually incarcerated, joining 21 other states with similar limits to felony disenfranchisement. Prior to the 2023 law, it was an open question if a person could still be denied the right to vote based on unpaid fines and fees. But with HF 28, Minnesota has made it clear that it rejects this modern-day poll tax. Cannabis expungement The last of the four major new authorities legalized adult possession of cannabis, and will offer a clean slate to thousands of Minnesotans who have been convicted in the past of marijuana offenses, in some cases automatically. Under HF 100, misdemeanor convictions for the sale or possession of marijuana in the fourth and fifth degree will be automatically expunged, as well as non-conviction records. According to the state’s Bureau of Criminal Apprehension, more than 60,000 marijuana misdemeanor cases will be eligible for automatic expungement, though it may take the Bureau up to a year to fully wipe the slate clean in those cases. HF 100 also created a new Cannabis Expungement Board, which will review nonviolent felony marijuana conviction records and determine if they should be expunged or resentenced. Misdemeanor and petty misdemeanor records that were not eligible for automatic expungement may also qualify for review by the Board. Under this process, expungement is “presumed to be in the public interest unless there is clear and convincing evidence that an expungement or resentencing to a lesser offense would create a risk to public safety.” At the bill’s signing. Governor Walz noted that “Legalizing adult-use cannabis and expunging or resentencing cannabis convictions will strengthen communities. This is the right move for Minnesota.” Lt. Gov. Peggy Flanagan added on this same occasion: “By expunging nonviolent cannabis convictions, we are removing the barriers that prevent thousands of Minnesotans from fully returning to work, to their communities, and to their lives.” This is how we make safer communities.” Additional detail about these new laws is provided in the Minnesota profile from the Restoration of Rights Project. Read more

Oklahoma and California win Reintegration Champion awards for 2022 laws

On January 10 we posted our annual report on new laws enacted in 2022 to restore rights and opportunities to people with a record of arrest or conviction. Like our earlier reports, it documents the steady progress of what we characterized two years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. This year’s criminal record reforms bring the total number of separate laws enacted in the past five years to more than 500. Posted below is our fourth annual legislative Report Card recognizing the most productive states in 2022. Reintegration Awards for 2022 While more than a handful of states enacted noteworthy laws in 2022, two states stand out for the quantity and quality of their legislation:  California and Oklahoma share our 2022 Reintegration Champion award for their passage of at least two major pieces of record reform legislation. California – Enacted a whopping 11 new laws, including the broadest general record clearing law in the nation, a direction to courts to effectuate clearing of marijuana records, removal of restitution as a bar to clearing criminal records, easing access to judicial certificates of rehabilitation, and simplification of the process for certifying people with criminal records to work in community care. California’s governor also vetoed a bill that would have facilitated background screening by eliminating court-imposed restrictions on online access to personal identifying information. Oklahoma – Enacted a major automatic record clearing law and the most sweeping update to an occupational licensing scheme of any state in the country this year. Oklahoma also passed a significant law allowing young people who successfully complete the state’s youthful offender program to have their charges dismissed and expunged. Another eight states earned an Honorable Mention for their enactment of at least one significant new record reform law: Colorado – Expanded automatic sealing to include all offenses eligible for petition-based sealing, reduced the waiting period for low-level drug possession from three years to two, and enhanced procedural rights of those applying for occupational licenses. Connecticut – Made it easier for people with felony convictions to work in dozens of occupations under the state department of public health and authorized a binding preliminary determination. Delaware – Enacted the “Fair Chance Licensing Act,” establishing a binding preliminary application process, providing that many records may not be grounds for denial (convictions over 10 years old with no intervening convictions; pardoned, sealed, or expunged convictions; non-conviction records; and juvenile adjudications). Even “substantially related” crimes must be given an opportunity for a waiver via a board vote. Delaware also authorized automatic expungement of records of charges lacking a final disposition and prohibited higher education institutions from inquiring into an applicant’s criminal history. Indiana – Eliminated the one-year waiting period for sealing non-conviction records, including uncharged arrests, and made this relief automatic. Louisiana – Strengthened and extended its occupational licensing law, by establishing a binding preliminary determination, providing for appeal, bringing many new boards under its general licensing limits, and adopting new factors to be considered in determining “direct relationship.” The state also provided unusually broad record relief for victims of human trafficking. Maryland – Legalized the personal use of up to 1.5 ounces of cannabis for adults 21 and older, authorized resentencing and expungement of marijuana conviction records and established a business assistance fund that prioritizes individuals with cannabis convictions. Maryland also enacted a law removing state authority over the delinquency of children aged 13 and under. Missouri – Missouri voters amended the state constitution to legalize personal use of marijuana, and at the same time authorized release from prison for those serving prison sentences for marijuana trafficking, provided for automatic expungement for numerous marijuana convictions upon completion of sentence, and extended preference in commercial licensure to sell legalized marijuana to those with convictions. In addition, Governor Mike Parson has become the most prolific pardoner in the state in more than 40 years, working efficiently to reduce a case backlog built up over many years. Rhode Island – Legalized adult possession of small amounts of marijuana, provided for automatic expungement of convictions for decriminalized marijuana offenses, and waived costs as a bar to expungement for anyone who has been incarcerated for a marijuana offense. Low marks go to two states that enacted no record reform laws at all in 2022. While there are many other states in this category this year, the legislatures of Alaska and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2021, 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records.  Wisconsin’s one saving grace is the extensive record of pardoning by Governor Tony Evers in the past 30 months, during which he has pardoned more than 600 individuals, 325 in 2022 alone. Looking ahead to 2023, we expect to see a continuing expansion of eligibility for record clearing, and reduction of access barriers like lengthy waiting periods, outstanding court debt and application-related costs.  We also predict efforts to improve records management to accommodate automation of record clearance.  We look for extension of state fair employment laws, and further facilitation of occupational licensing, both areas where bipartisan reforms have benefitted from helpful model laws. We are slightly less optimistic about additional progress toward dismantling the structure of felony disenfranchisement, which has become mired in faction looking toward the presidential race in 2024. Hopefully, 2023 will see some record reform action in Congress and federal agencies, including measures to extend access to government-guaranteed loans and contracting opportunities to small businesses owned or managed by people with a criminal history. We have come a long way just in the past five years, but there is still a long way to go.     Read more

Dozens of new expungement laws already enacted in 2021

This year is turning out to be another remarkable year for new record relief enactments. In just the first six months of 2021, 25 states enacted no fewer than 51 laws authorizing sealing or expungement of criminal records, with another 5 states enrolling 11 bills that await a governor’s signature. Three of these states authorized sealing of convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing, and a number of additional states substantially expanded the reach of their existing expungement laws. This post hits the highlights of what may well be the most extraordinary six-month period in the extraordinary modern period of criminal record reform that begin in 2013.  The only closely comparable period is the first six months of 2018, when 11 states enacted major reforms limiting consideration of criminal records in occupational licensing.  Further details of the laws mentioned below can be found in the relevant state profiles from the Restoration of Rights Project. (An earlier post noted new occupational licensing laws in 2021, and subsequent ones will describe significant extensions of the right to vote so far this year, and summarize the more than 100 record reforms enacted to date.) New Laws Three states enacted particularly significant new record relief schemes. Alabama and Virginia both authorized petition-based expungement of adult conviction records for the first time, with Virginia making relief for some misdemeanors and non-convictions automatic.  Continuing the trend toward automatic expungement, Connecticut enacted a major “clean slate” bill authorizing automatic “erasure” of most misdemeanors and many felonies.   All three of these important new laws are described in greater detail later in this post. In other legislative developments, Maryland authorized automatic expungement of non-conviction records after a three-year waiting period, and established a work group to study partial expungement of charges not resulting in conviction.  Vermont took another step toward automation following last year’s automatic marijuana expungement law, by authorizing automatic expungement of motor vehicle-related violations. At the same time, Vermont authorized a broad legislative study of its expungement laws, including the prospects for automation, to be completed by the beginning of the next legislative session.  (This study follows on the heels of an inconclusive report from an executive working group charged with a similar study task in 2018.)  South Dakota reduced the waiting period of its automatic sealing law (applicable to non-conviction records and some misdemeanors) from ten years to five. Tennessee expanded eligibility for petition-based expungement from misdemeanors and Class E felonies to include Class D and C felonies. It also made the filing fee discretionary with the court clerk, and required courts to both notify defendants of the availability of expungement and give reasons in writing if they deny this relief.  Washington rewrote its laws applicable to victims of sex trafficking and related sexual abuses, authorizing vacatur for both B and C felonies and misdemeanors, and providing that a petition may be filed either by the victim or by the prosecutor. Four additional states made more modest improvements in their existing petition-based expungement schemes:  Arkansas repealed an exclusion for anyone sentenced to prison; Nevada limited the power of the prosecutor to object to expungement, and facilitated expungement of pardoned convictions; North Dakota changed the condition of its waiting period from “no arrest” to “no conviction,” and authorized sealing of DUI convictions; and Utah provided that restitution ordered by the parole board would no longer bar eligibility for expungement. Eight additional states extended their juvenile record expungement laws, and four states broadened authorities for diversion leading to expungement. New Mexico added to its significant 2019 expungement scheme by enacting most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), giving its courts authority to relieve mandatory collateral consequences as early as sentencing (New York, Vermont, and New Jersey are the only other states with such authority). This same law not only offered this relief to those with convictions from other jurisdictions, it also gave effect to relief granted by other jurisdictions, the only state other than Vermont that has done this (also through its enactment of the UCCCA). Enrolled bills As of the end of June, four states had enrolled major record relief laws awaiting the governor’s signature, two of which provided for automatic record sealing. The Delaware legislature passed Clean Slate legislation, automating sealing for most of the offenses that had been authorized for petition-based mandatory and discretionary sealing in 2019. The bill is to be effective in 2021, but sealing is to begin in August 2024.  The Oregon legislature made substantial changes to eligibility criteria under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. Colorado expanded eligibility for petition-based sealing and made sealing of non-conviction records automatic.  The Michigan legislature send to the governor two bills providing for expungement of first DUI convictions, a category omitted from their 2020 package of record relief legislation. Finally, and perhaps most surprisingly, on the final day of its session the Arizona legislature for the first time ever passed a record-sealing bill and it is quite broad, applicable to most misdemeanors and felonies. Earlier in the session, the governor signed a bill authorizing courts to issue a “Certificate of Second Chance” when setting aside a conviction, which lifts mandatory bars to licensure and offers employers and landlords protection from liability. Marijuana expungement The first half of 2021 was also an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana. In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms—including the automatic expungement of an exceptionally broad array of past marijuana convictions—along with a variety of social equity provisions. These laws are described in our report on Marijuana Legalization and Expungement in Early 2021. Since that report was published, Connecticut authorized petition-based marijuana expungement for a range of misdemeanors and felonies as well as limited automatic relief for some misdemeanors. Colorado also expanded petition-based marijuana expungement eligibility. The particularly significant relief schemes enacted in Alabama, Virginia and Connecticut are described in greater detail below. We will provide further details on the Arizona, Colorado, and Delaware laws when they are signed into law, as appears likely. Alabama: Until 2021, Alabama courts had no statutory authority to expunge or seal adult conviction records, with the exception of a narrowly drawn exception for victims of human trafficking. With enactment of Act No. 2021-286 (SB117), the so-called REDEEMER Act, Alabama courts were authorized to expunge non-violent misdemeanors and violations, and pardoned felonies.  Eligible misdemeanors and violations may apply three years after conviction if “all probation or parole requirements have been completed, including payment of all fines, costs, restitution, and other court-ordered amounts, and are evidenced by the applicable court or agency.” Pardoned felonies are eligible 180 days after the pardon was granted. Convictions for violent and sexual offenses and “serious traffic offenses” are not eligible.  Nor are the dozens of crimes of “moral turpitude” that are grounds for felony disenfranchisement, unless the crime was  reclassified as a misdemeanor. There is also an administrative filing fee of $500, which may be waived under with a finding of indigency. Expunged records must remain available to law enforcement and prosecutors, utilities, the agency engaged in protecting children and vulnerable adults, and “any entities or services providing information to banking, insurance, and other financial institutions as required for various requirements as provided in state and federal law.” The REDEEMER Act also expanded the laws governing expungement of non-conviction records to cover violent felony charges that were dismissed with prejudice, nol prossed or indictment quashed (after limitation period has run or prosecutor confirms charges will not be refiled), and reduced the waiting period for expungement after diversion of misdemeanor charges to one year.  A five-year waiting period was retained for felony charges dismissed without prejudice Virginia Until 2021, Virginia law made no provision for expunging or sealing conviction records, except those that have been vacated pursuant to a writ of actual innocence, or those which were the subject of an absolute pardon (for innocence). With enactment of HB 2113 and SB 1406, Virginia gained one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically. The general record relief legislation (HB 2113) includes five key provisions: 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 sealing of felony acquittals and dismissals at disposition 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. Requires 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. The provisions of HB 2113 are scheduled to go into effect in 2025 (or earlier). A separate bill providing for marijuana legalization and expungement (SB 1406) authorized the automatic expungement of records related to certain misdemeanor marijuana offenses along with petition-based expungement of all other misdemeanor and many felony marijuana offenses. With the exception of the sealing of certain police records, these provisions are also scheduled to go into effect by 2025. Connecticut Public Act 21-42, Connecticut’s “Clean Slate” law, establishes a process to automatically erase records of most misdemeanor convictions and certain felony convictions entered after January 1, 2000, after a specified period following the person’s most recent conviction for any crime (with an exception for certain drug possession crimes). Class C, D, or E felonies are covered, as are unclassified felonies with up to 10-year prison terms. The bill excludes family violence crimes and offenses requiring sex offender registration. Under the bill, misdemeanors are eligible for erasure seven years after the person’s most recent conviction for any crime; class D or E felonies or unclassified felonies with prison terms of five years or less are eligible after 10 years; and class C felonies or unclassified felonies with prison terms greater than five years but no more than 10 years are eligible after 15 years.  For offenses before January 1, 2000, the records are erased when the person files a petition on a form prescribed by the Office of the Chief Court Administrator. Various provisions that now apply to erasure of non-conviction records also apply to erasure under this bill: no fee is charged, and partial expungement is available. That is, if the case contained multiple charges and only some are entitled to erasure, electronic records released to the public must be erased to the extent they reference charges entitled to erasure. The law requires all purchasers of court records, including background screening providers, to update their records on a regular basis. It extends these provisions to records of other agencies (State Police, DMV, Department of Correction). The bill prohibits various forms of discrimination based on someone’s erased criminal history record information, such as in employment, public accommodations, the sale or rental of housing, the granting of credit, and several other areas. In several cases, it classifies discrimination based on these erased records as a “discriminatory practice” under the state human rights laws. The automatic erasure provisions of the law take effect on January 1, 2023. This year is turning out to be another extraordinary year for new record relief enactments. In just the first six months of 2021, 22 states enacted no fewer than 47 separate laws authorizing sealing or expungement of criminal records, with another 5 states having enrolled 11 bills from awaiting the governor’s signature.  Three states authorized sealing for adult convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing of convictions, and several additional states substantially expanded the reach of their existing expungement laws. This post hits the highlights of what may well be the most extraordinary single 6-month period in this extraordinary modern period of criminal record reform. (The only one that comes close is the first six months of 2018, when 10 states enacted major reforms to their occupational licensing schemes.) (An earlier post noted new occupational licensing laws in 2021, and a subsequent one will describe significant extensions of the right to vote so far this year.) New Laws Three states enacted significant new record relief schemes. Alabama and Virginia both authorized petition-based expungement of adult conviction records for the first time, with Virginia making some misdemeanors and non-convictions automatic.  Continuing the trend toward automatic expungement, Connecticut enacted a major “clean slate” bill authorizing automatic “erasure” of most misdemeanors and many felonies.   All three of these important new laws are described in greater detail later in this post. In other legislative developments, Maryland authorized automatic expungement of non-conviction records after a three-year waiting period, and established a work group to study partial expungement of charges not resulting in conviction.  Vermont took another step toward automation following last year’s marijuana expungement law, by authorizing automatic expungement of motor vehicle-related violations. At the same time, Vermont also authorized a broad legislative study of its expungement laws, including the prospects for automation, to be completed by the beginning of the next session.  (This study follows on the heels of an inconclusive report from an executive working group charged with a similar study task in 2018.)  Tennessee expanded eligibility for petition-based expungement from misdemeanors and Class E felonies to Class D and C felonies, made the filing fee was made discretionary with the court, and required courts to notify defendants of the availability of expungement and give reasons in writing for denying this relief.  Four additional states made more modest improvements in their existing petition-based expungement scheme:  Arkansas repealed an exclusion for anyone sentenced to prison; Nevada limited the power of the prosecutor to object to expungement, and facilitated expungement of pardoned convictions; North Dakota changed the condition of its waiting period from “no arrest” to “no conviction,” and authorized sealing of DUI convictions; and Utah provided that restitution ordered by the parole board would no longer bar eligibility for expungement.  Seven additional states extended their juvenile record expungement laws, and four states broadened authorities for diversion leading to expungement. Enrolled bills As of the end of June, four states had enrolled major record relief laws awaiting the governor’s signature, two of which provided for automatic record sealing.  The Delaware legislature passed its Clean Slate Act, automating sealing for most of the offenses that had been authorized for petition-based mandatory and discretionary sealing in 2019. The bill was to be effective in 2021, but sealing was to begin in August 2024.  The Colorado legislature sent to the governor a bill expanding eligibility for petition-based sealing and making sealing of non-conviction records automatic. The Oregon legislature made substantial changes to eligibility criteria under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. Finally, and perhaps most surprisingly, the Arizona legislature for the first time passed a broad record-sealing bill applicable to most misdemeanors and felonies; it also authorized its courts to issue a “Certificate of Second Chance” when setting aside a conviction, which lifts mandatory bars to licensure and offers employers and landlords protection from liability.  The Michigan legislature send to the governor two bills providing for expungement of first DUI convictions, a category omitted from their 2019 clean slate law.    Marijuana expungement The first half of 2021 was also an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana. In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms—including the automatic expungement of an exceptionally broad array of past marijuana convictions—along with a variety of social equity provisions.  These laws are described in our report on Marijuana Legalization and Expungement in Early 2021. Connecticut also automated marijuana expungement but at a more modest level.  Colorado and Montana both enacted petition-based marijuana expungement laws    The important record relief schemes enacted in Alabama, Virginia and Connecticut are described in greater detail below.  We will provide further details on the Arizona, Colorado, and Delaware laws when they are signed into law, as appears likely.    Alabama: Until 2021, Alabama courts had no statutory authority to expunge or seal adult conviction records, with the exception of a narrowly drawn exception for victims of human trafficking. With enactment of Act No. 2021-286 (SB117), the so-called REDEEMER Act, Alabama courts were authorized to expunge non-violent misdemeanors and violations, and pardoned felonies.  Eligible misdemeanors and violations may apply three years after conviction if “all probation or parole requirements have been completed, including payment of all fines, costs, restitution, and other court-ordered amounts, and are evidenced by the applicable court or agency.” Pardoned felonies are eligible 180 days after the pardon was granted. Convictions for violent and sexual offenses and “serious traffic offenses” are not eligible.  Nor are the dozens of crimes of “moral turpitude” that are grounds for felony disenfranchisement, unless the crime was  reclassified as a misdemeanor. There is also an administrative filing fee of $500, which may be waived under with a finding of indigency. Expunged records must remain available to law enforcement and prosecutors, utilities, the agency engaged in protecting children and vulnerable adults, and “any entities or services providing information to banking, insurance, and other financial institutions as required for various requirements as provided in state and federal law.” The REDEEMER Act also expanded the laws governing expungement of non-conviction records to cover violent felony charges that were dismissed with prejudice, nol prossed or indictment quashed (after limitation period has run or prosecutor confirms charges will not be refiled), and reduced the waiting period for expungement after diversion of misdemeanor charges to one year.  A five-year waiting period was retained for felony charges dismissed without prejudice. Virginia Until 2021, Virginia law made no provision for expunging or sealing adult conviction records, except those that have been vacated pursuant to a writ of actual innocence, or those which were the subject of an absolute pardon (for innocence). With enactment of HB 2113 and SB 1406, Virginia gained one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically. The general record relief legislation (HB 2113) includes five key provisions: 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 sealing of felony acquittals and dismissals at disposition 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. Requires 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. The provisions of HB 2113 are scheduled to go into effect in 2025 (or earlier). A separate bill providing for marijuana legalization and expungement (SB 1406) authorized the automatic expungement of records related to certain misdemeanor marijuana offenses along with petition-based expungement of all other misdemeanor and many felony marijuana offenses. With one exception, these provisions are also scheduled to go into effect by 2025. Connecticut Public Act 21-42, Connecticut’s “Clean Slate” law, establishes a process to automatically erase records of most misdemeanor convictions and certain felony convictions entered after January 1, 2000, after a specified period following the person’s most recent conviction for any crime (with an exception for certain drug possession crimes). Class C, D, or E felonies are covered, as are unclassified felonies with up to 10-year prison terms. The bill excludes family violence crimes and offenses requiring sex offender registration. Under the bill, misdemeanors are eligible for erasure seven years after the person’s most recent conviction for any crime; class D or E felonies or unclassified felonies with prison terms of five years or less are eligible after 10 years; and class C felonies or unclassified felonies with prison terms greater than five years but no more than 10 years are eligible after 15 years.  For offenses before January 1, 2000, the records are erased when the person files a petition on a form prescribed by the Office of the Chief Court Administrator. Various provisions that now apply to erasure of non-conviction records also apply to erasure under this bill: no fee is charged, and partial expungement is available. That is, if the case contained multiple charges and only some are entitled to erasure, electronic records released to the public must be erased to the extent they reference charges entitled to erasure. The law requires all purchasers of court records, including background screening providers, to update their records on a regular basis. It extends these provisions to records of other agencies (State Police, DMV, Department of Correction). The bill prohibits various forms of discrimination based on someone’s erased criminal history record information, such as in employment, public accommodations, the sale or rental of housing, the granting of credit, and several other areas. In several cases, it classifies discrimination based on these erased records as a “discriminatory practice” under the state human rights laws. The automatic erasure provisions of the law take effect on January 1, 2023. 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