Tag: Record-sealing

Arizona enacts its very first sealing law – and it’s impressive!

In July 2021, in an unheralded action in the final days of its legislative session, Arizona enacted a law that authorized its courts for the first time to seal conviction records. See SB1294, enacting Ariz. Rev. Stat. § 13-911. The same law authorized sealing of uncharged arrests and dismissed and acquitted charges, also for the first time. Prior to this enactment, Arizona was one of a handful of states whose legislature had made no provision for limiting public access to conviction records, and was literally the only state in the country whose courts and records repository had no authority to seal non-conviction records. Now the state will have one of the broadest sealing laws in the country when it becomes effective on January 1, 2023. (In the November 2020 election, Arizona voters approved a proposition to legalize marijuana, which included a provision for expungement of certain marijuana-related records.  But until now no general sealing authority had been enacted by the Arizona legislature.) As described below, the law makes all but the most serious offenses eligible for sealing after completion of sentence (including payment of court debt) and a graduated waiting period.  It also appears that 1) multiple eligible convictions may be sealed, in a single proceeding or sequentially; 2) the prior conviction of a felony (even if ineligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period; 3) a conviction during the waiting period restarts the waiting period; and 4) there is no limit on the number of occasions on which sealing may be sought. The applicable procedures are fairly straightforward, with no hearing necessary unless the prosecutor requests it, and the court required to grant relief if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” Many of the obligations to acquire and serve documents that burden petitioners in other jurisdictions and act as barriers to access are assigned by law to the court.  Hopefully, in preparing to implement the law over the next 18 months until it becomes effective, Arizona practitioners can develop educational resources and training programs to facilitate applications by pro se petitioners, and Arizona courts can develop standardized forms and an efficient e-filing system to further enhance the new system’s efficiency. Inaugurating a brand new system at a time when other jurisdictions are recognizing the access-to-justice flaws in existing ones may give Arizona certain advantages. The law is described in greater detail below. Sealing of felony and misdemeanor convictions The new law makes all convictions except Class 1 felonies, and certain violent and sexual offenses, eligible for sealing. § 13-911(O). By its terms, the law does not limit the number of convictions that may be sealed; nor does it limit the number of times a person may request sealing. As such, it is one of the broadest sealing authorities in the country. Its eligibility provisions are logical but somewhat complex in operation because relief may extend in the same proceeding to multiple differing convictions. Eligibility:  At the time of sentencing, the court must inform the defendant, on the record and in writing, that he or she may be eligible to petition the court for an order sealing all case records. § 13-911(E). If the person “has not subsequently been convicted of any other offense except a misdemeanor [traffic violation other than a DUI],” the person may petition the court to seal the record after completion of all terms of the sentence, including payment of all fines, fees and restitution ordered by the court.  A waiting period after completion of sentence and discharge applies, whose length depends on the seriousness of the offense: 10 years after discharge for Class 2 and 3 felonies, five years for Class 4, 5 and 6 felonies, three years for a Class 1 misdemeanor, and two years for lower grade misdemeanors. Id. If the person has “a prior historical felony conviction,” an additional five years is tacked on to the specified waiting period. § 13-911(F). A person who “is convicted of two or more offenses may not petition the court to seal the person’s case records until the period of time prescribed in subsection E of this section has passed for each conviction.” § 13-911(G). While the language of these sections could be clearer, read together (both for what they say and what they don’t say) we think they are most reasonably understood as follows: Multiple eligible convictions may be sealed, in a single proceeding or sequentially; The prior conviction of a felony (whether or not eligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period for an additional five years; A conviction during the waiting period (other than a non-DUI traffic misdemeanor) restarts the waiting period; and There is no limit on the number of occasions on which sealing may be sought. A variety of mix-and-match scenarios may be imagined in which sealing of several convictions is sought, whether in the same proceeding or sequentially, extending the waiting period because of a prior felony conviction or restarting it where a new conviction occurs midway through it. Procedure:  After the petition has been filed, it is the responsibility of the court clerk to provide the prosecutor with a copy, and the prosecutor must notify a victim who has previously requested such notice. The court may not act on the petition for 30 days after its receipt unless the prosecutor and victim indicate that they have no objection. § 13-911(D). The court must request the Department of Public Safety (DPS) to prepare a report that includes the petitioner’s entire federal and state arrests and prosecutions, and “any other information that the court requests or that the Department believes will assist the court in making its determination. § 13-911(H). Unless the prosecutor or victim request a hearing, the court “shall grant” the petition if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” § 13-911(D). In cases where sealing of a conviction is sought, the Director may charge the petitioner a fee for the investigation, and for the actual sealing if the petition is granted, unless the petition is indigent. §§ 13-911(D) and (H). If the petition is charged with an offense after the petition is filed, the court may not dispose of the sealing petition until that new matter is resolved. § 13-911(N). If the court denies a request for sealing, the petition may not apply again for three years. § 13-911(L). Appeal of a denial of sealing is permitted based only on an error in determining eligibility. § 13-4033(5). The effect of a sealing order is set forth in § 13-911(B) and (I). The DPS is responsible for informing all appropriate state and federal law enforcement agencies that the record has been sealed. § 13-911(I). While a sealed record may be used variously in a subsequent prosecution, a person whose record has been sealed may state that they have never been arrested in response to questions on most applications for employment, housing, financial aid or loan applications.  A lengthy list of employments related to specific types of offenses are excepted (e.g., a sealed burglary or residential theft conviction must be disclosed in an application for employment that involves entering a dwelling.)  § 13-911(I)(5)(a) through (k). The sealed record is generally available to the subject of the record, to the victim (if they have exercised victim’s rights), to enforcement agencies and the courts, and to corrections agencies and child protective agencies, for their official duties. § 13-911(J). Sealing of non-conviction records Until enactment of the 2021 law, Arizona was the only state in the country that made no provision for limiting public access to non-conviction records (with a limited exception for wrongful official action described below).  When the law becomes effective in 2023, Ariz. Rev. Stat. § 13-911(A)(2) and (3) will authorize petitions to seal uncharged arrests and dismissed and acquitted charges. The process applicable to sealing non-conviction records is essentially the same as the process that applies to conviction records, including the possibility that the prosecutor or victim may request a hearing. The same standards apply as apply to convictions: the court “shall grant” the petition if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” § 13-911(D). One difference is that no fees may be charged by DPS for preparation of the record or for sealing of non-conviction records. Until January 1, 2023, non-conviction records may be sealed only if a person was “wrongfully arrested, indicted or otherwise charged for any crime,” meaning that there was “no legal basis for the arrest, or no legal or factual basis for the charge, or where the parties so stipulate.” State v. Mohajerin, 226 Ariz. 103, 109 (App. 2010), quoting from State v. Franco, 153 Ariz. 424, 426 (App. 1987). Read more

California becomes third state to adopt “clean slate” record relief

On October 8, Governor Newsom signed into law AB 1076, the so-called “Clean Slate Act,” authorizing automatic record relief in the form of set-aside or sealing for individuals with certain convictions and arrests under California law.  The new law supplements but does not supplant the existing system of petition-based relief, and applies to convictions and arrests occurring after the bill’s effective date of January 1, 2021.  Eligibility for automatic relief under the new law is similar to but not precisely coincident with eligibility under existing law.  The new law also for the first time prohibits courts and the state repository from disclosing information about conviction records that have been granted relief, except where specifically authorized, whether under the new automatic process or the older petition-based system. California is now the third state to adopt general “clean slate” record relief, after Pennsylvania (2018) and Utah (2019).  While the automatic feature of the new law has prospective effect only, its limits on disclosure will, when effective, apply to all conviction records that have at any time been dismissed or set aside, whether automatically or by petition, as well as to all arrests and other non-conviction records that have been sealed.  The specific features of AB 1076 are described in detail in the following comment posted on October 3. Governor Newsom also on October 8 signed two other bills that affect collateral consequences:  SB 310 amends Section 203 of California’s Code of Civil Procedure to make people convicted of a felony eligible to serve of a trial jury unless incarcerated or under supervision, or required to register as a sex offender based upon a felony conviction; and AB 1394 repeals a law requiring that juveniles pay a fee to have their records sealed. California poised to become third state to adopt “clean slate” record relief October 3, 2019 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.)  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 petition-based scheme of judicial remedies for people with criminal records, primarily via dismissal and set-aside for convictions and sealing for non-conviction records.  Rather, effective January 1, 2021, it would create a new automatic process obviating the requirement of an individually-filed petition or motion in most cases.  Eligibility for relief under this new automatic process would be similar but not identical to eligibility under the existing petition-based process, both for convictions and for non-convictions.  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 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