Category: New legislation

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:

  1. Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession.
  2. Allows for contemporaneous sealing of felony acquittals and dismissals with the consent of the prosecuting attorney.
  3. 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.
  4. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process.
  5. 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.

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After a haul of record relief reforms in 2020, more states launch clean slate campaigns

Yesterday, the Clean Slate Initiative, a bipartisan national effort to automate the clearing of criminal records, announced four new state campaigns in Texas, New York, Oregon, and Delaware, joining ongoing campaigns in Louisiana, Connecticut, and North Carolina to advocate for automatic record relief legislation.

This announcement follows a productive year for record relief reforms in 2020, when Michigan became the sixth state to enact automatic relief for a range of conviction records, the most expansive such authority enacted to date. In total, 20 states enacted 35 bills and two ballot measures creating or expanding record relief (i.e. expungement, sealing, set-aside) last year. Michigan, along with three other states, also enacted major legislation expanding eligibility for petition-based conviction relief. Kentucky and North Carolina authorized the automatic sealing of many non-conviction records (with simplified petitions for others), consistent with a 2019 model law on non-conviction records developed by a group of practitioners under CCRC’s leadership. Other reforms addressed marijuana offenses, victims of human trafficking, juvenile records, and more.

Below we summarize 2020’s record relief reforms, broken down into six categories: general conviction relief (9 states, 14 laws), automatic conviction relief (4 states, 5 laws), non-conviction records (4 states, 4 laws), marijuana offenses (6 states, 5 laws, 2 ballot measures), offenses by victims of human trafficking (3 states, 3 bills), and juvenile records (5 states, 6 laws). Seven bills that were vetoed are described at the end. (Our full report on 2020 legislation is available here. Further detail about a particular jurisdiction’s record relief laws can be found in the CCRC Restoration of Rights Project, which includes both individual state profiles and 50-state comparison charts for conviction and non-conviction records.)

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CCRC proposes a reintegration agenda for the 117th Congress

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record.1 This agenda recommends specific measures by which Congress can accomplish this.

During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.2 Many states have entirely remade their record relief systems—authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication—and limited the consideration of arrest and conviction records in employment and licensing.3

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020. However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states. Recent controversies over presidential pardoning offer an incentive to wean the federal justice system from its dependence upon presidential action for the sort of routine relief these mechanisms promise.

During the pandemic, the need to access opportunities and resources is perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below:

  • Record relief: authorize federal courts to expunge certain records, grant certificates of relief, and increase use of deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; provide relief from firearms dispossession.
  • Federal public benefits: end record-related restrictions in small business relief, SNAP and TANF benefits, and student financial aid.
  • Employment & licensing: establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: allow voting in federal elections unless a person is serving a felony sentence in a correctional institution.

CCRC’s full federal agenda can be accessed here, and is reprinted below.

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Marijuana expungement accelerates in 2020

*NEW: Marijuana legalization and expungement in early 2021

Marijuana expungement reforms continued to accelerate last year, and record relief has now attained a more prominent role in the broader legalization movement. As we documented in our recent report on 2020 criminal record reforms, six states enacted specialized marijuana relief laws in 2020, following 7 states (and D.C.) that did so in 2019, and 4 states in 2018. This brings the total number of states with specialized marijuana expungement laws to 23.

In Congress, the House passed the Marijuana Opportunity Reinvestment and Expungement Act in November, which establishes a process to expunge convictions and conduct sentencing review hearings related to federal marijuana offenses. However, the Senate did not bring it up for consideration so it will have to be reintroduced in the new Congress.

In 2020, Arizona and Montana approved ballot measures to authorize expungement for many marijuana offenses; Vermont made expungement automatic for marijuana possession of 2 ounces or less; Michigan and Utah streamlined marijuana record relief procedures; and Virginia restricted access to records of marijuana possession offenses. These laws are described in greater detail below.

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Surge in reforms to ease driving penalties

This past year saw an unprecedented surge in states enacting so-called “free to drive” laws, as we documented in our recent report on criminal record reforms in 2020. Nine states enacted 16 bills that end the suspension of driver’s licenses either due to unpaid fines and fees, or due to legal violations unrelated to dangerous driving. Such suspensions make it difficult or impossible for people to get to work, take children to school, shop for groceries, or obtain healthcare.

The Free to Drive campaign, a coalition of over 140 organizations, reports that currently, 37 states and D.C. still suspend, revoke or refuse to renew driver’s licenses for unpaid traffic, toll, misdemeanor and felony fines and fees. This coalition played an instrumental role in many of the 2020 reforms, which are described below.

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