Category: Expungement/sealing

California’s Proposition 47 and collateral consequences: Part I (sentencing consequences)

2000px-Flag_of_California.svgIn the general election on November 4, 2014, California voters approved Proposition 47 with almost 60% of the vote.  The Proposition will impact a wide range of sentences in California courts, and in the federal courts as well.  A number of crimes that could be, and often were, charged in California as felonies, such as commercial burglary, forgery, grand theft, and certain drug crimes, will now be charged as misdemeanors, so that their effect on a person’s criminal history will be substantially diminished.  A whole range of state felony drug offenses that could result in enhanced sentences in federal drug cases, even life imprisonment, or career offender status under the United States Sentencing Guidelines, have overnight become relatively harmless misdemeanors.

Significantly, Proposition 47 applies not only to persons who are currently “serving a sentence,” but also to those who have already fully served their sentences.  This means that thousands of people with California felony convictions can under certain circumstances petition to have their case recalled, the crime re-designated a misdemeanor, and be resentenced.  Once reduced to misdemeanors, qualifying crimes can be set aside under California Penal Code § 1203.4 (felony or misdemeanor cases sentenced to probation) or 1203.4a (misdemeanor cases sentenced to prison).  These provisions allow a defendant to withdraw his plea of guilty, enter a not guilty plea, and have the judge dismiss the case.  The record can then be expunged.

The importance of this retroactive effect of the new law cannot be over-estimated.  While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community.  For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions.

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“Second Chances for Teen Offenders”

This New York Times editorial urges states to seal or expunge juvenile records “so that young offenders are not permanently impaired by their youthful transgressions.”  It describes a new study from the Juvenile Law Center that concludes “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to [juvenile] records.”

The first juvenile courts were established more than a century ago on the principle that children deserve special care under the law because they are vulnerable, because their transgressions tend to be nonviolent and because they can be expected, on the whole, to outgrow their youthful misbehavior.

These presumptions are borne out by data showing that 95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood. But because some juvenile court records remain open to the public when they should have been sealed or expunged, these young people can be denied jobs, housing and even admission to college.

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More states rely on judicial expungement to avoid collateral consequences

Oklahoma is the most recent state to expand its expungement laws to make more people eligible fOklahomauntitledor record-clearing at an earlier date.  While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records.  Details of Oklahoma’s law are available here.

Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee.

Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records.  Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive.  The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.)  The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement.

The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on Read more

North Carolina offers detailed on-line guide to relief from a criminal conviction

We’ve just learned that the School of Government at the University of North Carolina has produced a detailed and well-organized online guide to obtaining relief from a North Carolina criminal conviction. You can view the guide here.  The guide explains in one place the various mechanisms available in North Carolina for obtaining relief from collateral consequences, including expunctions, judicial certificates of relief, and other procedures.

The guide supplements the School’s Collateral Consequences Assessment Tool, C-CAT, an online tool enabling users to identify the potential consequences of a criminal conviction in North Carolina.  C-CAT is user-friendly and has been kept up to date with new laws enacted since its launch two years ago.

The relief guide is organized by the type of relief being sought and includes tables breaking down the specific requirements for relief. It describes special relief provisions for sex offender registration and firearms dispossession, as well as for drug crimes and juvenile adjudications.  Features of the online guide include keyword searching, live links to internal and external cross-references such as statutes and forms, cases and opinions, and periodic updates. The guide was prepared by John Rubin, Albert Coates Professor of Public Law and Government.

This guide is the most detailed and user-friendly one we have seen, and should be a model for other jurisdictions.