Democrats still seek unity on expungement push

Automatic expungement – a key element of Virginia Democrats’ criminal justice initiatives – has momentum this year at the General Assembly.

At least three measures introduced in the 2021 session would provide plans for automatic expungement of criminal records, while another proposal would set up a petition-based expungement regime. Similar proposals foundered at a 2020 special session over disagreement about whether the process should be automatic.

The automatic option now has the approval of the Virginia State Crime Commission and the backing of key groups, according to House of Delegates Majority Leader Charniele Herring, D-Alexandria.

Herring said her bill – and a similar proposal offered by Sen. Louise Lucas, D-Portsmouth, have the support of progressive prosecutors, criminal defense attorneys, legal aid and the NAACP.

Herring said the process would apply to about 170 specified felony and misdemeanor convictions. Essentially, the record would be wiped clean after a defendant served the sentence and then stayed out of trouble for eight years.

“You serve your time, you do your sentence. You go another eight years without a conviction. Your record will be cleared,” Herring said Jan. 20. “You don’t have to hire an attorney you don’t have to go to court. We wanted to make it free, equitable and far-reaching.”

Sen. Scott Surovell, D-Fairfax, has offered an alternative plan where defendants would have to file a petition and appear in court to win expungement of prior criminal records. He has questioned whether automatic expungement is a workable proposition.

Herring is adamant that expungement should be automatic. She suggested a petition-driven expungement plan would create work for lawyers and could be traumatic for those hoping to lose their criminal record.

“For attorneys, it’s easy to create a book of business with legislation and that’s not where we need to be. Where we need to be is looking to provide equity,” Herring said.

“The trauma that is involved with going into court – after they’ve turned their lives around and went eight years without a conviction – I think is very cruel. What we’re trying to do is keep people from the court system.”

The expungement proposals are expressly aimed at people in addiction recovery, Herring and other advocates have said. Another automatic expungement proposal has been offered by Sen. Joe Morrissey.

In addition to removing records of certain convictions, expungement would also apply for deferred dispositions, non-convictions and incidents of mistaken identity and unauthorized use of identifying information, according to a summary published by the Crime Commission.

Virginia’s current expungement process applies only for non-convictions.

Forty-one other states currently allow misdemeanor convictions to be expunged or sealed, and 36 states allow certain felony convictions to be wiped from the record.

The expungement proposals would remove records of convictions from criminal history records and would seal related court records. The proposals would require that third parties that collect and disseminate criminal records delete those records that are expunged or face civil liability.

The bills would provide employers with liability immunity when hiring employees who have had criminal records expunged.