Expungement Reform: Giving People A Second Chance
Sparked by the tragic death of George Floyd and the historic worldwide marches, Virginia’s General Assembly will soon hold a Special Session to consider important police and criminal justice reform measures. The mood for change is palpable, with many calling for reform that seeks to repair some of the disproportionate harm that our criminal justice system has inflicted on Black Virginians over the last few decades. Virginia’s archaic expungement laws are a prime example of the barriers imposed on anyone who has ever become entangled in the system.
Virginia law currently ensures that no one convicted of a crime can ever have that offense removed from their record. The law also does not allow for the expungement of some kinds of offenses from your record, even if you were not convicted of that offense. The permanence of criminal records in Virginia are a racial justice issue that needs to be addressed in the upcoming special session.
You really want to give people a “second chance?” Give them an expungement.
Expungement allows someone who has been through the criminal justice system to “clean their record.” In Virginia, expungement requires you to file a separate civil lawsuit in which you sue the Commonwealth’s Attorney (our head prosecutor) to seal your record. Not only are expungements not automatic, they are limited to individuals with very specific outcomes in their criminal cases. For the vast majority of Virginians who have been charged with crimes, our expungement laws offer little to no relief.
To be eligible for an expungement in Virginia, you must either:
1) Have been acquitted of your charges (found “not guilty”); or
2) Have had your charges dropped without condition (also known as nolle prossed).
Even if you qualify for an expungement, the court may still have the power to deny your request. For felony charges, the person seeking expungement has additional legal burdens, even if a jury or judge found them not guilty!
In short, if you’ve ever been convicted of any crime here in Virginia, your record is permanent. You can never have a conviction taken off of your record, no matter how long ago the offense was, how young you were at the time, or how minor the offense was.
Most people think of going to prison as the worst thing our criminal justice system can do to you. But the majority of people that process through Virginia’s court system don’t end up serving a lengthy prison sentence. Instead, they face real consequences of their criminal record in other aspects of their lives – school and job applications, housing, loan requests – the things that make up day-to-day living. The things that allow people to become productive members of society.
We constantly hear calls to reform our criminal justice system, to value rehabilitation over punishment, and to give people a “second chance.” But how can we ever expect someone to have a real second chance when Virginia’s expungement laws ensure that your past can never be left behind? Virginia’s expungement laws make second chances impossible for many, especially for people of color who were caught up in the system at a young age.
We need to be like Kentucky.
Yes, you read that right. Virginia has some of the worst expungement laws in the country. Even Kentucky has us beat. In 2016, Kentucky changed its laws to permit expungement of certain non-violent misdemeanor and felony convictions after a period of years. Virginia should be adopting similar reforms.
In addition to permitting expungement for some convictions, Virginia needs to streamline its process for expungements for acquittals and dismissals. If you are found not guilty, the process for expunging the charge from your record should not require you to hire a lawyer, pay an application fee, file a separate civil suit in Circuit Court, and then wait 6-12 months for your charge to be removed from your record. But that’s our current system, and that’s for people a judge or a jury found not guilty! Expungements for acquittals and dismissals should be automatic and free to the accused.
Our criminal justice system has discriminated against Black people for decades. Even where the players don’t intend to discriminate, systemic racism pervades the system at all levels. Liberalizing our expungement laws would allow us to right at least some of the wrongs of our unfair, broken system on the back-end. For those who have been convicted, better expungement laws would allow for the second chance that our legislatures always talk about.
The real crime would be to let this historic moment of change pass by without making these simple fixes to Virginia’s criminal laws.
Article by James Abrenio of Abrenio Law.