After more than a year of intense debate, House Democrats and Senate Democrats have crafted a compromise on expungement, which will have an automatic process for some misdemeanors and a petition-based model for some felonies.
Photo by Michael Lee Pope.
Marijuana convictions will be automatically expunged under a bill now under consideration by Gov. Ralph Northam, although convictions for crack cocaine will require missing a day of work and probably hiring a lawyer to go to court and seal the record. The legislation is a compromise crafted late in the General Assembly session by House Majority Leader Charniele Herring of Alexandria and state Sen. Scott Surovell (D-36), who clashed repeatedly over the last year about how the process should work.
"This bill combines both bills to come up with a process for a clean slate for Virginians," said Herring. "There is some record retention, but still the records will be destroyed after a time."
House Democrats were pushing for an automatic model of expungement, allowing people to get rid of old drug convictions without having to hire a lawyer and miss a day of work. But Senate Democrats were advocating for a petition-based model, which would allow a judge to review the individual circumstances of each individual case before making a determination. The governor began the session by calling on the two sides to find a compromise during his State of the Commonwealth Address, although he pointedly declined to publicly take a side in the debate.
"It's time to act during this session to have the robust debate about how to best conduct the process of expunging people's records," said Northam in his State of the Commonwealth address. "This will make our system more just and equal. And it needs action this session."
Ultimately Herring and Surovell worked together on a mashup of the two bills, taking parts from each version to craft a compromise version for the governor to consider. The version of the bill now on the governor's desk includes automatic expungement process for nine misdemeanor convictions, including fake ID, disorderly conduct and marijuana possession. It would require a petition to a court to seal the record for more serious charges, like possession of crack cocaine or resisting arrest.
"You have to go in front of a judge and a commonwealth's attorney,” said Surovell. “And you have to show you've led a good life and you've changed and if you were addicted to drugs you're not addicted any more and if you're an alcoholic you've gotten counseling and you're through all that.”
CURRENTLY, VIRGINIA has almost no way for people to seal records of old convictions, leading to problems for people who want to get a job or find a place to live. Democrats tried and failed to find a compromise on this issue last year during the General Assembly session and then again during a special session. So the compromise version of the bill now on the governor's desk is a major step forward for a criminal-justice reform effort that would allow an estimated 1.6 million Virginians to start over with a clean slate.
"These reforms, if enacted, would transform lives and strengthen families, communities and the economy," said Phil Hernandez, senior policy fellow at the Commonwealth Institute for Fiscal Analysis. "This legislation also represents an important step to address racial injustice and unequal outcomes that permeate our criminal justice system."
One of the major topics of disagreement was how to handle drug convictions. Lawmakers were mostly in agreement about automatically expunging marijuana convictions. But the discussions were more difficult around other drug crimes, which are all felonies. Because convictions for possession of cocaine, heroin or LSD are felony crimes, they would require petition-based sealing under the compromise bill now under consideration by the governor. Some prosecutors say Virginia should end the war on drugs, especially now that marijuana has been decriminalized and is about to become entirely legal.
“These reforms, if enacted, would transform lives and strengthen families, communities and the economy.”
— Phil Hernandez, senior policy fellow at the Commonwealth Institute for Fiscal Analysis
“I don’t think possession of drugs should be a felony. I think it should be a Class One misdemeanor,” said Alexandria Commonwealth’s Attorney Bryan Porter. “If we could amend that down to a misdemeanor, it’s still a crime but it’s a much less serious one. Then that problem wouldn’t exist."
THE DETAILS of the legislation include a delayed enactment, giving lawmakers until October of 2025 to tweak bits and pieces of the process so that it will work in courthouses across Virginia. Misdemeanors offenses that are eligible would go away after seven years, and people would be able to petition to seal the record on felony offenses after 10 years.
The legislation also creates new penalties for third-party vendors, essentially private businesses that buy and sell old criminal records to people doing background checks or opposition research.
"That's an important component of reform here," said Andrew Elders, policy director for Justice Forward Virginia. "That was a big problem for a long time."