Virginia Democrats say they want to give people with criminal histories a second chance -- by scrubbing their records once they’ve completed their sentences. But legislators have been unable to agree on how it should be done, getting stuck on key details, including which offenses should be eligible for expungement and whether they should be scrubbed automatically.
Lauren Penn was convicted of a felony in 2008. And she said she’s spent the last 12 years trying to make it right.
“A lot of people look at expungement as if it’s another debt to have to be paid back,” Penn said. “But it really should be looked at as a receipt that I’ve paid all my debts to society.”
Penn, who lives in southwest Virginia, is struggling to find meaningful employment, although she’s amassed an arsenal of trade certifications and degrees.
“Making minimum wage with a bachelor’s degree is not what I think anybody would call living the American dream,” Penn said.
Democrats already tried to address expungement in the 2020 regular and special legislative sessions. Majority Leader Del. Charniele Herring said at the start of the special session this summer that expanding eligibility for criminal record expungement was her top priority.
Her bill passed the House but didn’t get a hearing in the Senate. This year, the Senate is more amenable to addressing the issue, but its members remain divided.
Sen. Joe Morrissey is calling for the automatic expungement of all misdemeanors and some felonies. Sen. Louise Lucas recommends automatic expungement for a shorter list of offenses and Sen. Scott Surovell’s bill includes a wide range of offenses, but requires individuals to petition to have those records sealed.
Whether records should be expunged or sealed is another point of contention, but both essentially restrict public access to the files.
Last week, during a Senate Judiciary hearing, the disagreements came to a head. Morrissey and Lucas both criticized Surovell’s bill as being too complicated to be effective.
“I’m sitting here and I appreciate all the work that Senator Surovell did,” Morrisey said. “But you’ll need a Ph.D. in Criminal Justice procedure just to follow all the nuances.”
Surovell pushed back on that assessment.
“It’s complicated because the world is complicated,” Surovell said. “And because different offenses have different consequences and different reasons for occurring.”
The vast majority of states permit some type of records clearance. Virginia is one of only eight states that doesn’t provide a path for people to clear their record if they’ve been convicted of a crime. Those states include Alabama, Alaska, Florida, Hawaii, Idaho, Maine and Wisconsin.
Samantha Reiser is with the N.Y.-based Legal Action Center. She said states are having more success with automatic expungement than a system where people have to petition for relief. Utah and Pennsylvania were the first states to automate expungements. Michigan just this year moved to an automated system.
“In many ways, it compounds many of the inequities that we already see in the criminal legal system in terms of who has access to this relief based on socio-economic status as well as race,” Reiser said.
Reiser said she’s been working with a client in New York state whose application has been languishing in the court for more than 20 months.
“When someone has served their time and successfully completed their sentence, they are reentering their community,” Reiser said. “And blocking them from employment, from housing, from education, and many other opportunities that they need in order to thrive in their communities isn't enhancing public safety.”
But there are some logistical drawbacks to creating an automatic system.
Megan Quattlebaum, with the non-partisan Council of State Governments, said as states move to automate their expungement processes, they’re having to make significant investments in their technology infrastructure.
“That’s not to say the challenge is insurmountable,” she said. “But It takes money and it takes collaboration across a number of different record-holding agencies in the state. And it just takes the political will to get it done.”
The Democratic governor of Washington vetoed a bill last year that would have automatically cleared criminal records. He said he agreed with the policy goal but the state can’t afford it during a pandemic.
Lauren Penn said she just wants the state to provide relief to the greatest number of people, including herself.
“Allowing me the ability to have my own first impression, made by myself, is vital. It’s really, truly vital.”
