Criminal record expungement: When will Virginia be ready?  

December 9, 2020 12:01 am

House of Delegates members walk past the south portico around at the end of the veto session at the Virginia State Capitol in Richmond on April 22, 2020. Legislation passed the same year created Virginia’s new Office of the Children’s Ombudsman. ( Pool Photo by Bob Brown/ Richmond Times-Dispatch)

By Sheba Williams

This past year has brought many issues to the forefront of consciousness. The deaths of George Floyd and Breonna Taylor were the straws that broke the camel’s back. For 8 minutes and 46 seconds, in the middle of a pandemic, the country collectively stood still and felt the pain that Black communities had been feeling forever.

It has been easy for those who are not directly impacted to disregard and downplay the experiences of individuals who are not like them. As Virginia grappled with racial inequalities in every aspect of life, our legislators and the governor took to the virtual General Assembly in a special session where lawmakers hashed out disagreements over policing, marijuana, housing, education, the novel coronavirus, and more. But when the time came to address the harm that continues to occur to those with previous experience in our criminal legal system, we fell short once again.

When given the opportunity to provide relief to the over half a million Virginians whose criminal record continues to limit their access to opportunities and their ability to contribute to their communities, our legislators simply would not negotiate a plan. It didn’t matter that employment, housing, social services programs, family foundations, or even mental health were on the line. We simply stopped negotiations and said, “Virginia’s not ready.”

Studies on expungement in Virginia had been done as far back as 2009, with the latest study completed in 2020. Every year we add new laws to our Code, but we have not changed our expungement laws since 1977. Today, not one single measure provides relief from the “forever” felony. Not one. For a state that boasts the lowest recidivism rate in the country, there is no compelling reason not to provide relief for those who have completed all their terms of incarceration. Saying “we’re not ready” equates to “we won’t forgive those who have past convictions.”

We heard all of the excuses as to why we weren’t ready. Public safety is it? Holding a person accountable forever has nothing to do with public safety. And not just a person who had been convicted of a crime, but anyone who had ever been charged with a crime lives with that charge forever, unless they take the time to navigate the very limited, complicated, and gut-wrenching process of expungement by petition.

Even a person who has gone through the many steps of proving their innocence is forced to go back before a judge and prosecutor to request to have their lives back. They are forced to go into a police station and be fingerprinted and pay a substantial filing fee, as if they are reliving the criminalization process. Even innocence doesn’t guarantee an expungement. Your life is still in the hands of a flawed system.

Our organization is advocating for a change from petition-based expungement to automatic expungement and expungement that allows for sealing of criminal charges (including non-convictions and past convictions).

Currently, Virginia’s expungement law only allows for a petition-based process for people who have been acquitted, found not guilty or who are victims of identity theft. Even those who prove their innocence in a court of law are forced to go back before a judge and prosecutor and pay an average cost of $96 to request a charge of not guilty be removed from their criminal background check. They can be found not guilty and still be denied an expungement.

We have penalized Virginians for far too long with no opportunities for relief. It is past time to trust Virginians to be more than their convictions. It is past time to move forward as a state that is not afraid to be progressive. It’s time for Virginia to join the rank of other states who have a robust “Clean Slate Act.”

It is time to make each and every Virginian whole again. It’s well past time for automatic expungement that is free, accessible, equitable, and far reaching.

Sheba Williams is the founder and executive director of Nolef Turns, as Richmond nonprofit that works to reduce recidivism by helping those with court and justice involvement successfully thrive post-conviction. 

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