Long deadlocked, Virginia lawmakers reach compromise to seal past criminal convictions

By: - February 17, 2021 7:27 pm

A police officer walks into the John Marshall Courthouse in downtown Richmond. (Photo by Ned Oliver/Virginia Mercury)

Democrats in the House and Senate have been at odds for more than a year over dueling proposals to allow people convicted of certain crimes to have their criminal records sealed.

On Wednesday, lawmakers in the two chambers announced they’d finally resolved their differences.

“We’ve come to a strong compromise that reimagines our criminal justice system to remove barriers and address systematic inequities to provide a clean slate for Virginians who have paid their debt to society,” said House Majority Leader Charniele Herring, D-Alexandria.

The legislation would allow the automatic sealing of nine misdemeanor convictions after seven years, provided the person has not been convicted of any other crimes. The offenses include underage possession of alcohol, use of a fake ID, petit larceny, trespassing, disorderly conduct, possession of marijuana and possession of marijuana with intent to distribute.

The bill would allow more serious charges — misdemeanors through Class 5 felonies — to be sealed through a petition-based process that would require a judge to review and sign off on the request. As with the automatic process, the legislation requires the person not have been convicted of any other crimes for seven years in the case of a misdemeanor and 10 years in the case of a felony.

Advocates, who have argued lingering criminal records pose long-lasting barriers to employment and housing, applauded the agreement.

“As a person who’s had to navigate through numerous collateral consequences following my conviction, having a sealing process for past convictions ensures that everything I accomplish in the future will no longer be minimized by my past,” said Sheba Williams, the executive director of Nolef Turns, in a statement. “History no longer begins and ends with my conviction.”

Rob Poggenklass, an attorney with the Legal Aid Justice Center, said that if the bill passes, “Virginia will move from the bottom of all 50 states to very near the top for a person’s ability to seal criminal records.”

The Legal Aid Justice Center has called Virginia’s expungement laws some of the most restrictive in the country, noting the state is one of just seven that doesn’t allow any criminal convictions to be expunged. Currently, defendants can only have charges for which they were not convicted removed from their records, and then only if they file a petition with their local court and convince a judge to sign off.

After winning majorities in the House and Senate in 2019, lawmakers in both chambers agreed the state should address the issue but disagreed on the best way to do it.

The House advanced legislation that would direct the state court system to automatically seal records for about 170 misdemeanor and felony offenses eight years after they complete their sentences, provided they don’t reoffend. Herring argued that petition-based processes can be difficult, time consuming and expensive to navigate.

The Senate passed legislation that would open many more crimes to expungement, but require people who want to take advantage of the law to ask a judge to review their cases and approve the request. Sen. Scott Surovell, D-Fairfax, who authored the bill, argued that an automatic approach was inappropriate because the circumstances surrounding charges can vary widely.

The compromise legislation also incorporates language sought by Surovell that would require third party companies that conduct background checks to delete sealed records.

“We probably spent six or eight hours working through the details of this, coming to a compromise,” Surovell said, describing “ungodly hours” that he said it took the Virginia State Crime Commission “to get this thing in a position where we could pass it.”

The legislation does not totally erase the charges that are sealed, allowing the records to be used when conducting background checks for firearms transactions and when applying to work as a law enforcement officer. But in most cases, the legislation would allow people whose convictions had been sealed to deny that a charge or conviction had occurred.

And it excludes DUI and domestic violence offenses, which lawmakers said they decided not to include because subsequent offenses carry heftier penalties. “We thought we needed more time to determine how we would handle that,” Herring said.

The bill would also automatically seal misdemeanor charges and mistaken identity offenses that don’t result in a conviction or deferral and dismissal. Felony cases that result in acquittals or dismissals could also be sealed immediately provided the prosecutor agrees to the request.

Republicans have in the past supported some more limited efforts to expand expungement in Virginia, but have largely opposed both the House and the Senate versions of the bill as they’ve advanced through the General Assembly.

The redrafted legislation cleared its first hurdle Wednesday, passing the Senate’s Judiciary Committee on a 10-4 vote, with nine Democrats and one Republican, Senate Minority Leader Tommy Norment, supporting.

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.