by: Ryan J. Stevens
In 2018, Pennsylvania became the first state to enact a “Clean Slate” law.
DMGS Article Highlights
- Pennsylvania was the first state to enact a “Clean Slate” law and automatically sealing certain criminal records.
- Numerous states, like Utah and Michigan, have followed Pennsylvania’s lead.
- Some states only seal or expunge certain misdemeanors, but others, like Michigan, expanded their law to include felonies.
In 2018, Pennsylvania became the first state to enact a “Clean Slate” law to seal certain criminal records automatically. Act 56, formerly House Bill 1419, provides individuals with low-level, non-violent criminal records with a mechanism to have their record(s) sealed from public view.
Why enact Clean Slate and make a criminal record sealing process automatic? The goal of Clean Slate in Pennsylvania was to reduce the stigma people with criminal records face while looking for jobs, education, and housing. A new report from the Center for Economic and Policy Research estimated that in 2016 the reduction in the overall employment rate resulting from barriers faced by former prisoners and people with criminal convictions costs the United States between $78 billion and $87 billion in annual GDP.
To be eligible for Clean Slate in Pennsylvania, a person must not have any other convictions for ten years and must pay all court-ordered financial obligations. The measure, sponsored by Republican state Representative Sheryl Delozier and Democrat State Representative Jordan Harris, received bipartisan support with a 188-2 vote in the House and a 49-0 vote in the Senate.
The new law took effect in 2019, and within the first year, the Commonwealth sealed about 35 million low-level criminal records. Other states have looked to Pennsylvania for inspiration as they seek to implement Clean Slate, or Second Chance, laws. With a focus on criminal justice reform in recent years, which states are enacting or considering implementing versions of Clean Slate?
The Keystone State may have already enacted Clean Slate legislation, but some state lawmakers are looking to expand upon the new law. Senate Bill 883 would automatically expunge any criminal record subject to an executive pardon or non-conviction. Current Pennsylvania law stipulates that a person who receives a pardon from the Governor must still approach the courts for the expungement of criminal records, meaning those affected would have to pay hundreds, or thousands, of dollars in legal fees and processing. The bill has not advanced through the committee process. However, a similar bill, House Bill 440, passed the House by a vote of 197-0 and is currently in the state Senate. The legislation would provide an opportunity to expunge an individual’s record if they have been unconditionally pardoned or fully acquitted of all charges, based on the same conduct or arising from the same alleged criminal episode. Under the bill, the Commonwealth would receive notice of a potential expungement and would have an opportunity to object and conduct a hearing.
Further, House Bill 1828 expands upon Clean Slate for veterans by providing limited access to criminal records when a medical professional certifies a veteran has an undiagnosed, service-connected mental health disorder or traumatic brain injury. State Representative Jake Wheatley introduced the bill, as well as House Bill 2050. This bill calls for a “Cannabis Clean Slate,” which legalizes the use of cannabis and expunges records and releasing non-violent drug offenders from prison.
Following Pennsylvania’s lead, Utah became the second state to enact legislation creating an automatic way to seal criminal records of those convicted of certain low-level crimes. H.B. 431 allows for expungement of criminal records if a person does not commit another crime for five years for a class C misdemeanor, six years for a class B misdemeanor, and seven years for drug possession. Like Pennsylvania, a process for sealing records already existed in Utah, but this new law automates the process. Not covered under the Clean Slate law are felonies, DUIs, or “violent” misdemeanors (domestic violence, sexual battery, etc.).
Last week, lawmakers in Michigan joined Pennsylvania and Utah by passing a Clean Slate package of bills of its own. Unlike Pennsylvania and Utah, Michigan’s package is the first to include felonies. Michigan’s Clean Slate bill, House Bill 4980, increases the number of felonies eligible for expungement from two to four and expands eligibility to include most drug, property, and traffic offenses. The bill changes wait times to seven years from the end of a sentence or community supervision for misdemeanors or ten years from the end of a sentence or community supervision for felonies. The bill also requires restitution, court fines, and fees to be paid, but the payment status does not affect eligibility for automatic relief under Clean Slate. Further, the bill does not seal a criminal record from law enforcement or the courts.
The additional bills were included as part of the Clean Slate package:
- House Bill 4981 – the bill allows for a traffic offense committed by an unlicensed person to be set aside;
- House Bill 4982 – the bill allows a person convicted of one or more misdemeanor marijuana offenses to apply to set aside the conviction or convictions;
- House Bill 4983 – the bill amends the period for which someone must wait to ask for a conviction to be expunged. The bill also specifies that if the convicting court denied a petition, they could not file for another petition concerning the same conviction for three years. The bill further requires an applicant to pay a $50 fee to the MSP;
- House Bill 4984 – the bill states that a person convicted of one or more criminal offenses, but no more than a total of three in the state, may apply to have all their convictions set aside. The bill also states an applicant may not have more than a total of 2 convictions for an assaultive crime set aside during their lifetime, and an applicant may not have more than one felony conviction for the same offense set aside if the offense is punishable by more than ten years of imprisonment;
- House Bill 4985 – the bill allows for expungement in certain circumstances of multiple felonies in the same criminal transaction; and
- House Bill 5120 – the bill allows certain criminal cases to be set aside by also allows an arresting agency and the department of the state police to maintain the nonpublic records.
In January of this year, Governor Ned Lamont announced a legislative proposal to clear certain criminal records automatically to address barriers to employment, education, and housing. The proposal became H.B. 5019, but some lawmakers believed the Governor’s proposal did not go far enough. As a result, State Senator Gary Winfield introduced S.B. 403.
Both bills automatically clear certain criminal records, require the Board of Pardons and Parole to receive training, protect those who have had their criminal records expunged by including an anti-discrimination clause, and require people to go without a subsequent conviction for seven years to be eligible for automatic sealing.
The Governor’s proposal only applies to low-level misdemeanors, while the Senate proposal includes all misdemeanors, except those related to family violence and Class C, D, and E felonies. Further, felonies would be subject to a provisional erasure, so law enforcement could still see convictions for several years before the records are permanently erased. It is estimated that S.B. 403 would affect nearly four times as many people as H.B. 5019. Both bills are still pending.
In early August, Governor Brian Kemp signed SB 288 into law, which will become effective January 1, 2021. Current Georgia law states that arrests that do not lead to convictions and misdemeanor convictions for minors are the only crimes the state can expunge. SB 288 does not allow for an automatic process like some of the other states mentioned above.
Instead, the bill will allow individuals to petition the court to have certain misdemeanor convictions restricted and sealed four years after completing their sentence, as long as they do not have any new convictions or pending charges. Individuals convicted of felonies would have to wait at least five years.
Excluded from the bill are offenses such as sex crimes, crimes against children, family violence, and DUIs.
The Georgia Budget & Policy Institute released a report that Georgia has (before Clean Slate) one of the most limited record restriction laws in the nation. The report further states:
- Nearly 600,000 Georgians are living with felony convictions;
- The unemployment rate in Georgia for returning citizens is 15%, five times higher than the statewide unemployment rate;
- 90,000 formerly incarcerated people are unemployed;
- Each formerly incarcerated person in Georgia not able to work due to a criminal record lost $36,000 in wages in 2019; and
- The lost wages equate to approximately $2.6 billion in wasted spending power across the state.
North Carolina Governor Roy Cooper signed the “Second Chance Act,” or Senate Bill 562, into law in late-June. The bill, which passed the House 119-0 and the Senate 47-0, allows individuals to petition for expungement of certain criminal records, while also allowing automatic expungement of criminal records that courts dismiss or dispose of as “not guilty.” The bill would:
- Allow for the expungement of certain offenses committed before 12/1/19 and while a person was under 18 years of age but at least 16 years of age;
- Misdemeanors and Class H or I felonies could be expunged unless they were an offense involving impaired driving or an offense requiring sex offender registration;
- Allow for the expungement of more than one misdemeanor conviction after a seven-year waiting period (current law allows for one misdemeanor after five years and one felony after ten years); and
- Provide victims’ rights language.
Advocates argued that the state needed the legislation because 1 in 4 adults, or over 2 million North Carolinians, have criminal records, which result in barriers to reentry and opportunity. Advocates also cited a 2018 study that found those who had records expunged saw a 25% increase in wages.
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