House, Senate committees advance bills for expungement of criminal records

By Joseph Whitney Smith
Capital News Service

Virginia House and Senate committees have advanced legislation that would remove certain criminal records in a criminal justice reform effort that allows people to petition for expungement of convictions, not just charges.

Senate Bill 5043, sponsored by Sen. Creigh Deeds, D-Bath, and House Bill 5146, sponsored by Del. Charniele Herring, D-Alexandria, would expand the current expungement process. Police and court records are currently only expunged if an individual is acquitted, a case is dismissed or abandoned.

Deeds said the bill expands the cases available for expungement and will create an easier process for individuals seeking expungement.

Deeds’ bill heads to the Senate floor after moving through two Senate committees. The Senate Finance and Appropriations Committee gave the bill the green light Thursday with a 16-0 vote. Herring’s bill was approved by the House Appropriations Committee with a 13-9 vote.

Deed’s bill would allow expungement of records for cases such as misdemeanor marijuana possession, underage alcohol or tobacco possession, and using a fake ID to buy alcohol. The bill allows expungement five years past conviction and once court fines have been paid. The bill excludes violent felonies and drug-related offenses such as marijuana possession over an ounce, distribution of drugs to a person under 18, and the manufacturing, possession or distribution of controlled substances like heroin and methamphetamine.

“Simple marijuana possession is no longer a crime in Virginia, so you ought to be able to expunge those convictions,” Deeds said.

Herring’s bill creates an automatic system that after eight years expunges certain charges that have been abandoned or dismissed, as well as certain convictions, including some felonies if there are no subsequent convictions.

The current process includes filing a petition, being fingerprinted, paying a filing fee and possibly attending a court hearing, according to Colin Drabert, deputy director of the Virginia State Crime Commission, who spoke during a commission hearing Monday. Virginia is one of nine states that do not allow the expungement of a misdemeanor and one of 14 states that do not allow the expungement of a felony, he said.

Virginia State Police receive approximately 4,000 expungement orders for non-convictions per year for the past three years, Drabert said. If Herring’s bill passes, cases that are acquitted, dismissed or a nolle prosequi entered, will be automatically expunged by the court handling the case — excluding traffic violations.

For convictions, Herring’s bill outlines a new, at least monthly process that has state police provide to the courts an electronic list of qualifying offenses that meet automatic expungement. Once a judge approves the names and offenses, the records are expunged.

“There is a stigma attached when someone has a mark on their record from difficulty in finding employment,” Herring said during a House Courts of Justice hearing. Criminal records also can impact an individual’s ability to attend college, receive financial aid or find housing, she said.

Andy Elders, policy director at Justice Forward Virginia and chief public defender for Fairfax County, said expungement helps people re-establish themselves in society.
“Many people who have criminal convictions on their records, have them as a result of over-policing of communities of color,” Elders said.

Dana G. Schrad, executive director of Virginia Association of Chiefs of Police, said the proposed changes won’t allow certain employers to access expungement records, including police chiefs who conduct thorough background checks before hiring individuals.

“If these expungement proposals are enacted into law, law enforcement hiring processes will be further compromised,” Schrad said.

Deed’s bill would not require disclosure of expungement. Herring’s bill will prohibit automatically expunged records from being seen unless applying for law enforcement and certain federal and state positions.

Schrad also said the law change could impact background checks for teachers, child care providers, mental health and social workers.

Though the governor promised sweeping criminal justice reform in January, the newly-elected Democratic majority failed during the regular session to pass bills such as reinstating parole and expungement of records. Deeds’ bill, if passed, would take effect January 2022. Herring’s bill would be phased in and require multiple agencies to sign off on the implementations.