As local advocacy groups call for broad and automatic expungement of Virginia criminal records, more narrow legislation is a cause of division within the General Assembly.
Recently, representatives from several Charlottesville-area advocacy groups gathered at the Free Speech Wall on the Downtown Mall to advocate for pro-expungement legislation.
The crowd of around 15 people represented a swath of local groups, including the People’s Coalition, Lending Hands, OAR of Richmond, Freedom for Felons and the Legal Aid Justice Center.
Their message was clear and consistent: broad, automatic expungement is needed immediately.
Virginia is among the most restrictive states when it comes to expungement, not allowing it for any criminal conviction. Only people with dismissed charges or people found not guilty are eligible for expungement, and even then, expungement advocates argue, the process is tedious and expensive.
The process is particularly difficult for people of color, advocates said, and charges show up on background checks for housing and employment, hurting people for decades after they have served their punishment for a crime.
Criminal records are their own kind of life sentence, said Crystal Waller-Penny of Charlottesville, who spoke at the local rally Feb. 8.
Finding a job and housing amid the already difficult COVID-19 pandemic has been particularly difficult with a felony charge on her record, she said, and her family is currently facing homelessness as a result.
“Because of my charge, I have not really been able to find housing, which is a definite stressor,” she said in an interview following the rally. “It just makes me feel like I can’t be a productive member of society, like I can never get past it.”
Virginia averages 4,000 expungements a year, while Pennsylvania, in comparison, has expunged 47 million criminal records since June 2019, according to the Legal Aid Justice Center.
Two pieces of legislation are working their way through Virginia’s legislature, both aimed at addressing issues of expungement through differing means.
HB 2113, introduced by Del. Charniele L. Herring, D-Alexandria, supports automatic expungement for about 80 misdemeanor convictions after an eight-year period. The bill also provides for the expungement of some felony drug charges but does not allow for the expungement of DUI and domestic violence convictions.
The Senate equivalent, SB 1339, is more complicated. In its current form, the bill would require people to petition a court for permission to have their record sealed.
Currently, House Democrats are at odds with the bill and its patron, Sen. Scott Surovell, D-Fairfax, a disagreement lingering from the 2020 special session. According to the Richmond Times-Dispatch, Gov. Ralph Northam’s office recently brought in a mediator, Mark Rubin, to help Democrats negotiate.
“We need to get a structure for petition-based sealing and automatic sealing on the books with some relatively conservative thresholds that we can continue to build on and refine in future sessions,” Surovell told the Times-Dispatch. “We also need to ensure that whatever remedies we create produce actual results.”
The bills have received little vocal criticism from Republicans this session, though both measures passed along party lines in their respective chambers.
Del. Rob Bell, R-Albemarle, voted against HB 2113 when it was before the House but declined to comment on the bill or its Senate equivalent, citing the differing versions under consideration.
For many advocates of expungement, including Rob Poggenklass of the Legal Aid Justice Center, Surovell’s bill does not go far enough and still places an unfair burden on people with criminal records.
Herring’s bill is similar to one passed by the House during the 2020 special session that Legal Aid supported, Poggenklass said. Both bills have “tailored lists” of charges, he said, and Legal Aid and other similarly minded advocacy groups tend to support more broad expungement.
“It’s a little bit like the mandatory minimum debate, frankly,” he said. “When you start pulling out individual offenses, then that can lead to wanting to pull out others, and if you believe in the policy, if you believe that people can rehabilitate themselves and deserve a second chance, then it makes sense to allow expungement for a lot more offenses than a sort of tailored list that we seem to be talking about.”
Michigan recently passed automatic expungement legislation, Poggenklass said, and before then had used petition-based expungement. Citing a recent report on the expungement of criminal convictions published in the Harvard Law Review, he said that only 6.5% of eligible people were getting an expungement within five years after being eligible through the petition-based system.
Virginia currently uses a similar process, and automatic expungement is the only way to ensure broad access, Poggenklass said.
“Petition-based expungement means you need to hire a lawyer and go through the court process and, for a variety of reasons, there are going to be people who are deterred by a petition-based system,” he said.
SB 1339 also has a variety of waiting periods for expungement, Poggenklass said, while HB 2113 has a waiting period of eight years across the board. Ideally, he said, a five-year period would help former offenders get jobs and housing more easily.
“It makes sense from a public safety perspective to make it so people can have access to basic things like employment and housing,” he said. “That’s really what getting rid of a criminal record is about because landlords and potential employers see that criminal record and they worry about it and then they deny housing and they deny employment.”
Though a compromise bill is expected, the Senate Judiciary Committee delayed discussion on HB 2113 planned for Monday to Wednesday. It remains unclear what a compromise bill will look like, but if legislation is passed and signed into law, it appears it would not go into effect for several years.