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February 18, 2021

Virginia Poised to Become A National Leader On Expungement Reform

Lawmakers have arrived at a proposed compromise on legislation that would expand Virginia’s restrictive expungement law by including new criminal record sealing provisions to limit how certain records can be disseminated. For a significant number of the estimated 1.6 million people in Virginia who have a past criminal record, this bill—if it becomes law—would provide greater economic security, opportunity, and hope. 

Image shows Virginia's Capitol building.

The proposed compromise includes both automatic sealing and petition-based sealing, depending on the nature of the case. Notably, the bill also includes a number of important provisions that generally apply to all cases, including:

  1. No Duty to Disclose A Sealed Record. Once a record is sealed, a person is typically not required to disclose it to employers, educational institutions, or to state or local governments. Those same entities also cannot ask about sealed records, unless a specific exception applies. That information is similarly sealed for purposes of purchasing or renting a home. 
  2. Old Fines & Fees Are Not A Barrier to Record Sealing. Although some prior versions of this legislation required a person to have paid court costs and fines from the offense before becoming eligible for record sealing, there is no such requirement in the compromise bill. This represents a critical improvement, in part because court fines and fees are imposed with unparalleled intensity in Virginia’s Black communities. Note, however, that sealing does not relieve someone from the paying fines and fees resulting from the underlying offense.
  3. Accuracy Standards for “Business Screening Services.” This bill creates an affirmative obligation for business screening services in Virginia to maintain accurate records and delete records that have been sealed. The legislation includes specific monetary penalties (e.g., $1,000 or actual damages, whichever is greater) for violations and permits the Attorney General to file civil actions to enforce these protections.  
  4. Sealing of Traffic Infractions. Traffic infractions would be automatically sealed after 11 years, unless otherwise prohibited by state or federal law. (This does not include criminal code violations such as DUIs.)
  5. Full Implementation by 2025. While a number of provisions will phase in gradually over the next few years, the law would be fully implemented by October of 2025.

Beyond these general provisions, the compromise bill creates new opportunities to seal criminal records, both through an automatic and a petition-based process, as briefly summarized in the table below:

Automatic Sealing

Petition-Based Sealing

  • Misdemeanor charges, excluding traffic offenses, that result in acquittal, dismissal, or where the prosecutor no longer pursues the charge (nolle prosequi). There is no waiting period for cases that qualify for sealing, however:
    • The bill lists six factors that may preclude the sealing of records in these cases.
  • Charges brought under § 4.1-305 (related to underage alcohol offenses) or § 18.2-250.1 (possession of marijuana) that are deferred and dismissed. The waiting period is 7 years from the date of dismissal, so long as the person has not been convicted of another offense in that time, excluding traffic offenses.
  • Convictions of certain minor offenses (e.g., related to trespassing, petit larceny, etc). The waiting period is 7 years from the date of conviction, so long as the person has not been convicted of another offense in that time, excluding traffic offenses.
  • Felony charges that result in acquittal or that are dismissed with prejudice. There is no waiting period. Upon request by the defendant, and with the agreement of the Commonwealth’s Attorney, the records shall be sealed. Denials may be challenged in the circuit court.
  • With certain limited exceptions, convictions or charges that were deferred and dismissed for a: (i) misdemeanor offense, (ii) class 5 or 6 felony, or (iii) a violation of § 18.2-95 (grand larceny) or any other felony offense in which the defendant is guilty of larceny and punished under § 18.2-95. Costs for filing the petition are waived for people who have little income and the bill establishes a “Sealing Fund” to cover the costs of counsel for eligible defendants. The court shall seal the record if the following factors are met:
    • The person has not been convicted of another crime for 7 years (if sealing misdemeanor offense) or 10 years (if sealing a felony offense), and has not been convicted of a serious felony within the past 20 years and never convicted of a Class 1 or 2 felony;
    • In cases involving substance use, there is evidence of rehabilitation;
    • The person has not already sealed more than 2 prior records;
    • Continued dissemination of the record will cause a “manifest injustice” for the person.

These reforms, if enacted, would transform lives and strengthen families, communities, and the economy. This legislation also represents an important step to address racial injustice and the unequal outcomes that permeate our criminal justice system. At the same time, this legislation offers an opportunity to strengthen Virginia’s reputation as a national leader on criminal legal reform.

Decriminalizing Poverty

Phil Hernandez

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