This past Thursday, the House passed a bill related to expungement.  Vermont Digger covered the story.

The following is my report to the House, delivered on Wednesday:

H.171 addresses one aspect of Criminal Justice Reform.

By Criminal Justice Reform, I mean efforts to reduce incarceration, recidivism, and the collateral consequences of having a criminal record. Through such reform, we are able to help those caught up in the criminal justice system once again become productive, contributing members of society.

H.171 relates to one aspect of Criminal Justice Reform. The bill would amend laws that relate to the collateral consequences of having a criminal record.

Individuals who plead guilty or are convicted of an offense often suffer additional legal consequences beyond incarceration, probation, and fines. These are referred to as the collateral consequences of having a criminal record. Such consequences may include

being unable to get or keep some licenses, permits, or jobs;

being unable to get or keep benefits such as public housing or education;

receiving a harsher sentence if convicted of another offense in the future;

or being unable to serve in the military or on a jury.

One method to remove these collateral consequences, is to get rid of the record of the criminal conviction through a process called expungement. Expungement involves erasing a person’s criminal record. As an alternative, an individual’s record can be sealed. In that case, the record still exists, but the result is the same.

When a person’s criminal record is expunged or sealed, the person is treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense.

To have one’s record expunged or sealed, an individual can file a petition in the Court’s Criminal Division. Certain requirements must be met for the petition to be granted.

First, the person must have been convicted of a qualifying crime. A qualifying crime includes any misdemeanor offense that is not:

• a listed crime
• a prostitution-related crime
• crimes involving sexual exploitation of children
• violations of a protective order
• or a predicate offense (offenses for which one would be subject to increased penalties for repeat offenses, including DUI, domestic assault, stalking).

Also three felonies are qualifying crimes: Unlawful mischief, grand larceny, and burglary, as long as it was not into an occupied dwelling.

Second, a waiting period has to have elapsed since the person successfully completed the terms and conditions of his or her sentence. The length of the waiting period depends on whether the person has been convicted of a new crime after the conviction for the qualifying crime.

Third, the petitioner has to have paid off any restitution ordered by the Court.

Section by Section Analysis

Sections 1 and 2 amend provisions related to the Uniform Collateral Consequences of Conviction act that was enacted in 2013.

Section 1 relates to a provision of this law that ensures offenders receive notice of the collateral consequences of pleading guilty to a crime. It also provides notice that one can obtain relief from collateral consequences. This bill adds a provision requiring notice of the availability of expungement at the time an offender enters a plea of guilty or nolo contendere.

Section 2 relates to a provision that notifies individuals upon completion of their sentence of collateral consequences and ways to obtain relief from those consequences upon completion of one’s sentence. Subsection (a)(4) adds a provision requiring notice of the availability of expungement. Subsection (d) adds a similar notice provision in cases where an individual receives a penalty involving a fine only.

Section 3 adds a qualifying crime to the expungement law. It adds violations related to obtaining and procuring drugs through fraud or deceit. Addiction often is behind this particular crime.

Section 4 relates to the procedure for obtaining expungement

Subsection (b) involves the situation where a person has not been convicted of a crime arising out of a new incident since the person was convicted of the qualifying crime.

Current law requires a court to explicitly find that expungement would be in the interest of justice. Subsection (b)(1) changes the presumption, stating that “unless the court finds that expungement would not be in the interest of justice” it should grant the petition so long as the other conditions are met. In other words, it would presumably be in the interest of justice to rid a person of his or her criminal record, unless the Court affirmatively decides otherwise.

The first condition involves the amount of time that must have elapsed since the date the person successfully completed the terms and conditions of the sentence or probation. Subsection (b)(1)(A) reduces the waiting period to three years from ten years.

Section (c) effectively extends the waiting period if the person has been convicted of a misdemeanor since the person was convicted of the qualifying crime.

(c)(1) once again changes the presumption related to the interest of justice.

Under (c)(1)(A), the waiting period to be eligible for expungement is reduced to five years from 20 years.

The section relates to situations where someone has been convicted of another crime before the three-year period under subsection (b) has run. If the petitioner commits a felony, then he or she is no longer entitled to expungement of the previous qualifying crime. This is set forth in subsection (c)(1)(B). If the petitioner is convicted of a new misdemeanor before the 3-year waiting period has run under subsection (b), an additional three-year period is tacked on to the waiting period from the time the person completes the sentence for the subsequent misdemeanor conviction.

Next, the bill repeals a long section of the current law. In 2015, the legislature added a procedure to provide an earlier opportunity for expungement for individuals who committed a qualifying crime prior to reaching 25 years of age. A number of additional requirements were placed on these individuals to be able to qualify for expungement. Keeping these requirements would be inconsistent with the other amendments to the expungement law in H.171. If this provision remained, individuals who commited their offense when they were 25 years old or older would be able to seek expungement after three or five years, without any additional requirements. Individuals 25 years old and under would have to wait five years and fulfill other requirements. The bill would provide the same opportunity for expungement regardless of the age when the offense was committed.

New subsection (d), formally subsection (e), relates to individuals seeking expungement of a criminal record involving an offense for which the underlying conduct is no longer prohibited by law or designated as a criminal offense. Again, as in the previous provisions, the subsection changes the presumption related to the interest of justice. Also, it shortens the waiting period. Instead of waiting one year after completion of a sentence or supervision for the offense, an individual can seek expungement as soon as the sentence or supervision is completed if the offense is no longer a crime.

Section 5 of the Bill relates to how long someone who has had his or her petition denied must wait to reapply for expungement. Current law provides a waiting period of five years. The bill provides that a petitioner can reapply after one year or a shorter period if authorized by the Court.

Section 6 addresses the automation of the expungement process. It is our desire to make the expungement process run more efficiently. The courts are moving towards implementing an automated case management system. Section 6 instructs the Court Administrator to evaluate and report on the feasibility of automating the expungement and sealing process through this case management system or through other methods.

Section 7 is an additional notification provision. It requires the Attorney General to provide public education and awareness regarding the availability of the expungement petition process. This provision recognizes that the notification provisions that occur at the entry of a plea or at the completion of a sentence will not reach those who already have served their sentence.

Section 8 states that it is the legislative intent to continue examining this issue, particularly through considering whether to expand the range of offenses eligible for expungement.

Section 9 provides that the act would take effect on passage.

We heard from:

The State’s Attorney, Windsor County

Clerk of State Courts

Staff Attorney, American Civil Liberties Union

Executive Director, Center for Crime Victim Services

Legislative Counsel

Chief Superior Judge, Office of Chief Superior Judge

Department of State’s Attorneys and Sheriffs

Defender Generals Office

Professor of the Vermont Law School

Chief of Trial Court Operations, Office of Court AdministratorDirector,

Vermont Crime Information Center

Associate Director of Public Policy, VT Network against Domestic and Sexual Violence

The vote of the Judiciary Committee was 10-0-1.

In closing, this bill will provide many individuals the opportunity to remove barriers to their becoming productive, contributing residents of Vermont.

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On Thursday, when the Bill was up for a final vote, I dealt with two amendments.  Also, I dealt with a concern that had been raised related to whether repeat offenders are treated too leniently.  Here is my response to that latter concern:

Repeat offenders question:

The statute carves out all convictions that the legislature has determined warrant increased penalties for repeat offenses. These are so-called predicate offenses. One cannot obtain expungement for a conviction if it qualifies as a predicate offense.

The Judge also has two opportunities in the law to address such situations: It can find that expungement is not in the interest of justice. Or it can seal the record instead of expunging it. Under section 7607(c)(2), a Court or prosecution may use the sealed criminal history record for future criminal investigations or prosecutions without limitation.

One of the purposes of expungement is to give a person a better chance at stability in housing and employment, which can reduce the incidence of someone recidivating. The chance to obtain stability by obtaining housing or a job is undermined by one having a criminal record.

The bill balances the cost of the infrequent circumstance where someone may game the system against the benefit for the many individuals who can again become productive citizens.