RICHMOND — Isaac B. was convicted of crimes in Charlottesville in 1998, and even though he got out of prison over a decade ago, he doesn’t feel like a free man.
He tried to make the best of his time while locked up, like getting a college degree. He wanted to prepare himself the best he could before reentering society. He began applying for jobs. But employers rejected him because of his criminal background, which included some convictions for “barrier crimes,” which automatically disqualify him from having certain jobs.
“People are rehabilitated, but Virginia keeps our criminal records so it’s with us forever,” said Isaac, 40, whose full name is being withheld to prevent further online documentation of his convictions. “It’s unjust to bar anyone from being seen in a better light.”
He decided to go back to college. Maybe that would improve his chances at finding a good job, he thought. But that didn’t work either. He began drinking to cope. A marriage fell apart because he wasn’t able to financially contribute to the relationship.
“I felt so hopeless,” Isaac said. “I began giving up on having a life.”
He had to move to other states where his background wouldn’t be an issue. He worked with the homeless population in California for a while, but he’s returned to Virginia. He thinks he might have to leave the state again if he wants a good-paying job.
“When people get out, they need a clean slate,” Isaac said. “They need to get another chance.”
People reentering society can become ensnared in a web of barriers to housing, employment and who they can be around — collateral consequences to having a criminal record. Virginia has one of the most restrictive record sealing systems in the country, and Democrats in the General Assembly want to change that.
Lawmakers are deliberating on significant proposals to automatically seal minor offenses and expand the number of offenses for which someone can petition the court to have sealed. House Majority Leader Charniele Herring, D-Alexandria, and Sen. Scott Surovell, D-Fairfax, have two different bills on how to handle sealing records, but they’re expected to reveal a compromise next week.
“I believe in second chances,” Herring said. “I want a bill that brings the most equity for Virginians.”
About 1.6 million Virginians have a criminal record. Currently in Virginia, people can petition to have their records sealed if they were not convicted.
Typically, the person has to hire an attorney, file a petition in the court where the charge was filed, pay a filing fee and a judge would have to grant it. It’s rare people go through that tedious and costly process. Virginia issues about 4,000 expungement orders each year.
The legislature struggled over the years to make even the most modest changes to the system, like allowing underage drinking or marijuana offenses to be sealed. When Democrats gained control of the General Assembly, Herring wanted to go bolder.
Herring has proposed that anyone convicted of any of the roughly 80 misdemeanors and a few felony drug offenses could have their records automatically sealed if they aren’t convicted of any new criminal offenses eight years following the completion of a sentence. Criminal charges that don’t result in convictions would be automatically sealed, although there are a few conditions in which they could remain in the public record.
“After eight years, someone shouldn’t have to come back to court and go through a petition process,” said Herring, an attorney for a government contracting firm.
Whitmore M., who got released from prison a decade ago, said the petition-based expungement process is so burdensome that people don’t even bother to do it. They have to hire a lawyer, get fingerprinted, and go to court.
“All of that is trauma,” said Whitmore, 38, who lives in Charlottesville. “When you get out, you don’t want to go back.”
Whitmore’s criminal record has been a barricade to finding affordable housing and chaperoning his child on a field trip. It took him years to get a job with a decent wage.
“Because it’s taken me so long to get to where I am now, I feel I’ve missed out on a lot of opportunities,” he said. “We’re allowed to go back into society, but we’re not getting a fair chance.”
Surovell, a criminal defense attorney, has introduced a different proposal focused on sealing more records by petitioning the court, and that has led the two Democrats to lock horns.
“The House and Senate want to make it possible for people to have second chances and not be burdened by minor criminal convictions for their whole lives if they’re changed their life,” Surovell said. “Making that possible is incredibly complicated because it’s hard to un-ring a bill.”
Surovell wants to expand what kind of offenses are eligible for the petition-based process. It would apply to misdemeanors through to Class 5 felonies, but how long people have to keep their record clean until they can apply to seal their records depends on the severity of the offense.
While Surovell has included a fund with his proposal to help people hire attorneys to seal their records, Herring said she would rather money be spent on upgrading technology systems, such as for the state police, to implement an automatic records sealing process. The House put $14 million in its budget for this purpose.
“There’s where the money needs to be invested, not lining the pockets of attorneys,” Herring said.
‘I did my time’
With such significant differences in their proposals, the two Democrats need to come to a consensus on a single version that could pass the House and Senate to get to Gov. Ralph Northam’s desk.
Legislators still need to figure out in what limited circumstances the records can be available, like background checks for firearms or background checks for police officers, and when an employer can inquire about someone’s criminal background. The goal is to reduce when people with sealed records have to disclose their criminal histories if it may not be relevant to the position they’re applying for.
Surovell said the House proposal is too expansive and eliminates discretion, such as regarding automatically sealing records of charges that didn’t produce a conviction. His bill would allow a person to immediately request the charge be sealed upon a decision to acquit or dismiss, but a judge would have discretion not to grant that.
“A dismissal of a murder charge is different than a dismissal of a traffic charge,” Surovell said. “If a man or woman has five or six domestic violence charges, that context should exist in a public record.”
There are only a few programs in place across the country to automatically seal criminal records. Last year, Pennsylvania, which has a Republican-controlled legislature, became the first state to put into effect an expansive system to automatically seal the records for charges that did not result in convictions, as well as summary offenses and low-level misdemeanors committed by people who have not incurred any other charges within 10 years. California and Utah have adopted automatic expungement processes for convictions and are working to make those systems operative.
Herring said she’s optimistic that the two chambers can reach a compromise.
“As long as people come to table understanding an auto expungement for certain crimes is appropriate,” Herring said.
Crystal W. got released from prison about four months ago. After struggling to find housing, she’s living with family in Charlottesville. She’s trying to figure out what kind of job she’d like to have, but people will tell her that her record will likely prevent her from getting hired in certain fields.
“When people tell you, ‘I don’t think you’ll be able to proceed with that profession,’ it’s the pits,” she said.
Crystal, 46, said when she was in prison, people with the Department of Corrections emphasized the importance of reentry.
“I did my time, my sentence is done, and I really just don’t understand how they expect us to move past this and do better and actually give back to our communities,” she said.