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Virginia Passes Comprehensive Record Clearance Legislation

Far too frequently, a criminal record is an obstacle to securing education, employment, housing, and other similar necessities. Approximately 1.6 million Virginia residents have a criminal record; a disproportionate number of them are Black. The House and Senate Chambers of the Virginia General Assembly have passed legislation that will facilitate the sealing of many criminal records. The new law represents a compromise between Delegate Charniele Herring’s automatic expungement bill and Senator Scott Surovell’s petition-based bill. Governor Ralph Northam proudly signed the bill into law.

This legislation is Virginia’s first ever law to allow convictions to be sealed. The state does not currently allow for any conviction records to be cleared. Virginia is one of only seven states that maintain such a position on the issue. Since 1977, only non-convictions may be expunged—and it is a daunting process. A person must first be fingerprinted at a law enforcement center. Then a civil suit needs to be filed wherein the court must be convinced that maintaining the record would constitute a “manifest injustice.” As of 2020, an average of only 4,000 orders are issued under this process each year. This new law has been long overdue. However, the Virginia State Police and the courts must update their computer systems. These updates will result in most provisions of the new law not going into effect until July 1, 2025. It is possible that the date may change if funding is increased or if the General Assembly expedites the process.

The new law includes five key provisions: (1) misdemeanor non-convictions, nine types of misdemeanors, and underage alcohol and marijuana possession deferred dismissals can be automatically sealed under the newly established system; (2) it is now allowed for felony acquittals and dismissals to be contemporaneously sealed with the prosecuting attorney’s consent; (3) it creates a petition-based court process to seal a wide-range of deferred dismissals, misdemeanors, and low-level felony convictions; (4) this law provides for indigent persons to be appointed counsel to assist in the petition-based sealing process; and, (5) companies that buy or sell criminal records are legally obligated to routinely delete sealed records. If a company fails or refuses to do so, the law creates a private right of action through which the aggrieved party may seek remedy and damages.

This law is the latest in a prolific series of legislative sessions producing transformative criminal justice reforms in Virginia. Since January 2020, the state of Virginia has approved legislation abolishing the death penalty; legalizing marijuana; and ending jury sentencing, presumptions against bail, pretextual stops, suspension of a driver’s license due to court debts, among many other reforms. Most reform advocates claim the changes are long overdue.

Virginia’s criminal and juvenile justice systems are often described as “sordid.” Worse, Virginia’s criminal justice system appears to disproportionately affect Black people with its associated negative consequences. Between 1900 – 1969, a total of 185 Black people were executed in Virginia, and 73 of them were for non-murder offenses. Statistics show that an arrest for marijuana possession is 3.4 times more likely for Black residents in Virginia. While Virginia’s population is only 19% Black, the Virginia Department of Corrections has a population that is 57% Black.

Updating and expanding Virginia’s inefficient expungement laws has been a priority of those individuals most impacted. One such group, the Virginia Expungement Council (“VEC”), is comprised of individuals directly impacted by criminal records that should be sealed. Legislators were finally compelled to act by a variety of factors including the death of George Floyd and sustained protests against law enforcement in the state capital of Richmond. The VEC is one such group that held multiple rallies in Richmond and Charlottesville.

While any and all reforms are welcome changes, advocates have made one thing abundantly clear: they will not cease to push for change until there is more equity in the Virginia criminal justice system. 


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