Easier expungement will tilt justice system toward fairness

Automatic expungement has been an enormous priority for both of the Herrings and many of their colleagues going into this legislative session

For decades the criminal justice system has been failing our most vulnerable communities while working for the most privileged members of society. Black and brown Virginians are arrested and convicted disproportionately at alarming rates for crimes their white counterparts will see zero or little jail time for.

Systemic racial biases in our criminal justice system have led to Black and brown Virginians filling our prison cells for minor crimes. But even when individuals have served their time, they must live the rest of their lives with their convictions as a stain on their records.

Virginia’s current expungement laws are some of the most restrictive in the country and, most notably, they offer no chance of a clean slate. Right now, expungement only applies to offenses that did not result in a conviction or a deferral and dismissal of the case. So, Virginians who have served their sentence, which is often a much larger sentence than the crime warranted, are either unable to clear their records, or have to jump through numerous hoops to do so.

Saddling Virginians with permanent convictions can oftentimes negatively impact their employment, housing or education opportunities. But even if someone does qualify for expungement under Virginia’s current laws, the process is complicated and expensive, creating even more inequities as members of our more vulnerable communities are often unable to afford counsel to assist them in the expungement process.

During the 2020 regular session, automatic expungement was sent to the Virginia State Crime Commission to be studied, to ensure that when the commonwealth created a new system of expungement that it was done equitably. It is absolutely necessary to not create further inequities in our system, whether accidental or intentional

On Jan. 13, the General Assembly convened for the 2021 legislative session. Automatic expungement has been an enormous priority for both of us and many of our colleagues going into this legislative session. We have worked together to introduce legislation that will create a new framework for expungement, including automatic expungement.

Automatic expungement restricts the dissemination of criminal history records, as well as prohibits the dissemination of court records unless it is ordered by a court. The bill will establish the process for automatic expungement of felony and misdemeanor convictions and deferred and dismissed offenses retroactively and moving forward, non-convictions moving forward, as well as certain non-convictions retroactively. A conviction or an offense that was deferred and dismissed will be automatically expunged after eight years, and criminal cases that do not result in a conviction will be automatically expunged at disposition.

Each of us is more than our worst mistake, but Virginia’s current law never allows someone to move on no matter how they’ve grown, who they’ve become, or what they’ve done to give back to their community.

We have been and will continue to be committed to reforming our broken system. Automatic expungement is one of several meaningful changes to our criminal justice system that we hope to see happen during this year’s legislative session, but there will continue to be more work that needs to be done.

We remain dedicated to doing the work and implementing changes that will make the commonwealth more fair, equitable and just for all Virginians.

Mark R. Herring is the 48th attorney general of Virginia. He can be reached at mailoag@oag.state.va.us or (804) 786-2071.

Del. Charniele Herring is the House majority leader. She represents the 46th District, which includes part of the city of Alexandria.