Should Expungement be Automatic or Petition-based?
Should expungements be automatic or petition-based? What are the relative advantages of the House and Senate versions? We also wargame the conference committee process to determine which provisions of each bill might be included in the final versions.
Guests: Andy Elders of Justice Forward VA, and Cynthia Nwarche with OAR of Richmond, both advocates for expungement reform.
Michael Pope
Welcome to Transition Virginia, the podcast that examines the ongoing transition of power in Virginia politics. My name is Michael Pope.
Thomas Bowman
And I'm Thomas Bowman. Today on the podcast, expunging old criminal records. It's an issue that's flummoxed Democrats for more than a year. They agree that Virginia should have some kind of way for people to clear their records of old convictions and old charges. Currently, that's almost impossible. So, at least there's agreement that the current situation is untenable, and that something needs to be done to fix the problem.
Michael Pope
But democrats in the House, and Democrats in the Senate, are bitterly divided over how to accomplish that goal. House Democrats want a model that's automatic, the old conviction would simply go away after eight years, and you wouldn't need to hire a lawyer or miss a day of work to make that happen. Senate Democrats disagree with that approach. They want a petition based model, where a judge would consider all the facts and circumstances in a case and then make a specific determination about an individual case.
Thomas Bowman
It's a conflict that's gone on for more than a year. It ended in a stalemate last year, during the 2020 Session, then House and Senate Democrats had the same conflict during the Special Session. And yet again, they were unable to resolve their differences. Now, once again, they have the same debate. Is the third time the charm? We have an excellent panel to help us understand the current discussion. And they're even going to give us a fantasy league conference committee, where they'll pick and choose the best parts of the House Bill and the Senate Bill.
Michael Pope
Returning to the podcast, we're joined by the Policy Director for Justice Forward Virginia, Andrew Elders. Thanks for joining us, Andy.
Andy Elders
It's great to be back.
Thomas Bowman
We're also joined by the Advocacy Coordinator and Reentry Services Case Manager for OAR of Richmond, Cynthia Nwarache. Thanks for joining us.
Cynthia Nwarache
Thanks for having me.
Michael Pope
Okay, let's start with the beginning of the Session this year. In his State of the Commonwealth Address, Governor Ralph Northam told the joint Session that taking action on this issue was one of his top priorities for the year. Here's a bit of what the Governor said in his State of the Commonwealth.
Ralph Northam
It's time to act, during this Session, to have the robust debate about how to best conduct the process of expunging people's records. This will make our system more just and equal. And it needs action this Session.
Michael Pope
Okay, so we heard the Governor say he wants action on this issue, and he wants it now, but we did not hear him say anything about the debate over automatic expungement, versus petition based expungement. Was that a mistake? Should the Governor be taking a side in this debate? Or maybe it's better that he's extensively agnostic on this?
Andy Elders
I think it's good that he's involved, no question. In terms of legislation, the Governor has been a real advocate for criminal justice reform, and has helped some of these bills really move forward. He played an important role in jury sentencing last year. He's weighed in already on mandatory minimums. And when he's been there, his presence is to push in favor of bolder reform. So I think it's positive that he's involved. I understand why he wouldn't want to get involved, especially in a big public speech, on either side of the sort of fight that's to come between the Houses because I think he would like to be an honest broker. From what I'm reading, he's already starting to play that role and trying to assist with sort of the mediation process for help moving things forward to ensure that we do get reform. So I think it is good that he's involved. And I think it's probably savvy that he's not taking sides publicly.
Thomas Bowman
It sounds like the Governor is saying he just wants the Legislature to send him a bill. So let's start by talking about the House version of expungement, which House Majority Leader, Charniele Herring, introduced. She appeared on the podcast back in May of 2020, and she raised this issue as an example of the tension between the House and Senate. During the Session last year, she had a bill to seal the record for victims of sex trafficking automatically. That led to a conflict with the Senate.
Charniele Herring
The Senate decided they're going to allow expungement for certain crimes, but these other crimes are going to put to a study. So crimes like, a bill that I even had, which was sex trafficking. So those who are sex trafficked, they're telling them, "You all, you need to wait. But these other crimes, we're going to go ahead and expunge," and I did not think that was proper. But I do think that we're going to, initially get, we're going to get expungement in the Virginia, I expect it to happen next year.
Thomas Bowman
What exactly happened last year with expungement and how is it influencing the debate that's happening now?
Cynthia Nwarache
Yeah, I think both sides were very passionate about expungement. Where they differ is how expungement would come to be in Virginia. And I think that's where that the problem arose. The Senate, they are saying, they were saying that, "Hey, like, yeah, definitely, let's do this expungement in Virginia, However, petition based is the way to go. Automatic expungement, we can't just jump to the finish line without having a process to do so." And hearing Delegate Herring was more so saying like, "Automatic expungement is we need to move out of the Stone Age in Virginia, we need to get to automatic expungement," which she took like recommendations from the Crime Commission, who also, and the Governor who also really supported automatic expungement. So, being that both sides had pretty different versions of the bill, they both wanted basically the same thing, but how to achieve expungement in Virginia, that was the debate. And then when it arrived at conference, because the passion was so much heated on both sides, it was just a stalemate. Neither side was able to come to a negotiation or decision where both sides were happy. So now we're in 2021, Special Session still combating the same issue.
Michael Pope
And we may be headed toward the same stalemate again, right? I mean, in fact, one of the things we want to get into in our third segment. So you know, one of the arguments you hear against automatic expungement, is that it gets away from discretion, that Democrats have been trying to build back into the system. If you think about the case against mandatory minimums, which is now playing out in a separate bill, that's an argument against automated justice. I asked Leader Herring about that argument, and this is how she responded to me.
Charniele Herring
I hear that argument is so misplaced. And the reason why is, this only happens automatic expungement, after someone has served their time, right, the clock starts ticking for eight years. So their argument suggests that everyone should be branded, after they turned their lives around, and when you got prosecutors saying, "Eight years, they're less likely to have a conviction again," it seems like the senators want them, some senators, not all, some senators want them to continue to have a scarlet letter, and unable to get employment, unable to get housing, to have access to capital to start a business, and I think that is not good enough. And I would say the majority of Virginians say it's not good enough.
Michael Pope
Is Leader Herring right? Do some senators want Virginians to have a scarlet letter?
Cynthia Nwarache
I think she hit it right on the nail. In Virginia, second chances sounds like a buzz word. Rehabilitation, it doesn't seem like, truly, the Commonwealth believes in second chances. We have, I work with individuals every day, who, post incarceration, they are trying to change their life around. They're trying to do the right thing and just have a true second chance, but due to the barriers that are put in place with having a criminal record, so even post conviction, after you served your time, or whatever disposition the court gave you, it's still hard. It's as if your criminal record, well, it does follow you for the rest of your life. And it impedes your ability to thrive successfully. It's hard to get housing, adequate and safe housing, because once they do that background check, you're either turned away, or you're taken advantage of because you don't have too many options, housing options. Employment opportunities, employees, they are not interested in hiring people with criminal convictions. And it's really hard because when you don't have your basic necessities like housing, shelter, ability to eat, because it also impedes on your ability to get government assistance as well, I really think that's counterproductive, especially if our main concern is public safety.
Andy Elders
So I would say, at the risk of splitting hairs, I don't think either the Senate or the House wants to put marks on people. But there is a question of how far each side is willing to go, and what risks we're willing to take. Anytime you create a new policy, there's always a risk of what's going to happen, will something go in a direction or in a way that you didn't quite anticipate, or something going to go too far? What we don't usually account for is, how much risk happens from doing too little. And I think that when push comes to shove, I agree with Leader Herring, that there's a greater risk, in my opinion, doing too little with expungement reform, than too much. With regard to the question, or the comparison to things like mandatory minimums and getting outside of automatic justice, I think there's a really important distinction to be drawn, which is, when we're talking about mandatory minimums, for example, we're talking about giving someone a chance to avoid an automatic, harsh sentence, as opposed to an expungement, which is giving someone an automatic opportunity to have their expungement happen. So I think from the standpoint of the person who's involved in the criminal justice system, those are not the same kinds of automatic at all. One is automatic relief, and the other one is automatic mandatory punishment. So I would reject that comparison. And I would certainly say that automatic relief is something that is criminal justice friendly. In contrast with automatic punishment.
Thomas Bowman
Let's get into some specifics here. One of the frustrating things about this, is that we're talking about many different kinds of crimes here, and not all of them would be eligible for expungement. For example, we are not talking about violent crimes or sex crimes, none of those would be expunged under the House version, or the Senate version. So what are we talking about? We recently had VPM reporter, Whittney Evans on the podcast, and she said, it's been difficult to get to the bottom of this.
Whittney Evans
The actual list of crimes was really hard to get. I almost felt like they didn't want to put the actual list of crimes, they didn't want to, like, advertise the list of crimes. And I think Morrissey, Senator Morrissey, said something about this. Once people see, you know, a crime that looks really bad listed on what's eligible for expungement, then there's gonna be tons of pushback.
Thomas Bowman
Andy, what crimes are we talking about here?
Andy Elders
Anytime this conversation starts, I have to pause everyone in the room and say, "Well, it depends on what we're talking about. Right?" So there's there's three different questions, sort of when you're talking about expungement. One is, what kind of convictions are going to get automatically expunged under the relief? The second is, what kind of convictions are going to be available for petition relief? And the third is, what's going to happen to things that are not convictions, where people have their charges dropped, where people are found not guilty by a judge or a jury, and people who, you know, engage in first offender programs and things like that. So I'm assuming that the question is mostly talking about the first and second chapters. With regard to automatic expungement, you know, I understand that I'm sort of inside the system on some of these things. But I'm looking right here at page 13 of the PDF for the House bill, and it lists, literally, I'm looking at something like 30 statutes by statute number, and it says which ones would be available for automatic expungement. By and large, those are offenses like trespassing, drug possession, relatively minor things that over the course of time, I think we as a society, as a community, should be comfortable saying, "If this much time has gone by, and they've jumped through this many hoops, then people should be able to have these kinds of offenses off their record." And I think it's important to recognize that, as you said, none of these are particularly serious offenses, they're not violent offenses. That's for automatic expungement. Petition, under for example, Senator Surovell's bill, the petition is fairly clear. All class five and class six felonies would be eligible for a petition based expungement for convictions, under the Senate bill. And that's a big step forward, too. So, I think the lists are out there. You might have to ask somebody who's who's in the know. And I'm, you know, it's complicated, because there's so many offenses here that we're talking about, 30, 50, 100, depending on which category. So, you know, it's complicated, and it requires subject matter experts, but...
Michael Pope
Whittney, give Andy a call, he'll explain it to you. The particular offense that I think really helps you understand the debate, is drug possession. And so what we're, especially, well, the felony drug possession part of the debate, is really sort of clarifies it. Because if you have any amount of cocaine or heroin or PCP, that's a felony drug offense. And Herring wants that to go away automatically. So you don't need to hire a lawyer. You don't need to miss a day of work. If you've got any kind of felony drug possession conviction, that it'll automatically go away after eight years, assuming that you've been, you know, a good citizen and all that sort of stuff. Surovell wants you to hire a lawyer, well, you don't have to hire a lawyer, but you'd be silly not to. So you hire a lawyer, go to court, go before a judge, and so the judge gets a sense of what's going on in your life. So I mean, is that, in terms of sort of crystallizing so our listeners can understand, and just sort of overall, what this debate is really about, I think the felony drug possession really gets right at the heart of this, in terms of that's the kind of charge that we're really talking about here, in terms of the different approach. Is that a fair way of looking at it?
Andy Elders
I agree with that. And I'll say, it's a good example, because, well, I want to step in real quick, because you said, you know, you don't have to hire a lawyer. And it's true, it's possible to file an expungement successfully without a lawyer. But I sit in court regularly, and I see people who, on their own, tried to file expungements. And it's, it's heartbreaking sometimes, because people come in, they've done what they think is right, and it's just, it's a complicated process, and people mess it up. And so I do think you need to hire someone. But yes, it's a really good example because I think the ultimate question is, look, that's a felony right now, drug possession. Do we trust people after a certain period of time to have that not on their record? Do we think it's okay for them to get a fresh start? To me, automatic expungement for an offense like drug possession, is a no brainer. And it's one that we definitely should adopt and I think it is emblematic of the list, it gives you an idea of the kinds of offenses that you would find there, if you looked.
Thomas Bowman
Aren't these people, the same ones so concerned about the length of dockets in courts today? Like, wouldn't you want to, like, free it up for clients with more hours?
Andy Elders
Our courts stay busy, for sure. Expungements don't take a great deal of time, but you know, the courts sometimes have interest in keeping their case numbers up, for funding purposes. And so you know, it's it's a give and take. I'm sure that when the courts are thinking about funding, they're actually very happy to have 12, 15 cases a week, each of which took three minutes and didn't have very much argument and had to shuffle some paper around. And I think every organization is very conscious of its own funding. But I do think that it would be to the benefit of the people filing the expungement petitions, meaning the clients, the people who were just as involved to avoid those trips to court and the party sometimes comes with failing to do it right.
Thomas Bowman
Okay, let's take a break. When we come back, we'll talk about the Senate version of expungement.
Michael Pope
And we're back on Transition Virginia, we're talking about sealing the record on old criminal convictions, allowing people to get a job or find a place to live. And we already talked about the House approach. Let's go to the other side of the Capitol and highlight the Senate approach. Senator Scott Surovell is the leading advocate for the petition base model. And one of the reasons he says a judge should have discretion here is that it's essential to know what the circumstances were behind the charge. Here's how Surovell explained it to me.
Scott Surovell
In my experience, petty larceny is usually a function of significant drug addiction and mental health problems. And trespassing, disorderly conduct, are often charges that larcenies are amended to, or other crimes like assault and batteries. And, what somebody is convicted of is often a legal fiction to achieve a compromise in a criminal proceeding. And, from my perspective, the facts and circumstances of the crime that led to the compromise arw partly what needs to be considered before charges are expunge.
Michael Pope
Now, one of the questions I had when he explained that to me was, how going to court could help these people? How could it help someone who has a drug problem or someone who has a mental health problem, how could going to court actually help that person? Here is a bit of our exchange on that issue. "The example of the person that we're talking about, that has underlying drug problem or underlying mental health issues, or probably both, really, co co occurrence? Okay. So right there under the other plan, these-
Scott Surovell
Under the other plan, they can be completely drug addicted, they could not be over their addiction, they could solve a massive problem. They could be applying for a job with an employer to go get access to a bunch of checks they can embezzle. I mean, employers, you know, it's important that people who are hiring people who have criminal histories, to some extent, have the ability to look into that, especially if they are going to be overseeing children, money, they're going to have access to people in a vulnerable position.
Michael Pope
Okay, so what would you say to Surovell, and anyone else, who says that employers should be able to know if someone they're thinking about hiring, has had a criminal record, and that person might not have gotten their life back together yet? Under the House model, those records would go away. Are there circumstances where that could be a problem?
Cynthia Nwarache
Yes, and no. I believe that Surovell is not really touching on the component where Delegate Herring was saying that this would be after an eight year time period of being recidivism free, right? The House version of the bill isn't saying that they commit a crime today, they serve their sentence, and then tomorrow, they are able to get that expunged off their record. So this is after like years of showing that they are a productive citizen, that they're doing everything that they need to do, that they aren't a risk to their own safety or anyone else's safety. I believe that if one is going to reoffend, it will happen sooner than eight years. If we're truly believing that people can change, and if we're not, that's also fine, but I think we should be clear about that, say what our intentions are. So, but if we really believe in second chances, and allowing people to change and do better for themselves and their family, this is the way to go. That would go back to the scarlet letter that I believe Delegate Herring was referring to, allowing this record to follow us for the rest of our lives, even though we haven't reoffended in 15 plus years. I think that that would be my response to it. That if they showed good faith, and they haven't committed a new crime within that eight year time period, I think that's enough time to show that they've proven to be able to hold a job successfully, without turning back to past ways.
Thomas Bowman
Thanks, Cyn. What do you think, Andy?
Andy Elders
Well, first of all, I always have a concern with looking behind an acquittal, or looking behind a plea agreement to see, "Well, what what really happened here," as if our court outcomes aren't sufficiently informative to answer that question, because I think that would mean that even people who were found not guilty, could also be discriminated against by employers. So that's a concern to me, I don't agree with that mode of thinking. I also, I think, implicit in the argument here, is that employers would like to be able to not hire people who had previous substance abuse problems, or previous mental health problems, mental health problems, which may be, since then, had been diagnosed and gotten under control. As a public defender, many, many of my clients have one of those two problems or trauma histories. And I don't want my clients to be permanently hamstrung by substance use problems they may have had when they were young, in their early in their late teens or early 20s. And now they're 25 or 30 and trying to get their lives back on track. I think that really comes to the heart of the question is, do we believe in second chances? And I think that we all do, on a level, and I think there's, there's always some risk, like, look, I've been an employer, when you hire someone, you're always taking a chance. And I think that the spirit of this legislation, and the new era we're finding in Virginia politics, is that we want to give people second chances, and try to get them back on their feet.
Thomas Bowman
You know, it strikes me that cultural attitudes change, too. Like just a few years ago, the attitude toward pot was a lot harsher than it is today. And it's conceivable that 10, 20 years from now, our society could evolve in such a way that, you know, we don't think it's appropriate to punish drug users, like criminals, and they belong in rehabilitation.
Michael Pope
It's probably good to point out that all of this debate we're having about Herring's model and the automatic approach, versus Surovell's model and this petition based approach, that that none of this actually necessarily has to do with marijuana convictions, because that's being handled separately in the marijuana bill. And that, I think, if I understand that, right, the ultimate objective is that they would get to an automatic expungement model for all of those old marijuana convictions that go back 5, 10, 20 years, is that right?
Andy Elders
It's, from from my understanding, there's some aspects of it that are still up in the air, but we're certainly going to see substantial automatic expungement for some marijuana offenses, things like possession. As you get into possession with intent to distribute and distribution, there's going to be more like petition based approaches, I think, but obviously those things are still very much up in the air and subject of significant debate.
Thomas Bowman
What and that's exactly what I'm trying to point out, though is, Michael, is that like, okay, we've gotten this far with marijuana, culturally. It's very conceivable that society moves further down later on and so that brings me to the Senate version being mostly petitioned based, but it would automatically expunge some minor offenses like speeding or shopping cart theft. Most misdemeanors would be petitioned based and all felony drug possession cases would be petitioned based. Here's Joe Morrissey.
Joe Morrissey
To break this down into all these various nuances, you know, as long as you didn't have a misdemeanor traffic conviction, but if you had a traffic infraction, and it only occurred within two years when you're wearing orange socks, it's too complicated. It's way too complicated.
Thomas Bowman
Senator Surovell responded to this by using a quote from HL Mencken. "For every problem, there is an answer that is clear, simple and wrong." Is Morrissey right? Is this too complicated?
Andy Elders
So I guess from my perspective, sometimes the law is complicated. And the reason it's complicated is because you can't get a consensus among legislators for a simple bill. And so, to me, some of the complication is a result of trying to get as expansive a reform as possible. Okay, I want this offense to be included, okay. But if that's offensive is going to be concluded, then we need to make it eight years instead of six. And to me, if a more complicated bill means more expensive reform, then I'm all for a more complicated bill. Ultimately, like, look, these, most of these guys are lawyers, they're all lawmakers, men and women, and they can figure it out. And we can get into the statute, as long as it's accessible to the people that need the relief, I'm not concerned about how many pages are in the bill.
Thomas Bowman
What do you think, Cyn?
Cynthia Nwarache
Yeah, I agree with Andy. Like he said, like, these are lawyers and people who have that educational background, but for the regular Joe's, because we want this to be, like he said, accessible to the folks who are petitioning to get their record expunged, because if the process is too complex, or if they don't truly understand if their charge is included in the process, that may further discourage them. Especially when we're talking about going before the judge, again, that's re-traumatizing one within itself, and then you're adding another component to a bill that they may or may not be able to thoroughly understand.
Michael Pope
Okay, so let's talk about how this works in other states. One of Senator Surovell's points about what Herring wants to do, is that her approach is extremely rare. And it would put Virginia way out ahead of all the other states, which as we all know, is not the Virginia way, Virginia does not like to be the first state to do things. It's like the middle state, or maybe the last state. So I was chatting with Surovell about this, and here is part of our conversation on this issue.
Scott Surovell
What she is proposing has been accomplished in two states, you're acting like it's some kind of like a archaic, medieval way of cleaning a record. This is the way it's done everywhere else in the country. And we haven't even got there yet.
Michael Pope
I'm just trying to figure out where you are versus where she is.
Scott Surovell
I'm trying to get us up to speed with the rest of the country.
Michael Pope
Well, I think you would agree that she probably is as well, right?
Scott Surovell
No, she's trying to put us way ahead of the rest of the country. She's trying to put the ball, she's trying to take the ball from one end zone to the other in one play. I'm just trying to get us to like the 50 yard line.
Michael Pope
Okay, so I hate sports metaphors. Let's set the sports metaphor aside. But what do we make of this criticism here, that what Herring wants to do is going too far too fast. And that Surovell's approach is actually the way it happens in most states? What do we make of that thought?
Cynthia Nwarache
Yeah, I definitely think whatever approach the Commonwealth agrees on taking, I think it should be strategic, because my biggest concern and my biggest goal out of all of this, I want this to be able to reach in affect as many people as possible. Whichever way we get there, I just want as many people to be able to take advantage of getting their record expunging and having a true second chance. In regards to, I think they're just really both passionate about this, they just have different ways of getting there. But I do believe that Delegate Herring, what she's proposing, has a more equitable piece to it. People of color are disproportionately impacted by the justice system. And so they're arrested at higher rates. So, consequently, having a record affects them more. So just like thinking about the equitable piece, and just allowing people to have like a true second chance, I would definitely agree that we should be strategic as to how we get there. Maybe like look at other model states who have proposed it. We definitely want to follow what everyone else is doing, especially if the reform is working. But we don't have to wait for 40 other states to get on board before Virginia hops on board. We can be the leader in this specific reform.
Andy Elders
Yeah, I would, I would point out that when you think about, ultimately, expungement is to some extent, about fixing what's happened in the past, right? And Virginia has always been fairly regressive on criminal justice reform issues and, you know, gotten a lot of people thrown into the system, a lot of people convicted of things that other states wouldn't have done. You know, about until just recently, our grand larceny threshold was $200. So when you think about things, and also obviously the racial component of every aspect of our criminal legal system, when you think about things through that lens, it doesn't seem like such a bad thing to go a little extra, or be a little bit out in front, in terms of ameliorating that history and trying to fix some of the things that we've done in the past. So I think that I'm okay with us being out ahead of the pack. But you know, it's also funny, we were talking about expungement on an automatic level versus the petition level. And Senator Surovell's concern that we're going too fast with automatic, and we would be out in front of a lot of other states, but Pennsylvania has already expunged 47 million records, you know?
Michael Pope
Can you say that number one more time? Did you say 47 million records?
Andy Elders
If I'm reading these stories, right, Pennsylvania has already expunged 47 million records using automatic expungement. And Pennsylvania is not exactly Massachusetts or California, but and you know, at the same token, Michigan's getting ready to adopt automatic expungement. So, I think we should do it carefully, and we shouldn't just throw everything into the automatic expungement box, but at the same time, it's funny because Senator Surovell's bill would actually allow for petition relief for more offenses than Leader Herrings bill would. So it's not as though the House bill is just way out in front of everything. There's components of both that are really more progressive. And I don't think that we should be framing this as one side wants this massive relief and the other sides really just digging their heels in, because I think it's a little more complicated than that.
Thomas Bowman
That's a good segue that we can come back to in our next segment. When we come back, we're gonna go into a fantasy league conference committee, with our guests, Andy Elders and Cyn Nwarache.
Michael Pope
And we're back on Transition Virginia, we're talking about the debate over how to expunge old criminal records. Now once again, we found ourselves in a position where each side is refusing to back down. I asked Majority Leader Herring about finding some way to compromise on this issue and this is how she responded to me.
Charniele Herring
I cannot move away and compromise on what is best for Virginia, I will say, it is not sufficient to just take a few crimes. When I participated in the part of evidence based study, where we identified the crimes that are appropriate for automatic expungement, and I do not think that we need to force people to go to court, when right now, the records are destroyed after 10 years.
Michael Pope
Now, perhaps unsurprisingly, Senator Surovell is also willing to compromise, here's part of our conversation on that.
Scott Surovell
They're gonna have to compromise for once.
Michael Pope
What if they say that about you, "You're gonna have to compromise for once."
Scott Surovell
No, no, I don't. The problem they have is, the votes don't exist in our body to do what they want. That's the problem. And if the problem, if they if they told me the votes don't exist to do what I want in their body, then I guess we won't have a bill again.
Michael Pope
Boom, is it going to explode? I mean, one of the things that Surovell just pointed out there is, something that you see frequently, in the General Assembly, is the Senate has the power to blow stuff up, right? The House really wants something to get done. And either they take the Senate compromise, or they don't take action at all. So that's how things work in the General Assembly. But here on Transition Virginia, we've got our own fantasy league conference committee. Okay. So let's break this thing down. I get the sense that the both of you are probably leaning closer to the House bill. So instead of starting with the House bill, I want to start with the Senate Bill. So what do we like out of the Senate bill that we can pull out of Senator Surovell's bill to put in our fantasy league conference report?
Andy Elders
Well, one thing for sure, which I was mentioning earlier, is that there's going to be petition based expungement, regardless of exactly what the compromise ends up being. There's going to be a layer of automatic expungement. And then on top of that, there's going to be, for things that we couldn't get the automatic on, there's going to be, or we didn't think automatic was appropriate. There's going to be petition based expungement. The Senate bill, as I read it, has petition based expungement for all class five and six felony convictions, after a certain period of time, and that is a lot of felony convictions. The vast majority of felony convictions are in that range. That would include drug possession cases, it would include fraud, and obtaining money by false pretenses, certain kinds of larcenies. There's a lot of offenses that are in that range. And that would be relief for a ton of people who are not currently eligible for any expungement, really. So petition is, I think, and sometimes it's framed as a dirty word, because it's compared with automatic, but the reality of the system is right now, there's no relief whatsoever for convictions in Virginia. And so any relief you can give to people who in that situation is good, and if automatic is not possible, I'll take expungement on class five and six all day.
Michael Pope
So what I'm hearing you say here is that you would like to see the automatic for like the felony drug possession, but if you get the petition based, for other class five, class six felonies, like fraud and larceny, that you would live with that, you would be okay with a petition based sealing of the record for felony fraud, felony larceny?
Andy Elders
Not just that I would live with it. I mean, there, that would be a huge leap forward for many, many people who aren't otherwise eligible for expungement. So automatic is better, especially for minor offenses and many felony convictions, but to the extent that either the political will isn't there, or we're not ready to automatically expunge certain types of convictions, that I'll take petition based expungement for those convictions, because that's a lot of people that could get relief.
Cynthia Nwarache
Yeah, I'd like to agree with that. Because right now, in Virginia, we have one of the most limited record Sealing System in the country. So if your charge is dismissed or acquitted, that's the only way you'd even be eligible to petition for your record to be expunged. So Surovell's bill is a big step up from what we currently have in Virginia, and it is more expansive, like Andy was saying, it does include felony six and five offenses.
Michael Pope
Okay, well, let's move, so we talked about the felony offenses, let's move into the misdemeanor offenses. This is where again, you see a lot of conflict here. Because, you know, one of the things that Charniele Herring says is that it's particularly galling, to her, to have to hire a lawyer and go to court to get rid of a misdemeanor charge. What do we, in terms of like our fantasy league conference report here, what do we make of all those misdemeanor charges that Surovell wants a petition based approach?
Cynthia Nwarache
Yeah, I don't necessarily like that component, just just being a person of color, like the court scares me. So like, I can only imagine like, if you have a record, you, you're going back in front of the judge to ask to get your record petition, it can set a lot of people off, it can, one it can be traumatizing, in two people may just avoid that process altogether, because it may not be worth it to them. So that would also further, I guess, serve to consequently, like disfranchise people from going into the court, to petition it, just based off of the whole process alone. And if we want to fully allow for people to have opportunity to do that, so just go in and petition for their records to be sealed, I don't know like I don't, I don't know a great way to do it. But I can just see how traumatizing and intimidating that process could be for folks who already have been involved with the criminal justice system.
Thomas Bowman
Cyn, I'm totally with you. Like this seems to me like it would be, like for somebody with anxiety, or people who have trouble doing those kinds of tasks, or don't know how to do those kinds of tasks, right, this is anxiety inducing, for everybody who doesn't have this kind of experience.
Andy Elders
I want to stress a couple of things about about why we need automatic expungement. From the vast majority of misdemeanors, there's a couple that it doesn't quite work for because of various sort of technical issues, and a couple that might be more serious than most misdemeanors. But by and large, you know, we're talking about for automatic expungement, in the House bill, we're talking about things like trespassing, and we're talking about disorderly conduct. A lot of those offenses are the kinds of offenses that white people, middle class to upper middle class people, people who the criminal justice system and who police officers like, don't get convicted of, because a lot of those are, "I disagree with a police officer and the police officer decided to charge me with something." Sometimes people are homeless and they get trespasses, that's very common. And so the kinds of things that comfortable, well to do rich people don't get in trouble for. And so we know that for decades, Virginia's criminal legal system has been deployed against people of color, to signal some people's disfavor of them. We don't want them here. We don't approve of the way this person is acting, where if it was, you know, a 15 year old white kid, we wouldn't care. You know, and I think you can't ignore that when you're thinking about, especially misdemeanor offenses, how many of them are nuisance offenses, and how many of them are the result of the decision to over police certain communities. So I really think it's important, from a racial justice perspective, to say, "We are not going to make people who were convicted by a system, that they feel, and I think they feel with some merit, doesn't respect them and doesn't care about them, we're not going to put them back through that system to try to fix what we did previously." And so I think that there's a really important component of that, as it relates to misdemeanor offenses, that make it really imperative to make that relief automatic rather than force them back through this system, and in many cases, make them pay for the privilege.
Michael Pope
Andy, do you see any misdemeanor cases where automatic expungement would be a problem? And in other words, should all those misdemeanor cases that we're talking about, so we're not talking about the violent crimes, we're not talking about the sex crimes, but of the ones that we're talking about, should they all be automatic? Or can you foresee any areas where a misdemeanor crime should have a petition based approach?
Andy Elders
I think there are a couple of offenses where it might be wise to at least exercise some discretion. You see, DUIs, you see sexual battery, you see, domestic assaults, I think there could be a place for automatic expungement for those kinds of offenses and some more serious offenses, but you want to be careful. And you want to approach every every set of offenses there's one that you look at, and you think, "Okay, that one we might want to exercise a little more caution on." And I think you see that caution in the House bill and in the Senate bill. So I don't think that's... and that's the that's the kind of thing that somebody might ask about and say, "You know, what about this kind of offense," as you said at the very beginning, we're not talking about rapes and murders here, you know, and I think that's appropriate. I think that all of our lawmakers are thoughtful enough to have taken that into account when crafting these policies.
Cynthia Nwarache
Yeah, I think a mixture could be beneficial, like Andy was saying. I know right now, violent crimes are not currently included, from my understanding, there's going to be another study, possibly next year, or later this year, to reintroduce that to see what can take place with that. But a mixture, if anything, if we could come to any kind of agreement, I would also take a mixture of petition based and automatic. How that is defined? I'm not sure.
Michael Pope
Okay, so what I'm hearing is a hybrid approach is actually the most logical way of doing this, and finding some sort of midpoint between what Herring wants to do and what Surovell wants to do, is probably what's best for Virginia and what the advocates want, is that right?
Andy Elders
I think it's inevitable.
Cynthia Nwarache
I'm definitely pushing for automatic, but just seeing how passionate both sides are, pertaining to expungement, if they'd be able to come to some kind of agreement, where both versions can be incorporated, then I would love to see that.
Michael Pope
So Andy, how would you describe that compromise? Like, if you were going to describe that, that ideal conference report that you would like to see, how would you describe it?
Andy Elders
Well, I've said a number of times, I just wanna take the best bits from each bill and just smash them together into one bill. We've talked a lot about automatically, there's a lot of focus in the media on automatic expungement as well. And that's good. That's an important component of reform here. But there's aspects to the Senate bill that are really good. The Senate bill had a lot of third party liability protection, where, you know, I get an expungement, but some private company has already collected that data and then shares it with my employer, or has like some sort of quasi credit report on me, that tells all the other things that the court already said no one should know about. And that was a big problem for a long time. And the Senate bill was out in front on that. And I think the House bill has done a lot to catch up in terms of provisions. But there's a lot in there about protecting people whose records have been expunged from companies that are either literally trying to extort them, or who are just trying to convey information that a court has already determined is no longer useful. So that's one example. Another example is when we run sentencing guidelines, and those are the guidelines that the court uses to consider what an appropriate sentence is in a felony case, the Senate bill specifies that the sentencing guidelines are not to consider expunged offenses, that talks about what happens in court when you go to court and you're a witness, and it says, and the lawyer to try to show that you're not a trustworthy person says, "Isn't it true that you've previously been convicted of a felony?" You know, those things are all in the Senate bill. There's a lot of really thoughtful technical provisions there. So and as I said, I think the petition based reform is really good. So while I think automatic expungement is really important, and it should be one of the priority considerations, we don't have to just take one bill over the other and toss the rest aside. We can take the best parts and put them together. And I think that's what we should do.
Michael Pope
And we could do it right here on the podcast, right?
Andy Elders
That's above our pay grade.
Michael Pope
Okay, Thomas, you want to take us out?
Thomas Bowman
Sure. Andy, Cyn, thank you again for joining us today. That's all for this episode. We're at the part of the show where we wrap it all up. If you're still listening at this point, consider supporting us on Patreon to help fund our work. Get started for the price of a coffee, become a Patreon by clicking the orange button on our website www.transitionvirginia.com. You can also find videos and transcripts of all the shows there. If you have comments or questions about what you heard, or maybe you only want to tell us what you think about the show, write an email and send it to us at TransitionVApodcast@gmail.com so we can read it on the air. Follow the transition team on Twitter @TransitionVA. Don't forget to like and subscribe anywhere pods are cast, so you can enjoy our next episode of Transition Virginia.
