Processes for Record Clearing
Alongside the different terms used to describe clearing criminal records, states have developed their own record-clearing processes that are distinct and nuanced. This policy snapshot provides general definitions and explains the variety of processes used by states to clear criminal records.
The primary difference between states is whether record clearing is mandatory or discretionary. Statutes that use the words “shall” or “must” are mandatory and direct public officials to clear records as the statute sets forth. For example, Utah law states, “the following traffic offenses shall be deleted without a court order or notice to the prosecuting agency…” Statutes that use the word “may” are discretionary and give public officials the decision-making authority on whether to grant record relief or not. For example, Colorado law states, “a court may enter an order of collateral relief.”
Sometimes, states have a hybrid system that allows public officials discretion, but the law limits the circumstances the public official may consider. For example, Oregon law states, “If no objection from the prosecuting attorney is received by the court within 30 days…, the court shall grant the motion and enter an order.” The law further provides that the prosecutor “may file an objection to granting the motion only on the basis that the person’s conviction is not a qualifying marijuana conviction.”
There are three distinct processes that states use for record clearing: on petition, automatic or automated. Often, states use a hybrid method for record clearing or multiple methods alongside each other.
||Petition is the process in which a convicted offender files a motion with the courts to clear a record. If the petition is successful, record clearing will be ordered by the court.
||Once state agencies determine eligible convictions, the records of those convictions are automatically cleared based on the mandatory criteria laid out in statute. The initiation of the record-clearing process does not require any action on the part of the defendant. The process starts “automatically” without a petition.
||Automated record clearing is on the forefront of policy and technology, bringing together automatic record clearing with technology. Software is used to automatically clear records based on the mandatory criteria laid out in statute.
Legislators have attempted to address issues related to cumbersome record-clearing processes in a multitude of ways. At least two states, Arkansas and Colorado, enacted legislation in 2019 requiring the state to study the options and best processes for those seeking to seal or expunge their record. Specifically, Colorado’s legislation is looking for a process to automatically seal criminal records for some drug offenses.
Many states use multiple processes and allow automated or automatic expungement for certain categories of offenses, while maintaining a petition process for other offenses.
According to a study by the University of Michigan, almost two-thirds of U.S. states (33 in total) have adopted policies addressing record-clearing processes in 2018 alone and a number of changes were instituted in 2019 . Below are 2019 enactments (unless otherwise noted) related to restoration of rights, employment, record clearing for specialized populations, and automatic and automated record clearing.
Restoration of Rights
A few states have recently enacted laws restoring rights, like the right to own a firearm, to those who have had their record cleared. Arizona passed HB 2480, which provides for a “set-aside” petition procedure, a legal pathway for restoring the right to possess a gun or firearm. Similarly, Arkansas passed HB 1678, which amends the licensing requirements to carry a concealed handgun. The bill allows applicants who have been convicted of a felony but granted a pardon or had their record expunged to receive a license. California SB 310 restores the right to be a prospective trial juror for those convicted of a felony who have completed any supervision or parole requirements. Colorado HB 1266 restores the right to vote for individuals serving a sentence of parole.
Other states are working to help those with criminal records seek better employment opportunities. For example, Alabama SB 163 addresses occupational licensing. Under the bill, people convicted of a crime can petition the court to obtain an Order of Limited Relief to prohibit an occupational licensing board or commission from automatically denying a certificate or license. Utah HB 212 prohibits a public or private employer from inquiring into an applicant’s expunged criminal history, except for certain circumstances. Maryland passed HB 1167, which establishes the Apprenticeship Career Training Pilot Program for Formerly Incarcerated Individuals. The bill also creates standards under which certain employers may be eligible to receive grants to offset additional costs, if any, associated with hiring apprentices.
Record Clearing for Specialized Populations
Eleven states and the District of Columbia have legalized small amounts of marijuana for adult recreational use. Those states are also enacting policies to clear criminal records for people who have marijuana-related convictions for offenses that are now legal. Illinois passed HB 1438, known as the Cannabis Regulation and Tax Act. Alongside regulation and taxation of cannabis, the bill provides for automatic expungement of minor cannabis offenses. Those with more serious cannabis offenses may petition a court for expungement. Nevada AB 192 establishes a procedure for requesting the sealing of certain records of criminal history when offenses are decriminalized. Similarly, Oregon passed SB 420, which automatically sets aside certain marijuana convictions that would not constitute a crime under current law.
New Hampshire HB 399 provides an opportunity for those convicted of possessing just under an ounce of cannabis or less to petition the court to have their convictions annulled. If there is no objection from the prosecuting agency, the petition must be granted. Washington passed SB 5605, which vacates misdemeanor marijuana convictions. For more information, please see NCSL’s cannabis record-clearing webpage.
Victims of Human Trafficking
State lawmakers have enacted criminal protections for victims of human trafficking, like creating mechanisms to seal, vacate or expunge previous criminal convictions. Tennessee SB 577 provides a procedure for victims of human trafficking to have their nonviolent convictions resulting from their status expunged if it is in the best interest of justice and public safety. Delaware HB 102 allows certain victims of human trafficking to file an application for a pardon or expungement or make a motion to vacate judgment. Crimes deemed to be violent felonies are excluded. In addition to record-clearing assistance, the bill directs public awareness signs about human trafficking to be displayed at adult entertainment facilities, job recruitment centers, hospitals and emergency care providers.
Automatic and Automated Record Clearing
In 2017, Pennsylvania passed HB 1419, the first-ever clean slate bill, which provides for an automated record-clearing system. Under the bill, those who committed an eligible offense, including second- and third-degree misdemeanors, and stay conviction-free for 10 years will have their records automatically shielded from public view. Three other states followed suit, enacting clean slate legislation in 2019.
Pennsylvania Clean Slate Bill
2nd degree misdemeanors including:
- Simple assault
- Resisting arrest
3rd degree misdemeanors including:
- Disorderly conduct
- Theft or receipt of stolen property under $500
- Defiant trespassing
Misdemeanors punishable by two years or less in prison
Charges not resulting in convictions
Crimes involving danger to persons
Crimes against families
Offenses relating to criminal homicide
Offenses related to crimes against an unborn child
Offenses related to assault
Offenses related to kidnapping
Offenses related to human trafficking
Violations relating to abortion
Cruelty to animals
Source: NCSL, 2020
Utah passed a clean slate bill, HB 431, with full implementation expected in May of 2020. Under the law, traffic offenses are expunged through an automated process. Other eligible offenses will be expunged through an automatic system, with judges being required to enter an order. The law provides prosecutors notice of eligible cases and an opportunity to object for enumerated reasons.
California passed AB 1076, an automatic record-clearing law with a 2021 effective date. The law creates two procedural tracks—one for conviction records and one for arrest records. Each track has its own nuances. The law covers infractions, misdemeanors and some less serious felony convictions. The expungement provided for by the California bill does not remove all collateral consequences, such as firearm possession prohibitions, associated with arrest or conviction.
New Jersey passed clean slate legislation in 2019, but the first attempt was vetoed by the governor. In his veto message, the governor recommended using an automated system instead of the originally proposed automatic system. In turn, the legislature passed SB 4154, which requires the state to implement an automated clean slate expungement system, which is to be developed by a task force.
In 2019, several states passed legislation requiring the automatic expungement of some records. For example, Tennessee passed HB 266, which requires the automatic expunction of a nonviolent misdemeanor charge or conviction if the defendant is not charged with any subsequent offenses within three years of the initial charge. Colorado now allows juveniles who successfully complete diversion as an alternative to being charged with an offense to have any law enforcement or school record expunged automatically. Nebraska enacted similar provisions, requiring that any juvenile’s record be sealed automatically upon satisfactory completion of diversion, mediation, probation, supervision or other treatment program. The record can also be sealed automatically if the charges are dismissed.