By Tarrah Callahan and Daniel Bowes

Callahan

When prosecutors, defense attorneys, people with criminal records and advocates from the right and left agree on a criminal justice policy reform, one can have a fairly strong degree of confidence in the measure. Last year, Session Law 2017-195: Expungement Process Modifications enjoyed such widespread and bipartisan support as it moved through the General Assembly and was quickly signed into law by Gov. Cooper.

Session Law 2017-195: Expungement Process Modifications enjoyed broad bipartisan support as advocates across the political spectrum recognize that once a person has paid their debt to society, saddling an individual with a criminal record that triggers a wide range of collateral consequence is antithetical to a system that purports to support opportunity and individual responsibility.

Bowes

Expungements have been exceedingly rare in North Carolina, in part because of narrow eligibility and in part because of the complicated process that bars the average person from applying for an expunction without representation by counsel. The modifications made by S445 represent an important and necessary step for our state as North Carolina’s waiting periods and limitations on expunctions were well out of step with other states.

As outlined below, the provisions of Session Law 2017-195 significantly expand access to criminal record expunction by reducing the wait time for expunction of a first-time nonviolent conviction, allowing expunction of all charges dismissed or disposed “not guilty” as long as the petitioner has not been convicted of a felony offense, and requiring more uniformity in local petition procedures. Unless otherwise stated below, these changes went into effect on December 1, 2017, and apply to petitions filed on or after that date.

Expanded Expunction Eligibility

  • The wait period for expunction of a nonviolent misdemeanor under G.S. 15A-145.5 is reduced from 15 years to 5 years.
  • The wait period for expunction of a nonviolent felony under G.S. 15A-145.5 is reduced from 15 years to 10 years.
  • A person can expunge dismissed charges and charges disposed “not guilty” multiple times. The “no prior expunction” criterion for expunction of a dismissed/not guilty charge under G.S. 15A-146 is eliminated.
  • As long as a person has not been convicted of a felony offense, they are eligible to expunge all charges dismissed or disposed “not guilty.” The “same 12-month period” and “same term of court” criteria for expunction of more than one charge under G.S. 15A-146 are eliminated.
  • SB 445 DID NOT change the types of convictions eligible for expunction or eliminate the “first-time” criterion for expunction of a nonviolent conviction.

Uniform Procedures

  • Expunction petitions must be filed with the clerk of court (rather than petitioners sending petitions directly to the NCSBI as some jurisdictions previously required).
  • A person may obtain verification of an expunction directly from the NC Administrative Office of the Courts.

A Conviction Expunged After July 1, 2018, Can Be Calculated as Prior Record If Person Reoffends

  • For sentencing of a subsequent conviction, a court may use a conviction expunged after July 1, 2018, to calculate prior record level.
  • Prosecutors will have electronic access to all criminal records expunged after July 1, 2018. The only exception is expunction of charges disposed “not guilty”.

These changes to North Carolina’s expunction laws are a positive step towards eliminating unduly burdensome barriers to employment, education, and housing facing more than 2 million North Carolinians with criminal records. A bipartisan group of advocates, court officials, and people with criminal records is continuing to discuss additional ways to improve access to expunction relief, including automatic expunction of certain eligible records.

While the expunction laws have come a long way in offering a new start for so many people in North Carolina, they have not addressed many of the challenges that juveniles still face in our criminal system. We will have a future blog that will explore the lack of options that our juveniles still face when looking for new starts at life and/or recovering from childhood mistakes.