Having practiced criminal defense in Virginia for over a decade, you don’t have to sell me on the idea that we need massive changes in our criminal justice system. There’s no question that our laws disproportionately affect minorities and the poor. Too many people are in jail, and our criminal laws are archaic.
This flawed system is not due to a lack of concerted efforts by a diligent criminal defense bar, local legislatures, and advocates.
However, one area that is absolutely ripe for change is Virginia’s Expungement Law.
Expungements are just plain difficult to get in Virginia.
As I’ve written before, to be eligible for an expungement in Virginia, an accused has to essentially be acquitted of their charge or had the case dropped by the government. And even after that, it’s the accused’s duty to file an expungement petition where, in the most serious charges, the accused maintains the burden to demonstrate that a court should actually grant the expungement.
To be clear, if you’ve been convicted of any crime in Virginia (misdemeanor or felony), your record is permanent. Too often, I’ve had people reach out seeking expungement for decades old convictions. No matter how they may have changed their lives, I have to tell them they are ineligible for an expungement.
What happened to the adage of “paying your debt to society” and moving on?
If someone has been convicted of a charge and complied with their court requirements, I simply don’t understand the absolutely permanent label bestowed upon them by a Virginia charge. It’s often touted that those labeled as criminals need to “pull themselves up by the bootstraps,” and find work. However, because criminal convictions are permanent in Virginia, we are requiring those who have paid their debt to society to serve a lifelong sentence regardless of their circumstances. In times of labeling so many things “un-American,” this is truly one that deserves the label.
So, what should we do?
In my view, misdemeanors should be treated differently than felonies. There should be a certain period of years that misdemeanors stay on an accused’s record, after which time (assuming they comply with the Court’s requirements and have no further violations of law), the charge should be expungable.
We should also consider certain felonies expungement. For example, there should be an avenue for expungement of non-violent felonies and convictions that stem from drug addiction and mental health issues.
You’re crazy, James, this is Virginia. It’s not going to happen.
Well, one of the few other Commonwealths in our nation has proved this is an obtainable goal. In fact, just last year, Kentucky passed a massive overhaul of their expungement laws that permit expungement similar to that above. Learn more about Kentucky’s change here and here.
Look, I know some of you reading this may think I’m wrong. I encourage the debate. But liberalizing Virginia expungement can be a great way to improve our imperfect criminal justice system. Feel free to reach out if you have more questions.