Crime and Justice

Proposal nixes expungement, expands sealing of criminal records

TJ Donovan
Attorney General TJ Donovan weighed in on a proposal to expunge certain criminal records on Oct. 15, 2021. File photo by Kit Norton/VTDigger

The questions of when criminal records can disappear and just how completely they’ll be hidden are at the heart of the latest attempt by lawmakers to allow more people convicted of offenses to clean their slate and get on with their lives.

The Joint Legislative Justice Oversight Committee spent Friday reviewing a proposal to eliminate expungement — that is, making the criminal record disappear — from the legislation in favor of expanding the sealing process in court. 

Vermont Attorney General TJ Donovan told the committee he’d rather not see that change happen, but understood the need for compromise to get the legislation across the finish line.

“I support expungement rather than sealing,” he said.

Expungement allows for a criminal record to go away; sealing still permits access to those records for specific reasons, including for “law enforcement purposes,” the attorney general told the lawmakers.

He said he found that exception overly broad and provided too wide a door for those sealed records to be opened — and that could defeat the whole purpose of the bill.

Donovan said it is important to give people convicted of certain crimes a chance to “reset,” removing the “scarlet letter” preventing them from obtaining a better job, housing and access to educational opportunities.  

He did say he’s willing to do some “wordsmithing” work with lawmakers to provide tighter restrictions on access to criminal records once they are sealed. The attorney general said the legislation’s definition for sealing must be “as close to expungement as possible.”

Sen. Phil Baruth, D/P-Chittenden, a committee member, also spoke of the need to ensure that access to sealed records would be limited.

“We are moving away from a direction that we had telegraphed to the public, which was complete expungement, where your record wouldn’t exist anymore,” Baruth said. “It seems to me, if we’re going to move back from that, one of the ways we can reassure them is by saying there will be penalties for people who misuse an existing record.”

Last session bill S.7 at one point would have greatly expanded the number of crimes eligible for expungement, except the most serious offenses, such as murder and sexual assault.

The Scott administration then raised concerns with the breadth of the legislation, objecting to making certain crimes eligible for expungement.

Eventually, the bill signed into law by the governor called on the Joint Legislative Justice Oversight Committee to “consider a comprehensive policy that provides an avenue for expungement or sealing of records for all or most offenses” except the most serious crimes, such as murder.  

The committee reviewed a draft of that proposal Friday; it focused on creating a “one track” system to clear a criminal record by sealing rather than expungement.

That draft bill makes most misdemeanor offenses eligible for sealing, but excludes crimes such as domestic assault and violating an abuse prevention order.

The proposal does not include most felony offenses, though it would allow eligibility for certain felony property offenses and for burglary of an occupied dwelling by a person age 25 or younger, provided no weapon was involved. 

The legislation would permit sealing lower-level felony offenses related to the sale and dispensing of drugs.

In addition to Donovan, several people testified on the draft bill on Friday.

Mairead O’Reilly, a staff attorney for Vermont Legal Aid, presented several proposed changes, including expanding the list of offenses that are eligible for sealing, and reducing wait times before asking that a record be sealed.

O’Reilly added that the definition of sealing should be “analogous” to expungement.

Evan Meenan, deputy director of the state Department of State’s Attorneys and Sheriffs, also talked of proposed changes in the legislation, including one he said would motivate good behavior: allowing a record to be unsealed if the person is convicted of a subsequent offense.

Baruth opposed that idea, saying, “That strikes me as the one thing I could never vote for.” He said he viewed sealing as removing a person’s anxiety and stigma of having a criminal record, and all that would be undone if that record could become public again.  

Rep. Alice Emmons, D-Springfield, the oversight committee’s chairperson, said during the meeting that she expected members of the House and Senate Judiciary committees to iron out the legislation’s details during the upcoming legislative session.  

“This is an issue they’ll need to spend some time on,” Emmons said. “There are no easy answers.”

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Alan J. Keays

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