Virginia House and Senate at Standoff Over Expungement... Again

Feb 11, 2021

Lawmakers agree they want to make it easier to expunge old criminal records. But, for a year now Democrats who control the General Assembly have not been able to agree about how to make that happen.

For people who have an old drug possession conviction, finding a place to live or landing a job can be difficult because of that old criminal record. And the way things work now, getting that old record sealed is almost impossible. That’s why Democrats want to create a way to expunge old records. But they've been bitterly divided over how to do that for more than a year. That's why Governor Ralph Northam began the session by asking lawmakers to take action now.

"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," Northam said. "This will make our system more just and equal, and it needs action this session."

Now, the governor pointedly did not take a position on the central issue in the debate, whether the process should be automatic or require a petition to a court. House Democrats are pushing for an automatic model where people would not have to hire a lawyer or miss a day of work.

Majority Leader Charniele Herring says old convictions should be automatically sealed for many misdemeanors, as long as they’re not violent crimes or sex crimes.

"I think keeping people branded with a scarlet letter for misdemeanor offenses especially is disgraceful," she says.

On the other side of the Capitol, the Senate wants judges to play a role and exercise discretion for misdemeanor cases and felony drug possessions. Herring says that’s not acceptable. 

“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," Herring explains. "And I think that is not good enough, and I would say that a majority of Virginians say it’s not good enough.”

Senator Scott Surovell says even many misdemeanor crimes like larceny or trespassing are often a sign that someone has other problems that need more consideration.

"What somebody is convicted of is often a legal fiction that's created to achieve a compromise in a criminal proceeding," says Surovell. "From my perspective, the facts and circumstances of the crime that led to the compromise are partly what need to be considered before a charge is expunged."

The House version of the bill has automatic expungement for felony drug possession and misdemeanor disorderly conduct. The Senate version has petition-based expungement for those crimes. And, neither side seems willing to back down.

"I cannot move away and compromise on what is best for Virginia," says Majority Leader Herring.

House Democrats and Senate Democrats were not able to find compromise on the issue last year during the General Assembly session. Then, during the special session, they failed yet again. Now, Surovell says senators are still not willing to accept automatic expungement on the scale House leaders are pushing.

"The problem they have is the votes don't exist in our body to do what they want," explains Surovell. "That's the problem, and if they tell me the votes don't exist to do what I want in their body then I guess we don't have a bill again."

The bill is likely headed to a conference committee where lawmakers will try to forge some kind of compromise behind closed doors. They’ll either strike a deal between the House and the Senate or walk away without taking action.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.