Having practiced criminal defense in Virginia for nearly a decade, you don’t have to sell me on the idea that we need massive changes in our criminal justice system. In my mind, there’s no question that our laws disproportionately affect the impoverished and minorities. Too many people are in jails, and our discovery rules (the rules of which an accused gets to “discover” the evidence against him) lag way behind many states.
And this flawed system is not due to lack of concerted efforts by a diligent criminal defense bar and local legislatures. I personally know attorneys and law makers who repeatedly push for changes in the system.
It’s often because the political climate creates a barrier that’s hard to break. No one wants to be seen as anything other than “tough on crime.”
That said, I think one area that could lead is in the right area of a focus on Virginia expungement law, which is truly archaic. It’s also an area that I believe is generally misunderstood by the public, and there should be room for movement even from the most conservative crowd.
Expungements are just plain difficult to get in Virginia.
As I’ve written before, to be eligible for expungement in Virginia, an accused has to essentially have been 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.
It goes without saying if you’ve been convicted of any crime in Virginia (misdemeanor or felony) your record is permanent. Period. Too often, I’ve had people call my office to discuss expunging a charge stemming from decades ago when they were virtually a different person. And unfortunately, that decade old charge prevents them from moving on. Despite that, I have to be the bearer of bad news.
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 life long sentence regardless of their circumstances. In times of labeling so many things “un-American,” this is truly one that deserves the label.
Well, James, are you saying that we should just let criminals free to run the streets?!
This is an argument (or something similar) most anyone who has worked substantively for criminal justice reform hears consistently. And the answer is simple – no.
Our criminal justice system – at least in theory – is intended to not only punish people but also rehabilitate individuals and encourage them not to re-offend. In that mission, inherently every individual who is charged with a crime must be considered individually based upon the charge he or she is facing, the circumstances surrounding their case, their criminal record, and a whole host of other factors to craft the best “plan” of punishment and rehabilitation. After all, for example, shouldn’t someone charged with assault for pushing a friend who is unharmed during an argument be treated as differently than another person who slugs a person they do not know for no provocation whatsoever? I would think so?
So too, we should be thinking of more creative ways to treat criminal records (and therefore expungements) in Virginia. It should not simply be the one-size-fits-all scheme currently in place.
So what should we do?
First of all, misdemeanors should be plain and simply be treated differently from 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.
Secondly, we should also consider certain felonies as eligible for expungement. Of course, these would include nonviolent felonies (and thereby exclude violent felonies), but I also believe that where other convictions that result from drug additional or mental health issues should be considered for expungement as well.
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 what I mentioned above. Check out it out here: http://www.kentucky.com/news/politics-government/article54903390.html and http://courts.ky.gov/expungement/Pages/default.aspx
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.