By Kayley Berger, UC Irvine School of Law
Second place winner of the third annual law student writing competition.
Expungement has become an onerous process for individuals when it should be a burden placed on the state. This Article argues that California should embrace the Clean Slate Initiative not just for convictions and arrests after January 1, 2021 but work to automatically expunge all eligible criminal records that currently reside in the state’s criminal record databases. The process should be retroactive. This will not only help free up legal-aid clinics’ time for the most complicated cases, but it will also benefit the judicial economy. Furthermore, California, in effect, has already done this in regard to past marijuana convictions as automatic expungement under AB 1793 (Cal. Health & Safety Code § 11361.9) applied to all past convictions and not only those after a specified future date. This Article argues AB 2978, which extends the retroactive procedure used in marijuana convictions to all convictions eligible for expungement, should be passed.
Having a criminal record, when looking for an apartment or job, is often like being branded with a scarlet letter.1 One avenue for un-branding oneself is expungement. To expunge is to “erase or destroy.”2 For offenders who have completed their sentences, this erasing can open opportunities and give them “a fair shot at a better future.”3 Yet sadly, regardless of whether one is eligible to have their record expunged, there exist barriers both mental and physical for many. For instance, there is a knowledge barrier because, like most legal processes, expungement is not exactly a simple process for the common person.4 Besides, even if an offender knows how the expungement process works, he or she may not be able to afford the associated monetary or time costs with filing a petition for expungement for each of his or her convictions.
Thus, this Article argues that the burden should not be placed on the individual to petition the court and district attorney for expungement, but rather that the burden should be on the state to automatically expunge all eligible criminal records, even those prior to January 1, 2021, and that district attorneys must be required to challenge expungement in particular cases by a set date as was the procedure with automatic marijuana expungement. This argument is in line with “[o]ne of the bedrock principles of the criminal justice system” which provides that “with limited exceptions, offenders return to society as full members with all rights and privileges restored after their punishment is completed.”5
In support of this proposal, Section II will provide the necessary foundation for the reader by briefly discussing the current expungement processes and relevant laws in California. Section III then discusses past California legislation that inspired much of the state to automate the expungement of past marijuana convictions. Section IV then advocates for the State of California expanding the approach analyzed in Section III to all cases eligible for expungement. Specifically, it advocates for placing the burden on the state (via district attorneys) to oppose the automatic expungement of all eligible arrests and convictions which occurred prior to January 1, 2021. Finally, Section V concludes.
“No oppression is so heavy or lasting as that which is inflicted by the perversion and exorbitance of legal authority”
In California, expungement functions to release an offender from the “penalties and disabilities” of their past conviction(s).6 To secure an expungement for a conviction prior to January 1, 2021, an offender must take action because under California Penal Code § 1203.4, a defendant in a criminal case must petition the court for expungement.7 The filing fees for criminal expungement vary by county in California. Some do not charge while others charge between thirty- and two-hundred-and-forty dollars per conviction.8 Moreover, even though the expungement process under § 1203.4 has the effect of releasing the offender from the penalties and disabilities of their past convictions, it “does not have the effect of sealing the record.”9
Meanwhile, for those convictions taking place after January 1, 2021, an offender is not required to petition the court in order to secure expungement and sealing. Rather, under Assembly Bill (AB) 1076, which is currently codified as California Penal Code § 1203.425, automatic record relief will be provided for those eligible convictions and arrests occurring after January 1, 2021.10 In hopes of providing relief for more offenders, California Assembly member Phil Ting has proposed AB 2978, which would make California Penal Code § 1203.425 retroactive, but the bill has yet to be approved. Therefore, this Article is written to support the passing of AB 2978.11
“Most of the things worth doing in the world had been declared impossible before they were done.”
—Justice Louis D. Brandeis
Although California Penal Code § 1203.425 only applies to convictions on or after January 1, 2021, there is technology currently available to make the expungement process simpler and more expedient for all convictions, even those which occurred prior to January 1, 2021. Code for America, a non-profit organization has created a tool called “Clear My Record” which can analyze text in court files.12 “The Clear My Record initiative aims to help state governments automatically clear all eligible criminal records by expanding, streamlining, and automating the record clearance process.”13
In 2018, San Francisco’s District Attorney George Gascon successfully enlisted the help of Code For America to identify 8,132 criminal records eligible for expungement under California’s Proposition 64 and AB 1793 which allowed those with eligible prior marijuana convictions automatic expungement.14 After Code For America’s algorithm identified the eligible files Judge Samuel K. Feng, “signed them all off—reopening life opportunities for thousands of people.”15 In total, “through a pilot partnership with five District Attorney’s Offices in CA, this technology helped clear 75,000 marijuana convictions.”16
This efficient method for reopening life opportunities for thousands of people would not have occurred if it was not for AB 1793, which was codified as California Health and Safety Code § 11361.8. Section 11361.8 required the state to review the records and criminal history information databases of all California offenders in order to identify past convictions that were eligible for recall or dismissal, dismissal and sealing, or redesignation in light of the legalization of recreational marijuana.17 Section 11361.8 also placed the burden on the prosecution (the state) to challenge “a particular resentencing, dismissal and sealing, or redesignation” and “would require the court to automatically reduce or dismiss the conviction . . . if there [was] no challenge by July 1, 2020.”18
This Article is thus simply arguing that the State of California should approach all convictions (except those ineligible for expungement in the first place) the way it has approached expunging marijuana convictions since the legalization of recreational marijuana. Marijuana convictions that are no longer considered crimes should not be the only motivation for the state to use technology that exists and has been proven to be effective and more efficient than the alternatives.
“In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute.”
—Justice Thurgood Marshall
By extending California Penal Code § 1203.425 to arrests and convictions prior to January 1, 2021, California will not only be reopening life opportunities for thousands, if not millions, of people, but will be saving the state approximately $4,000 per application and the time of local legal aid offices, district attorneys, and judges.19 Courts would be able to sign off on expungements in batches and district attorneys would no longer have to sign off individually on uncontested individual cases.
California would not even be the first state to attempt retroactive automatic record clearing. For example, Utah has enacted House Bill (HB) 431, a clean slate law “which will apply retroactively to cases adjudicated prior to its effective date . . . .”20 Likewise, New Jersey’s clean slate law provides for “retroactive application of the law.”21 New York also “extended its automatic sealing of non-conviction records to cases decided prior to the enactment of that relief in 1992 (A7584), and to undisposed cases after five years of inactivity. (S1505).”22 These states demonstrate that retroactive automatic record clearing is not only possible but a reality.
California’s experience with marijuana also provides a persuasive argument in favor of extending backwards the new expungement standards of AB 1076 (California Penal Code § 1203.425). New or increased penalties can never be applied to old crimes, but there is nothing preventing new expungement procedures from being applied to old crimes. In the case of marijuana, the legalization of recreational marijuana clearly demonstrated the lack of public will to penalize new activities related to marijuana; it stands to reason that the public lacks the will to continue enforcing penalties related to old marijuana activities. Likewise, a new expungement procedure has identified limits on what the public considers fair, reasonable, and efficient in terms of prolonged stigma for new convictions; why would it be any more fair, reasonable, or efficient for old convictions to carry more stigma?
“Justice is open to everyone in the same way as the Ritz Hotel.”
—Judge Jonathan Sturgess
The law for most is a strange and confusing set of rules that signals the need to spend large amounts of money to hire an attorney, an action which many cannot afford to take, especially those who are facing the financial and emotional burden’s that come with having a criminal record. By extending California’s automatic expungement process to conviction prior to January 1, 2021 with AB 2978 the state will not only be reopening life opportunities to thousands, if not millions of people, but will be saving the state approximately $4,000 per application and the time of local legal aid offices, district attorneys, and judges.
1Brian M. Murray, Unstitching Scarlet Letters?: Prosecutorial Discretion and Expungement, 86 Fordham L. Rev. 2821 (2018); J.J. Prescott & Sonja B. Starr, The Case for Expunging Criminal Records, N.Y. Times (Mar. 20, 2019), https://www.nytimes.com/2019/03/20/opinion/expunge- criminal-records.html (“People with records face major barriers to employment, housing, and education, effectively condemning them to second-class citizenship.”).
2Expunge, BLACK’S LAW DICTIONARY (4th ed. 2004).
3About Clean Slate, CLEAN SLATE INITIATIVE, https://cleanslateinitiative.org/about-clean-slate/.
4 Prescott, supra note 1 (“The low rate of applications for expungement is consistent with broader findings about the difficulties that poor and middle-class Americans face in dealing with the legal system. When the state makes it too hard or costly for citizens to exercise a right or opportunity, it’s not that different from denying that right or opportunity.”).
5 Editorial: Millions of Californians are eligible to clear their criminal records, but it takes time and money. Make it automatic, L.A. TIMES (Aug. 28, 2019), https://www.latimes.com/opinion/story/2019-08-27/expunge-criminal-records-background- checks.
6Cal. Penal Code § 1203.4 (West).
8County Filing Fees – Expungement, FRESH START LAW CTR., http://freshstartlawcenter.com/list- of-california-expungement-filing-fees.html.
9California Restoration of Rights & Record Relief, RESTORATION OF RIGHTS PROJECT, https://ccresourcecenter.org/state-restoration-profiles/california-restoration-of-rights-pardon- expungement-sealing/.
10Cal. Penal Code § 1203.425 (West 2020).
11Taylor Walker, Bill Would Retroactively Expunge Eligible Criminal Records Dating Back to 1973, WITNESS L.A. (Mar. 3, 2020), https://witnessla.com/bill-would-retroactively-expunge- eligible-criminal-records-dating-back-to-1973/.
12Clear My Record, CODE FOR AMERICA, https://www.codeforamerica.org/programs/clear-my- record.
14Dave Lee, An algorithm wipes clean the criminal pasts of thousands, BBC (Apr. 29, 2019), https://www.bbc.com/news/technology-48072164.
16Supra note 12.
17Cal. Legis. Serv. Ch. 993 (A.B. 1793) (West); Cal. Health & Safety Code § 11361.8 (West 2016).
18Cal. Health & Safety Code § 11361.8 (West 2016).
19Supra note 5.
20Utah Restoration of Rights & Record Relief, RESTORATION OF RIGHTS PROJECT, https://ccresourcecenter.org/state-restoration-profiles/utah-restoration-of-rights-pardon- expungement-sealing/ (automation only applies to cases on the lowest tier).
21David Schlussel & Margaret Love, Record-breaking number of new expungement laws enacted in 2019, COLLATERAL CONSEQUENCES RESOURCE CTR. (Feb. 6, 2020), https://ccresourcecenter.org/2020/02/06/new-2019-laws-authorize-expungement-other-record- relief/.