Page 16 - Delaware Lawyer - Summer 2019

FEATURE
an expungement of a juvenile record is easier today than it was a decade ago for Delaware’s youth. These improvements are a direct result of advocacy efforts by organizations such as the ACLU of Dela- ware, the Delaware Center for Justice and the Office of Defense Services, and the dedication of legislative champions such as Representative J. J. Johnson and Sena- tors Bryan Townsend and Dave Lawson. Discussion and recognition of the over- whelming harm of collateral consequenc- es for youth also laid the groundwork for addressing the lifelong consequences of an adult criminal record.
Adult Expungements
Bills that would expand the ability to seal or destroy adult criminal records have been introduced in several consecu- tive General Assemblies, but until this year, have made little progress. This year, the Adult Expungement Reform Act,20 spearheaded by freshman senator Darius Brown, passed both the Senate and the House with overwhelming support. The bill was signed into law by the Governor on June 30, 2019. It will become effec- tive 180 days after the signing.
This new law will radically change the landscape for Delawareans with criminal records. Currently, mandatory expunge- ment through SBI is only available for certain misdemeanor arrests that do not result in conviction.21 For all other charg- es that do not result in conviction and for limited types of misdemeanor convic- tions after a pardon has been granted, an individual must file a petition in the appropriate court. Even then, the appli- cation for expungement is discretionary and can be denied by the court.22
Under the new law — in keeping with the core principle of American justice that a person is innocent unless and un- til proven guilty — all charges or arrests that terminate without conviction can be expunged simply through application to the State Bureau of Identification. Some convictions for misdemeanors or criminal violations (such as loitering or public in- toxication) can also be expunged through the SBI application process — where the person has only a single conviction on
Delaware has made great strides to allow citizens to move beyond the mistakes of their past, especially those mistakes committed at a young age. However, more needs to be done.
their record and at least five years have passed. For more serious misdemeanors and for a single non-violent felony con- viction, a petition may be submitted to the court after seven years. After hearing input from the Attorney General’s office and any victim of the crime, where ap- plicable, a court may grant an expunge- ment where it finds that the continuation of the criminal record would constitute a “manifest injustice.” Finally, for any crime or criminal record that is not eli- gible for expungement through this ap- plication or petition process, the court may consider and rule on an application for expungement if a person first applies for and receives an unconditional pardon.
Professors at the University of Michi- gan recently completed a study on Michi- gan’s expungement law — one that is quite similar to the new law in Delaware.23 They found that the earnings of people who were able to get an expungement in Michigan increased by nearly 25 percent, as those who were unemployed were able to get jobs, and those who were under- employed were able to get better ones.24 They also found that the rate at which people who have gotten expungements commit new crimes was very low — lower in fact than the rate at which the general population commits crimes. These are the kinds of results that proponents of ex- pungement laws have predicted, but until
now there was little more than anecdotal data on post-expungement outcomes. It is a strong sign that expanding the avail- ability of expungement is good public policy for the state of Delaware.
Many Delawareans are unaware they have a criminal record until they apply for a job or housing and are turned down. They do not realize that delinquent acts are a part of their criminal history or that arrests that did not result in a conviction may still negatively impact them. Dela- ware needs to embark on an awareness campaign regarding the negative collat- eral consequences and reach individuals who are in need of expungement. Two promising programs are doing just that.
In 2016, the Delaware Office of De- fense Services, through a federal grant, established a juvenile expungement proj- ect.25 Through the project, volunteer attorneys were trained and recruited. Expungement clinics were held through- out the state and hundreds of juvenile records were expunged. The success of this program led to the creation of a full time Post Disposition and Expungement Coordinator. This attorney will continue to provide services for those seeking juve- nile expungements.
Since 2012, the APEX Program, which is operated by the Department of Labor and the Division of Social Servic- es, has been assisting Delawareans with criminal histories, especially those with disabilities, TANF (welfare) recipients and foster youth to find employment.26 The assistance is provided by non-lawyer staff and volunteers, who also help with applications for pardons or expungements if the client is eligible.
Delaware has made great strides to allow citizens to move beyond the mis- takes of their past, especially those mis- takes committed at a young age. How- ever, more needs to be done. Delaware needs to develop a system that seals or expunges juvenile records upon reach- ing adulthood. It needs to provide easier access to expungements for adults and formulate ways to automatically expunge adult records that are minor, old or stale. Advocates and grassroots organizations,
14 DELAWARE LAWYER SUMMER 2019