Page 13 - Delaware Lawyer - Spring 2022

Paper Prisons
The long-lasting collateral con- sequences of having a criminal record are often called “paper prisons” because criminal background checks have expansive information within them that create significant barriers for many individuals to move forward with their lives. Criminal records encompass not only criminal con- victions, but arrests, acquittals, dismissed charges, and convictions for offenses that have since been decrim- inalized. Such records often remain available indefinitely to employers, creditors and others unless they are expunged or cleared. These paper prisons create perpetual barriers and might mean the difference for someone being hired, fired or not considered at all for certain jobs.4 A recent landmark expungement study
in Michigan revealed that reconvic- tion/recidivism rates of expungement recipients was 4% for any crime (and only 0.6% for violent offenses), employment rates improved dramati- cally, and such recipients netted bet- ter-paying jobs following their record clearance.5 Consequently, expunge- ments not only ameliorate the social stigma of having a criminal record but also mitigate many of the socio- economic factors that lead to criminal behavior, such as homelessness, lack of resources, and limited access to employment and social supports.6
Delaware Clean Slate Legislation
Although the Delaware Legisla- ture has recognized that a person’s criminal history is a “hindrance to a person’s present and future abil- ity to obtain employment, housing, education or credit” if the record continues indefinitely, the process to clear one’s criminal record can be complicated and costly for many individuals.7 To expunge a per- son’s criminal record requires either a petition to the judiciary or an administrative process through the Delaware State Bureau of Identifica- tion (SBI). Fortunately, Delaware has made steady progress in removing some of the barriers to expunge certain criminal records with recently passed Clean Slate Legislation (SB 111, SB 112) and other initiatives.
SB 111 and 112
On November 8, 2021, Gover- nor John Carney signed the Clean Slate Act, which expanded the scope of mandatory expungements. The Clean Slate legislation was sponsored by Senator Darius Brown, with sup- port from the Office of Defense Ser- vices, Delaware Department of Justice, ACLU of Delaware, Delaware Center for Justice and various stakeholders. The Clean Slate Act expanded upon
prior legislation also championed by Senator Brown that extensively overhauled the adult expungement process. The Adult Expungement Reform Act, which was signed into law in 2019, expanded expungements to include all charges and arrests that terminated without a conviction, along with some other misdemeanor convic- tions.8 Building on the 2019 reforms, the 2021 Clean Slate Act expansion of offenses eligible for a mandatory adult expungement under 11 Del. C. § 4373(a)(2) now includes:
• Underage possession or con- sumption of alcohol9
• Possession of a personal use quantity of marijuana10
• Possession of drug paraphernalia11
• Conviction for drug posses- sion and five years have passed from the date of conviction or the date of release from incarceration (whichever is later)12
• Conviction for any of the fol- lowing felonies and 10 years have passed from the date of conviction or the date of release from incarceration based on the following offenses:
› Miscellaneous drug crimes13
› Dealing in counterfeit and con- trolled substances14
› Maintaining a drug property 15
› Possession of burglar’s tools or instruments16
› Forgery, second degree17
› Unlawful use of a payment card18 Not surprisingly, the greatest
impact of this legislation will likely be mandator y expungements for per- sonal use possession of marijuana and paraphernalia. Now that marijuana has been decriminalized in Delaware, any citation for personal use pos- session is deemed a civil violation. As such, thousands, if not more, mandator y expungements will clear such criminal charges and will lead to expanded opportunities for many Delawareans.
SPRING 2022 DELAWARE LAWYER 11