STATEMENT: New Expunction Law Falls Short on Second Chances

RALEIGH (September 10, 2021) – Everyone deserves access to meaningful employment, affordable housing, government benefits, and education. For the more than two million North Carolinians — mostly people of color — denied the opportunity to access these essentials because of their criminal backgrounds, criminal record expunction is a lifeline.

Expunction, which erases a person’s criminal record, can mean increased job and housing opportunities, improved public safety, and a stronger economy. For more than a decade, criminal record expunction laws have expanded to provide relief to more and more North Carolinians. However, to date, the laws have not done enough to ensure certain North Carolinians with criminal records can access opportunities that will help them thrive.

Senate Bill 301, which was recently signed into law, missed the opportunity to meaningfully expand expunction relief to thousands of North Carolinians. While the law does include some positive steps, overall, it is a band-aid on a broken leg and fails to adequately address the economic exclusion of North Carolinians with criminal records, especially those with felony convictions.

Key components of Senate Bill 301:

Requires individuals with two or three “non-violent” felony convictions who are seeking relief to wait twenty years before becoming eligible for expunction. All felony convictions must occur within the same 24-month period.
Removes felony breaking or entering into or out of railroad cars, motor vehicles, trailers, aircraft, boats, or other watercraft from the list of convictions that are not eligible for expunction.
Modifies law so that DWI conviction(s) does not disqualify a petitioner from expunging another otherwise eligible conviction. DWI is not eligible for expunction.

The most disappointing and confusing provision in the law is the 20-year waiting period for those with multiple nonviolent felony convictions, and the additional requirement that all felony convictions have occurred within the same 24-month period in order to be eligible for expunction.

This arbitrary waiting period is not consistent with research. A recent study found that after a period of fewer than seven years, individuals with “violent” convictions are just as unlikely to commit another offense as someone who has never been convicted of a crime.^[1] Yet North Carolina expunction law requires a seven-year waiting period for those with multiple “non-violent” misdemeanors and now, pursuant to Senate Bill 301, a twenty-year waiting period for those convicted of multiple “non-violent” felonies within the same 24-month window.

Recommendations for more equitable, evidence-based expunction relief:

Expand automatic expunction relief to allow for automatic removal of certain criminal convictions after an appropriate waiting period. Only 4 percent of eligible North Carolinians obtain the expunction relief.^[2] Automated conviction expunction would allow North Carolinians to receive relief without having to petition for the relief or pay any fees. Several other states, including South Dakota, Utah, and Virginia, have automated expunction of convictions.^[3]
Reduce waiting period to no more than five years for expunction of multiple “nonviolent” misdemeanor convictions and no more than ten years for multiple “nonviolent” felony convictions. Studies show that after four years for misdemeanors and seven years for felonies with no additional convictions, a person is no more likely to commit an offense than someone who has not been convicted. Fourteen states, including North Dakota, Arkansas, Kansas, and Illinois, have shortened the waiting period for expunction or sealing of criminal convictions to 5 years or fewer for misdemeanors and 10 years or fewer for felonies.^[4]
Expand the list of convictions eligible for expunction by adding certain drug-related and property offenses. Offenses such as felony breaking and entering and possession with intent to sell, manufacture, or deliver cocaine are two of the most common felony convictions. Expanding eligibility to certain drug-related and property convictions would provide relief to significantly more North Carolinians.
Allow expunction of all eligible convictions. Currently, the law limits eligibility for individuals with disqualifying convictions, which results in those who have both eligible and ineligible convictions being unable to expunge eligible convictions.

While Senate Bill 301 is a step in the right direction, it missed key opportunities to expand relief to thousands of people in North Carolina and to ensure all eligible people have access to relief from their convictions through automated processes. A better North Carolina — one that does not exclude thousands of people from opportunities to meet their essential needs — is possible. Lawmakers must continue to expand and improve record relief laws to remove barriers to opportunity, improve public safety, and strengthen the economy.

^[1] A landmark 2009 study (Alfred Blumstein & Kiminori Nakamura, Criminology, 2009, Volume 47 Number 2), updated by the authors in 2012 (Alfred Blumstein & Kiminori Nakamura, Final Report Submitted to the National Institute of Justice) used data to empirically estimate the point of “redemption” for people with records, or the number of years in which the risk of rearrest intersects with the risk of arrest for the general population of the same age. Relevant time periods being four years people with drug convictions, three to four years for people with property offenses, and four to seven years for people with “violent” felonies.

^[2] https://www.paperprisons.org/states/NC.html

^[3] https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/

^[4] https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/

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