New exponent law fails on second chances – North Carolina Justice Center

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RALEIGH (September 10, 2021) – Everyone deserves access to meaningful employment, affordable housing, government benefits and education. For the more than two million in North Carolina — mostly people of color — who have been denied access to these essentials because of their criminal history, expunging criminal records is a lifesaver.

Exposure, which clears a person’s criminal record, can result in increased employment and housing opportunities, improved public safety and a stronger economy. For more than a decade, expunging criminal record laws have expanded to bring more and more relief to North Carolina. However, to date, the laws have not done enough to ensure that some North Carolina residents with criminal records can access opportunities that will help them thrive.

Senate Bill 301, which recently passed into law, missed the opportunity to significantly expand the exemption to thousands of North Carolinas. Although the law includes some positive measures, overall it is a band-aid to a broken leg and does not adequately address the economic exclusion of North Carolinians with criminal records, particularly those who were convicted of a crime.

Key elements of Senate Bill 301:

  • Requires that people with two or three “non-violent” crime convictions who seek reparations must wait twenty years before becoming eligible for exponent. All felony convictions must occur within the same 24 month period.
  • Removes the crime of breaking and entering or entering or entering railroad cars, motor vehicles, trailers, airplanes, boats or other watercraft from the list of convictions that are not eligible for the exposure.
  • Amends the law so that DWI conviction(s) does not preclude an applicant from expunging another otherwise eligible conviction. DWI is not eligible for exemption.

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

This arbitrary waiting period is not consistent with research. A recent study found that after less than seven years, people 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’s exponentiation law requires a seven-year waiting period for people with multiple “non-violent” offenses and now, per Senate Bill 301, a waiting period twenty years for those convicted of multiple “non-violent” crimes within the same 24-month window.

Recommendations for fairer, evidence-based relief:

  • Extend automatic exemption to allow automatic cancellation of certain criminal convictions after an appropriate waiting period. Only 4% of eligible North Carolina residents get the exemption.[2] Automated conviction erasure would allow North Carolina residents to receive relief without having to apply for the relief or pay a fee. Several other states, including South Dakota, Utah and Virginia, have automated conviction erasure.[3]
  • Reduce the waiting period to no more than five years for the extinction of multiple “non-violent” felony convictions and no more than ten years for multiple “non-violent” felony convictions. Studies show that after four years for misdemeanors and seven years for felonies without further conviction, 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 exposing or sealing criminal convictions to 5 years or less for misdemeanors and 10 years or less for crimes.[4]
  • Expand the list of convictions that can be expunged by adding certain drug and property offences. Offenses such as break and enter and possession with intent to sell, manufacture or deliver cocaine are two of the most common felony convictions. Expanding eligibility for certain drug and property convictions would provide much more relief to North Carolina.
  • Allow erasure of all eligible convictions. Currently, the law limits the eligibility of people with disqualifying convictions, so those with both eligible and ineligible convictions cannot expunge the eligible convictions.

Although Senate Bill 301 is a step in the right direction, it missed key opportunities to expand aid to thousands of people in North Carolina and ensure that all eligible people have access to the relief from their convictions through automated processes. A better North Carolina — one that does not exclude thousands of people from opportunities to meet their basic 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 and Kiminori Nakamura, Criminology2009, Volume 47 Number 2), updated by the authors in 2012 (Alfred Blumstein and Kiminori Nakamura, Final report submitted to the National Institute of Justice) used data to empirically estimate the point of “redemption” for people with a history, or the number of years in which the risk of re-arrest intersects with the risk of arrest for the general population of the same age. The relevant periods are four years for people with drug convictions, three to four years for people with property offenses and four to seven years for people with “violent” crimes.

[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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