Because most people pulled into the criminal legal system have low incomes, criminal records are a significant poverty law issue. According to most estimates, 80–90 percent of all criminal defendants cannot afford to hire an attorney. Because the criminal legal system disproportionately impacts people of color, particularly Black Americans, criminal records are also a significant racial justice issue. Seventy-five million Americans, or one-third of all adults, have criminal records. Between 19 and 24 million of those are felony convictions. Millions more are misdemeanor convictions and dismissed cases.
The collateral consequences of a criminal record differ based on the nature of the charge, the jurisdiction, the attorneys involved, the disposition, and individual circumstances. Nonetheless, the list includes voter disenfranchisement, deportation, civil confinement, community notification, ineligibility to live in subsidized housing, ineligibility for federal student loans, loss of professional licensure, and loss of driving and vehicle registration privileges. Then-Attorney General Eric Holder noted in 2011 that many of these collateral consequences “impose additional burdens on people who have served their sentences, including denial of employment and housing opportunities, without increasing public safety.” Collectively, criminal records result in “a new civil death.”
Although legal aid programs like the Legal Aid Justice Center generally do not provide criminal defense services, we are uniquely suited to help indigent defendants address the many collateral consequences of criminal legal involvement.
Most states provide an opportunity to remove at least some criminal records from public view. In Virginia, individuals can remove some records through a court process called expungement. Currently, Virginia’s expungement law allows for the removal of cases that were dismissed, cases in which the defendant was found not guilty, cases in which the prosecutor decided not to proceed (“nolle prosequi”), or in which the identity of the person named in the charge had their identity stolen.
Expungement of a dismissed case can still provide opportunities for employment, housing, or education that may not have been available to someone with an arrest record. LAJC works with community organizations like NoLefTurns to expunge criminal records and ensure that people of color have more opportunities in Virginia.
In 2021, the Virginia General Assembly passed a new law that will greatly expand eligibility for record sealing.
Non-convictions, many misdemeanor convictions, and some felony convictions will be eligible for sealing, and some of these records will be automatically sealed instead of the typical court process. Unfortunately, this law does not take effect until July 1, 2025. Because LAJC recognizes people directly impacted by criminal records need help now, we plan to push Virginia to move up the effective date of the new law.
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