Relieving Collateral Consequences: Expunctions and Certificates of Relief

1. Relieving Collateral Consequences: Expunctions and Certificates of Relief Daniel Bowes Staff Attorney Equal Justice Works Fellow

2. Collateral Consequences Explained • 2 Types of Collateral Consequences • Civil Disabilities (imposed by statute) • Attach at the time of conviction • Direct (incarceration, probation, fine) v. Collateral • Imposed by hundreds of state and federal statutes • Often unknown to defendants and attorneys at plea • Impacts are severe, far-reaching, and long-lasting • Meant to protect community safety and punish • Make sense in certain limited situations • Rooted in medieval concept of “civil death” • Private Bias • Individuals with criminal records are often treated as second class citizens • Questions of arrest and conviction asked in applications for private employment and housing • Both types of collateral consequences serve as barriers to reentry • Facilitate high rates of recidivism

3. A Sample of Collateral Consequences in NC “Statutes and regulations creating collateral consequences are scattered throughout the North Carolina General Statutes and Administrative Code. Parties who need to know about these consequences – charged and convicted individuals, attorneys, judges, and state decision-makers – often are not fully aware of all of the potential collateral disabilities because of this disorganization.” - Admin Law Section's Comm. on Collateral Consequences • Immigration • Housing • Foster Care/Adoption • Jury Duty • Occupational License • Public Office • Financial Aid • Public Benefits • Public Employment • Drivers License • Hunting License • Child Custody • Child Support • Termination of Parental Rights • Workers Compensation • Unemployment Insurance • License plate • Voting • Military Service • Firearm Permit

4. The three pillars of successful reintegration are gainful employment, stable housing, and family supports. Isolated from these opportunities by informal social stigmas and collateral consequences, individuals with criminal convictions are more likely to recidivate. Impact: Recidivism “Although no one supports ‘coddling criminals,’ society has a strong interest in preventing recidivism.” -Uniform Law Comm.

5. Expungement An expungement is the process by which a record of a criminal incident is destroyed or sealed. It is basically as if the incident never happened. Accordingly, f you had your only criminal conviction expunged, then you could answer “No” when asked on an employment application whether you have ever been convicted of a crime.

6. EXPUNGEMENT CRITERIA Need to make sure that your specific criminal record is eligible for expunction. This means knowing: -your criminal record -the level of each offense -if the offense is eligible for expunction FILING REQUIREMENTS Each type of expunction has its own form that you can access here: www.nccourts.org/Forms/FormSearch.as or from your county’s clerk of court. See the expunction grid for form numbers. Be mindful that different expunctions require different types of affidavits. For example, one type of expunction requires that you provide an affidavit stating that you have a diploma or GED and have performed 100 hours of community service. COSTS Most applications for expunction are free, but some are expensive. For example, expunction for 1st time misdemeanor offense committed before Age 18./21 has a filing fee of $125. Also be mindful that clerks usually charge fees for a certified copy of the expunction, which you’ll want since most other copies will be destroyed. Each type of expunction has different criteria, filing requirements, and costs. Please refer to the expunction grid provided in your materials for more details. GETTING YOUR CRIMINAL RECORD You may access your statewide criminal record from the SBI for $14. The Right to Review Request Form is included in your materials. It can also be accessed by searching the website: ncdoj.gov for: Right to Review Packet. Or call the SBI at (919) 662-4509 ext. 6266. FILING FOR INDIGENT STATUS TO WAIVE FEE Where there are fees for filing petitions to expunge, the fees are waivable if you obtain indigent status. Petition for Indigent Status is form AOC-G-106 and can be found here: http://www.nccourts.org/Forms/Documents/561.pdf or in the office of the Clerk. Warning: The expunction process is NOT quick. It can take 5-6 months or more.

7. Certificates of Relief

8. Certificates of Relief(NCGS §15A-173) • 3 Primary Benefits: • Relieves most collateral sanctions (§15A-173.2d) • Considered favorably in disqualification decisions (§15A-173.2d) • Protects employers from negligent hiring lawsuits (§15A-173.5) • BONUS: Evidence of rehabilitation persuasive to employers, landlords, etc. • Sanction v. Disqualification • A collateral sanction is an automatic bar to a benefit or opportunity • A collateral disqualification is statutory language which allows another decision making group to deny an individual a benefit or opportunity based on the conviction. • Ex. Medical Doctor/Physicians Assistant (§90-14) • Statute contains both a collateral sanction and a disqualification • Disqualification for conviction of “crime involv moral turpitude” • Sanction for “conviction of a felony” • Ex. Teacher/Principal (§115C-296) • Statute contains both a collateral sanction and disqualification • Disqualification for convictions indicating unfitness • Sanction for several specified felonies (ex. Taking indecent liberties with a student (Class I felony) • NOT an expunction or pardon

9. Eligible Convictions and Applicable Sanctions • Eligibility • 1 misdemeanor or 1 Class G, H, or I felony= eligible • 2 misdemeanors or Class G, H, or I felonies (convicted in same session)= eligible • 2 or more convictions in different sessions= NOT ELIGIBLE • Any Class A, B, C, D, E felony= NOT ELIGIBLE • NC Felony Classifications Examples of G, H, and I felonies- • G: Felony death by vehicle, common law robbery, financial identity fraud, trafficking in marijuana • H: larceny, possessing stolen goods, embezzlement < $100k • I: bigamy, cruelty to animals, abandonment of a child • Collateral Sanctions NOT subject to relief (NCGS §15A-173.3): • Sex offender registration (NCGS §14-208.5) • Possession of a firearm by a felon (NCGS §14-415.1) • But see Restoration of Firearm Rights (NCGS §14-415.4) • Motor vehicle license, revocation, or ineligibility (NCGS §20) • Criminal Justice Officer and Sheriffs certification (NCGS §§17C, E) • Employment as corrections or probation officer • Employment as prosecutor or investigator in NCDOJ or District Attorneys Office • Any sanction enacted by federal law or in the NC Constitution

10. Procedure • WHAT WE KNOW (as of January 2012) • The petition for a certificate of relief must be made in the county in which the conviction(s) occurred. • The Petition and Order for Certificate of Relief is form AOC-CR-273 and can be accessed here: http://www.nccourts.org/Forms/FormSearch.asp • A district attorney may appear at the hearing • The victim of the underlying offense has the right to appear or submit a statement for consideration in a proceeding for issuance of the Certificate of Relief. • BUT…there is plenty we don’t know (as of January 2012) • This is a brand new process and each county has the discretion to establish its own procedures for petitions for Certificate of Relief. • There is a distinct possibility that you may be the first person to petition for a certificate of relief in your county. • So, be prepared for anything. • You should be prepared to appear before a judge for a hearing. Or it might be the case that the Clerk of Court issues the order without having a formal hearing. • I suggest that at the time you submit your petition, you submit with the fully completed petition supporting documentation. • Supporting documentation could be: • Affidavit from petitioner explaining why granting the Certificate of Relief does not pose an unreasonable risk to the safety or welfare of the public to any individual. • Affidavit(s) from person(s) familiar with the character and reputation of the petitioner in the community in which he lives explaining that petitioner’s character and reputation are good. • Affidavit from petitioner or employer of petitioner explaining the petitioner is engaged in or seeking to engage in a lawful occupation or activity. • If there is a hearing, you should be prepared to have any person who provided you with an affidavit to appear as a witness.

11. Evidentiary Standard (what you must prove) • Petitioner must establish certain matters by a preponderance of the evidence (more likely than not = 51%): • twelve months have passed since the person completed his or her sentence; • the person is engaged in or is seeking to engage in a lawful occupation or activity; • the person has no criminal charges pending; • the person has complied with all requirements of the person’s sentence; • Granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

12. Proving Reasonable Risk Must prove: individual is not an unreasonable risk Be prepared to do three things: • Describe your motivations for applying for the certificate of relief • Describe the circumstances in which the underlying crime was committed • Be prepared to acknowledge the conviction and, because the court may ask, provide details of the circumstances of the crime • Explain why, despite the past conviction, you can now be trusted not to commit another crime. • Length of period between commission of crime and petition • Age of the individual at the time of commission might be relevant if the person was young (narrative of maturity) • The prison, jail, probation, parole, rehabilitation, and employment records of the individual since the date the crime was committed. (ex. if drugs were a factor in the commission of the crime then completion of rehab would likely be essential; if you obtained your GED, etc) • Nexus between the criminal conduct and the motivations for seeking a certificate of relief (ex. prior conviction was for bigamy and the individual is seeking certificate of relief in order to get license to be a locksmith) • General character (comm. involvement, family support, etc) Legal Disclaimer The information contained in this presentation is general legal information and should not be construed as legal advice to be applied to any specific factual situation. Any use of the presentation does not create or constitute a solicitor-client relationship with the North Carolina Justice Center. As the law may be interpreted or applied differently depending on your location or situation, the information provided in this presentation is not a substitute for the advice of a lawyer.

13. Who is eligible for expunction and/or a certificate of relief? • Rommel • 42 years old • Convicted of Larceny (misdemeanor) when he was 22 years old • Wants to be a Nurse • Doug • Convicted of Voluntary Manslaughter (Class D felony) in 1999 and Possession of a Firearm by a Felon (Class G felon) in 2000. • Dana • 30 years old • Convicted of cruelty to animals (Class I felony) in 2006 • Wants to be a barber • Completed rehabilitation program, volunteers at animal shelter • Rommel • eligible for both an expunction (misdemeanor larceny > 15 yeas ago) and a certificate of relief • Doug • Not eligible for expunction • Not eligible for a certificate of relief for 2 reasons • His two felony convictions did not occur in the same court session • One of the felonies is a Class D felony, which is ineligible • Dana • Not eligible for expunction • Eligible for a certificate of relief

14. Daniel Bowes Staff Attorney danielb@ncjustice.org (919) 861-2061