If Virginia were to decriminalize possession of marijuana, what ought we to do about keeping records of past convictions? For that matter, what about convictions for behavior Virginia once considered a crime — like vagrancy or inter-racial marriage? How about grand larceny when a past conviction is for stealing $201, now that the threshold that turns theft into a felony is $500?
It’s the question of expunging criminal records, and Attorney General Mark Herring thinks Virginia ought to make it an option in more cases than it does.
“Too often a relatively minor charge or conviction, like marijuana or alcohol possession, becomes a permanent stain that limits a Virginian’s job, educational, and housing opportunities. The fact that Virginia saddles our citizens with permanent, practically irrevocable convictions also sends a really negative message that no matter how a person grows, changes, or contributes to their community, they will always be branded a criminal,” Herring said, marking the second annual National Expungement Week.
Virginia is one of only ten states that don’t offer a way for offenders to wipe the slate clean after a conviction (except in cases where the governor issues an absolute pardon). And where the Code of Virginia does allow expungement of adult charges — that is, when charges are dismissed because there’s not enough evidence to prosecute or an accused is found not guilty — it’s not automatic, as it is in some states.
In Virginia, a judge has to hear why a charge should be expunged, and the idea is that it should happen when a defendant’s rights had been so abused, and the defendant has been so harmed, that justice demands removing the record from public view.
One challenge is that it’s not only to defendant who gets a clean slate then — it is the police and prosecutors who let an unfair and unjust charge move forward in the first place who do as well.
That could be one challenge that a move to expungement reform would face in a General Assembly that has so far been reluctant to move to loosen matters. The legislature did not, after all, provide for expungement of grand larceny convictions for thefts of under $500 when it changed the threshold, and there are some legislators who are miffed that new sentencing commission guidelines say old grand larceny convictions for thefts of less than $500 shouldn’t count as a previous felony conviction. It raises the question of whether a theft of $450-worth of goods in 1985 a more serious offense that a theft of that much now? (If you adjust for inflation, that $450 in 1985 would be worth more than $1,050 now.) If Virginia moves to expunge marijuana possession convictions, would it be fair to leave shop-lifting a candy bar on an offenders’ record?
One thing for certain: prosecutors, retailers, and businesses vetting potential employees will have an opinion. And balancing the public’s interest in seeing how police, prosecutors’ and courts pursue cases against individuals’ hopes for redemption and a chance to put an offense behind them is going to make for some serious — and thought-provoking — debate when the General Assembly meets next year.
Shad Plank is the Daily Press blog that tracks Virginia politics. It takes its name from the traditional Shad Planking political get-together, though hopefully it is tastier than the roasted fish featured at that Sussex County event. To contact Dave Ress with tips or questions, call 757-247-4535 or email dress@dailypress.com.
