Is Colorado in the Midst of a Records Sealing Movement?

With state policy trending toward closing or expunging criminal records, proponents consider next steps

A nationwide trend of criminal justice reform has encompassed not just how people are sentenced but the rights they have after they’ve completed their sentence.

Colorado is one of several states expanding the types of criminal convictions that people can have sealed from public view, as well as making existing seal processes easier. A major bill to come out of this year’s legislative session, House Bill 1275, went into effect in August. Cities in Colorado have also recently joined others in the U.S. in allowing people to have minor marijuana convictions expunged.

Proponents say enabling people to have their criminal records sealed or expunged can give them more financial stability after they’ve served their time for a conviction. With HB 1275 opening some doors for those individuals, policymakers in Colorado are considering ways to take records-sealing rights a step further.

HB 1275, which had bipartisan support, expanded the types of convictions that were eligible for seal in Colorado and assigned those convictions a waiting period. For example, defendants can now have a petty offense sealed after one year of completing their sentence. The bill also expanded records sealing to include a Class 1 misdemeanor and a Class 4 felony, which are eligible for seal after three years. 

But many convictions remain ineligible for seal, including DUI or DWAI, child or domestic abuse and sex offenses. District attorneys may also object to a defendant’s petition to seal a record.

The 25-page bill also made it automatic for a defendant to have their criminal case sealed when they’re fully acquitted or complete a diversion program or deferred judgment. Courts must close up those records and will no longer require the defendant to petition them for seal. 

HB 1275 appears to be a broad expansion of defendants’ rights to have their criminal records scrubbed, but “that’s a matter of perspective,” said Democratic Rep. Mike Weissman, who co-sponsored the bill. Colorado’s sealing statute used to be even broader, he noted.

Before the law changed in 1988, all crimes in Colorado were eligible for seal from the public after a certain number of years. In 1988, Colorado removed criminal convictions from records sealing procedures, and people could only petition to have criminal records sealed for cases where the defendant was acquitted or had charges dismissed or never filed.

Since then, Colorado has taken small steps toward allowing more criminal records to be sealed or expunged, such as in cases of mistaken identity.

“We’re not even back to where we were 30-ish years ago with 1275,” Weissman said.

Maureen Cain, policy director for the Colorado Public Defender’s Office, said she thinks Colorado is part of a larger trend of bipartisan efforts to expand criminal records sealing and expungement.

“I would say there is a national movement, looking at the research, looking at the trend, looking at how we are labeling and branding people for things they did in their youths or … nonviolent crimes,” Cain said.

Cain said that allowing people with nonviolent convictions to get those records sealed gives those people peace of mind as they undergo background checks for jobs or housing. “These days it tends to be even more significant in the housing arena because of the unavailability of affordable housing.”

According to a March study from University of Michigan Law School, people who got their criminal convictions expunged saw their wages increase by an average of 25%. But only 6.5% of people who were eligible for expungement under Michigan’s law petitioned for and obtained it within five years of eligibility.

Some states have been making records sealing easier, even automatic, for defendants. This year Pennsylvania’s “Clean Slate Act” went into effect calling on courts to seal an estimated 30 million criminal cases without requiring those defendants to petition for it. California and Utah have enacted similar bills, and Michigan is currently considering an automatic sealing bill.

Weissman said that while he does comparative research on other states’ laws on an issue, HB 1275 “just grew more out of conversation that seems to have been happening in our state for years” instead of what’s happening in other states. The underlying problems with people being unable to seal records on minor convictions, he said, are the same in other states: Someone has served their time, but it follows them through their life to hamper their financial stability. “The policy interest is for people to simply be able to move on,” Weissman said.

That idea has also motivated national criminal justice reform involving cannabis convictions. Illinois enacted a law this summer that will lead to the expungement of up to 777,000 marijuana convictions. In the past year, Denver and Boulder have each opened the door for people with certain low-level marijuana convictions to have those convictions sealed. Denver was one of many cities across the U.S. that held expungement clinics during National Expungement Week last month. 

Cain noted that the movement to clear marijuana convictions is a different issue than what 1275 addresses. Denver and Boulder’s programs are driven by the fact that many Coloradans were convicted for non-violent marijuana activity that wouldn’t have been illegal under Amendment 64, and those convictions still hinder their searches for work or housing. 

If the records-sealing momentum persists in Colorado, there are two main developments proponents are looking at next. One is how to allow records sealing for people with multiple convictions. Cain gave an example of people who might have committed minor crimes over a short, isolated period of their life, possibly when they were suffering from drug addiction or mental illness. Even if they’ve turned their life around long since, those convictions can still affect them.

“They’re working, they have a family, but it’s still there, it’s still hurting them 20 years later,” Cain said.

HB 1275 originally allowed for multiple convictions to be sealed, but that provision was removed. Stakeholders might need to continue discussing how to address that situation fairly, Cain said, such as whether defendants might require a longer waiting period to seal multiple convictions or meet a greater burden than they would for a single conviction.

Another possible step Colorado could take next is to expand automatic record sealing or expungement — to shift the burden from individuals to the courts or law enforcement agencies. 

“It is something I’m also looking at,” Weissman said, adding that it’s too early to say when legislation expanding automatic sealing could materialize. It will take some work to figure out, he said. Every state has a different architecture for how criminal records are stored and shared among its various law enforcement agencies. Records that don’t require much circulation between the judiciary and law enforcement, like non-charge arrests, might be an easier step, Weissman said.

— Doug Chartier

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