Virginia Clean Slate Law Goes into Effect

On 1 July, Virginia will become the latest state to enact a Clean Slate law, sealing the criminal records of people convicted of minor offenses who avoid another criminal conviction for at least seven years.

More than 100,000 records will automatically be sealed—inaccessible to the general public, including via court databases, although police, courts, prosecutors, and certain employers can still access the information. Also, hundreds of thousands more records will be eligible for seal through a petition. Background screening companies will be prohibited from sharing sealed records in almost all circumstances, meaning companies screening job applicants will not have access to the sealed records except in specialized cases.

The law establishes 28 narrowly defined exceptions in which sealed records can be shared. Notably, if federal, state, or local law requires that certain jobs involve employers to inquire about prior criminal charges or convictions, then the employers can gain access to sealed records. Most of the other exceptions involve use of sealed records by law enforcement, the courts, and certain state agencies.

The Virginia State Crime Commission (VSCC) lists the following types of offenses that will be automatically sealed:

• Misdemeanor convictions (petit larceny, shoplifting, trespassing, instigating trespass, trespass on posted property, distribution of marijuana, and disorderly conduct)

• Possession of marijuana offenses (criminal and civil)

• Misdemeanor non-convictions at case conclusion (acquittal and dismissal with prejudice)

• Felony non-convictions at case conclusion (upon verbal request by the defendant and concurrence of the Commonwealth’s Attorney) (acquittal and dismissal with prejudice)

• Previously concluded misdemeanor non-convictions (acquittal, nolle prosequi, and dismissal, excluding deferred dismissal)

• Traffic infractions

In addition the VSCC lists the following lists two processes through which people can petition to have their record sealed:

1. Petition sealing of misdemeanor and felony convictions, deferred dismissals, and related ancillary matters, with the exception of numerous types of offenses, such as Class 1, 2, 3, and 4 felonies, sex crimes, violent felonies, sex trafficking, felonies involving the use of a firearm, protective order violations, hate crimes, animal cruelty, election laws, date rape drug offenses, not guilty by reason of insanity dispositions, dangerous or vicious dogs offenses, and crimes against family or household members; and,

2. Automatic petition sealing of misdemeanor convictions and deferred dismissals eligible for automatic sealing that were unable to be sealed through the automatic process, certain other misdemeanor convictions and deferred dismissals not eligible for automatic sealing, and related ancillary matters.

According to The Clean Slate Initiative (CSI), an advocacy organization that supports Clean Slate laws, Virginia is one of 13 states (including Washington, DC) to adopt such legislation. The organization’s website includes a list of all the states with links to each state’s official resource on the effort.

The primary motivation for Clean State laws is to prevent previous charges and convictions of relatively minor offenses from affecting applicants for housing and employment opportunities. Detractors note the high rate of recidivism and argue the public has a right to know and consider past criminal activity.

However, research from University of Michigan Law School professors found that people who have had their records expunged—a different, but similar method of shielding prior criminal or court records—are less likely to commit additional crimes than the general public. They also found that those with expunged records have much better employment and wage outcomes than those who are allowed to petition to expunge their records but have failed to do so.

The ASIS Preemployment Background Screening Guideline, published in 2022, notes that screening laws change rapidly and that employers should stay informed of any changes in all the locations in which they operate.

“While there are numerous statutes, laws, and regulations that dictate how [preemployment screening] processes are conducted and what information is available, employers should be reasonable in how they collect and use information that may be available to them,” the guideline says. “Some data furnishing agencies monitor their reports to ensure that information given to an employer does not violate various rules concerning what employers may or may not use in making hiring decisions.

“In some countries, these agencies are called consumer reporting agencies and may be strictly regulated as to what information they may share with a potential employer. Data furnishers or consumer reporting agencies may take the position that it is primarily a data conduit to the employer, and it is the employer’s duty to not collect or use any information an employer should not possess.”