Understanding the State of Automatic Criminal Record Relief

Possessing a criminal record can create many barriers and close doors to individuals seeking new opportunities to improve their lives. Problems with obtaining employment aren't uncommon for such individuals, and many efforts have taken place nationwide to expand opportunities for those with a record. Legislative efforts to offer individuals a "clean slate" have taken place across the United States. While some criminal record sealing and expungement processes require a court petition or a legal motion, automatic criminal record relief has grown to be an option in more states.

Employers may wish to know more about these laws to better understand what kinds of information may appear on a criminal history report and what information may lie outside the realm of consideration.

Here, we'll take a look at what automatic criminal records relief may involve, with a focus on adult conviction records. We’ll consider the general state of nationwide legislation and also how some specific states implement their laws.

Automatic Criminal Record Relief Explained

For years, many states have offered some form of pathway to criminal record relief. The goal of these processes was to allow those who'd completed their sentences and remained out of trouble to leave their records behind in the past. However, these processes have typically been onerous, expensive, and time-consuming. Not everyone has the resources to retain a lawyer to make motions before a court or to follow a lengthy petition process.

Automatic criminal record relief is a process by which a relevant criminal record becomes publicly unavailable automatically when the record becomes eligible for expungement or sealing. There is generally no need for the individual to do anything in the process. Instead, the state handles the process and seals or expunges the record, making the record unavailable to the general public. Most employers will not be able to see or consider these records.

Automatic relief can create fresh opportunities for individuals who may not have otherwise had access to such a process.

How Do States Differ on Record Relief?

States take a varied approach to how they decide which convictions should be eligible for automatic relief. For example, in some states, changing laws related to cannabis consumption have driven the adoption of laws to mitigate the impact of certain cannabis-related convictions prior to legalization.

Other states may choose only to allow relief for misdemeanor crimes, or especially minor convictions. Some aim to tear down additional barriers by making felonies, typically the most serious class of crime, eligible for automatic relief. States often require a waiting period and other pre-requisites and generally exclude certain types of convictions, such as violent felonies and sexually-based offenses.

A Brief Overview of State Laws by Category

Some states make only cannabis-related offenses for relief. Here are a few examples of states that may fall into this category:

• Missouri
• New Mexico
• Rhode Island

Next, there are states that allow relief for some lower-level offenses, but not felonies. Examples of these may include:

• South Dakota
• Utah
• Virginia

Finally, some states provide relief for both misdemeanors and certain types of felonies. Eligible felonies may vary significantly between states. Some examples of states in this category may include:

• California
• Colorado
• Connecticut
• Delaware
• Michigan
• Minnesota
•  New Jersey
• New York
  
  

A Closer Look at How Some States Handle Clean Slate Laws

It’s clear that there are substantial differences between how states handle automatic relief. Let’s examine what the law says about this process in one state from each category to illustrate those variations.

Missouri

Missouri currently only provides automatic relief for cannabis-related offenses, but its law is quite broad in terms of who's eligible for such relief. Since December 8, 2022, the state has allowed for automatic expungement of both misdemeanor and felony-level marijuana offenses. The law also includes relief for any cannabis-related crimes that would no longer be a criminal matter after the law's December 8, 2022, effective date.

Missouri circuit courts were to expunge all misdemeanor cannabis offenses within six months of the effective date, with a deadline for felony records occurring at 12 months. The state set a few requirements for eligibility:

• Individuals must no longer be in jail/prison or on probation or parole, or otherwise under Department of Corrections supervision.
• Felony offenders must have concluded their sentences.
• The conviction must not involve distribution to minors, violent conduct, or driving while under the influence of marijuana.

The Missouri law is a strong example of states that have aimed to provide individuals with criminal records from cannabis-related offenses with broad relief.

Virginia

Virginia is one example of a state that provides automatic relief, but only for certain, specific minor offenses. Virginia's law applies to convictions for crimes that include, but aren’t limited to:

• Petit larceny
• Trespassing after warning or trespassing on posted property.
• Misdemeanor disorderly conduct
• Misdemeanor level marijuana possession.

For all eligible convictions, except convictions under the now-repealed Virginia Code§18.2-250.1 related to possession of marijuana, there is a seven-year waiting period prior to automatic relief. The law does not require a waiting period to remove criminal offenses previously prosecuted under former Virginia Code§18.2-250.1 In addition to the waiting period for most eligible offenses, there are certain pre-requisites and exclusions to automatic criminal record relief under the Virginia law.

California

California's clean slate provisions are among some of the broadest in the nation and have been in force since 2023, with new amendments in 2024. Consider the wide scope of the state's approach, which makes the following types of convictions eligible:

• Infraction convictions (if convicted on or after January 1, 1973)
• Misdemeanors (if convicted on or after January 1, 1973)
• Most felonies (if convicted on or after January 1, 2005)

California has waiting periods like other states, but its timelines are shorter compared to many of the others. For example, there is no waiting period for automatic relief if an individual was sentenced only to probation and completed their term without issue. Other periods include:

• One year from the date of judgment for misdemeanors and infractions.
• Four years from the completion of supervision or probation for felony convictions.

The completion of one's sentence is a mandatory requirement to become eligible for expungement. Those with an active record for local, state, or federal supervision in the Supervised Release File, those currently serving a sentence for an offense, and those with pending charges aren't eligible. California also excludes all individuals who must register as a sex offender and, for relief for felony convictions, those who are convicted of another felony during the four-year waiting period. California excludes certain serious and violent felonies and felonies requiring registration under the Sex Offender Registration Act from automatic relief.

Monitor Legislative Changes and Stay Up to Date

Automatic criminal record relief can open doors for many individuals who've encountered barriers to employment as a result of a prior conviction. From states that only remove some cannabis-related convictions to states that provide broad relief opportunities, it's clear there are many different approaches to this process nationwide. For employers, consultation with legal counsel to gain an understanding of the law in the relevant jurisdictions is an important element of compliance considerations.

The future could hold additional developments in this space and the potential for the expansion of automatic relief into other states. States with existing laws could, in the future, amend their approach to broaden the impact of automatic relief. Stay up to date on legislation in your area as part of maintaining reliable, compliant screening policies.