Background:

A person may apply to the sentencing court to have his or her conviction vacated in certain circumstances. If the court vacates a record of conviction, the offense is no longer included in the person's criminal history. Criminal history is a factor in sentencing, professional licensing, employment, housing, and other matters. A person whose conviction has been vacated may state that he or she has never been convicted of that crime, including when responding to questions pertaining to licensing, employment, and housing applications.

In order for the court to vacate a conviction, the person must meet certain statutory eligibility requirements, which vary depending on the nature of the conviction. Certain types of convictions do not qualify to be vacated. In addition, for most applications, the decision to vacate the offense is discretionary on the part of the sentencing court.

A person may not have a felony conviction vacated if:

the person has not received a certificate of discharge for the offense, including payment of legal financial obligations;
the offense was a violent offense, crime against persons, or felony Driving Under the Influence (DUI), except for Assault in the second degree, Assault in the third degree not involving a law enforcement officer, and Robbery in the second degree may be vacated, so long as the conviction did not include a firearm, deadly weapon, or sexual motivation enhancement;
there are any criminal charges against the person pending in any state or federal court;
the offense is a class B felony and the person has been convicted of a new crime in the 10 years prior to the application, or less than 10 years have passed since the later of: release from community custody; release from full and partial confinement; or sentencing; or
the offense is a class C felony and the person has been convicted of a new crime in the five years prior to the application, or less than five years have passed since the later of: release from community custody; release from full and partial confinement; or sentencing.

A person may not have a gross misdemeanor or misdemeanor conviction vacated if:

the person has not completed the conditions of his or her sentence, including payment of legal financial obligations;
the conviction was for one of the select offenses that may not be vacated, including, for example, a violent offense, a sex offense, or a DUI offense;
the person has any criminal charges pending in any state or federal court;
the person has been convicted of a new crime in any state, federal, or tribal court since the date of conviction;
less than three years have passed since the person completed the terms of the sentence, including any financial obligations, or the person has been convicted of a new crime in the three years prior to the application; or
the person does not meet certain requirements pertaining to no-contact orders or protection orders.

Additional restrictions apply to certain types of offenses, including, for example domestic violence offenses. However, a misdemeanor marijuana possession offense is exempted from any restrictions for vacation, provided that the offense was committed when the person was age 21 or older. The person need only have a qualifying possession conviction to apply for a vacation.

Summary of Second Substitute Bill:

Study and Implementation Plan. The Administrative Office of the Courts (AOC) must conduct a study and a pilot program to develop an administrative, court-driven process for streamlining the vacation of criminal convictions based on current statutory eligibility criteria.

The AOC must determine the types of data currently available to assess eligibility and the types of data that should be reported to judicial information systems or other entities to improve the reliability of the pilot program outlined in the bill. The AOC must assess whether any changes to laws, policies, or practices or additional resources are necessary to improve the reliability of the process for the pilot program and for launching a similar program statewide. The AOC must submit a report with findings, recommendations, and an implementation plan to the Governor and Legislature by December 1, 2020.

Process for Pilot Program. The pilot program must commence July 1, 2021, and continue through June 30, 2022, in a single county selected by the AOC. The program must include courts of general and limited jurisdiction.

The pilot program includes a screening process conducted by AOC, and then a final review process conducted by individual sentencing courts. First, the AOC reviews convictions from the participating county for the purpose of determining whether those convictions should be scheduled for administrative vacation hearings. If appropriate and necessary for producing reliable notifications, the AOC may limit the screening process to certain types or classes of convictions or defendants.

The AOC screening process must:

review convictions beginning at the earliest period for which electronic court records are reliable, provided that the review applies to convictions beginning no later than January 1, 2000;
rely upon records available to the AOC and other agencies;
determine whether a defendant is currently incarcerated for a criminal offense, and whether available records indicate that he or she is precluded from qualifying to vacate his or her conviction, which may be based on queries and other procedures developed by the AOC;
notify sentencing courts to schedule an administrative vacation hearing for any defendant where a review of available records does not indicate that the defendant is precluded from qualifying to vacate his or her conviction; and
prioritize potentially qualifying defendants according to criteria established by the AOC so as not to hinder sentencing courts with excessing notifications.

When a sentencing court receives notice from the AOC regarding a potentially qualifying defendant, the court must set an administrative vacation hearing. At the hearing, the court must determine whether to vacate the conviction based on the current statutory eligibility requirements. The defendant is presumed to meet the requirements and the court must vacate the conviction, unless: court records indicate that the defendant does not meet the requirements; or the prosecutor objects on the basis that the defendant does not meet the requirements or that the defendant is currently incarcerated for a criminal offense. If the court vacates a conviction, it is processed in the same manner and has the same effect as provided in current law.

If the court determines the defendant is not currently eligible, but is likely to become eligible in the future, the court may set a subsequent hearing. Otherwise, the court may decline to vacate the conviction without setting a subsequent hearing.

A defendant is not required to appear at an administrative hearing in order for the court to vacate the conviction. Regardless of whether a hearing has previously occurred or is scheduled at a future date, a defendant may still independently apply to the court to vacate a conviction under current statute or seal his or her records under court rule.

Final Report. The AOC must collect information with respect to convictions where notifications were sent to sentencing courts under the pilot program. The AOC must submit to the Governor and Legislature a status update by December 1, 2021, and a final report by December 1, 2022.

Staff Summary of Public Testimony (Public Safety):

(In support) Last year, the Legislature passed The New Hope Act, which expanded eligibility to vacate criminal convictions. Despite the fact that potentially hundreds of thousands of people may qualify, very few people have petitioned the courts. Most people do not know about the process, and even for those who do know, their ability to access the process is limited by resources. Filing a petition can costs thousands of dollars in attorneys' fees. There are limited pro bono attorneys available, and even where someone obtains an attorney's help, the process is messy and slow. Different counties and judges approach it differently. Most of the necessary documents are held by the courts and are inaccessible to the public. This process is simply infeasible for most people.

It is time to take the next step. Other states have adopted "Clean Slate," a policy where convictions are sealed or expunged automatically. However, Washington is unique due to its court system. This bill takes into account the court system and the implementation challenges. It has a long onramp for implementation. This is the right approach for Washington. Beginning in 2022, people who are currently entitled to relief will actually be able to access it. If rehabilitated and reformed persons can get jobs and housing, it is better for everyone. It reduces the burden on taxpayers, and it improves the economy. Simply put, this is good for America.

There are countless examples of persons with prior convictions who have repaid their debt to society and become productive members of their communities. But those persons are still held back by their criminal records. A criminal record can prevent someone from obtaining housing, employment, and professional licensing, even if that person has become a model citizen. There are examples of persons who can obtain a top security clearance with the federal government, but cannot find a landlord to rent them an apartment. A criminal record can be a massive, insurmountable barrier for otherwise good, reformed people.

The bill does not expand eligibility for vacating convictions. This is about providing access to those who already qualify under current law. This is an access-to-justice issue. Vacating a criminal conviction is the most effective way to resolve the collateral consequences of a conviction.

There is a national effort to enact Clean Slate, and Washington has an opportunity to be the gold standard for the nation. Even from a conservative perspective, this is good policy. There is nothing more intrusive than a criminal record. Government is standing in the way of persons who have already paid their debt to society. If America is a great nation, then it should do right by its most vulnerable citizens.

The bill may need some changes to address implementation issues. Some stakeholders would like to see the process even more streamlined and automated.

(Opposed) None.

(Other) The policy is a good idea, but there are likely going to be many implementation issues. Other states that have adopted Clean Slate have unified court systems. Washington does not have a unified court system. The AOC has limited access to local court documents and information. There have been previous efforts to establish a statewide court records system, but it has been very challenging. It is unlikely that this could be implemented statewide on this timeline and with this framework. The Legislature should consider starting with a pilot project in a single county.

Staff Summary of Public Testimony (Appropriations):

(In support) The goal of this project is to streamline the process to allow people with prior criminal records to get the relief to which they are entitled. The automated vacation process provided in this bill has been done successfully in other states.

A criminal record can prevent a person from earning an honest living, accessing safe and affordable housing, and integrating fully into society. Although Washington's economy is strong, job seekers with a criminal record are less likely to get a call back for a job offer and are frequently barred from the job they seek. People who have paid their debt to society in order to remain crime free should not be continually held back due to a criminal conviction on their record. When people turn their lives around, they deserve a second chance.

Streamlining and automating the record vacation process makes sense for defendants and for Washington's finances. This bill will allow more people to contribute to the workforce and will make our communities safer.

(Opposed) None.

(Other) The mechanism that the Administrative Office for the Courts (AOC) will go through for determining which of these cases are eligible for vacation is not fully complete as the AOC does not currently have full access to such records. As a result, this bill will create a hybrid system. The AOC must be provided with enough funding so that they can review and shift through as many cases as they can ahead of time. If the AOC is not able to shift through these cases ahead of time, then that becomes the responsibility of the counties. The sheer volume of these cases will significantly increase costs for local jurisdictions.