Washington State

House of Representatives

Office of Program Research

BILL

ANALYSIS

Judiciary Committee

Title: An act relating to vacation of records of conviction for pre-sentencing reform act felony offenses.

Brief Description: Changing provisions relating to vacation of records of conviction for pre-sentencing reform act felony offenses.

Sponsors: Representatives Lovick, Cairnes, Rockefeller, Campbell, Moeller, Clibborn, Cooper, Flannigan, Simpson, Kagi, Pettigrew and Chase.

Under the Sentencing Reform Act (SRA) an offender may be able to have his or her record of a felony conviction vacated after a certain amount of time has passed. Vacation of the record has the effect of removing "all penalties and disabilities" that resulted from the offense. It also prevents the offense from being used as "criminal history" for purposes of establishing the offender score in sentencing for a subsequent offense under the SRA. Finally, vacation of the record allows the offender to respond on an employment application that he or she has never been convicted of that crime. Once a felony record has been vacated under the SRA and is no longer a part of criminal history, the state patrol and other law enforcement agencies may not disseminate the record except to other law enforcement agencies.

However, the vacation of a record of conviction does not prevent that conviction from being used in a later criminal prosecution to impeach a witness or to establish an element of a crime. For instance, it is still possible to use a vacated prior conviction in a prosecution for a crime that becomes a more serious offense on a second or subsequent conviction.

Vacation of a felony record is at the discretion of a judge, with the following limitations:

• No vacation is possible for any class A felony, any violent offense, or any "crime against persons." (These categories cover many crimes, including all murders, all felony sex offenses, all assaults, and many other crimes that are covered by the Washington State Patrol's background check authority regarding prospective employees who may have contact with children.)

• No vacation is possible if the offender has been convicted of any other crime since completion of his or her sentence for the offense for which vacation is being sought.

• At least 10 years must have passed since completion of the sentence if the offense was a class B felony.

• At least five years must have passed since completion of the sentence if the offense was a class C felony.

These vacation of record provisions apply only to offenders sentenced under the SRA. The SRA applies only to felonies committed on or after July 1, 1984.

For felonies committed before the July 1, 1984, there are no statutory provisions expressly authorizing the vacation of records.

However, for pre-SRA felons who have successfully completed parole after a prison sentence, the Indeterminate Sentence Review Board (ISRB) may issue a certificate of discharge if the ISRB determines that the person's final release "is not incompatible with the best interests of society and the welfare of the paroled individual." A certificate of discharge has the effect of "restoring all civil rights." (RCW 9.96.050)

Some pre-SRA felons were not sentenced to prison, but instead served suspended sentences and a period of probation. If a felon successfully completed the period of probation he or she could be "released from all penalties and disabilities" that resulted from conviction. However, a release does not prevent the record of conviction from being used in a subsequent prosecution. An application for release must be made "prior to the expiration of the maximum period of punishment for the offense." (RCW 9.95.210 and 9.95.240) Under another provision, a pre-SRA felon who received a suspended sentence may apply for "restoration of his civil rights." (RCW 9.92.066)

Convictions for certain crimes do not qualify for this restoration of rights. (RCW 9.92.060) These crimes are:

No statute authorizes pre-SRA felons to respond to an employment application by saying they have never been convicted of an offense. However, the state Supreme Court has recently held that the pre-SRA release from penalties provision is the functional equivalent of the SRA law with respect to vacations of records. The court held that a pre-SRA felon who has been released from all penalties and disabilities following successful completion of probation may respond on an employment application that he or she has not been convicted of the offense. The court also held that the effect of such a release is to direct criminal justice agencies not to release the record of conviction to prospective employers. (State v. Breazeale)

Two restrictions on the current release from disabilities provisions for pre-SRA felons are removed. A felon need no longer apply for a release prior to the expiration of the maximum term of sentence, and the statement that a release does not prohibit use of the conviction in a subsequent prosecution is eliminated.

In addition to seeking a release from disabilities or a restoration of civil rights under the existing law, a pre-SRA felon who has successfully completed a suspended sentence and probation may apply for a vacation of the record of his or her conviction. The application for and granting of the vacation are subject to the same conditions and restrictions as apply to SRA felony convictions.

The effect of a vacation is also the same as for an SRA felony, including allowing the offender to respond on an employment application that he or she has not been convicted of the crime.

The same directions are given to law enforcement agencies regarding the treatment of vacated records as apply in the case of SRA vacations.

Effective Date: The bill takes effect ninety days after adjournment of session in which bill is passed.