the “real” amnesty: expungement & sealing laws are out of sync with basic civil rights
MT’s** story tells the tale of laws that fall short (** name has been changed for confidentiality purposes)…
This is the story of MT, who appeared the District of Columbia Superior Court in 1992 on a low-level felony drug matter. MT plead guilty and was sentenced to serve a period of 15 months incarceration. Prior to the disposition of that case, MT had a series of smaller contacts with that court, many of which were dismissed nolle prosequi (without prosecution).
Thirty years after these contacts with the DC courts, MT leads a productive, law-abiding life and has not had any subsequent contact with the criminal justice system. In 2004 he relocated to Atlanta, Georgia, and became a homeowner, as well as the owner of multiple businesses, including a restaurant, print shop, and marketing and promotions company. MT seeks to be a role model to his two daughters, as well as a devoted mentor to young entrepreneurs of color, and an active participant in the civic and democratic process. In 2008 and 2012, he helped support the election and re-election of President Barack Obama through community organizing. In 2017, he also worked passionately to help elect Keisha Lance Bottoms as Mayor of Atlanta.
MT has a significant interest in sealing his decades-old criminal case records and fully restoring his rights. As one can imagine, being a person in his position of having to explain dated arrests and convictions that occurred over three decades ago, is a humiliating and frustrating experience. Since 2004, MT had been fully engaged in his career and entrepreneurial endeavors. The existence of a criminal record, particularly one that includes a dated felony offense, severely hampers MT’s ability to avail himself of a spectrum of right, including that of receiving federal small business loans, as well as his rights under the 2nd amendment. To that end, in 2018, MT began to explore what his options were under current D.C. law to petition the court to seal his prior records of arrest and conviction (to the extent he was eligible for relief).
In his pursuit, Mr. Taylor discovered National Expungement Works (www.newxnow.com), a year-round advocacy project that is driven by a dedicated group of grassroots community organizers and attorneys who execute coordinated criminal record relief clinics in cities across the U.S. MT encountered N.E.W. at its first ever D.C. event in September of 2018, and henceforth engaged MIZE Counsel, LLC. MT began the process of sorting out his prior criminal record and discovered that he is eligible to seal the records of everyarrest or contact he has had with the D.C. criminal justice system, except the aforementioned felony matter. In February of 2020, a motion was filed on MT’s behalf, requesting that the D.C. Superior Court issue an order to seal all records of MT’s arrests and convictions for 3 misdemeanor offenses from 1989, and a series of arrest records from 1984 to 1991 that terminated nolle prosequi. These motions were eventually granted in part. The government conceded on sealing some of those case records and objected on others on the grounds that the 1992 felony created ineligibility under the law (technically correct). Thus the court granted some, and denied the others.
MT remains burdened by the existence of his 1992 felony drug conviction. As currently written, the D.C. Criminal Records Sealing Act of 2006 (D.C. Code, §§ 16-801et seq.) does not contemplate relief for any felony offenses that result in conviction. While the law does offer relief for many who have had minor contacts with the court, and even those who have been convicted of serious misdemeanor offenses (such as DUI and simple assault), it does not go far enough to assist someone in MT’s position. MT was convicted of a felony drug offense in a different time and era in our criminal justice system, particularly in a city like Washington, D.C. where so many people of color were impacted by laws involving cocaine and crack derivative. Mr. Taylor’s case involved a single gram of cocaine, and he served a lengthy period of incarceration. More than 30 years later, MT continues to pay his debt to society.
There are very few avenues for MT to pursue final relief beyond what exists under DC law today. Given the limitations of the DC Records Sealing Act, someone in MT’s position would need the U.S. Attorney’s Office for the District of Columbia (USAO) to agree to reclassifying his previous convictions as misdemeanors. This reclassification would bring MT’s past convictions in line with current statutes, which treat his offenses very differently than they were treated in 1992. Without agreement from the USAO, MT’s criminal record remains ineligible for sealing as the current law does not contemplate such a change. The difficult and necessary step would be to move the court to reopen under DC Criminal Procedure rules, and then to get the USAO to agree to modify. This is actually common in gun rights restoration cases across the country, but requires the government to agree to such a request.
The only other remaining avenue would be that the DC council agrees to change the law itself. While there are currently some proposed changes to the DC Criminal Records Act that does include some additional, discretionary relief for felony cases, these proposed improvements are not slated to be implemented until 2025 at the soonest.
MT’s story is demonstrative of the current dysfunctionality of criminal record sealing and expungement relief as it stands in DC, and across the country. At bottom, millions of people are disenfranchised by the existence of a dated criminal record, which demands a massive forfeiture of their civil rights, and expungement and sealing laws do not go far enough to truly offer a “clean slate.”
MT’s case is both unique and representative of so many necessary criminal justice reforms. If MT can successfully achieve restoration of his civil rights in their entirety, that success can demonstrate how critical expungement and sealing mechanisms are to improving civic participation across the country.