Cooper approves bill that preserves, updates automatic expunction law

Gov. Roy Cooper signed legislation that will preserve and update the state's automatic expunction law, which is deigned to aid people with certain criminal records in overcoming barriers to employment and housing. (Photo: Clayton Henkel)

A debate over a state law that governs the expunction of criminal records was resolved quickly and quietly before state lawmakers left town in late June, allowing automatic expunctions to resume on July 1 for certain “dismissed” or “not guilty” verdicts.

On Monday, Gov. Roy Cooper signed a measure (Senate Bill 565) that makes revisions to the statute, but the bill no longer contained a provision that had been included that would have repealed the law.

“At first, the purpose of Senate Bill 565 was to restart automatic expungement with some needed fixes,” said Laura Webb, Director of the North Carolina Justice Center’s Fair Chance project. “And then what happened … was the bill basically was gutted and rewritten to repeal automatic expungement.”

“This sparked a significant effort, with many people coming forward to fight the repeal,” said Webb.

The story of the expunction law has been a case of good intentions running up against real world logistical challenges.

In December 2021, North Carolina became the 14th state to automatically expunge criminal charges resulting in acquittals or dismissals, removing the need for individuals to file petitions to delete these charges from their records.

The changes were part of a broader ‘second chance’ movement in North Carolina and nationwide that seeks to allow people with certain criminal records to overcome barriers to employment and housing.

But nine months after the law was enacted, in August 2022, lawmakers suspended it temporarily after the court system became overwhelmed by the volume of records it was being required to expunge. The legislature directed the courts to create a group to recommend fixes for the problem which included handling and retaining records confidentially.

The resumption of the law, delayed twice, was due to take effect this July 1. But in May, some lawmakers attempted to repeal automatic expunction entirely, sparking the backlash from advocates.

In late June, a conference committee report for the legislation emerged that discarded the repeal and both houses unanimously approved the revised version on June 26.

“Without automation, most people who are eligible to get their charges expunged won’t do that just because they don’t know how to, and so the backlog of eligible cases just kind of illustrates that,” said Webb.

Advocates say several factors contribute to this, including the complexity of navigating the criminal process, lack of awareness of the program, complicated eligibility criteria, and financial barriers.

Before automatic expunctions began in December 2021, the court system processed a limited number of expunction requests annually through a petition process. For example, the North Carolina Administrative Office of the Courts processed 45,455 expunctions in fiscal years 2018-19, 2019-20, and 2020-21, according to the AOC’s 2023 Expunctions Report. But in the nine months the automatic expunction provision was operational, more than 400,000 charges were expunged.

“People were eligible for expungement over the last two years, but they didn’t get the expungement for one reason or the other. And so that’s why automation is so necessary, because if automation was running those million something cases would have been expunged through the automatic process,” said Webb.

The state’s transition to “eCourts” has made it easier for the court system to manage and store the massive number of cases. Senate Bill 565 also makes clear who can access expunged records. Only prosecutors, the individual whose record was expunged, or their attorney can access these records.

Currently, thanks in large part to the two-year suspension, there are more than 1 million cases eligible for expunction — a backlog that is expected to take as much as a year for the automatic process to work through. Individuals can still file a formal request to have their records expunged, but the process remains complex and difficult to negotiate for many individuals.

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