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Criminal justice reform in NC: Records may be easier to erase, judges to get more sentencing discretion

July 12th, 2019

— A bill that would make it simpler to expunge nonviolent criminal records is headed for a vote on the House floor, while a proposal to give judges more sentencing discretion in drug cases is similarly advancing in the Senate.

Senate Bill 562, called the Second Chance Act, would make it easier for people with nonviolent misdemeanor convictions to have those convictions erased from their publicly available criminal record if they’ve stayed out of trouble with the law for seven years. However, if they’re charged again in the future, prosecutors and law enforcement officers would be able to look back on the expunged charges.

Not long ago, such a proposal would likely have been shunned by conservatives in North Carolina, but no longer. In fact, conservative groups from ALEC to Americans For Prosperity are joining progressive groups like the ACLU and the NAACP in pushing for the bill.

Sponsored by Sens. Danny Britt, R-Robeson, Warren Daniel, R-Burke, and Floyd McKissick, D-Durham, the bill passed unanimously in the Senate in May and won approval in the House Judiciary committee Wednesday.

McKissick said that effort isn’t a partisan issue. Around one in four adults in North Carolina has some type of criminal record, which leads to negative effects on employment rates, educational attainment, workforce availability, housing and poverty.

The state Conference of District Attorneys is also supporting the bill. Ben David, the district attorney for New Hanover and Pender counties, said it could help hundreds of thousands of people and would reduce recidivism by as much as half.

“We need to get people into good-paying jobs and get them into housing. It means higher education, military service. These things become pipe dreams for some people with criminal records,” David said at a news conference Wednesday. “Even nonviolent felony convictions on someone’s record impacts their future earnings by 40 percent over a lifetime.”

Starting in 2020, the bill would also begin automatically removing records of charges for which a person was not convicted.

McKissick said many people don’t realize that, in some cases, just having a charge brought against you creates a criminal record that doesn’t go away even if you’ve done nothing wrong.

“Even when those charges are dismissed, even when you’re found not guilty, that record can follow you the rest of your life,” he said. “You can be haunted by it. It can impact your ability to rent an apartment. It can impact your ability to attend schools and institutions of education. It can impact your ability to get a job and provide for your family. “

Under current law, people in such cases can seek expungement, but it’s a costly and time-consuming legal process, and many of those who could most benefit from it cannot afford an attorney to pursue it. If the bill passes, McKissick says, they won’t need a lawyer.

Lynn Burke, another of the speakers at the news conference, knows what it is to have a record follow you throughout your life.

Burke, a single mother of four, served two years in prison for theft in the 1990s: “I started having to steal food and clothes and things like that.”

After being fired from several jobs because of her criminal record, Burke started her own business, put her kids through school, went to college and law school herself and is now licensed as an attorney in Washington, D.C.

“But not here in North Carolina yet, just because based on my criminal record,” she added.

“You know what, if this law passes, I won’t have to tell anybody anymore about my background,” Burke said emotionally. “I can tell them because I want to, not because I have to – and that’s a big deal.”

More discretion urged in drug sentences

The Senate Judiciary committee approved House Bill 511, dubbed the First Step Act, despite opposition from prosecutors and sheriffs.

The proposal would give judges the flexibility of diverting from the mandatory minimum sentences imposed for some drug trafficking charges if they specifically find that defendants didn’t threaten violence, were simply using the drugs and weren’t selling them, were getting treatment and have taken responsibility for their actions.

As with the expungement bill, support for and opposition to the measure broke along untraditional lines.

Ernie Lee, the district attorney for Duplin, Jones, Onslow and Sampson counties, said an effort to help addicts caught in the opioid crisis has morphed into leniency for high-level drug traffickers. The proposal also is retroactive, he noted, so prosecutors will be buried in an avalanche of closed cases that they will now have to send back through the courts.

The North Carolina Conference of District Attorneys and the North Carolina Sheriffs’ Association both oppose the bill.

Eddie Caldwell, general counsel for the sheriffs’ association, said the proposal “jeopardizes public safety,” adding that the state already has drug courts and can offer deferred prosecution or plea deals as needed to address individual drug cases.

But Tara Callahan of Conservatives for Criminal Justice Reform said some mandatory minimums are based on the weight of drugs seized, not on the evidence of an individual case.

“Our prisons are loaded with folkswho are there because of minor drug offenses,” said Sen. Bob Steinburg, R-Chowan.

“We’re not going to be able to incarcerate ourselves out of this problem,” added Sen. Jim David, R-Macon. “We have to draw people toward treatment.”

Sen. Jerry Tillman, R-Randolph, complained that lawmakers weren’t listening to people on the front lines in the opioid battle, and the proposl needed to be reworked.

“We’re not just willy-nilly removing mandatory minimums,” said Sen. Mujtaba Mohammed, D-Mecklenburg. “A judge will have thoroughly vetted an individual before them.”

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