Statement of U.S. Attorney’s Office for the District of Columbia before the D.C. Council regarding Record Sealing | USAO-DC

Chairman Allen and Members of the Council:

My name is Elana Suttenberg, and I am the Special Counsel for Legislative Affairs at the United States Attorney’s Office for the District of Columbia. I thank you for the opportunity to appear today to share the Office’s views regarding the proposed legislation.

At the outset, I want to express my Office’s commitment to expanded record sealing and the simplification of the record sealing process. We recognize that, in many instances, the most fair and just result in a case is to allow a record to be sealed, so that the person who was arrested or charged is not unduly encumbered by a criminal record.

Consistent with the recognition that, in certain circumstances, the most fair and just result may not be a conviction, USAO offers a variety of diversion programs for defendants in DC Superior Court. The goal of our diversion programs is to maximize public safety, reduce recidivism, and enhance a fair and efficient criminal justice system. Pretrial diversion allows a defendant to receive services and treatment, and to participate in programming that benefits both the defendant and the community.[1] To ensure that more people can benefit from diversion, we also recently expanded pretrial diversion opportunities. For example, last year we expanded access to Mental Health Court to defendants accused of domestic violence offenses. We also expanded access to diversion for first-time defendants accused of certain felony offenses, offering them a pathway to a clean record. And past participation in diversion, whether successful or not, no longer acts as an automatic bar to future participation. Finally, consistent with our commitment to expanded record sealing, we plan to implement a policy whereby, when a first-time arrestee successfully completes diversion in an eligible case, USAO agrees to waive the typical waiting period so that a defendant can immediately move to seal the case after successfully completing diversion.

As to the bills under consideration today, there are several questions regarding record sealing that we will address. First, USAO will address the question of which offenses that do not result in convictions should be eligible for sealing, and which offenses that do result in convictions should be eligible for sealing. Second, we will address the question of what type of sealing is appropriate. Third, we will address the question of whether sealing should be automatic or by motion.

First, we examine the question of which offenses that do not result in convictions should be eligible for sealing, and which offenses that do result in convictions should be eligible for sealing. We support expanding sealing for offenses that do not result in a conviction in a manner similar to the approach of Mayor Bowser’s proposal in the Second Chance Amendment Act of 2021, introduced as Bill 24-0063.[2] Where the offense constituted a dangerous crime under D.C. Code § 23-1331(3), a crime of violence under D.C. Code § 23-1331(4), or where the victim in the case was a minor—that is, a person under 18 years old—we support allowing a person to seal that arrest or charge, but believe that a motion to seal, versus automatic sealing, should be required. It is important to include offenses that involve a minor in this category because, as especially vulnerable victims for whom the community owes a heightened duty, the community has a particular interest in being aware of these offenses. Where the offense did not constitute a dangerous crime under D.C. Code § 23-1331(3) or a crime of violence under D.C. Code § 23-1331(4), or where the victim was not a minor, and where the arrest or charge terminates without conviction after this legislation takes effect, we support automatic sealing; where the arrest or charge terminated without conviction before this legislation took effect, we support allowing a person to move to seal that arrest or charge.

By contrast, there should be a more limited category of offenses eligible for sealing where there is a conviction, which recognizes that the community has a greater interest in access to conviction records than non-conviction records.[3] Conviction records can be used to conduct background checks on individuals looking to purchase guns, work with children, or become employed in a position involving public trust. If a person were ineligible to obtain a gun as a result of a conviction, if a person were convicted of an offense involving a minor victim, if a person were convicted of sexual abuse, or if a person were convicted of an intrafamily offense, that conviction should not be eligible for sealing. Further, many of the offenses that are listed as “ineligible misdemeanors”[4] that are not eligible for sealing under current law relate to the safety of the community and should be available to the community. For example, the current list of “ineligible misdemeanors” that are not eligible for sealing includes misdemeanor sexual abuse, intrafamily offenses, misdemeanor offenses for which sex offender registration is required, failure to report child abuse, criminal abuse of a vulnerable adult, and other offenses. It may be appropriate to reevaluate some of the offenses that are deemed “ineligible misdemeanors” under current law, but we should recognize that many of the offenses on that list were included because they relate to a vulnerable population or relate to veracity. We therefore support sealing for all D.C. Code misdemeanors where there is a conviction, except: (1) many of the offenses included in the list of “ineligible misdemeanors” under current law, including sexual offenses and intrafamily offenses; (2) an offense where the victim in the case was a minor—that is, a person under 18 years old; and (3) an offense that would render a person ineligible to purchase a handgun under D.C. Code § 7-2502.03, which includes all felonies, certain weapons offenses, and certain misdemeanors committed within 5 years.

At the same time, for both convictions and non-convictions, we support eliminating the “disqualifying arrest or conviction” requirement that, under current law, precludes an individual from moving to seal an otherwise eligible offense if they have a subsequent “disqualifying arrest or conviction.” Removing this requirement will simplify and streamline the record sealing process to make it easier for a person to move to seal their record, and easier for the courts and attorneys to process these cases. Where a motion to seal is filed, it would still be appropriate for a court to consider the defendant’s criminal history—including subsequent arrests and convictions—as part of an “interests of justice” analysis, but those other arrests and convictions should not be an automatic bar to eligibility for sealing.

Second, we consider the question of what type of sealing is appropriate. We support record sealing that would allow a person’s publicly available criminal record to be limited. We do not, however, support expungement (as contrasted with sealing) or other limitations on sealing that would result in law enforcement being unable to access records. From a public access perspective, there is no difference between sealing and expungement—that is, a person with a sealed arrest or charge can answer questions to potential employers or others in the community with the same answer, and truthfully state that they have not been arrested, charged, or convicted. But sealed records, as opposed to expunged records, would remain available to law enforcement, including prosecutors, and other appropriate actors. From a law enforcement perspective, it is appropriate for prosecutors to rely on certain non-convictions—even if sealed—when making a charging decision. For example, in a domestic violence case, there may be multiple “no-papered” misdemeanor arrests against a defendant involving the same victim, even where the evidence could have supported the government filing charges. That abuse could escalate into more serious abuse, culminating in serious injury to the victim. When assessing what charges are appropriate, the previous “no-papered” arrests can be highly relevant to assessing a pattern and history of abuse. Further, there must be a mechanism for USAO to continue to be able to review a “no-papered” arrest, even if it is sealed. For example, USAO may decline to charge a case at the time of arrest, but continue to investigate the case through the grand jury and, if appropriate, file charges at a later time. USAO may also decline to charge a case at the time of arrest due to insufficient evidence, but file charges at a later point at any time before the statute of limitations expires if law enforcement later becomes aware of additional evidence or witnesses that would support a prosecution. In addition, we should consider what access victims should have to sealed records in cases in which they are victims, and what information prosecutors and law enforcement should be permitted to disclose to victims when a record is sealed.

Expungement, by contrast, would have adverse impacts that are not immediately apparent.[5] This would include an impact on USAO’s ability to locate and disclose potentially relevant Brady material—that is, material that is favorable to a defendant.[6] Sealing would help alleviate those Brady concerns. Closed files, including those that do not result in a conviction, sometimes contain Brady information, and USAO obtains that information from closed files. If those files were expunged, the government would not be able to access that material either for its own investigatory purposes or to disclose to the defense.[7] This would be a detriment to the defense at trial and to the government’s need to conduct a comprehensive investigation.

Further, for any sealed records, law enforcement needs to be able to access those records via electronic records keeping. Given that USAO processes approximately 20,000 arrests per year, we rely on our electronic records system to search our records. We need to ensure that cases that are sealed can continue to be investigated by the grand jury, and that the sealing provisions do not prohibit prosecutors from sharing sealed information with law enforcement and the grand jury. We need to ensure that these records are searchable through law enforcement databases and are available to law enforcement—including prosecutors—and community supervision agencies, such as the Pretrial Services Agency and the Court Services and Offender Supervision Agency. These community supervision agencies write reports at intake and before sentencing that, among other things, compile a defendant’s criminal history for the use of attorneys and the court to allow the court to conduct a comprehensive review of the defendant’s background and the circumstances of the case. Past convictions can be relevant to calculation of criminal history score under the DC Voluntary Sentencing Guidelines. When a defendant with a sealed record engages in subsequent criminal activity, previously sealed records should be available for use by the courts when making detention decisions and ascertaining an appropriate sentence, in a manner similar to how conviction set-asides are treated under the Youth Rehabilitation Act,[8] how juvenile case records are treated, and how certain sealed records are treated under current law.[9] Considering a defendant’s criminal history in its totality allows consideration of a defendant’s subsequent criminal activity in its appropriate context, and allows judges to consider all relevant facts in their decisions. Finally, we believe that it is important for the Council to ensure that any sealing legislation has a mechanism that allows a court to unseal a previously sealed record if, for example, a case that was originally “no-papered” is later charged, or if USAO needs to provide sealed records to the defense in a case.

Third, we address the question of whether sealing should be automatic or by motion. As discussed above, in a manner similar to the proposal in the Second Chance Amendment Act, we support the automatic sealing of non-convictions where the offense was not a crime of violence, dangerous crime, or crime that involved a minor victim, where the arrest or charge terminates without conviction after this legislation takes effect. Automatic sealing would mean that, absent an objection from the prosecutor, the record would be automatically sealed. Where the arrest or charge terminates without conviction before this legislation takes effect, however, sealing by motion is appropriate. There are two primary reasons for this distinction. The first reason is to give full weight to crime victims and crime victim rights, and the relationship between this sealing legislation and the Crime Victims’ Rights Act, which, among other things, provides that a victim has a right to be present at all court proceedings related to the offense, including record-sealing hearings.[10] Automatic retroactive sealing would make compliance with this provision virtually impossible, given the sheer volume of cases that would be eligible for sealing. The second reason is a logistical reality. Although automatic retroactive sealing may be well-intentioned, there would be hundreds of thousands of arrests and other non-convictions to process, which would involve the coordination of multiple agencies and the courts to implement. As to non-convictions where the offense was a crime of violence, dangerous crime, or crime that involved a minor victim, and as to convictions, sealing by motion remains appropriate. This allows a court to fully review each case to assess the offense and whether sealing is appropriate. When there is a motion to seal, we ask the Council to include an order for the government to respond.[11] This facilitates our processing of these cases, because absent a court order, we often do not become aware when a motion to seal is filed. It would also streamline and expedite the process if individuals looking to seal their records moved to seal all eligible offenses at the same time.

Finally, although the policy objectives of this legislation are laudable, we anticipate that the practical and logistical realities of both drafting and implementing this legislation will be complex, and many partners will need to be engaged to maximize efficiencies and streamline the process. We stand ready to work with the Council and our partners both to develop and successfully implement this legislation.

* * *

The U.S. Attorney’s Office for the District of Columbia commends the Council and the Mayor for their commitment to streamlining and enhancing record sealing in the District, and looks forward to continuing to work with the Council on this important issue.

 


[1] Although diversion options are varied and tailored to meet the needs of each case, victim, and defendant, options for diversion may include: completing an anger management class or a domestic violence intervention program; receiving mental health, alcohol, or drug treatment; staying away from and having no contact with a victim or a location; and/or completing community service. If a defendant successfully completes the diversion requirements, the case is dismissed, and the defendant does not have a conviction in that case. As appropriate, we also divert cases to the Superior Court Mental Health Community Court (Mental Health Court) or the Superior Court Drug Intervention Program (Drug Court). These voluntary treatment courts connect defendants with serious mental health issues or drug addictions to qualified treatment providers, with the goal of treating these individuals and keeping them out of the criminal justice system. More information about USAO’s diversion programs is available at https://www.justice.gov/usao-dc/diversion-programs.

[4] See D.C. Code § 16-801(9).

[5] In addition, federal agencies have certain recordkeeping requirements that would prohibit them from destroying or disposing of their records in certain circumstances.

[6] See Brady v. Maryland, 373 U.S. 83 (1963).

[7] Exculpatory material can be present even in relatively low-level misdemeanor offenses. For example, if a case were originally investigated as a felony offense, a witness may have testified in the grand jury and perjured himself or herself. If a case went to trial as a misdemeanor offense, a witness may have perjured himself or herself at trial, or, regardless of whether it went to trial, a witness may have made inconsistent statements to police or prosecutors that could be exculpatory. The government should be able to access those prior statements to assess a witness’s credibility and to make disclosures to the defense. Even in a case of actual innocence, although the person who is found to be actually innocent should be entitled to seal their case records, law enforcement needs to be able to keep those case records. If, for example, a person were found to be actually innocent due to misidentification, prosecutors and law enforcement would need access to those case records in the event that the person who actually committed the offense is correctly identified and prosecuted. Moreover, if, for example, a person is found to be actually innocent due to a witness’s false or inconsistent statements originally incriminating that person, law enforcement should be aware of that witness’s false or inconsistent statements when investigating any subsequent case involving the same witness.

[8] See D.C. Code § 24-906(f).

[9] See D.C. Code § 16-806(b).

[10] See D.C. Code § 23-1901(b)(4).

[11] See, e.g., D.C. Code § 16-804(d), which provides: “The prosecutor shall not be required to respond to the motion unless ordered to do so by the Court….”

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