Are dismissed NC cases automatically expunged after arrest?

A law that was meant to help North Carolinians clear their criminal records is on hold for the second year in a row.

The Second Chance Law passed in 2020 and went into effect in December 2021 for a short time. Part of the law calls for courts to automatically expunge, or erase, criminal records if prosecutors dismiss a person’s charge.

Now, that law has been paused twice and isn’t expected to go back into effect until 2024.

Lawmakers and attorneys say implementation of the law was paused out of necessity because the system became overwhelmed by the number of cases that needed to be expunged automatically.

Laura Webb is the director of the North Carolina Fair Chance Criminal Justice Project with the North Carolina Justice Center. This group was part of an organization known as the NC Second Chance Alliance that advocated for the passage of the Second Chance Act.

Webb says courts were overwhelmed by the number of expungements and had difficulty notifying agencies, including law enforcement, that must be made aware of each expunction.

NC expungement in courts

Before the Second Chance Law, defendants had to petition the courts to have their dismissed charges expunged. The petition doesn’t require a fee if the expunction is due to a prosecutor’s decision to dismiss the case, or when a person is found not guilty.

“On average there were 15,000 charges a year being expunged through the petition based system,” Webb said. “But in the nine months that automation was running we saw nearly 400,000 charges expunged.”

This was a huge increase in the number of people who were being helped, Webb said, but it came at a price.

“With anything that launches, there were some things that needed to be synced with the system,” Webb said. “We had to make sure that all the agencies that needed to get notice, are getting notice.”

State Sen. Danny Britt — a Republican who represents North Carolina’s 24th district — was outspoken about the need for a change a year ago when the pause was first introduced. The 24th district includes Hoke, Robeson, and Scotland Counties.

Britt said under the automatic expungement system, many courthouses immediately destroyed paper and electronic records about a person’s charge and the expungement, according to reporting from WRAL in 2022. This was a problem because it meant those who had their charges expunged couldn’t prove they were cleared.

The system was designed to allow innocent people to move on with their lives but it was impossible for many to get proof if, for example, an employer requested information, Britt told WRAL.

The Charlotte Observer previously reported on a loophole in the expungement process that enables database companies to retain a person’s criminal record, even after their charges are expunged. Companies often aren’t notified of the change to a person’s record. To have charges removed from a third-party background check site, a person may be asked to provide proof of the expungement.

Britt and other lawmakers propose a system that would retain evidence of an expungement, available if a person whose charges were expunged requests it, according to WRAL.

Webb said she and other members of a working group with the Administrative Office of the Courts have drafted legislation that would solve these hurdles and streamline the process of notifying other agencies.

These changes are incorporated into SB565 which is currently working its way through the General Assembly. Webb said if this bill passes, the Second Chance Act could function as it was intended to and the pause will no longer be needed.

“Everyday we pause automatic expungements and delay folks’ access to that relief is another day that we keep people out of the workforce (and) out of being able to get affordable housing,” Webb said.

Clearing arrest records

Habekah Cannon, an attorney in Charlotte, said she has clients directly negatively impacted by the pause. Cannon assists those seeking expungements with the Council of Elders, a local non-profit that holds quarterly expungement clinics.

Earlier this year, Cannon said, one of her clients had his criminal charges of indecent liberties with a child dismissed after his trial ended in a hung jury.

Without the pause, her client’s charges would have been automatically expunged under the Second Chance Law. Because of the pause, he had to petition the courts to expunge the charges from his record.

No one is willing to hire someone with a charge that serious, Cannon said. Her client was unable to find a job and had to walk dogs for two years since he was first charged in 2021.

“The impact is great, on people’s personal lives, their ability to find jobs, to go to school, to find housing. It still affects them,” Cannon said.

“We shouldn’t continue this paper trail, it does not benefit anyone,” Cannon said.

This story was originally published August 31, 2023, 9:36 AM.

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Kallie Cox covers public safety for The Charlotte Observer. They grew up in Springfield, Illinois and attended school at SIU Carbondale. They reported on police accountability and LGBTQ immigration barriers for the Pulitzer Center on Crisis Reporting. And, they previously worked at The Southern Illinoisan before moving to Charlotte.
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