On a bitterly cold Saturday morning in November, Denitra stood outside of the Brentwood Recreation Center, eating toast. She was feeling hopeful. A small crowd had gathered on the sidewalk in front of the center on 14th Street NE, waiting for the doors to open. Meanwhile, the legal services nonprofit Rising for Justice was setting up inside. In half an hour, the rec center would transform into a makeshift “expungement clinic,” as dozens of lawyers and law students spent the day poring over paperwork, trying to help people navigate the labyrinthine process of sealing a criminal record in D.C. And if everything went as she hoped, Denitra would finally be able to move on from what happened in 2012.
Seven-and-a-half years ago, Denitra was in a bad situation. She was using more drugs than she wanted to be using, and one day, she was out shopping with a friend when her friend decided to pocket a couple things without paying for them. Then, as the pair was leaving the store, a security guard stopped them—and her friend booked it, leaving Denitra behind to deal with the now-furious guard. “We exchanged words,” she remembers. “I probably cursed him out. Then he arrested me, and said I assaulted him.” When she heard the charge, her heart sank: She was being prosecuted for assault on a police officer.
She swears she never touched the man. “But I didn’t have money,” she says. “I couldn’t fight it.” And so, Denitra made a decision she’s regretted ever since. When the prosecution offered her a plea deal—no jail time, just a few months probation—she took it, and pled guilty.
Probation was relatively easy for her. The problem was what came after it. “That was my only charge,” she explains, “and I haven’t gotten into any trouble since.” However, that hasn’t stopped prospective employers from throwing her applications in the wastebasket. Ever since 2012, she’s been stuck doing temp work. “When [employers] see what happened, they don’t believe me,” Denitra emphasizes. “They just look at the charge. And assault on a police officer looks terrible.”
Standing outside the Recreation Center, she explained that if she manages to get her record sealed, she hopes she’ll be able to finally get full-time work again—ideally at one of the hotels where she used to man the phones as an operator. “I don’t do drugs anymore,” she says. “I’ve changed my life around. I just want a chance. Just a chance.”
She didn’t get one.
***
“A criminal record is a modern-day scarlet letter,” says Gwendolyn Washington, a former public defender and director of pro bono at Rising for Justice. “It can be devastating in an economy where jobs are tight. Where affordable housing is tight.”
Criminal records include convictions and non-convictions alike: So even if a jury found someone innocent, their record can prevent them from getting work, and keep them out of good housing. It can damage people’s credit scores; it can prevent them from chaperoning their children’s field trips. Washington says she once worked with an elderly Vietnam veteran who came home with PTSD and an addiction problem, accruing a couple drug convictions because of it. “He couldn’t get into a nursing home. They didn’t want him because of his criminal convictions,” she explains. Unable to get proper housing, he died in a homeless shelter.
“We’re one of the only countries that continues to punish people long after they’ve served their sentence,” says Rafi Crockett, the D.C. organizer for National Expungement Week 2019. “Our society wants to punish people, and wants to punish them in perpetuity.”
Even in America, though, D.C. is something of an outlier. The District is home to tens of thousands of people who have a criminal record out there for anyone to see, and it has one of the most restrictive record-sealing processes in the country. In 2017, an Urban Institute study found that roughly one in seven Washingtonians has a publicly available criminal record from the past 10 years. And while all of those people could have trouble finding work because of their record, they weren’t all guilty: Only half had been convicted of a crime.
The burden of this criminal record system falls primarily on people of color. According to the DC Sentencing Commission, last year, 96 percent of people sentenced in D.C. were black. “It’s a system that, over the last several decades, has disproportionately impacted communities of color,” says Ward 5 Councilmember Kenyan McDuffie. “Over one in three African American adults have a criminal record. It’s something that legislators across the country have to reckon with.”
McDuffie is one of several Councilmembers currently working to overhaul the city’s record-sealing process. When it comes to criminal justice reform, he says, “the reality is this is where the rubber meets the road. If we want to turn back the failed policies of the last several decades, we have to address people that are still bearing the scars of these policies.”
In the last few years, scores of legislators across the country have come to a similar realization, propelling a reform movement that now seems all but inevitable. The Collateral Consequences Resource Center (CCRC) reports that in just the first nine months of 2019, 42 states passed a “total of 114 laws restoring rights and status” to people with criminal records. Pennsylvania has helped lead the charge, passing a law last year to automatically seal 30 million records. And the movement has also touched down in Donald Trump strongholds, like Mississippi, Missouri, and Indiana (where then-governor Mike Pence signed one of the most robust expungement laws in the country). All three of those states have more progressive statutes than D.C.
Compared to other jurisdictions, D.C. stands out both for the complexity of its process, and for the relatively narrow range of records its deems eligible for sealing.
What makes the District most anomalous, though, is how it treats people who were never convicted at all. “Even in cases where the police made a mistake, and realize that at the station house and let you go, that’s not sealed and it can’t be for two years,” Washington explains. “And people lose their jobs for that.”
When it comes to sealing non-convictions, “the clear trend … is what’s happening in New York, Colorado, South Carolina, Missouri, Illinois, a number of other states,” says Margaret Love, CCRC’s executive director. “If you’re acquitted or your charges are dismissed, you get relief right there in the courtroom at the conclusion of the case. New York has been doing it like this for decades.”
By contrast, in D.C., if someone’s arrested but not convicted, they have to wait at least two to four years (depending on what the crime was); and if that’s not the only arrest they ever had, two years can easily become 10.
Strangest of all, once someone’s eligible, they have to go through the exact same laborious process they’d go through if they had been convicted, working to convince a judge that they deserve to have their record sealed. Love’s group has researched non-conviction statutes in all 50 states, and she says D.C. is the only place that treats non-convictions just like convictions. “That just seems utterly unfair to me,” she says.
As a result, people’s lives can be completely upended by charges that everyone—even the prosecution—agrees they absolutely did not do.
About 15 years ago, Nicole was assaulted in her home by a roommate high on PCP. Then, the roommate turned to Nicole’s girlfriend, grabbed the grill off their stove, and hit her girlfriend over the head with it. Terrified, bleeding out of her face, Nicole’s partner took a kitchen knife and stabbed him.
The police showed up and arrested “everyone in the house”—charging them all with assault with intent to kill.
Of course, they later dropped Nicole’s charges. But the damage was done. More than a decade later, the arrest still regularly gets her turned down from jobs. “When you look at my record, guess what you see?” she explains. “Assault with intent to kill… Employers are like, ‘She did what?’”
Multiple people City Paper spoke with—including Nicole—had looked into sealing their record before, but either didn’t pursue it because an attorney was asking for thousands of dollars, or did pursue it without a lawyer and were ultimately rejected. “I tell my clients, this is not like other places where you go in and come back five minutes later and you’re squeaky clean,” Washington says.
When attempting to seal a record, the first step is determining whether that record is eligible. For example, if someone was convicted of a less serious misdemeanor, they become eligible to seal it eight years after they complete their sentence. But then it gets more complicated: Every time someone is arrested, it affects the eligibility of all their other records, in a maze of complex statutes.
Then, if someone is eligible, they must gather up all of their records before they can proceed. There’s no central repository, so this means asking Superior Court, the police department, and so on. “A lot of our clients don’t remember all their records because we’re talking about 15 years ago, and maybe you got arrested four times that year because you matched a description,” says Sterling Howard, director of development and communications at Rising for Justice. “Half the time, you’re being criminalized for being black.”
“It is difficult and sometimes costly to get all of the records you need,” explains Maya Sheppard, supervising attorney at the Neighborhood Legal Services Program. “Which keeps a lot of people from doing it.”
If someone manages to get all their records, they then file a motion with the court, trying to convince a judge they’ve changed since they were arrested and deserve a second chance. Attorneys tell City Paper that once a motion is filed, the process takes six months at minimum, and can last over a year. “There are many places [motions] can fail just on a technicality,” Sheppard explains, such as “if you didn’t include all the records you need to include.” Multiple lawyers tell City Paper they’ve had motions fail simply because when their client asked the Metropolitan Police Department for all their records, the police made a mistake—leaving out a record or two, thereby spelling doom for the case.
“It’s a huge logic puzzle,” Washington says. Even with a lawyer, she explains, the process is extremely cumbersome. And without one? “It’s impossible.”
That said, if all the pieces are in place—if someone’s eligible for sealing, and they have an experienced attorney—the entire burdensome process is little more than a formality. So long as someone is eligible, Rising for Justice estimates their clients are successful 98 to 99 percent of the time. “I think that underscores the need for automatic and robust expungement laws,” Howard says. “If 99 percent of people are successful, it should be automatic.”
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As states update their record sealing statutes, the status quo is shifting in an additional way. “Background checks go back forever now, and they didn’t always do that,” Sheppard says. “So these far-reaching background checks affect job-seekers who might be far into their careers. Who didn’t have to deal with this before.”
One woman City Paper spoke to had a single conviction that’s been causing her strife: Back in 1989, she says, “an officer asked me where he could buy drugs, and I pointed and said, ‘Over there.’” Police didn’t find any money or drugs on her—she says she had absolutely no connection to the dealers—but she was convicted of felony distribution of cocaine, and served seven-and-a-half years in prison.
She’s completely rebuilt her life in the past 30 years, and has worked the same, steady job since 2011. This year, though, she made a decision that could put all that progress in jeopardy: She asked for a promotion. “I applied to change positions within the company, and they did a background check,” she explains. “And now they want to adverse the hiring. Meaning they want to unhire me.” She started trying to get her record sealed, hoping to save her job. However, she isn’t eligible. Unlike Mississippi, only one felony in D.C.— failure to appear in court—is ever eligible for sealing. So, under the current law, her conviction will be around forever.
(Some protections exist in D.C. for people with these sorts of records. In 2014, the D.C. Council passed a “Ban the Box” law that prohibits many employers from asking about or looking at applicants’ criminal histories until they give them a conditional offer. Nevertheless, multiple employment attorneys tell City Paper this doesn’t eliminate the problem: There are massive employers it doesn’t apply to, and besides, plenty of businesses don’t follow the law.)
In D.C. today, four bills under Council review could drastically reduce the number of years someone must wait before they can seal a record, and increase the number of felonies that are eligible. (As written, none of them would make crimes like murder eligible for sealing). At-Large Councilmember David Grosso introduced a comprehensive reform bill in January—it’s been widely supported, with seven other Councilmembers (McDuffie, Trayon White, Robert White, Charles Allen, Anita Bonds, Vince Gray, and Brianne Nadeau) either co-introducing or co-sponsoring. That same month, Mayor Muriel Bowser introduced a bill of her own. Trayon White and Vince Gray added a third bill in March, then in July, McDuffie introduced bill number four.
Grosso and McDuffie’s bills are the most expansive, reducing the time before someone’s eligible, increasing the number of eligible felonies, and making it so that eventually, both non-convictions and some convictions get sealed automatically. “It just seems like a no-brainer that if you were arrested and weren’t convicted, that shouldn’t follow you around for the rest of your life,” Grosso says.
Three of the bills—all except for McDuffie’s—were already introduced in 2017, although they didn’t get past an initial hearing then. However, Councilmember Allen, chair of the Committee on the Judiciary and Public Safety, says he cares deeply about these reforms, which he also sees as critical for reducing recidivism. “It’s a massive undertaking … We’ve been working on it for the past year,” he says. “We’re going to take the time to get it right. But it’s at the front of our agenda.”
If the Council passes some version of these reforms, it could open doors for tens of thousands of District residents. “Many of the people that call me are despondent,” Washington emphasizes. “It’s been 10 years. They’ve been in [addiction] treatment. They’ve completed programs. And they can’t get a job because they have a conviction on their record … There should be a way back into society. People deserve a second chance.”
Right now, that can be hard to come by. After three hours at the expungement clinic, Denitra left with bad news. “I was hoping this would help, but they told me they couldn’t do anything for me until 2022,” she explains. “I thought it’d been seven-and-a-half years, so I was good.”
“That’s why a lot of people do bad stuff,” she thinks. “Because you can’t get a job, and you have to put food on the table.”
As for her own case, “I guess I’ll just have to wait,” she says, “and hope for a job that doesn’t look at it.”