New Virginia Expungement Law Would Allow For Removal of Convictions

The Virginia General Assembly enters a special session on August 18 to debate COVID-19 issues and continue “criminal justice reform” efforts.

Among the bills introduced for the special session is one that would allow more people to obtain expungement of a criminal conviction.

SB 5006 would allow a person to petition for expungement of a conviction for any misdemeanor and certain felonies if that person was granted a simple pardon for the crime. A simple pardon means “official forgiveness” even if the person is not innocent of the crime.

Under current law, convictions generally cannot be expunged. The only exception is if a person receives an absolute pardon for a crime he/she did not commit. An absolute pardon is reserved for people who can show they were actually innocent of a crime for which they were convicted, something that is very difficult to do. One may petition for an absolute pardon only if they pled Not Guilty throughout the judicial process and exhausted all forms of judicial appeals and other remedies.

To get a simple pardon, one must file with the Secretary of the Commonwealth. If seeking a pardon after a felony conviction, the person must also successfully petition for restoration of civil rights. This is the same process used when seeking firearm rights restoration following a felony.

Simple pardons are more common than absolute pardons, but are still by no means easy to obtain. The governor does not like to substitute his or her judgment for that of a court. However, perhaps this is a signal that simple pardons will be more liberally granted in cases where someone has lived a law-abiding, productive life in the years following their conviction.

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