Prosecutor Pressure Stalls Automatic Expunctions in North Carolina

Advocates worry that DAs are watering down reforms the state passed in the summer of 2020, now that the anger and protests over George Floyd’s murder have dissipated.

Jeffrey Billman | July 11, 2022

The North Carolina State Capitol in Raleigh. (Kenneth C. Zirkel/Wikimedia commons)

North Carolina became the 14th state to automatically expunge criminal charges that end in acquittals or dismissals on December 1, 2021. Advocates for criminal legal reform heralded the change, part of the Second Chance Act that the state’s Republican-led General Assembly had passed the previous year, as an important step in a decade-long effort to shift the state’s mentality on punishment.

The law required officials to automatically erase exonerated defendants’ case records and ended an onerous petition process that often took months, cost thousands of dollars, and had blocked relief for people with an unrelated felony conviction. According to the North Carolina Administrative Office of the Courts (NCAOC), court clerks purged the public record of more than 354,000 criminal cases in the six months after the law took effect.

But starting on August 1, less than a year after automatic expunctions began in North Carolina, they’ll stop thanks to another bill the General Assembly quietly passed last month.

Lawmakers stress that the suspension is only temporary, while the North Carolina Conference of District Attorneys, an influential organization that represents the state’s prosecutors and pressed for the pause, argues that the court system needs time to address the law’s “unintended consequences.”

Reform advocates don’t deny that the rollout of automatic expunctions has been a bungling and bureaucratic mess that, in a few cases, harmed the people it was supposed to help. But advocates aren’t convinced the pause is necessary, and they’re worried that prosecutors could be watering down reforms that were passed amid the nationwide protest movement following George Floyd’s murder, now that the anger and energy have dissipated two years later.

Kimberly Overton Spahos, director of the state conference of DAs, dismissed that idea, telling Shorelinescripts in an email that prosecutors “are not against the idea of automatic expungements.” She added that her group “supported the Second Chance Act and has led expungement efforts over the past several years.”

But North Carolina DAs have previously resisted automatic expunctions. After the state Senate unanimously passed the Second Chance Act in 2019, Conference president-elect Jim O’Neill, the district attorney of Forsyth County, cited the language around expunctions when telling WXII that prosecutors wanted lawmakers to “slow it down.” The House listened, and the bill languished for more than a year.

Without Floyd’s death, the Second Chance Act might have died without a vote. But by the summer of 2020, with protests mounting across the state and country, the North Carolina House rushed the legislation to the floor, where it passed unanimously. Governor Roy Cooper, a Democrat, signed the Second Chance Act on June 25, 2020, one month after Floyd died.

Less than a year later, the state conference of DAs tried to undermine it, critics say.

In addition to automatic expunctions, the law allowed prosecutors to initiate mass expunctions for many convictions that occurred when people were 16 and 17 years old. Several district attorneys quickly committed to purging more than 75,000 youthful convictions, putting pressure on more reluctant prosecutors to follow suit. But in March 2021, as the Senate Judiciary Committee prepared another bill to expand expunctions, Chuck Spahos, the legislative liaison for the prosecutors association (and Overton Spahos’ husband), pushed for language to eliminate mass expunctions. The change was so subtle that committee members didn’t notice until Sen. Mujtaba Mohammed, a Charlotte Democrat, flagged it during a hearing.

This year, when issues with automatic expunctions first surfaced, Spahos sought to repeal them altogether, according to emails obtained by Shorelinescripts. The one-year suspension was apparently a fallback position.

Spahos did not respond to requests for an interview. But in an email, Overton Spahos said prosecutors “support the resumption of automatic expungements for dismissals once the unintended consequences have been resolved.”

Twenty-eight states have passed laws to expunge non-conviction records either automatically or on request, and almost every state permits some records to be expunged, according to the Collateral Consequences Resource Center (CCRC), which tracks expunction policies across the country. Most states do not automatically destroy expunged files, but rather remove them from public databases and keep them confidential, granting law enforcement varying levels of access.

But in North Carolina, when cases are expunged, court clerks destroy “both the physical and electronic records of the courts,” Charles Keller, a spokesman for the NCAOC, wrote in an email. All that remains is a barebones, confidential index of the expunged charges, which aggravates prosecutors, who want access to the expunged records.

Some reform advocates think those records should be preserved, too, pointing out that destroying a file prevents exonerated defendants from accessing their own court files for a civil rights lawsuit. Immigrants, who have to disclose dismissed charges to immigration officials, may have no way to prove those charges were dismissed. Defense attorneys can’t find information to challenge witnesses’ credibility.

“I’m working on a case right now where this is a material issue,” said a defense attorney who requested anonymity to discuss a client’s case. “There’s a testifying co-defendant, and I wanted to check up on his charge, and it’s just gone. I know it's been dismissed and expunged, but that's a problem because he got a benefit, and I don’t have a way to access that now.”

Law enforcement, meanwhile, is concerned that they’re not told when a case is automatically expunged. More troubling, there is “no procedure for the court system to notify the jail that the defendant’s case has been dismissed,” said Eddie Caldwell, executive vice president of the North Carolina Sheriffs’ Association. “Therefore, unless the lawyer calls the jail—of course, if the lawyer calls the jail, they’ve got to verify [the dismissal] with the court system. But the clerk can’t verify it because it’s all been expunged.”

During committee hearings, Spahos assured senators that these were all technology problems preventing agencies from communicating. The one-year pause would ”give us time to work on it,” he said.

Advocates point out that officials have already had plenty of time to work out the kinks.

The Second Chance Act required several state agencies to explain to the General Assembly how they’d “automate the expunction process” by October 1, 2021. State court officials filed a two-page report in January—three months late—that said transitioning from a paper-based record system to the digital eCourts will “play a crucial part in NCAOC’s ability to fulfill the mandate to automate expunctions.” But eCourts is more than a year behind schedule, with no firm launch date in sight.

Even so, the NCAOC says it doesn’t need a year to fix the notification issue.

“NCAOC is working diligently to provide a mechanism for interested law enforcement agencies to receive notice of these expunctions and expects to provide that capability in the next few weeks,” spokesperson Charles Keller told Shorelinescripts in mid-June.

That leaves reform advocates wondering why district attorneys still pushed to halt expunctions.

The suspension bill, which Cooper signed on July 7, instructs “stakeholders”—district attorneys, law enforcement, defense lawyers and reform advocates—”to examine and make recommendations to resolve the issues,” which the NCAOC will report on by March 1, 2023. In particular, lawmakers want solutions “related to the expunction of records that do not require the total destruction of all court files and that would allow access to these particular expunction records by additional parties.”

There are real questions about who should access expunged records and how they should be used, says Laura Holland, director of the Fair Chance Criminal Justice Project at the North Carolina Justice Center. But the state doesn’t need to shut down expunctions to answer them.

“We have models from other states that have worked through similar issues,” Holland said. “This problem of systems not talking isn’t new. And they haven’t paused the criminal legal system.”