780-A N.W. Broad St, Suite 200
Southern Pines, North Carolina 28387

The Second Chance Act

Sometimes people in power do things that surprise me, especially when they step outside their assigned boxes. I say this as someone who has a distinct tendency to pigeonhole folks based on their political beliefs. Liberals tend to support loosening criminal laws, while conservatives want to lock everyone up and throw away the key.

We have seen this play out over the last 50 years, from Richard Nixon’s “Southern Strategy,” to Ronald Reagan’s “War on Drugs,” to Bill Clinton’s attempt to shed the soft-on-crime label (that tarred many Democrats) by advocating for increasingly punitive criminal laws. These policies have been devastating, particularly for the poor and marginalized communities. We went from incarcerating approximately 300,000 people in 1970 to close to 2,100,00 people in 2010—a seven-fold increase. At one point, 25 percent of the people incarcerated on this planet were in the United States—even though we only have five percent of the world’s population. We either have the world’s most deviant population, or we are doing something wrong in our criminal justice system. I think it is the latter.

That said, over the last several years, the Republican-controlled General Assembly in North Carolina has taken substantial steps to rectify the costs of having a criminal record, especially a felony conviction. When I started practicing law in 1994, there were no laws on the books that allowed for a person with a felony conviction to have the case expunged from their record. One mistake made in a person’s youth would follow them for the rest of their life, whether they were filling out a job application, applying to college, or attempting to obtain some type of professional license.

Then something strange happened in 2012, shortly after the Republic take over the General Assembly and the Governor’s mansion. The Republican powers-that-be passed an expunction law that allowed a convicted felon to have the felony conviction removed from their criminal record. This was a first in North Carolina. However, the law had one fatal shortcoming—a person was only eligible for an expunction if they had no other criminal conviction on their record. Hypothetically, if a person convicted of felony larceny when they were 18 paid off a worthless check case at the Magistrate’s Office a week later, they would never be able to obtain an expunction of the felony larceny conviction—even if they lived out the remainder of their life in law-abiding service to others. Since most people convicted of a felony have at least one other conviction on their record, hardly anyone qualified for an expunction under this statute (N.C. Gen. Stat. § 15A-15A-145.5).

Times have changed. The General Assembly dramatically modified the expunction statute to address the problem identified with the law. As of December 1, 2020, a convicted felon can have certain felony convictions expunged, even if they have other convictions on their record. Of course, there are some qualifications, which I will dig into somewhat. First, the felony conviction has to be deemed “non-violent.” There is a laundry list of felonies in North Carolina that are deemed violent, and as such, outside the scope of the expunction law. Of course, assaultive felonies are deemed violent. Sex offenses are as well. Drug convictions involving the sale or delivery of controlled substances are excluded. However, the vast majority of property crimes (e.g., larceny, false pretenses, forgery, etc.) can now be expunged, as long as the other requirements of the law are met.

Generally, the other requirements are (1) the expunction petition cannot be filed until 10 years following the completion of the felony sentence (whether it was for probation or an active prison term); (2) the applicant cannot have any other felony or misdemeanor convictions during the 10 year look-back period; (3) the applicant cannot have any other felonies convictions at any other time; and (4) the applicant cannot have any violent misdemeanor convictions (e.g., assault on a female, assault with a deadly weapon, assault inflicting serious injury) at any time.

There is a lot to unpack in this law, but I will take a crack at simplifying things: If you have an old, non-violent felony conviction on your record, and you have not been convicted of any other felonies or violent misdemeanors, you may very well qualify to have your record expunged. Obviously, there is a lot more to the law than this one sentence and my office would be glad to review someone’s record if they are interested in applying for an expunction. If you qualify, we will let you know and walk with you through the process. If you do not qualify, we will let you know this as well and monitor for any changes in the law that will help you down the road.

Overall, this has been a very positive development in our state. It goes without saying that we all make mistakes in life. People with resources have always had a better chance to avoid the consequences of their mistakes. While the law does not eliminate the damage wrought by 50 years of “tough-on-crime” sentencing, it is a step in the right direction. It is also a sign that public servants of good faith can come together and pass decent legislation, even if those public servants are not members of the same political party.