Saturday, October 1, 2022

‘Collateral Consequences’: County funds Legal Aid program to assist with expunctions, offer individuals a clean slate

Magistrates set initial bond conditions for the release of individuals who are arrested, but in New Hanover County repeat offenders have been released without having to put up any money as collateral (Port City Daily/File)
The county funded Second Chance Wilmington to allow nonprofit Legal Aid to set up a local branch and assist residents with expungements, driver’s license revocation and additional legal services. (Port City Daily/File)

NEW HANOVER COUNTY — In the last three years, the district attorney’s office dismissed nearly 50,000 nonviolent cases between New Hanover and Pender counties, the oldest dating back to 1968. Though the charges have been cleared by the courts, they still appear on a person’s criminal record, which can be costly to expunge.

A local branch of nonprofit Legal Aid, Second Chance Wilmington will make it easier and more affordable for people to take necessary steps to wipe records that could be impeding employment opportunities and stable housing, in effect breaking the cycle of poverty.

The program will help restore revoked licenses from missed court dates and inability to pay, allowing individuals reliable transportation. It also will assist juveniles charged as adults who wish to have barrier-free access to future schools and jobs.

“When you have a record, that’s what people define you as,” Ben David, District Attorney for New Hanover and Pender counties, said. “We’re committed to seeing you put that in your past and not be defined by your worst 10 minutes.”

“One of our jobs is to remove impediments,” Commissioner Jonathan Barfield, a proponent of the program, told commissioners during a June agenda briefing.

Second Chance Wilmington is being funded by New Hanover County; commissioners approved $351,700 to cover salaries and office space for one year. The City of Wilmington declined to share the cost burden when approached by Legal Aid, noting it was “too late” in the budget process.

However, it will reconsider in 2023, as Legal Aid plans to re-approach both government entities for continued funding in the next budget cycle. 

Second Chance Project Group Manager Ayana Robinson said she will judge the “efficiency and effectiveness” of the current team and decide whether additional staffing or resources are needed.

Since 2016, nearly 60,000 expunctions have been granted statewide, with roughly 4,000 involving convictions — the remaining were dismissed or found not guilty. Nonviolent cases run the gamut from drug possession to larcenies, to public urination, to writing a bad check and vandalism.

The Second Chances Act, ratified in 2020 and sponsored by Sen. Floyd McKissick, focused on criminal records as a racial justice issue. The bipartisan legislation expanded eligibility for expunging nonviolent charges and now automatically dismisses not-guilty charges occurring after Dec. 1, 2021 — however, it is not retroactive.

Automatic expunction has been temporarily paused from August 2022 to August 2023 to allow the court records time to “catch up,” the DA’s office explained, but individuals are still eligible for the removal from their records.

Following the passing of the legislation, the district attorney’s office decided to level the playing field and dismiss cases that would otherwise now qualify for expungement.

“We all believe the job of being a prosecutor is not to convict at all costs,” David said. “It’s to do justice.”

Between 2019 and 2020, the DA’s office dismissed 46,909 New Hanover County cases and 10,711 for Pender. “That doesn’t even count those that were already dismissed outright,” assistant district attorney Barrett Terrell said. “And this goes back to the ‘80s.”

David said 98% of people eligible for expunctions aren’t pursuing them because of the complexity and money needed to hire an attorney to file.

“There’s no way to know how many people in the district are eligible for expunctions,” David explained. “It’s got to be tens of thousands.”

This will be the first time the county has a year-round concerted initiative focused on expungements and additional free legal services. The DA’s office has held one-day clinics, hosted by Legal Aid, to provide insight and information on expungements but can’t offer direct pro-bono relief like the nonprofit.

David explained his districts were the first in the state to offer the pop-up sessions informing people why it’s important to seek criminal record relief and what qualifies for expunction. Volunteer law students were on deck to assist with the process for free.

In October 2021, Legal Aid partnered with the DA’s office and filed more than 30 petitions on behalf of county residents, resulting in over 120 offenses being expunged. 

Most recently, an expunction clinic in July helped clear 150 charges through 20 petitions, impacting 15 residents.

Legal Aid provides free services to around 200 New Hanover County residents annually, though it doesn’t have a local office to concentrate strictly on the county. Second Chance Wilmington will allow an expansion in service, space and staff dedicated to the community’s needs.

It will be temporarily set up on the first floor of the Harrelson Center building, 20 N. 4th St., while another office is being remodeled in the same building to better suit its needs. The goal is to relocate by early 2023.

Outside of expungements driver’s license restoration, Legal Aid will work with certificates of relief — a way to remove certain collateral consequences a criminal charge may impose and is mostly used for those not eligible for full expungement. 

Staff will consist of four full-timers, including two attorneys, one paralegal and one social worker. Offices are expected to open Oct. 1.

Robinson said having a social worker on staff to address “the whole person” is a rarity for most law firms. It will work alongside local reentry programs, such as LINC, to assist the recently incarcerated readjusting to the community in finding employment education and housing opportunities. 

“Now that you have the expunction, let’s work on your housing matter or provide employment resources,” Robinson said. “Legal Aid’s innovative approach goes beyond the legal problem.”

Expunction

In North Carolina, criminal records are permanent and public — even a dismissal or non-conviction can be found in a background check. Offenses eligible for expungement include non-violent misdemeanor and felony charges that were dismissed or resulted in a not-guilty verdict. 

However, the process is a tedious one and can cost between $500 and $5,000 to hire an attorney; the filing fee in N.C. costs $175.

Assistant district attorney Rosetta Royster used to work with Legal Aid and pushed the county to fund the initiative. She said having an attorney to file for a license restoration or expunction is vital due to the intricacy involved.

“A lawyer might need to unwind a case — where it’s reopened and disposed of another way,” she explained. “And if you file it wrong, you can’t re-file for 12 months.”

Robinson explained the process of pulling records for expunction is “more of an art than a science.” An attorney first must assess an individual’s criminal record, sourced through a court information public records search (CIPRS) database, but has to “get creative” in searching for potential misspellings of the individual’s name.

“Records are only as good as how they were entered,” she said.

The results are reviewed and confirmed with the client and analyzed for eligibility under the statutes for relief.

Anyone charged with a nonviolent misdemeanor must wait five years before petitioning for a nonviolent misdemeanor expungement and seven years for more than one nonviolent misdemeanor. Felony non-violent convictions can be considered for expungement after 10 years.

“We understand there’s a reason records exist,” David said. “We work very hard to make sure crimes of violence, people who have multiple offenses, are held accountable. They’re not who we’re talking about here.”

Legal Aid’s services will be most impactful to first-time offenders or those who have “done their time” and have met the waiting period in order to have their records wiped clean. The majority are individuals with charges dismissed or not convicted, yet their record will still show “VD” or “NG” — voluntarily dismissed or not guilty. David noted the average person doesn’t look at that or understand what it means.

“It’s more than just balls and strikes in the courtroom,” David said. “We’re looking at the bigger picture of how do we get people who have suffered collateral consequences of a conviction to get their records cleaned up so they can get back into public housing, join the military, go to college, earn an occupational license?”

Robinson said there are “thousands” of ramifications that result from a conviction that the vast majority is unaware of — even to include food stamp qualifications, loss of the right to a firearm, qualifying for disability assistance, student aid eligibility, and more.

“A lot of people think arrests fall off like credit,” county chair Julia Olson-Boseman said in a June agenda briefing regarding the program. “It doesn’t.”

According to Legal Aid, white employees with no felony convictions compared to white applicants with a single felony conviction get called back for job interviews at a rate of 2:1. The same ratio for Black applicants is nearly 3:1, indicating the impact of a criminal record is 40% larger for Black job seekers than white ones.

In Wilmington, a Black individual is three times as likely to be charged with a crime than a white person, according to data from Cape Fear Collective. 

“It’s all about getting a job to carry yourself,” Barfield said to Port City Daily. “How can you eat if you’re not working?”

License restoration

Most crimes holding people back are traffic violations resulting in missed court dates and compounded fines. If an individual missed a hearing for a traffic ticket, the DMV could revoke his or her license until it’s paid. The payment also includes additional late fees and penalties, making it even more difficult to clear.

“Particularly people in poverty can’t afford the fines, and thousands of these cases go unpaid in the criminal justice system,” David said.

In August 2021, 65 people in New Hanover County had a revoked license restored through one of the pop-up clinics.

The DA’s office receives around 50,000 traffic tickets annually, and in 2020 filed a mass remission of court costs and fines for driving-related offenses, totaling 7,158 cases in New Hanover and Pender counties. Royster said a “very conservative estimate” would equate to more than $1.5 million in court fines alone being dropped.

“We’re not saying you can speed now,” David said. “We’re saying, ‘Clearly, you’ve suffered enough already.’ We’re going to dismiss this so you can get your life back in order.”

He added there are people afraid to call 911 when they might need to, in fear of being arrested for not paying fines.

“The reality is, many people don’t have a conviction in just one county,” Robinson said.

With Legal Aid’s statewide reach, staff can assist with clearing charges across multiple jurisdictions, if needed.

“There’s so much less recidivism if you have a stable job, good housing, transportation,” David said. “And a lot of this is barriers to that.”

Juvenile cases

The Tar Heel state was the last in the country to raise the age of juveniles being tried as adults. Up until three years ago, children ages 16 and 17 were treated as adults in the criminal justice system, carrying the burden of a charge with them throughout their lives. 

“If you had a shoplifting charge, a typical teenager thing, and you’re in South Carolina, you’re a kid and the University of South Carolina never finds out,” David explained. “Here, let’s say Chapel Hill or NC State runs your record. Well, you’ve got that [charge] and you might not even be going now.”

The local DA’s office led the fight to raise the juvenile age statewide. The Second Chances Act, included a provision permitting 16- and 17-year-olds who committed a misdemeanor or minor felony before Dec. 1, 2019, to file for expunction. 

The DA’s office voluntarily dismissed 20,000 juvenile cases and sent out letters to involved parties encouraging them to seek expungement.

“We’re taking away roadblocks or barriers it takes in leading a productive life,” commissioner Barfield said. “For things that benefit our residents, there’s no better way to invest than investing in people.”

This article has been updated to reflect 60,000 expunctions have been granted statewide since 2016, not that Legal Aid has filed 60,000. Port City Daily regrets this error.


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