Changes to Criminal Records and Sentencing in North Carolina

New laws have recently taken effect on Dec 1, 2020 in North Carolina that are designed to help more people convicted of low-level nonviolent crimes.

These laws, known as the “Second Chance Act” and “First Step Act”, are among many state laws approved since last year by the General Assembly which North Carolinians can now take advantage of. At Tarlton Polk we are most interested in these two laws as they are a step in the right direction towards criminal justice reform, giving low-level convicts a chance to get their records cleared or punishment eased.

 

criminal record expungement, resulting from changes from Second Chance Act

What is the Second Chance Act?

The Second Chance Act, which was signed in North Carolina law on June 25th, 2020 by Governor Roy Cooper, made great strides in enabling North Carolinians to get their records expunged. The main focus of this act was to make expunction easier to acquire when eligible, or in some cases automatic, but it generally did not change the types of offenses that could be subject to expunction, except for juvenile defendants . The changes to expungement law include:

Automatic Expungements

The act now allows for expungements to be processed automatically for charges that resulted in a not guilty verdict or dismissal without leave, starting in December 2021. Cases dismissed prior to that date will still have to go through the current process of petitioning courts for expungement. The Act does address the method for how the process would be automatic, but it does allow prosecutors to submit expungement requests on their own.

Expungement for Multiple Convictions

Before, only one non-violent, non-DWI misdemeanor conviction could be expunged, only if all the follow criteria were met:

  1. At least five years have passed since the date of conviction
  2. The person has not been convicted of a felony
  3. The person is otherwise eligible.

The Second Chance act now allows for more than one non-violent misdemeanor conviction to be expunged after 7 years have passed and other eligibility criteria are met, even if they petitioner has another misdemeanor conviction. You can also file for expunction of one nonviolent felony conviction after 10 years of the date of conviction, or after active sentence, probation or post release has been served (whichever occurs later). You cannot have any other convictions during the 10-year waiting period and can have no outstanding restitution or civil judgements.

Expanding Expungement for Juveniles

Offenses committed by defendants who were under 18 but older than 16 prior to Dec 1, 2020 can be expunged, so long as they were a misdemeanor or Class H or I felony. This still excludes offenses that require sex offender registration as well as DWI offenses.

What is the First Step Act?

The First Step Act allows judges to diverge somewhat from mandatory minimum prison sentences and fines for drug-trafficking convictions, so long as the defendant meets the following conditions:

  • They avoided engaging in violent activity.
  • They were not a repeat offender.
  • They admit to a drug addiction problem.

In essence, this law will allow for judges to take into consideration whether the defendant in a drug crime case suffered from addiction and should be treated with some compassion. This law will even allow for people convicted of drug trafficking in the past to ask a judge to ease their sentence.

Can We Expect More Justice Reforms?

To supporters of criminal justice reforms, this law may signal a step in the right direction towards further compassion and equity within our justice system.

The First Step Act, in particular, does address mandatory minimums in a specific circumstance, which is the topic of much debate on reform. These minimums make it difficult or impossible for judges to make reasonable judgements of the factors involved in any case, as a conviction of certain crimes must meet a required sentence. For people who do not have the means to hire an experienced attorney, this often means very harsh penalties for some low-level offenses. On the other hand, for people with the means to hire an experienced attorney, this typically leads to negotiating a sentence down to a less offense due to lack of clear evidence, which is sometimes rather dubious.

While we cannot easily predict what changes we will see in the future, it is looking brighter in some respects. As criminal defense attorneys we are looking forward to having new avenues available to negotiate and achieve more leniency for our clients.