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Delaware governor signs automatic record-clearing law (Nov. 10, 2021)

Delaware lawmakers passed two bills this year that overhaul access to second chances, making it easier for more than 290,000 people to move beyond the collateral consequences of a criminal record. The two pieces of legislation – Senate Bill 111 and Senate Bill 112 – expand access to Delaware’s mandatory expungement process effective January 1, 2022, and make mandatory expungement automatic (or “Clean Slate”) by August 2024.

State Senators passed the bills unanimously in April and the House of Representatives followed suit — approving the bills by an overwhelming majority during the late stages of the legislative session in June. Both bills were signed into law by Governor John Carney on Monday, November 8, 2021 — making Clean Slate a reality in Delaware. (The specific records that will be subject to mandatory expungement starting in 2022 are described later in this post.)

Delaware is most recent addition to the growing number of states in the nation to make record clearing automatic for at least some convictions, so that eligible individuals will no longer be required to complete a burdensome and expensive petition-based process to get their record expunged. (Several other states have automated expungement exclusively for marijuana convictions.)

Sen. Darius Brown of Wilmington sponsored the bills, and a variety of stakeholders and advocates, including the Office of Defense Services, the Delaware Department of Justice, the ACLU of Delaware, the Delaware Center for Justice, the Game Changers, the Delaware Coalition for Smart Justice, the National Clean Slate Initiative, the Center for American Progress, Code for America, the R Street Institute, and JP Morgan Chase supported the bills’ passage.

While the bills were being considered in the General Assembly, many impacted individuals came out to support SB 111 and 112 and provided critical testimony that resonated with lawmakers and pushed the bills forward. Advocates and directly impacted people organized coalitions of leaders in each of Delaware’s three counties in support of the legislation and held events across the state highlighting the collateral consequences faced by the estimated 400,000 Delawareans living with a record.

Combined with previous legislative measures, SB 111 and 112 will have an enormous impact on people, families, and communities across the state. In 2018, the General Assembly passed a major juvenile expungement bill, giving Delaware Family Court the option to immediately expunge a felony arrest record if a child’s case is terminated in their favor. Then in 2019, the General Assembly passed a landmark bill expanding access to second chances for adult Delawareans by creating the mandatory and discretionary expungement processes for most misdemeanors and felonies after a 3-7 year waiting period (depending on the underlying crime) without another conviction. Prior to the enactment of the 2019 law, second chance opportunities for adults were very limited. Individuals could only obtain an expungement for an arrest that never resulted in a conviction or a small number of convictions after they received a pardon.

The Paper Prisons Initiative estimates that up to 400,000 people in Delaware live with a record. With 9 out of 10 employers, 4 out of five landlords, and 3 out of 5 colleges running background checks, records create obstacles to accessing jobs, housing, and education. Records also prevent people from starting a business because they cannot access credit and impact individuals’ ability to fully participate in social and civic community life.

Delaware has greatly expanded avenues to expungement in recent years, but the process is still complicated, time intensive, and cost prohibitive. The State Bureau of Identification, the agency responsible for processing mandatory expungements, states that 281,190 people with a record in Delaware are eligible for a mandatory expungement under the current law, which extends to non-conviction records and less serious misdemeanors. However, only .4 percent of eligible individuals (or just over 1100 individuals) obtained a mandatory expungement in 2020.

Clean Slate legislation will eliminate this large gap between eligibility and true access to a second chance by automating the process and ensuring that people have access to the economic opportunities they deserve. Under SB 111 and 112, more than 20 percent of Delaware’s population – and 290,000 people overall – will have access to automatic expungements and Clean Slate.

As the state moves forward with implementing SB 111 and 112, organizations such as the Delaware Office of Defense Services, Delaware Center for Justice, ACLU of Delaware, Game Changers and others are focused on community engagement and education. In addition, expungement events are in the works and will be held throughout the state.

What the bills do:

Senate Bill 111 automates Delaware’s pre-existing mandatory expungement process, making Delaware the most recent addition to the growing number of states in the nation to enact automatic record clearing applicable generally to at least some convictions. (Several other states have automated expungement exclusively for marijuana convictions.) As in other states, the implementing agencies in Delaware have several years to promulgate and establish procedures, with a deadline of August 1, 2024. Upon implementation, Delaware’s State Bureau of Identification must identify qualifying criminal histories for clearance monthly. Eligibility for Clean Slate is based on the state’s mandatory expungement provisions, which allow certain arrests, adjudications, and convictions to be expunged after set periods of time.

Senate Bill 112 is a companion bill to Senate Bill 111 and expands the pool of records eligible for mandatory expungement. This bill, which is effective January 1, 2022, authorizes the clearance of certain low-level felony convictions through a mandatory expungement process, a first for Delaware. Previously, Delaware law required individuals seeking expungement of any felony conviction to pursue a more costly, complicated, and court-based discretionary expungement.

Specifically, SB 112, amended by Senate Amendment 1, makes these felony convictions eligible after 10 years, unless otherwise noted:

Drug possession (after five years have passed)
Miscellaneous drug crimes
Unlawful dealing in a counterfeit or purported controlled substance
Maintaining a drug property
Possession of burglar’s tools or instruments facilitating theft
Forgery in the second degree
Unlawful use of payment card
Senate Bill 112 also allows for the expungement of convictions or adjudications for underage possession or consumption of alcohol; possession of marijuana; or possession of drug paraphernalia to be always expunged, regardless of a person’s prior criminal history. SB 112 takes effect on January 1, 2022.

The bottom line: After August 1, 2024, every person eligible for mandatory expungement is also eligible for Clean Slate. This means that following the completion of an individual’s case or sentence Delaware will automatically expunge cases terminated in one’s favor, all violation convictions, certain misdemeanor convictions, and certain felony cases with a single conviction after a set period. Most juvenile arrests and adjudications are also eligible for mandatory expungement after certain timeframes. In general, the juvenile expungement statutes are more expansive than the adult statutes.

Want to learn more about mandatory expungement?

Eligibility for mandatory expungement in Delaware can be difficult to understand. Some general guidelines are below:

First, a person needs to go to the State Bureau of Identification to obtain their certified criminal history. This costs $52. There are three locations across Delaware.
Next, SBI shares an official determination of eligibility and will contact the individual via mail. If the person is eligible for a mandatory expungement, they must communicate to SBI that they would like to expunge their record within thirty (30) days. This request requires an additional $75. That process is completed by the SBI and the records are expunged. If their record is not eligible for mandatory expungement, they may petition the Court under the discretionary process. The bills passed this year did not change the discretionary expungement process.
Generally, a person is only eligible for mandatory expungement in Delaware if the following things are true (new changes made by SB 112 are bolded):

Cases terminated in favor of the accused or cases in which a person has not been found guilty or delinquent can always be expunged, regardless of a person’s criminal history.
The person has been convicted or adjudicated of a qualifying offense, which are violations, certain misdemeanors, and a select group of felonies. Domestic violence-related offenses and driving offenses, such as DUI, do not qualify for mandatory expungement. Most adult felony convictions, and certain adult misdemeanor convictions are not eligible for mandatory expungement. However, Delaware has a court-based petition system for these offenses known as discretionary expungement.
The individual does not have any pending cases.
The qualifying conviction or adjudication is the only case on the individual’s criminal history (there are exceptions for non-convictions, violations, underage drinking, and marijuana-related offenses and juvenile adjudications).
The person has completed the term of their sentence and paid any fines, fees, and restitution related to the conviction (fines/fees can be converted to a civil judgment).

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