A forthcoming law to seal some felony records five years after probation puts Nevada in the front ranks of the 44 states and territories that employ similar approaches to smooth ex-offenders’ path back to society.
Nevada is the kind of place where a lot of people end up needing a second chance.
It’s a state where the booms and busts of the gaming industry have led many into poverty, drug abuse, even jail time. So, as it slowly recovers from the 2008 recession, legislators have come together to transform Nevada into a place where people can leave past indiscretions behind and reclaim their lives.
An important move in that direction will happen October 1, when a new state law called AB 327 goes into effect.
The law, which allows people to get their criminal records sealed much more quickly than they ever could before, is called by some justice advocates one of the most sweeping state efforts to seal records of the criminally convicted, and ease their re-entry to post-prison life.
It’s life-changing news for 33-year-old Tara Trificana from Reno, who made some big mistakes in her early 20s.
That’s when, addicted to crystal meth, she stole a blank check from her mom, wrote it out for $400, and cashed it. The prosecutor charged her with felony theft and conspiracy to commit grand larceny, which is a gross misdemeanor.
Trificana served three years behind bars. She got out and got clean in 2009. But since then, she says, it’s been all but impossible to get back on her feet.
“Living with a felony and a gross misdemeanor is hellacious,” she says, “Employers look at you a different way. In 2015, I got hired and fired from 14 different jobs.”
Under the old law, she would have had to wait 15 years to get her felony record sealed. Under AB 327, however, people who’ve stayed on the straight and narrow for five years after prison and probation can apply for sealing. The law also cuts the length of good-behavior time required to seal misdemeanor criminal records from two years to one.
Trificana’s misdemeanor was sealed in 2012 under the old law—and she is now working to get her felony sealed, with the help of Nevada Legal Services, a nonprofit that offers free legal advice to low-income clients.
“Of course, this is incredibly important for people who are looking for work, as many, many companies nowadays run background checks,” says Rita Greggio, Trificana’s attorney. “And people with even minor misdemeanor records have an incredibly hard time finding employment.”
Margaret Love, executive director of the Collateral Consequences Resource Center, calls AB 327 not only a significant expansion of existing Nevada law, but “one of the broadest record-closing laws in the country.”
“Most states do not allow sealing or expungement of adult felony convictions,” said Love, whose Washington D.C.-based nonprofit tracks legal restrictions imposed on individuals with a criminal record across the nation. “
The issue has won bipartisan support in Nevada. Republican Gov. Brian Sandoval quietly signed AB 327 in June, after it passed the state legislature— a body that flipped from red to blue in the last election.
The legislation now puts Nevada in the front ranks of the 44 states and territories which have moved to seal records.
Puerto Rico Leads the Pack
The leader so far is Puerto Rico.
If a Puerto Rican judge decides that an individual has been adequately rehabilitated, that person’s crime, including violent felonies, can be sealed anywhere from six months to five years after his or her prison sentence is completed.
As another example, California automatically destroys adults’ records after seven years once they’ve received a certificate of rehabilitation from the court.
On the other end of the spectrum, North Carolina’s waiting period is 15 years; while Alabama, Alaska and Georgia will not expunge or seal any adult convictions.
The benefits of record sealing vary widely by state. But, in Nevada, sealing means the conviction is treated as if it never existed. Thus, a formerly incarcerated person doesn’t have to mention any sealed conviction when applying for jobs, federal student loans, welfare, rent-subsidized housing and other benefits or opportunities.
Tens of thousands of Nevadans have a criminal record. But it is unclear how many people might benefit from the law, because the state does not track how many citizens maintain clean records after completing their sentences, broken down by types of crimes.
Under the new law, anyone with a spotless post-conviction misdemeanor record can apply to the court to get it sealed one year after the sentence and probation are complete.
For certain Category B felonies, which include assault, identity theft and some drug crimes, individuals can apply to have their records sealed after five years with no new convictions.
The process also requires that there be no opposition from the prosecuting office or arresting agency that first handled the offense. If there is opposition, the judge must hold a hearing and take evidence from both sides.
Greggio said that, in her experience, judges issue an order to seal the case if there is no opposition.
Though criminal records can be sealed in Nevada, they are not destroyed and can still be accessed by the Gaming Board, which regulates the casinos and their employees. Also, judges can order that records be unsealed, but they tend to do so only in cases where the person with the sealed record asks that the case be reopened, usually to recover lost records.
The statute also allows a prosecutor to request a record be unsealed in order to contact someone involved in the prior case if there is newly discovered evidence, or if the person has been arrested for the same or similar offense, and is likely to stand trial.
However, a Nevada prosecutor would only know about the sealed record if he or she dealt with the individual in the past.
Rules on sealing records and expungement vary by state. The Collateral Consequences Resource Center maintains state-by-state details on those rules.
Attorney Greggio says the records for some types of crimes can never be sealed in Nevada, such as a DUI with grave bodily injury, and certain sex crimes. However, she adds, most of her clients have been prosecuted for relatively minor offenses.
“The bulk of what we see is small, misdemeanor petty crimes, possession of drug paraphernalia, things like that. Those are very commonly and very easily sealed.”
Sharon Dietrich, litigation director at Community Legal Services in Philadelphia, says Nevada’s new approach is generous.
“Overall it is consistent with a trend to make sealing more widely available but I would say it is on the progressive end of that trend in terms of the amount of time that you have to wait,” she said in an interview.
Dietrich adds that sealing records counters the discrimination against the formerly justice-involved that is rampant among landlords and employers across the country.
“Sealing takes it out of the hands of those people to do the right thing and follow the law,” she said. “We regularly see people who have cases that are not even convictions, cases that were dropped, and they’re still being denied the opportunity to get jobs just because they were once arrested.”
According to Erica Webster, Communications and Policy Analyst at the Center on Juvenile and Criminal Justice in California, a felony conviction can hamper a person’s ability to become a contributing member of society for many years, reinforcing the cycle of poverty.
“And it’s not just jobs,” she said. “Some state licenses require you not have a felony conviction. If you’re trying to go back to college and you need a student loan there can be ramifications.
“You’re not eligible for affordable housing and you can jeopardize a family member’s section 8 housing by living with them, even if they have a completely clean record.”
So-called “ban the box” laws are the next wave of legislation aimed at smoothing the path back into society. Last year, California removed the box on state and county job applications that asks if a person has ever been convicted of a felony. Employers are still free to ask about it during a job interview, but the idea is to get employers to give the applicant a chance to explain.
Nevada Gov. Brian Sandoval signed a similar measure, AB 384, on the same day he signed the record-sealing bill, which Trificana applauds. “Now I’m working, and I’ve moved into my own place,” she said. “It’s a dream come true. These laws are a real blessing.”
She earned an associate’s degree in criminal justice from Brookline College in Phoenix and is now pursuing a bachelor’s in psychology at Ottawa University, also in Arizona. She says she wants to give back to the community once she graduates.
“With the new law I am changing my course and want to have a career helping ex-felons rehabilitate into society when they come out of prison.”
Suzanne Potter runs the Nevada News Services arm of Public News Service, a small nonprofit. She welcomes comments from readers.