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Delaware Supreme Court to consider whether out-of-state convictions are bar to expungement

Tom Byrne/Delaware Public Media

Three men denied expungement because of out-of-state convictions are appealing their cases to Delaware’s Supreme Court.

Delaware’s expungement laws enable — and, in some cases, require — state courts to clear Delaware criminal records, but state law is less clear about how to approach out-of-state criminal records.

Delaware code stipulates a person can have a felony conviction or multiple misdemeanor convictions from a single incident expunged if they have "no prior or subsequent convictions."

The three men appealing their cases to the Supreme Court had their petitions for expungement denied — either by a Court Commissioner or in a letter from the State Bureau of Investigation — because of convictions in other states. One man was convicted of marijuana possession in West Virginia, for instance, while another was convicted for smuggling unstamped cigarettes in Maryland and Pennsylvania.

In an order upholding the denial of two of those petitions, New Castle County Superior Court Judge Calvin Scott ruled that the phrase "no prior or subsequent convictions" is unambiguous. "Nothing in the definition of conviction indications a conviction is only a conviction if it occurs in this state," he wrote in December. "In fact, it is the opinion of this court that had the legislature intended for [the] requirement of no prior or subsequent convictions to only apply to convictions in this state, the legislature would have indicated such [a] requirement in plain language."

But attorneys representing the three men — and the ACLU of Delaware, which filed an amicus brief in the case this month — argue the state should only concern itself with criminal records it can control.

"The question is whether a record in another state needs to be part of how we determine a person's eligibility to petition for expungement," says ACLU of Delaware Clean Slate Campaign Manager John Reynolds. "Delaware's courts only have influence over Delaware criminal records, so their decision will have no impact on the visibility of other records."

Reynolds adds that there are practical reasons to not require that out-of-state records be considered when determining a person's eligibility for expungement in Delaware. "Delaware has no control over out-of-state records — no way to check if they're accurate," he said. "And mistakes aren't unheard of. Even in Delaware, when people apply for expungement, we encounter recordkeeping inaccuracies fairly frequently. If it's in Delaware, we can fix it. If it's in Pennsylvania, we're at the whim of their record-keeping system."

He contends that requiring Delaware's State Bureau of Investigation and Court system to consult criminal records databases across the country before accepting a petition for expungement would bring the process grinding to a halt — a prospect Reynolds says could impede the implementation of Delaware's automatic expungement law, which passed with near-unanimous support in the General Assembly in 2021.

That law will make the process of determining eligibility for mandatory expungement — available to Delawareans with low-level felony and misdemeanor convictions that are between five and ten years old, depending on the charge — automatic by August 2024.

"If we establish that out-of-state convictions are a bar to eligibility for mandatory expungement, there's currently no way to automate a search for those records," Reynolds said.

As an alternative, Reynolds suggested that a judge could consider out-of-state convictions if a person petitions for a so-called discretionary expungement — a type of expungement that requires a judge's approval, as opposed to a mandatory expungement.

Attorneys with Delaware’s Department of Justice are scheduled to file their response by April 14th.

Determining the exact number of Delawareans eligible for any type of expungement is challenging; a 2021 state estimate suggested that just over 200,000 Delawareans could be eligible for expungement, in addition to another possible 80,000 people who may reside elsewhere but have a Delaware criminal record. Discerning how many of those people also have criminal records in other states is substantially more difficult.

Last year, more than 2,000 people received expungements in Delaware — roughly twice as many as in the previous year.

Paul Kiefer comes to Delaware from Seattle, where he covered policing, prisons and public safety for the local news site PubliCola.