D.C.’s new sealing/expungement law needs fixing

There are major problems with D.C.’s new criminal record sealing/expungement statute.  D.C. Code § 16-801 et. seq.  

For example, according to one reading of the statutory language, a person charged with a violent felony can seek immediate relief through a motion to seal.  Conversely, a person arrested for a minor traffic offense must wait for the record to be automatically sealed by October 1, 2027.

There is no way D.C. Council intended such a result when it enacted a statute that was designed to facilitate, not restrict, the removal of criminal records.  And yet, this is government’s position and at least one judge has agreed with it. 

It may fall to the D.C. Court of Appeals to resolve this discrepancy with respect to the drafting of the statute.  Alas, appeals can take years.  In the meantime, people with minor criminal records will continue to suffer ramifications with respect to employment, housing, travel and volunteer opportunities.  

1.  A narrow interpretation of the new law ignores the legislature’s intent in enacting the statute.

The government has argued that, according to the plain language of the statute, sealings by motion are restricted to the more serious offenses.  This is ridiculous. 

In cases in which statutory language may be ambiguous, courts should look to the legislative history to discern the legislature’s intent.  Peoples Drug Store, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983).   According to the “rule of lenity,” any ambiguity should be resolved in the defendant’s favor.  Whitfield v. United States, 99 A.3d 650, 652 (D.C. 2014). 

In passing the Second Chance Amendment Act of 2022, D.C. Council recognized the “impacts of criminal justice involvement on future life opportunities and recidivism”:  “Criminal records, including arrests that never result in conviction, carry significant ‘collateral consequences’ for housing, employment, public benefits, and education – even to what extend a parent can volunteer at their child’s school.”  D.C. Council, Committee Report on Bill 24-0063, the “Second Chance Amendment Act of 2022,” Committee on the Judiciary & Public Safety, November 30, 2022, page 4.

Consistent with this recognition, D.C. Council sought to simplify the District’s out-dated and complicated statute that made it far more difficult to effectuate the sealing of a criminal past.  Among other things, the resulting statute provides for automatic expungement of criminal records for decriminalized, legalized or unconstitutional offenses (D.C. Code § 16-802); expungement of criminal records by motions on the grounds of actual innocence (D.C. Code § 16-803); automatic sealing of criminal records for certain arrests and misdemeanor convictions (D.C. Code § 16-805); and sealing by motion for most other criminal arrests and convictions (D.C. Code § 16-806).

In short, the government’s interpretation of the statute directly contradicts the legislature’s stated and unequivocal purpose to facilitate, not restrict, the sealing of criminal past.  D.C. courts should not make the same mistake when reviewing the government’s oppositions.   

2.  Focus on one particular section of the new statute results in a misinterpretation of the statute’s language.

Statutory interpretation should be a “holistic endeavor,” accounting for “at a minimum . . . the statute’s full text [and] language as well as punctuation, structure, and subject matter.”  Long v. United States, 312 A.3d 1247, 1259 (D.C. 2024) quoting Hood v. United States, 28 A.3d 553, 559 (D.C. 2011).  As the D.C. Court of Appeals has put it, a statute should be interpreted as a symmetrical and coherent regulatory scheme and fit, if possible, all parts into a harmonious whole.”  In re Edmonds, 96 A.3d 683, 687 (D.C. 2014).  

With respect to this statute, §16-805(a)(1) provides that, with limited exceptions, “the Court shallorder automatic sealing of all criminal records and court proceedings related to . . . citations, arrests, or charges for the commission of a criminal offense; provided, that the case was terminated by the prosecutor or otherwise reached a final disposition and did not result in a conviction. . .”  (Emphasis added.)

Although § 16-805(c)(1) sets a deadline for the automatic sealing of records that qualify under this section, nothing in the statute prevents the Court from taking earlier action either on its own initiative or in response to a motion. In fact, given the legislature’s interest in clearing criminal records for thousands of D.C. residents and citizens, it can be presumed that the D.C Council would prefer earlier action. 

Section 16-806 also authorizes the sealing of criminal records.  Although the section specifically provides that certain types of cases require the filing of a motion to effect sealing, nowhere in the statute does it preclude other, less serious cases from also being sealed by motion.  In fact, as described in greater detail below, that would be an absurd result. 

3.  A narrow interpretation of the statute would lead to an absurd result.  

The government’s interpretation of the statute runs counter to the canon of statutory construction that a statute should not be construed so as to lead to an absurd result.  Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983); In re D.M., 47 A.3d 539, 549 (D.C. 2012).  

According to the government’s position, for example, the Court would have authority to seal charges for a violent felony offense without offering the same relief to a person charged with a traffic infraction.  Such a result is clearly not what D.C. Council intended.

4.  The government ignores the statute’s “savings clause.”

The new statute includes a “savings clause” providing that “[t]his chapter shall not supersede any other provision of the District of Columbia Official Code providing for the expungement, sealing or setting aside of criminal citations, arrests, charges, or convictions.” 

A saving clause is a legal provision included in legislation or regulations to preserve certain rights, obligations or liability that were established under a prior law, even after that law has been repealed or amended.  See e.g., Sloan v. Allen, 323 A.3d 439 (D.C. 2024); United States v. Alston, 580 A.2d 587 (D.C. 1990).  As such, a saving clause prevents retrospective application of new laws in a way that would disrupt established rights, thereby providing legal stability and fairness.