Colorado lawmakers debate bill to make it easier for people to seal their criminal records

Posted at 7:03 PM, May 11, 2021
and last updated 2021-05-11 21:03:30-04

DENVER — A bill to make it easier for defendants to seal their arrest and criminal records has passed through the Colorado House and is on its way to the Senate.

House Bill 1214 would automatically seal arrest records for people who were not charged within a year of being detained starting in 2022.

For people who were detained before 2022, the bill calls for the Colorado Bureau of Investigations to automatically seal the arrest records for felonies with a three-year statute of limitations if no charges were filed and the three years have passed. This would also apply for misdemeanors, petty offenses and more with an 18-month statute of limitations where no charges were filed.

“Ultimately in our criminal justice system, if you are arrested, it actually leaves a record,” said Rep. Jennifer Bacon, D-Denver, the bill’s co-sponsor. “However, if charges are dropped or even if you’re acquitted, that record and those fingerprints are still in the system.”

The bill would also automatically seal the criminal record for low-level drug offenses after a certain amount of time has passed. For petty offenses and misdemeanors, the record would be sealed seven years after the last disposition on the case. For felony drug convictions, 10 years would need to pass before the record is automatically sealed.

Further, the bill expands the list of those who would be able to petition the court to seal their record, making it easier for someone convicted of a Level 1 drug felony or a Class 4, 5 or 6 felony that is non-violent to request to seal their record.

None of the crimes covered in this bill would be allowed to be sealed if there was a violation of the Victims’ Rights Act or are considered crimes of violence.

Bacon said the arrest and criminal records are preventing people from being able to access jobs, housing, obtain an occupational license, volunteer and more.

“A lot of folks are being kept from these opportunities because they have these arrest records or conviction records from some time ago,” Bacon said.

Currently, there is a process in place to allow defendants to petition the court to have some records sealed. However, Bacon said the process takes time and often requires a lot of paperwork, money and possibly even a lawyer, which can be another barrier for people.

“When we talk about criminal justice reform, we’re really talking about the systems that we created that have created such a desperate impact on communities,” she said.

Bacon believes this bill will provide a layer of equity so that people with criminal or arrest records are not automatically disqualified from housing, jobs or more.

Steffan Richardson knows firsthand how difficult finding a job can be after getting out of jail. Richardson ended up with three DUI’s in a six-month time period and spent a year in jail.

During that time, he was able to kick his addiction and left jail looking for a second chance.

“Once I got out, I found it difficult to find a job at the same level that I was originally at, to find stable housing, get back on my feet,” Richardson said. “Employers will look at my past history and see that criminal record and, unfortunately, not give me that opportunity to prove myself and show what I was truly capable of doing.”

Richardson was eventually able to find a job with Tribe Recovery Homes, a nonprofit group of sober living homes that was created by a former convict, Thomas Hernandez.

Hernandez is a three-time felon who said he was unable to find employment when he got out of prison. He wanted to help others, so he started the nonprofit to provide addiction and recovery resources to people in the Denver area.

“I look at it just like HIPPA. If I want to disclose my past to you, I should have the right to be able to disclose my past to you and still have every opportunity everybody else has in America,” Hernandez said.

Richardson and Hernandez both believe these criminal records could lead to more recidivism since it’s difficult to find an honest living.

“If we’re not given the opportunity to make an honest living, you resort to whatever it is you have to do just to survive, and these criminal records haunt people and follow them,” Richardson said.

In fact, Hernandez says for a time, he went deeper and deeper into crime when he couldn’t find a job and needed to make money. As a business owner, he understands the desire for employers to know who they are hiring, but he believes people deserve a second chance.

Others, like Rep. Mike Lynch, R-Wellington, believe this bill is a bad idea. Lynch doesn’t believe that these records necessarily hold a person back from their potential. He’s particularly worried about the portion that would automatically seal some records.

“If people are really trying to right their ship and get going in life and I would like to see them have the motivation to go about doing that and seeking to get that record sealed,” he said.

Along with being a lawmaker, Lynch also runs a belt buckle manufacturing business out of Loveland and says the bill also worries him as an employer.

“As an employer, as a guy who hires people, I no longer have the ability to know if somebody committed any theft. That record is now sealed, and I’m going to hire them and have precious metals around and not know,” he said.

Lynch says because the work in the manufacturing facility is long and difficult, he has often hired people who have been convicted of crime in the past.

He argues employers should have the opportunity to willfully make the decision to hire someone with a record and believes this bill effectively makes background checks useless. He also believes others could take advantage of the system.

“Some people may have no goals or aspirations to change their course and now the record is sealed, and then, they go commit more crimes,” Lynch said.

While he understands some of the challenges in trying to have an arrest record sealed, Lynch said he would be more supportive of a bill to ease those burdens than to automatically seal records.

Bacon disagrees and says there are other ways for employers to find out whether a potential hire would be a good fit, such as their work history or references.

Meanwhile, some journalism organizations have come out in opposition to the bill, testifying in committee hearing and publishing editorials saying this bill could affect transparency and accountability.

“You would hinder voters’ ability to really know about their candidates. We use these documents to understand if people running for county commissioner, for sheriff, for Congresswoman, for example, have a criminal history,” said Susan Greene, a journalist.

Greene said these types of records helped her in a story she wrote last week about a sheriff’s deputy in Kiowa county who killed a man in April. Through arrest records, Greene was able to find out that the same deputy had been accused of using excessive force in two other cases in the months leading up to the deadly shooting.

“Many of the police reform policies that they’re pushing this session in the legislature are inspired by the work that journalists have done using these kinds of records. There’s such an irony and a double edge to this,” Greene said.

Meanwhile, John Ferrugia, who works for the Colorado News Collaborative, testified at a bill hearing saying he used the records to determine that a driver who killed an elderly couple in Denver several years ago had been arrested 10 times in the past but each time it was pleaded down to a misdemeanor.

He argued that the records help point out patterns in behavior for journalists.

Currently, there is a way to unseal records, but it requires a petition to a judge. Greene said the process can be long, difficult or costly and could take months to be heard by a judge.

Beyond that, she doesn’t like the idea of judges deciding whether an unsealed record is worthy of reporting.

“We don’t really want the state judicial branch nor the state legislature to decide what’s newsworthy and what’s not,” Greene said. “We believe in facts, and the only way to get facts rather than he said she said is through court records and arrest records and these documents.”

On Tuesday, HB 1214 passed third reading in the House. It is now on its way to the Senate to be debated. If passed, the bill could offer benefits to some while posing challenges to others.