Conference committee debates judicial review, deferred sentences and agency rules in S 12 sealed-records bill

A Senate Judiciary conference committee met May 20 to compare the Senate and House versions of S 12, the bill that would expand which criminal records may be sealed and set rules for accessing and using those records. Conference members spent most of the session outlining where the two chambers agree and disagree on judicial review, use of sealed records by criminal justice actors, deferred sentences and whether to require a statewide access policy.

The meeting’s central dispute was “the judicial review piece for accessing, using, and disclosing sealed records,” a Senate conferee said, adding, “if we’re taking away expungement and many of these records are going to be sealed now, we want to really make sure that they’re not going to be misused or used in such a way that will affect people’s employment or applications for housing.” The Senate conferee described removing a proposed petition-for-access process and strengthening an exception in subsection (c) to govern when sealed documents could be used in court or public filings.

Representative Malone, a House conferee, said the House worked on exceptions and procedures in the amendment and discussed how court personnel and state systems handle sealed documents. “We dug it pretty deep and also hearing from court, that’s a chief superior judge,” Malone said, noting the committee received testimony from judges, archivists and state’s attorneys about access, retention and court workload.

Committee participants described a negotiated tradeoff: expanding the types of records eligible for sealing while preserving criminal-justice uses of those sealed files. The Senate conferee said the group sought to allow prosecutors and defense counsel to use sealed documents for investigations and case preparation but to limit broader disclosures. “If they’re gonna provide it in deposition or if they’re gonna provide it to somebody who’s their expert … that would be a kind of a disclosure beyond just the criminal justice agency or the defense attorney,” the Senate conferee said.

On defense use, the committee discussed that counsel who already possess sealed documents or receive them in discovery may review them for defense purposes without a petition, but further disclosure outside defense counsel — for example, to an expert who could then re-disclose — would trigger a notice requirement and a penalty. The Senate conferee described the approach: “If they disclose this, they have to provide notification unless they’re disclosing it in the public filing or in court, then they have to get notice to the court.” The transcript also references a monetary penalty for improper disclosure, described as “a thousand dollar fine.”

The committee debated whether sealed records used in criminal litigation may also be used in related civil actions. A conferee summarized the compromise: an entity or attorney who already possesses a sealed record “may continue to use a record for any litigation arising out of the same incident or occurrence,” but use in unrelated matters would not be authorized under the bill language discussed.

Deferred sentences drew separate attention. Committee members said testimony was mixed about whether sealing deferred-sentence records would reduce defendants’ incentive to accept deferred sentences. One conferee called deferreds “probably, in some respects, the most controversial thing that we’ve looked at,” and Representative Malone said the House preference was to keep treatment of deferred sentences “as is” and to remove the changes proposed for deferred sentencing in the Senate version.

Members also discussed creating a statewide access policy for criminal justice agencies to govern internal handling of sealed records. The Senate conferee raised timing concerns, saying implementation of a statewide policy could take “at least a year” and could prompt a surge of expungement requests in the interim. The conferee also said the committee had strengthened court-based safeguards so that disclosures made outside criminal-justice agencies would require court permission.

No formal motions or votes were taken during the conference meeting. Members agreed to continue negotiating language and to reconvene the next day at a time set during the session.

The committee’s discussion drew on testimony from judges and prosecutors and referenced the House amendment’s subsection numbering and a “House proposal of amendments.” Staff and members indicated they would circulate a draft handout of the revised access-and-use language to conferees for further review before the next convening.

The conference committee session ended with members scheduling follow-up work to reconcile the judicial-review process, the scope of exceptions for criminal-justice use, the handling of deferred sentences, and whether to adopt a statewide agency policy for access to sealed records.