Senate Judiciary debates House amendments to S.12 on sealing vs. expungement of criminal records

A Senate Judiciary Committee meeting on May 15 reviewed House amendments to S.12, a bill that would change how Vermont treats past criminal records by expanding sealing and narrowing expungement in some cases and by clarifying who may access sealed records.

The committee heard an overview from legislative counsel and testimony from prosecutors, the attorney general's office and public-safety advocates. The changes under discussion include moving some deferred-sentence records from expungement into sealing, a new requirement that petitioners identify state entities that must receive notice, and language directing state actors who inquire about criminal history to advise applicants they do not have to disclose sealed or expunged records.

Why it matters: advocates for sealing said the change would preserve information useful to law enforcement and victim safety while extending relief to more people through a unified sealing process. Opponents said the proposal effectively removes expungement protections some Vermonters now rely on and leaves unclear rules for defense counsel and for judicial review when sealed records are used in court.

Legislative counsel Michelle Chaim opened the committee briefing with an explanation of the House package and where it differs from the Senate draft. "I highlighted the areas that are different, or at least kind of substantively different so you can see the policy changes," she told the committee, walking members through draft 4.1 of the House Judiciary amendment and specific page and subdivision changes.

Key provisions discussed

- Notice and disclosure: The House amendment adds language requiring that, when a petitioner files to seal a record, the petitioner provide the court with a list of state entities required to be notified. The draft also adds a provision that state entities asking about an applicant's military or criminal history must advise the applicant of their rights not to disclose sealed or expunged records.

- Shift from expungement to sealing for certain deferred sentences: The House language would treat some deferred sentences as sealed records rather than expunged, and the committee discussed that change would be prospective only for new deferred sentences (not retroactive to cases already completed before the effective date referenced in the draft).

- Access vs. use and judicial review: The Senate draft had required a court process before certain agencies could access sealed records; the House amendments move to a different structure that preserves access for criminal-justice agencies and the attorney general while narrowing the need for court petitions in some situations. Members and witnesses debated whether judicial in-camera review should remain the gatekeeping mechanism when sealed records are sought during litigation.

Debate highlights and testimony

Prosecutors and public-safety witnesses said limited access to sealed records serves officer and victim safety and preserves prosecutorial tools. Jay Bertrand Johnson, speaking for a public-safety interest, said the proposal reflects that balance: "[W]e posted this bill as part of the governor's office public safety package," and it aims to expand sealing while maintaining access for criminal-justice purposes.

Several senators and committee members urged caution. One senator said moving from expungement (where records are removed and not visible to users) to a single-track sealing system "means we're taking something away that we have given" to people who expected full expungement under current law. Committee members repeatedly raised operational questions: if a sealed record is visible as a sealed flag, what must an officer or prosecutor do to see details, and should a judge screen relevance before any sealed record is disclosed in litigation?

The attorney general's office urged retention of an established court review process for access to confidential records. Marshall Paul, from the Office of the Attorney General, told the committee that judicial review of confidential records is an established practice in the case law: "[T]hey determine what's relevant from those records and what's not," citing the U.S. Supreme Court decision Pennsylvania v. Ritchie and a Vermont case the office identified as Rehkop as governing precedents for in-camera review.

Defense-access and procedural clarity

Defense attorneys and civil-rights supporters said the House language leaves defense counsel with unclear guidance on when they may access sealed records and under what procedures. Committee members asked witnesses whether the Senate approach (petition to a court before access) or the House approach (broader access for criminal-justice actors with court review when sealed records are introduced in open proceedings) better protects defendants' rights while allowing prosecutors and law enforcement to do their jobs.

Operational details and electronic records

Witnesses and staff discussed the practical challenge of removing or sealing records once they exist in multiple electronic systems. The attorney general's office and others noted that even when a record is labeled "sealed," copies or references can persist across systems and agencies; the House draft tries to address that by putting some burden on the petitioner to identify state entities holding copies so those entities can be notified.

Where the bill stands

Committee staff noted that S.12 passed a committee vote in one chamber and, as of the May 15 hearing, had been scheduled for further legislative consideration. Committee members did not take a final vote at this meeting. Several said they would want clearer operational rules for access and a more explicit mechanism for judicial review or agency policy to prevent misuse if the single-track sealing approach is adopted.

What happens next

Committee staff said the House amendments will return to the floor process and to related committees; members asked witnesses to provide additional details on operations, electronic record persistence and the practical mechanics by which sealed records would be accessed and approved for use in open court.

Ending note: Committee members and witnesses agreed the bill seeks to balance competing goals—extending relief from criminal-record stigma for some people while preserving tools for public-safety and victim protection—but they remain divided on whether the House amendments strike the right balance or whether the existing expungement framework should be preserved for more cases.