Senate Judiciary discusses automatic sealing after decriminalization, court procedures for access to sealed records

Senate Judiciary members heard testimony and debated whether criminal records for conduct later decriminalized should be sealed automatically and what procedures courts should use to grant access to sealed records.

The discussion centered on two linked topics: whether the courts should perform petitionless sealing when an offense is decriminalized, and whether defense attorneys should be required to support requests to access sealed records with sworn affidavits rather than an automatic hearing.

Senator Hoskowsky said she favored a petitionless process for offenses that are no longer crimes, stressing the burden on people to monitor legislative changes: "I still stand pretty strongly in the opinion that we shouldn't be asking regular people to be paying attention to everything we do in this building and know, oh, that's no longer a crime," she said, arguing that the judiciary should take the onus for clearing records prospectively and retroactively.

A judge testifying at the hearing said the courts can implement a process but warned of resource and clarity issues. The judge said the language being considered that requires a showing of "reasonable suspicion" as an overlay to the inquest standard would "work as an overlay to the inquest, meaning it's not a fishing expedition." On petitions by defense attorneys, the judge suggested changing mandatory hearing language to give the court flexibility: "The defense attorney may file a petition, supported by a sworn affidavit, with the court...the court may grant the petition ex parte and shall grant access to the record upon finding that..." The judge said making the process available on papers would reduce burden on courts and attorneys.

On petitionless sealing for previously criminalized conduct, the judge described the administrative scale required: when marijuana convictions were handled, "we had over 10,000 cases," and the court "utilized retired judges" to process the caseload. The judge said that whether an automatic, retroactive sealing process is feasible depends on how many convictions are affected and recommended that the legislature identify the specific offenses or statutes to be sealed so the courts can assess staffing needs: "If the statute said these cases...we could look at that and assess what is the cost in terms of staffing and resources."

Several senators debated whether a categorical rule (seal anything that is no longer a crime) or a statute-by-statute identification would be more effective. Senator Roberts asked whether the judge needed a list to carry out retroactive clearing; other senators argued that requiring every future decriminalization bill to direct expungement would make it automatic and provide accountability.

The judge cautioned that court record systems do not currently flag convictions as "no longer crimes," so courts would need clear legislative direction or a list to run searches and implement sealing reliably. The judge said courts aim to be transparent and to capture all eligible cases when given a statutory directive, but added that omission risks exist if a statute is not explicit.

No formal votes or motions were recorded in the transcript excerpt provided. Lawmakers discussed drafting language to balance automatic relief for affected people with the practical capacity of the judiciary to implement retroactive sealing.

Looking ahead, lawmakers and the judiciary agreed that clearer statutory direction — either a list of specific offenses to be sealed retroactively or an explicit requirement in future decriminalization bills — would enable courts to estimate and provide the staffing and time needed to complete large-scale sealing operations.