Senate Judiciary panel hears technical and policy concerns on S.12 sealing and expungement changes

Tom Donahue, chief superior judge, and court and justice-system administrators outlined technical and policy issues with S.12 during a Senate Judiciary meeting, saying parts of the draft could produce inconsistent outcomes and unintended administrative burdens.

Donahue pointed out a drafting error early in the bill that refers to a “felony violation of 9 VSA section 4043,” when the cited provisions impose misdemeanor penalties, and told the committee, “we should perhaps get rid of the pretend felony in the bill.” He said that correcting statutory cross-references should be a straightforward fix.

The witnesses pressed the committee on a substantive change in the bill that removes the word “successfully” from a requirement that at least three years have elapsed since the date a person completed the terms and conditions of a sentence. Under the draft language, a court deciding whether to seal a record would instead apply an “interest of justice” standard. Donahue warned that interest-of-justice is not a concrete term and is likely to produce variation among judges: “I can assure you that there are some judges who might say, I don’t think the interest of justice are appropriate for someone who kept screwing up on probation and had to kept coming back to court,” while another judge could reach the opposite conclusion.

Committee members asked whether defining the new standard would help; Donahue replied, “I think we can work with this,” but reiterated the difference between a bright-line phrase like “successfully completed” and the more discretionary “interest of justice.”

Witnesses also raised two related process issues. First, Terrence Verso, state board administrator, told the committee the courts do not reliably receive notice from the Department of Corrections when an individual’s sentence or probation term is completed, so automatic sealing provisions that depend on courts knowing completion dates could fail in practice. Verso said courts would continue to process sealing petitions when they are filed because “the court doesn’t have the ability to ascertain when a sentence has been completed.”

Second, witnesses recommended tightening discovery-related language. Donahue flagged a provision that says the state’s attorney and attorney general “may disclose” sealed records to meet discovery obligations; he recommended changing the permissive “may disclose” to the mandatory “shall disclose,” noting discovery duties (for example, Brady/Giglio obligations) are not optional.

The panel also discussed the distinct legal effects of sealing versus expungement, with particular concern about deferred-sentence agreements. Donahue explained that under current law some deferred sentences result in expungement after a set term (he used a three-year example); if the bill converts those automatic expungements to sealing, it could prompt legal challenges and possible retroactivity disputes for previously imposed deferred sentences.

Administrative and access issues surfaced as well. Verso and other court staff asked for clearer terminology about whether the bill refers to “criminal history records” (background-check information typically accessed via ACIC/DCIC) vs. court “case records” maintained by the judicial branch. They warned the phrase could create confusion about which agency must provide what information. Verso also said the courts have built processes—staff review and judge sign-off—for sealing or expungement petitions and that any expansion of eligibility will increase workload; he noted court security officers have been cross-trained to assist with processing when possible.

Committee members asked about fees and fee waivers. Witnesses reported a current $90 fee for DUI-related sealing requests tied to a special fund, and said no other routine expungement/sealing fees were identified; waiver of filing fees is available based on income or receipt of public benefits.

No formal committee actions or votes on S.12 took place during the session. Committee members and staff repeatedly framed many points as clarifications or drafting fixes that could be incorporated, and they said additional consultation with the Department of Corrections, public defenders, and state’s attorneys would be useful before finalizing statutory language.

Ending: The panel concluded without taking votes; committee staff said they would follow up with additional information about fees, case-count impacts, and whether deferred sentences imposed before an effective date should be grandfathered.