SAN JOSE — Expanding on technology launched two years ago to rapidly clear old marijuana convictions, Santa Clara County is now looking to automate batch expungements of low-level criminal records, clearing a major hurdle for people legally entitled to a clean slate to help reclaim their lives.
Starting this summer and through the end of the year, an initiative led by the district attorney’s office, partnering with agencies including the Superior Court and public defender’s office, is expected to institute a system that could greenlight upward of 10,000 expungements a year.
That would mark what one official called a “quantum leap” over the current court process for expungements, which tops out at about 1,800 clearances annually.
People convicted of some misdemeanors — as well as low-level felonies that can be reduced to misdemeanors — are eligible to have those convictions expunged, or cleared from local court and state Department of Justice records, if they go five years with no more offenses and fulfill their probation requirements.
But expungements are not automatic. An eligible person typically has to file an application with the court, either through the probation department or with the help of an attorney, and schedule a court hearing to get a judge’s signoff.
“We’re not making new laws. It’s just something not a lot of people take advantage of because most people don’t have the means to do it,” District Attorney Jeff Rosen said. “Giving people that cleansing, that fresh start, is important. Everybody needs that. If they’re entitled to it, they should get it.”
The county public defender’s office has for over a decade worked to help obtain expungements for people who can’t afford an attorney or who for various reasons cannot readily navigate the court system. The office now has a dedicated expungement unit, but the constraints of the court calendar put a ceiling on how many clearances they can get through the system.
The automation of expungements is “huge collaborative effort between county agencies,” Assistant Public Defender Damon Silver said. “(Misdemeanor) convictions often exist as barriers to people succeeding after they’ve been convicted of a crime. It impacts the ability to get a job, their ability to get housing and licensing. And this allows everyone to focus resources on more critical areas of the criminal-legal system.”
By the estimate of the district attorney’s office, 80% of cases prosecuted in the county involve misdemeanors, totaling about 15,000 per year. That means as many as 10,000 people who were convicted of misdemeanors in 2016 could be eligible to get their records cleared, when accounting for cases with multiple charges.
That 2016 crop is where the district attorney’s office is starting with expungement automation. Having completed test batches of about 25 convictions, the office will start batches of 300 convictions this summer. The goal is that by the end of 2022, the office’s proprietary software will be capable of processing more than 10,000 expungements in a year — a fivefold increase of what can be done through conventional avenues.
The challenge of the project is not just approving thousands of potential expungement candidates, but also clearing their convictions from an array of databases to ensure they don’t show up in background checks, such as for job or housing applications.
“If we left it to the court to remove the convictions from local, state and federal databases, they don’t have the resources,” Rosen said. “That’s where we add the Silicon Valley secret sauce. We’ve written code, so that once a clerk pushes a button, everything is expunged.”
It helps that the system isn’t being built from scratch. In 2020, the county automated the expungement of 13,000 old marijuana convictions, prompted by the legalization of recreational pot in California. The new automation project builds on that framework, but takes on a more formidable challenge in misdemeanor convictions spanning an array of offenses.
To start, prosecutors, public defenders, probation officers and the court established the universe of eligible cases to mostly encompass convictions that don’t involve any violence or sexual assault. Some lower felonies that a judge can lawfully reduce to misdemeanors are also in the pool.
“These are offenses like trespass, vandalism or property damage, low-level theft, writing a bad check,” Rosen said.
He added that he hopes a byproduct of the automated expungement will incentivize people to pay restitution — a monetary amount that a judge requires an offender to pay a crime victim — to hasten their record clearances.
“We require that the person make restitution, they have to do that,” he said.
Both Rosen and Silver were careful to note that court fines and fees will not stop someone from being eligible for the automated expungement; an agreement between the two offices acknowledges the history of court and administrative fees posing an unfair burden on Black and indigenous people and other people of color who are already disproportionately involved in the court system.
The expungement automation also coincides with the DA’s office forming a unit dubbed Custody Alternatives and Mental Health Programs, which is aimed at finding non-jail diversion for people arrested on suspicion of nonviolent crimes that look to stem from conditions including drug addiction, mental illness and homelessness. The office states that one of the services is helping clients get “their old, low-level criminal records cleared to help them get housing and jobs.”
Even with automation, the conventional court route for expungements will remain necessary for misdemeanors where prosecutors, defense attorneys and probation officers have not reached a consensus. But the hope is that it will spare court appearances for thousands of people whose cases are considered more clear cut.
While noting that unforeseen challenges could arise with such a “huge undertaking,” Silver said he is hopeful about what the new technology could mean to people represented by his office, which long ago took on expungements as a service despite never having a legal mandate to do so.
“If you’re talking about going from 1,800 to 10,000, that really is a quantum leap,” Silver said. “We’re delivering a lot more relief with fewer resources.”