More than a million Coloradans could have criminal records automatically sealed under proposed bill
Measure would scrub some misdemeanors, felonies from public view after 7 to 10 years
Adam Abdullah, mentor program coordinator, shakes hands with Mark Palmer, a client at Second Chance Center in Denver, May 20, 2021. (Kevin Mohatt for Colorado Newsline)
Groups that normally find themselves on opposite sides of policy debates — conservatives, business associations, criminal justice reform advocates and social justice organizations — have united behind a bill in the state Legislature. They say it would improve the lives of hundreds of thousands of people with lingering criminal records.
Belle Phelan, now a program associate with the prison reentry nonprofit Breakthrough, knows firsthand what a felony conviction can get you in Colorado. The first time she left prison, she landed a job working behind the deli counter at Walmart before the company ran a background check and rescinded the offer, Phelan recalled.
“I ended up homeless, because I couldn’t get any assistance, couldn’t pay my bills, couldn’t pay my rent and ended up living out of my car, which technically is a violation of my parole,” Phelan said. “It’s just already hard enough for people coming out of prison.”
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Senate Bill 22-99 would make sweeping changes to the record-sealing process in Colorado by automating the sealing of records for a long list of convictions. The bill is sponsored by Sens. Dennis Hisey, a Colorado Springs Republican, and Robert Rodriguez, a Denver Democrat, along with Rep. Kerry Tipper, a Democrat from Lakewood.
Consumer reporting agencies that conduct background checks on behalf of financial lenders, landlords and employers would be required to disclose certain information to people with criminal records who are subject to a background check. An agency would need to report to a person each source from which it compiled information in a background check and the date when the background check was requested.
While the Colorado District Attorneys’ Council opposed the original version of SB-99, what the council’s representative called “good-faith negotiations” with the sponsors led to several amendments that moved the prosecutors into a neutral position. The bill survived its first test in the Senate Judiciary Committee on Thursday, where it passed unanimously. If all goes as planned, it will soon head to the full Colorado Senate for consideration.
Expanding crimes eligible for automatic sealing
Last year, the Colorado General Assembly passed a bill that allowed for the automatic sealing of records related to certain drug offenses. That measure was House Bill 21-1214, sponsored by Rep. Mike Weissman, an Aurora Democrat, along with Sens. James Coleman, a Denver Democrat, and Pete Lee, a Democrat from Colorado Springs.
SB-99 would expand the automatic sealing process in HB-1214 to all criminal convictions other than those that fall under the Victim Rights Act, such as violent crimes and sex offenses. For the crimes that would become eligible for automatic sealing under SB-99, the defendant under Colorado law is already allowed to petition a court to seal their records, but a small fraction of eligible people successfully complete the petition process. Sponsors say that’s due to “red tape” and unnecessary government bureaucracy.
Due to the nature of her past convictions — Phelan stole money from prior employers, she said, and owes half a million dollars in restitution — Phelan wouldn’t be eligible for record sealing under SB-99. That reality doesn’t dim her view of the legislation.
“So many people, it does benefit them and would help them,” she said. “This is one small thing that would help people be able to return to stability and return to being a contributing member of society after they have transformed their life through incarceration.”
The number of Coloradans who would be eligible for record-sealing under SB-99? It’s 1.3 million, according to a report by the Paper Prisons Initiative of Santa Clara University.
“Those people have trouble when they go to get housing, when they’re applying for jobs that require a background check,” Hisey said. “That pops up and even though it was 10 years ago or whatever, housing and employers both are allowed and reluctant to hire them, and so this will provide stable housing, stable jobs. It’ll increase the available workforce pretty significantly at a time where there’s a shortage of workers.”
“These people have been punished,” he added. “They have completed their requirements to have their record sealed, and we’re just helping facilitate that.”
Taj Ashaheed, a member of the Colorado Commission on Criminal and Juvenile Justice and the Colorado Department of Corrections programs manager at the Second Chance Center, held up his own experience to show why lawmakers should support the bill at the hearing on Thursday.
“In 1996 I was incarcerated at the age of 19 to serve a 16-year sentence for aggravated robbery,” Ashaheed said. “At that age I was pretty much a hoodlum, but soon after my incarceration I began this introspective journey of maturity and owning my own decision and owning my own life.”
“Now, my life did change through maturity and spiritual growth,” he added, “but also in large part because I was blessed with people in my life who provided me opportunities to grow and become a better person despite my past.”
The current record-sealing process typically involves filing a petition with the court, paying court fees, showing up for hearings and filing motions. That often means people also have to pay to hire an attorney.
“It can be incredibly costly and incredibly time-consuming, and we’re talking about a population of folks that already have barriers to employment, for example, and if they’re having to take a lot of time away from work,” that could present another barrier, Phelan pointed out.
Under SB-99, certain crimes falling under the following categories would be eligible for automatic sealing:
- Civil infractions, after four years have passed since the final disposition
- Petty offenses or misdemeanors, seven years after final disposition
- Felonies, 10 years after the final disposition
Crimes that wouldn’t be eligible include those involving violence, such as murder, assault, sexual assault and robbery, which fall under the Crime Victims Rights Act. Colorado law also prevents record sealing if the defendant still owes restitution, fines or court fees in the case.
Should SB-99 become law, criminal records that were eligible for automatic sealing would be sealed from public view by July 1, 2024, and other records would be sealed each subsequent year as time passed and they became eligible for sealing.
After someone’s record is sealed, the only people who are supposed to have access to it are law enforcement. But if a conviction still showed up on a person’s background check for whatever reason, SB-99 would prohibit landlords or employers from using the sealed record to prevent the person from obtaining housing or a job.
SB-99 would cost the state approximately $896,000 in the 2022-2023 budget year that begins July 1 and $8.09 million the following year, according to a fiscal analysis by nonpartisan legislative staff. Next year, the state would have to pay full-time wages and benefits for an additional 14 judicial department employees in order to implement the bill.
The estimated 1.3 million people who’d be eligible for automatic record sealing under SB-99 “does not capture the people who will be eligible in future years,” Rodriguez noted during Thursday’s hearing. “This is a bill with endless benefits and will help people for years to come.”
Amendment protects district attorneys’ right to object
Initially, the Colorado District Attorneys’ Council, which advocates for the interests of district attorneys around the state, had reservations about the bill, said Arnold Hanuman, the council’s deputy executive director. Subsequent amendments led it to withdraw its opposition.
Under current law, when a person petitions a court to have their record sealed, district attorneys have the ability to object. “District attorneys are able to object to say, ‘Judge, this person shouldn’t be allowed to seal these records because … they haven’t demonstrated that their right to privacy or adverse consequences are outweighed,'” Hanuman explained. “And so the bill got rid of that standard completely that says a whole class of individuals will have their record sealed no matter what progress they’ve made or haven’t made since their case took place.”
One amendment, which passed in the Senate Judiciary Committee, “would restore the ability for the DA to raise an objection on that basis if we think it’s relevant,” Hanuman said. “Doesn’t mean it’s going to happen in every case, but there may be some cases where in fact the public’s right to know or public safety still is paramount.”
Another amendment that passed in committee would prevent automatic record sealing from happening in cases where a documented prohibition on sealing was part of a plea agreement. Prosecutors are no longer allowed to prohibit record sealing as part of a plea deal, but Hanuman said that had happened in some years-old convictions that would otherwise be eligible for automatic sealing.
While the district attorneys’ council is moving to a neutral stance on the measure, according to Hanuman, some of the organizations that have formally opposed SB-99 include the Colorado Organization for Victim Assistance and some business organizations, such as the Colorado Chamber of Commerce and Adams County Regional Economic Partnership.
The bill is supported by organizations including the Colorado Center on Law and Policy, a progressive advocacy organization; Americans for Prosperity, a national conservative group; Healthier Colorado, an advocacy group that works on issues including health care access; the South Metro Denver Chamber and The Home Depot.
“A large coalition out there. Pretty varied,” Hisey said to describe the bill’s supporters, many of whom are part of the Clean Slate Coalition formed to drum up support for SB-99. “Nobody’s going to get everything they wanted, but we think it’s going to be good for the people that have paid their debt to society and can now have a stable life.”
Hisey added that the legislation could benefit children whose parents had past convictions. “If we can get those families on stable footing and give them employment and housing, it’ll be good for all of us,” he said.
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Editor’s note: This story was updated at 3:50 p.m. March 1, 2022, to reference a report by the Paper Prisons Initiative.
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