Working with a team of students and faculty advisors, Sharine Xuan JD ’21, vice president of the Criminal Law Society and organizer of the Expungement Clinic at SCU, created a bill to help seal arrest or related records of a dismissed conviction under California law. In February, after a few months of dedicated work, the bill was introduced to the California legislature as SB 1045. If enacted, SB 1045 will allow Californians to seal arrest and related records of dismissed convictions.
California Penal Code section 1203.4 et seq. allows for certain convictions to be dismissed upon successful completion of probation and payment of all fines and fees. At that point, the court sets aside the guilty verdict, dismisses all charges against the defendant, and the conviction does not have to be disclosed on job or housing applications. However, this does not prevent employers, landlords, or the general public from logging onto a court website, typing in a person’s name, and viewing the arrest, plea, conviction, and sentencing records of a dismissed conviction.
Legislators recognize that a mere arrest is often enough to disqualify an otherwise qualified candidate from housing and employment opportunities. California Penal Code section 851.91 was enacted in 2018 to address this problem. The new statute allows for the sealing of arrest and related records if no conviction occurred after an arrest, or if a conviction occurred but was vacated or reversed on appeal.
However, CPC 851.91 left a large gap open. The thousands of convictions dismissed every year under CPC 1203.4 et seq. are not eligible to be sealed under CPC 851.91. Therefore, although CPC 851.91 and 1203.4 et seq. are both designed to reduce re-entry barriers and to promote participation in the labor market and society, there is currently no way to seal arrest or related records of a dismissed conviction under California law.
This critical gap is what inspired Santa Clara Law students to improve this important section of California law. “Although this is very much a student-initiated, student-led, and student-run effort, we have received so much support and guidance from Santa Clara Law professors,” says Xuan. “Criminal Law Professor David Ball and Northern California Innocence Project lawyer Professor Melissa O’Connell spent hours editing the proposed bill and walking me through the legislative process – even though I wasn’t in any of their classes! And of course, we couldn’t leave Professor Ellen Kreitzberg of the Center for Social Justice and Public Policy out of the fun, so we ultimately decided to house the bill out of the Center. There is so much theoretical learning in law school, but students don’t get much exposure on how the legal process actually unfolds. This is a great learning experience for all of us.”
Angela Madrigal came to law school to pursue a career where she could advocate for others. “Being a part of this team gives me an opportunity, as a 1L student, to bring about change on behalf of many individuals who are affected by the current law,” says Madrigal. “It is truly inspiring to be on a team with other dedicated and passionate members and also to be working with other great organizations who have shown us support on this bill,” she says.
Currently, Xuan leads a team of 11 law students to work on SB 1045. Students are reaching out to and seeking support from community organizations and government agencies, including Public Defender and District Attorney offices. Students are researching the legislative history of similar bills in California and other states. As the bill moves into committee hearings and onward, the team will also go to Sacramento to meet with legislators and prepare for hearings.
“It’s very cool that a group of students have been able to put this together. It shows that students are able to have influence, and shouldn’t be afraid to take on causes and ambitions,” says recent graduate Keefe Northland, member of the SB 1045 team. “This is a matter that’s important to our justice system. Arrest records can cause irreparable damage to someone’s reputation. This bill will improve the general welfare of our citizens, the economy, and perception of our criminal justice system.”
The SB 1045 team would like to thank Santa Clara Law Professor Colleen Chien and Santa Clara County Deputy Public Defender Meghan Piano. If you would like to learn more about SB 1045 or to support the students’ efforts, please contact Sharine at email@example.com.