Delaware Clean Slate Summary

Legislation passed date: 11/8/2021. Clean Slate Act: Senate Bill 111 (mandatory expungement of adult and juvenile records), and Senate Bill 112 (mandatory expungement of adult and juvenile records and costs associated with the Family Court for expunging juvenile records).

Effective date: SB 111: 11/8/2021; SB112: 1/1/2022.

Implementation date: August 1, 2024.

Cost Estimates:

SB 111:

• Fiscal Year 2022: One-Time Costs: $1,097,325; Operating/Recurring Costs: $1,341,792
• Fiscal Year 2023: One-Time Costs: $850,000; Operating/Recurring Costs: $1,368,692
• Fiscal Year 2024: One-Time Costs: [none]; Operating/Recurring Costs: $1,394,649

SB 112:

• Fiscal Year 2022: One-Time Costs: $105,000; Operating/Recurring Costs: $185,102
• Fiscal Year 2023: One-Time Costs: [none]; Operating/Recurring Costs: $226,564
• Fiscal Year 2024: One-Time Costs: [none]; Operating/Recurring Costs: $231,095

Records are Expunged. Mandatory expungement means all law-enforcement agency records and court records relating to a case in which an expungement is granted — including any electronic records — are destroyed, segregated, or placed in the custody of the State Bureau of Identification (SBI), and are not released in conjunction with any inquiry beyond those specifically authorized in statute (i.e., records may only be released to law enforcement agencies to support ongoing investigations or for background checks for individuals seeking employment with a law enforcement agency)

Eligibility Criteria:

Originally established to expedite expungements for charges or cases that did not result in conviction, or were “terminated in favor of the accused,” mandatory expungements are available when one or more of the following circumstances apply:

• The accused is acquitted of all charges related to the case.
• A nolle prosequi is entered on all charges related to the case.
• The accused is placed on probation before judgment, fulfills the terms and conditions of probation, and the court enters an order discharging the person from probation.
• All charges related to the case are dismissed.
• The accused is acquitted of one or more charges related to the case, and the other charges are dismissed by the entry of a nolle prosequi or otherwise.
• The accused is arrested for the commission of one or more crimes and no charges related to the matter for which the person was arrested are filed in any court within 1 year of the arrest.

In 2019, the Delaware legislature expanded the mandatory expungement criteria to allow individuals without other convictions to expunge violation convictions after 3 years, misdemeanor convictions after 5 years, and some felony convictions after 10 years. For individuals with multiple misdemeanor convictions, or a combination of misdemeanor and violation convictions related to the same case, those convictions are eligible for expungement after 5 years. Additionally, class G drug felony convictions are eligible after 5 years, and certain class C and E drug-related convictions are eligible after 10 years. Felony convictions for possession of burglary tools, second-degree forgery, and unauthorized use of a credit card are also eligible for mandatory expungement after 10 years.

Discretionary expungement is available to individuals who do not qualify for mandatory expungements, or who have received a pardon by the governor. Eligibility for discretionary expungement of an adult record includes the following circumstances where the individual:

• Was convicted of one or more misdemeanors, other than domestic, violent, or sexual offenses, relating to the same case and at least 3 years have passed since the date of conviction or the date of release from incarceration, whichever is later, and the person has no prior or subsequent convictions.
• Was convicted of one or more misdemeanors listed in the Appendix relating to the same case and at least 7 years have passed since the date of conviction or the date of release from incarceration, whichever is later, and the person has no prior or subsequent convictions.
• Subject to subsection (b) of this section, was convicted of a felony and at least 7 years have passed since the date of conviction or the date of release from incarceration, whichever is later, and the individual has no prior or subsequent convictions.

Note: The Delaware Supreme Court has interpreted the statutory provision related to “no prior or subsequent convictions” as relating only to Delaware convictions, not out-of-state convictions. See Osgood v. State, 310 A.3rd 415 (2003) [pdf].

Agencies Involved:

• Delaware State Bureau of Identification (SBI)*
• Delaware Criminal Justice Information System (DELJIS)
• Delaware Superior Court
• Delaware Family Court

Status: Implementing and Planning. Delaware has an estimated 290,980 adults with over 594,537 cases that are immediately eligible for mandatory expungement under Clean Slate.

Approach:

• SBI is responsible for to identifying and expunging cases eligible for mandatory expungement monthly beginning on August 1, 2024.
• Upon determination of eligibility for a mandatory expungement, or by receipt of an expungement order from a court, SBI is required to promptly notify all courts and law enforcement agencies where records of the case are located or maintained, and any court where the case was terminated, disposed of or concluded.
• A court or law-enforcement agency that receives a notice of expungement from SBI is required to provide written confirmation of the completion of the expungement.

Reported/anticipated challenges:

• To handle the anticipated influx of newly eligible automatic mandatory cases, the SBI will need to expand the size of its mandatory and discretionary expungement unit by a minimum of 11 full-time employees (FTEs). This will provide the SBI with the capacity to process an additional 1,800 expungements per month (compared to the current capacity of 1,600 expungements per month), which will be needed to process the initial backlog of newly eligible cases.
• For SBI to achieve a fully automated expungement process within the 22-month implementation timeframe for the legislation, it will require administrative support staff to prepare over 900,000 hard copy criminal records in the SBI records vault for archiving and digitization so future automatic expungements can be processed in a timely manner.
• The Delaware State Police (DSP) anticipates that expanding the SBI’s responsibilities to meet the provisions of the legislation will require an additional Deputy Attorney General (DAG) to be assigned to handle civil matters.
• The legislation will require the DELJIS to make programming and system modifications to the Criminal Justice Information System (CJIS) to be able to automatically identify cases eligible for automatic mandatory expungement and generate notices to agencies involved in each case.
• The legislation will result in a significant increase in the number of mandatory expungement notices received from the SBI based upon the estimates provided by DELJIS. Each notice received will require the Superior Court to retrieve the file, relocate it to a secured segregated area, and complete necessary logs and records to provide notice to SBI that a file has been expunged.
• The legislation permits a person to file a mandatory expungement petition along with a discretionary expungement petition if SBI has not yet mandatorily expunged a person’s case(s). This will require the Superior Court to review and docket expungement petitions and perform case and records management oversight to ensure the timely submission and tracking of statutory deadlines. The SC will require 4 FTE Records Management Specialists to handle the docketing, case management oversight, file retrieval, and other expungement-related duties.
• The legislation will increase the number of juvenile charges that are eligible for mandatory or discretionary expungement by the Family Court. To accommodate the increased caseload, the Family Court would require 2 full-time Paralegals ( one for New Castle County Family Court and one for Kent and Sussex Counties) to perform research to determine a petitioner’s eligibility for an expungement, timely docketing, responses to petitions, and other time-sensitive activities and necessary tracking.
• Sentence completion confirmation software development.

Notifications

• SBI is required to implement a comprehensive, statewide notification so that all departments and agencies processing expunged records can comply with expungement orders and directives. Currently, Delaware does not have a unified system or digitized repository for adult and juvenile criminal history data. Hard copies of records can be held by the court of jurisdiction, the Department of Correction (DOC), or any law enforcement agency throughout the State.