Understanding the Second Chance Amendment Act: A Guide for D.C. Practitioners on Expungement and Record-Sealing

The Second Chance Amendment Act, D.C.’s new expungement and record-sealing law, went into effect on March 1, 2025.¹ This Act provides significant improvements, as D.C.’s prior regime was uniquely complex and restrictive. There is now automatic expungement and automatic sealing in certain cases,² which applies retroactively.³ D.C. practitioners should consider changes brought by the Act and whether any clients are—or will soon be—entitled to expungement or record-sealing relief that was previously unavailable.

The importance of expungement and record-sealing

While the exact number of people with criminal records in D.C. is unknown, tens of thousands of District residents face the collateral consequences of such records. In July 2017, the Urban Institute estimated that over 68,000 people—or approximately one in seven D.C. residents—had publicly available criminal records from the preceding 10 years.⁴ At any given time, over 20,000 people in D.C. are incarcerated or under some form of supervision.⁵

Unemployment is one of the many collateral consequences that a criminal record imposes. Records of convictions and non-convictions prevent people from finding and maintaining jobs, which are critical to decreasing recidivism.⁶ In the District, violent crime rates are highest in wards with the highest levels of unemployment and the lowest income levels.⁷ Research has shown that with higher income and better quality of life, people are less likely to commit crimes.⁸

Having a consistent, easily understandable record-sealing and expungement scheme, with generously available relief removes barriers that people face in staying on the right path, supporting themselves and their families, and re-integrating into and contributing to society. And record-sealing reform is one step towards redressing harms from decades of criminal legal system policies that have disproportionately impacted certain communities.⁹

The difference between expungement and record-sealing

The Act allows for expungement in some instances and record sealing, in others. Expungement “restore[s] a person, in the contemplation of the law, to the status they occupied before being cited, arrested, charged, or convicted.”¹⁰ Sealing provides more limited relief: it removes someone’s records “from public view” while permitting “restricted, nonpublic access by specific parties for specific purposes,”¹¹ such the court, prosecutors, law enforcement agencies, certain licensing agencies, certain child-care facilities, and certain government employers.¹²

Before the Second Chance Amendment Act, D.C. did not have any automatic expungement or sealing

Despite its progressive reputation, D.C. previously had some of “the least generous” record sealing laws in the country.¹³ In 2022, the Collateral Consequences Resource Center conducted a fifty-state survey to assess laws restoring people’s rights following their arrests or convictions: D.C. received a “D” for its approach to providing relief from non-convictions and misdemeanor convictions, and an “F” for its approach to providing certificates of relief and providing relief from felony convictions.¹⁴

D.C.’s former record-sealing regime limited relief by:

• omitting any type of automatic sealing, including for offenses that were later decriminalized, legalized, or found unconstitutional;

• having such a complex eligibility scheme that it was almost impossible for someone to navigate the process without an attorney; and

• setting forth a lengthy list of offenses for which a conviction could never be sealed—including over 40 misdemeanors and every felony except felony failure to appear.

The only previous process for sealing someone’s record was by motion, and it was so convoluted that it often required the assistance of counsel—even though there is no right to counsel in a record-sealing case. Even with a lawyer, it often took longer than a year for someone to obtain relief.

A person had to move to seal all eligible records at once. To do so, they needed to compile records of every arrest, charge, non-conviction, and conviction—some of which could be many years old and had to be requested from government archives. Those records then had to be analyzed to determine whether a person was eligible to have some or all of their record sealed, depending on what they had been arrested for, charged with, and/or convicted of, and, potentially, how much time had passed since they were last arrested, when their case ended, or when their sentence terminated.¹⁵

This eligibility determination was so complex that technologists and coders seeking to use technology to automate record-sealing—who had successfully done so in numerous other states—were unable to do so in D.C.¹⁶

D.C.’s Second Chance Amendment Act introduces automatic sealing and expungement in certain cases—but there is still room for improvement

The Second Chance Amendment Act introduces two methods for automatic expungement or sealing of records, significantly streamlining the process for some people to obtain relief without a lawyer.

1. There is automatic expungement of offenses that have been decriminalized, legalized, or held unconstitutional, as well as records related to simple possession of any quantity of marijuana prior to February 15, 2015.¹⁷ The court has until October 2027 to expunge old records, but new records must be expunged within 90 days of the termination of the case.¹⁸

2. There is automatic sealing of certain non-convictions and misdemeanor convictions (following the completion of a 10-year waiting period after the conclusion of a person’s sentence).¹⁹ However, there are 17 categories of offenses that are not eligible for automatic sealing.²⁰

The Act’s imposition of a 10-year waiting before automatic sealing is longer than the waiting period in most other states.²¹ Research shows that longer waiting periods harm individuals and their communities, by thwarting people’s employment and community integration, and shorter waiting periods support public safety.²²

It will sometimes be difficult for the court to determine when the 10-year waiting period begins. If someone is on probation, the clerk of the court will not necessarily be notified when their term of probation—and therefore their sentence—has concluded. Accordingly, it may be difficult for the court to correctly determine when someone’s record should be sealed.

Automatic sealing could be enhanced by expanding eligibility for automatic sealing after a shorter waiting period.

Seeking relief by motion remains complicated and time-consuming

The Act maintains two methods for people to file expungement or record-sealing motions.

1. There is expungement by motion of non-convictions on the grounds of actual innocence if a person’s case terminated without a conviction and they can provide evidence to prove that it is more likely than not that they are innocent of the offense.²³ This is difficult for someone to do without help from a lawyer.

2. There is sealing by motion for certain offenses if the person can show that it is in the interests of justice for the records to be sealed. Fortunately, the Act no longer requires people to move to seal all eligible arrests, charges, or convictions at the same time: this change makes an overly complicated and restrictive process slightly less so. However, the process will still generally require a lawyer to help someone confirm their eligibility and demonstrate why it is their interests and the community’s interests to seal their records. The waiting period for certain misdemeanor convictions is at least five years after the person completes their sentence, and the waiting for period for certain felony convictions is at least eight years after the completion of a person’s sentence. There are 11 felony offenses—including first- and second-degree murder—where convictions are never eligible for sealing.²⁴

The motion process will remain time-consuming, not only for people seeking relief, but for courts and prosecutors, who need to review and respond to such motions.²⁵ And nothing has changed that will prevent motions to seal or expunge from remaining undecided for months or years.

After someone files a motion to seal or expunge their record, they will need to wait for the court to determine whether the prosecution needs to respond and, if it does, issue a written order for the government to do so.²⁶ That procedural hurdle has often caused people to wait months for both the court to order the government to respond and for the prosecution to file its response. Simply getting the court to order the prosecution to respond and/or ensuring the prosecution files a response can require follow-up motions by an attorney. After months of waiting, in many instances, the prosecutor’s response is that it does not oppose record sealing or expungement, which meant that all that delay was unnecessary.

Even once records are ordered sealed, agencies still have 90 days to seal such records, and there are no meaningful enforcement mechanisms for agencies’ failures to comply.²⁷

D.C.’s expungement and record-sealing regime could be further simplified by reducing limitations on eligibility and simplifying the procedure for seeking relief by motion. It would help streamline the process and conserve government and judicial resources to require the prosecution to respond to motions to seal or expunge within a certain time of such a motion being filed—if the prosecutor thinks a response is appropriate—and provide a presumption that if the prosecution declines to respond within the prescribed time, the person is entitled to the relief sought.

According to research by the D.C. Justice Lab, adding incarceration, conviction, and arrest history as a protected class under the D.C. Human Right Act—as Wisconsin, Illinois, and Atlanta have already done—would allow the D.C. Office of Human Rights to investigate unlawful discrimination against people with criminal records.²⁸

Considerations for practitioners

D.C. legal practitioners should assess how the D.C. Second Chance Amendment Act impacts their clients. Some clients may now be entitled to previously unavailable relief, or they could be in the future. Relief could help people with issues or concerns related to employment, higher education, security clearances, and immigration.

If clients are eligible for automatic expungement or automatic sealing, practitioners should seek confirmation as to whether their records have been properly expunged or sealed, within the appropriate timeframes. As the new Act is implemented, there may be instances where the court does not properly calculate the waiting period for automatic sealing or where records that should be automatically sealed or expunged are inadvertently overlooked.

Practitioners should consider advising clients who may receive automatic expungement or automatic sealing about the new relief, so that clients do not unnecessarily disclose records that are no longer publicly available.

Practitioners should also how these changes may impact their strategy in plea negotiations with the prosecution and how they will advise clients about the pros and cons of certain plea offers.

Conclusion

Expungement and record-sealing reduce the collateral consequences of a criminal record and help people reintegrate into and contribute to their communities. The D.C. Second Chance Amendment Act brings important changes, including automatic expungement and sealing of certain records. The process for seeking to expunge or seal records by motion has been made slightly less burdensome but remains complicated. Practitioners should understand these changes to D.C. law and consider how it affects their clients.

¹Although the D.C. Council originally passed the Act in 2022, because the Act was subject to appropriations, it was not previously funded, and implementation could not begin until March 1, 2025.
²D.C. Code §§ 16-802, 16-805.
³D.C. Code § 16-808.
⁴Marina Duane et al., Criminal Background Checks and Access to Jobs 3 (2017), available from https://www.urban.org/sites/default/files/publication/91456/2001377-criminal-background-checks-and-access-to-jobs_2.pdf.
⁵Council for Court Excellence, Is D.C. More Secure? A Criminal Legal System Overview, 22
⁶See, e.g., The Council of State Gov’ts, Justice Ctr., Integrated Reentry and Employment Strategies: Reducing Recidivism and Promoting Job Readiness 2 (2013), https://bja.ojp.gov/sites/g/files/xyckuh186/files/Publications/CSG-Reentry-and-Employment.pdf (“Employment can make a strong contribution to recidivism-reduction efforts because it refocuses individuals’ time and efforts on prosocial activities, making them less likely to engage in riskier behaviors and to associate with people who do. Having a job also enables individuals to contribute income to their families, which can generate more personal support, stronger positive relationships, enhanced self-esteem, and improved mental health.”); Benjamin S. Waxman, Ashley M. Litwin, Alyssa M. Altonaga, From Jails to Jobs: Vital Components of an Effective Reentry, Crim. Just., Summer 2022, 10, 12 (“It is important for reentering citizens to find a sense of community support, while simultaneously developing skills and finding opportunities to become self-sufficient. Employment provides both structure and community. Many people need a schedule to feel organized and calm in their lives. Gainful, meaningful employment helps boost self-esteem and promote autonomy and independence.”).
⁷See, e.g., DC Justice Library, https://dcjusticelab.org/library/.
⁸Erkmen Giray Aslim, Yijia Lu & Murat C. Mungan, Inmate Assistance Programs: Toward A Less Punitive and More Effective Criminal Justice System, 75 Ala. L. Rev. 863, 876 (2024) (“Higher income and greater life quality both make recommitting crimes less likely.”); Karen E. Needels, Go Directly to Jail and Do Not Collect? A Long-Term Study of Recidivism, Employment, and Earnings Patterns Among Prison Releasees, 33 J. Res. Crime & Delinq. 471 (1996) (finding crime rates decrease as wages increase).
⁹See, e.g., D.C. Justice Library, Criminal Record Sealing and Expungement (2023), available from https://dcjusticelab.org/library/punishment/criminal-record-sealing-and-expungement/.
¹⁰D.C. Code § 16-804(a).
¹¹D.C. Code § 16-807(a).
¹²D.C. Code § 16-801(5).
¹³Margaret Colgate Love, The Reintegration Report Card: Grading the States on Laws Restoring Rights and Opportunities After Arrest or Conviction, 14 (Mar. 2022), available from https://ccresourcecenter.org/wp-content/uploads/2022/03/The-Reintegration-Report-Card.3.2122.pdf.
¹⁴Id. at 14.
¹⁵To seal what was defined by statute an eligible misdemeanor, someone had two wait two years following the end of their case and five years following a conviction for what was defined by statute as a disqualifying misdemeanor. To seal records of any other eligible offense, a person had to wait three years following an arrest or four years following the end of their case, five years following a disqualifying misdemeanor conviction, and ten years following a disqualifying felony conviction.
¹⁶For example, Code for America is a non-profit organization that works with communities and government to help automate record sealing. See, e.g., Code for America, Automatic Record Clearance, available from https://codeforamerica.org/programs/criminal-justice/automatic-record-clearance/.
¹⁷D.C. Code § 16-802(a).
¹⁸D.C. Code § 16-802(b).
¹⁹D.C. Code § 16-805(a).
²⁰D.C. Code § 16-805(b).
²¹Collateral Consequences Resource Center, 50-State Comparison: Expungement, Sealing & Other Record Relief, available from https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/.
²²Jesse Kelley and Dr. Laura Chavez, Reforming Waiting Periods: Fostering Equity and Unleashing Employment Opportunities, available from https://perma.cc/4MAZ-QW9Q.
²³D.C. Code § 16-803(a)-(b).
²⁴D.C. Code § 16-806(a)(3)(A)(ii).
²⁵See, e.g., D.C. Code §§ 16-803(b)-(d), 16-806(b)-(i); see also D.C. Justice Lab, D.C. Expungement, available from https://www.dcexpungement.com.
²⁶D.C. Code § 16-806(i)(2)(B).
²⁷D.C. Code §§ 16-803(f), 16-806(j).
²⁸D.C. Justice Library, Criminal Record Discrimination (2023), available from https://dcjusticelab.org/library/punishment/criminal-record-discrimination/