For the Defense - Vol. 9, Issue 3 - 44

Clean Slate 3.0 will have an exponential effect on the number of
cases sealed and the number of people helped. Eligibility for sealing
has been expanded to include less serious drug felonies.7
Also, some
property-related felonies, such as theft and forgery, are now eligible
if: they are graded as F3s, if restitution has been paid in full, and if a
Common Pleas Judge signs off on a sealing petition.8
periods for sealing eligibility have also been lowered. The waiting
period for eligible misdemeanor convictions has been reduced from
10 years to 7 years9
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
reduced from 10 years all the way down to 5 years.10
and the period for summary convictions has been
The automated
Finally, waiting
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
sealing provisions of Clean Slate 3.0 became effective on June 11,
2024. This means that the backlog of eligible records will be sealed
by that date.
Ban The Box
As of today, eleven states have followed the lead of Pennsylvania
and have passed their own Clean Slate legislation. Bills are also
working their way through the legislatures of several other states.
Meanwhile, some private companies, like JP Morgan Chase, have
adopted a " ban the box " policy when it comes to people applying for
employment. JP Morgan Chase does not inquire about a candidate's
criminal record until a conditional offer of employment is extended. If
there is a criminal record, they then perform an individual assessment
to determine whether what is on the candidate's record is relevant
to the job they are being hired to perform. JP Morgan estimates that
they hired about 3,000 people with criminal records last year alone.11
Cities and states across the country are passing laws to codify this
practice for all businesses. " Ban the Box " is another tool giving more
of our neighbors opportunities that they would otherwise miss out
on.
Standards Act, the first " Ban the Box " law in the Commonwealth.
Employers, both public and private, with 10 or more employees, were
prohibited from asking a prospective employee about their criminal
history until after an application had been completed and submitted
and, at least one interview had been conducted. After an interview,
employers were allowed to ask about a candidate's criminal record,
but they were not allowed to consider accusations or arrests that
did not lead to convictions if they were not pending in Court at the
time of the inquiry. Employers who did not conduct interviews were
not allowed to inquire about a candidate's criminal history nor to
investigate the same.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
In 2015, Ban the Box was expanded to apply to most employers
with one or more employees, rather than 10 or more. Taking the 2011
prohibition on inquiring on criminal histories prior to an interview
one step further, employers were now prohibited from inquiring
into a candidate's criminal history before a conditional offer of
employment was made. In addition, employers could only look back
seven years in considering past convictions. An employer could only
reject a candidate due to their criminal record if that record presented
an unacceptable risk to the employer's operations, other employees,
and/or customers.
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
The law was further expanded in 2021 and made applicable
to those employees in the gig economy as well as to independent
contractors. This expansion also made the law applicable to all
employees, not just applicants.
Where Do We Go From Here?
Clean Slate 1.0, 2.0, 3.0, and Ban the Box are a good start, and their
proponents are to be lauded for their hard work and commitment
44 For The Defense l Vol. 9, Issue 3
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In 2011, Philadelphia adopted the Fair Criminal Record Screening
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
to the pursuit of justice. It is important for us to keep advocating for
the future expansion of the second chance opportunities afforded by
Clean Slate laws in the Commonwealth by increasing the scope of the
convictions and offenses eligible for sealing.
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
PANTONE
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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Over 1.2 million of our neighbors have been helped so far.
Clean Slate legislation, with our support, will continue this upward
trajectory in the coming years. It will expand to include more crimes
and include the ability to expunge certain convictions. Imagine the
General Assembly adopting the Ban the Box legislation across the
Commonwealth. All of this can, and will, happen if we continue to
advocate for it. When we do, we give effect to the Governor's words;
" We believe in second chances, and we believe in opportunity for all
Pennsylvanians. "
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
NOTES:
1
Marshall Keely, 'We believe in second chances:' Gov. Shapiro, lawmakers
tout 'Clean Slate 3.0' FOX 43 WPMT, https://www.msn.com/en-us/news/
politics/we-believe-in-second-chances-gov-shapiro-lawmakers-tout-cleanslate-3-0/ar-BB1o2rfw.
2
#153A5B
#EAC137
cfdocs/legis/li/uconsCheck.cfm?yr=2023&sessInd=0&act=36.
3
Act
56 of 2018 Session (Pa. 2018).
5 Act 83 of 2020 Session (Pa. 2020).
18 Pa.C.S.A. § 9102 (2023).
John Cole, Shapiro Signs 'Clean Slate 3.0' Into Law, PennSYlvAniA CAPitAl-StAr
(Dec. 14, 2023), https://penncapital-star.com/criminal-justice/shapiro-signsclean-slate-3-0-into-law/.
4
H.B.
689, Act 36 of 2023 Session (Pa. 2023), https://www.legis.state.pa.us/
full notes section for this article.
6 mY CleAn SlAte PA, Community Legal Services, https://mycleanslatepa.com/
About the Author
Click here to view and/or print the
about-clean-slate/ (last visited Jul. 10, 2024).
7
8 18 Pa C.S.A. § 9122.1(a.1) (2023).
9 18 Pa.C.S.A. § 9122.2(a)(1) (2023).
10 18 Pa.C.S.A § 9122.2(a)(3) (2023).
11
Kristen Mosbrucker-Garza, Why a business coalition wants more
employers to overlook criminal records in Philly, WHYY (Apr. 4, 2024),
https://whyy.org/articles/employee-criminal-records-expunged-philadelphia/.
About the Author
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Richard T. Bobbe III is a trial lawyer and
a partner at Weir Greenblatt Pierce
LLP in Philadelphia. He is admitted to
practice law in New Jersey, Pennsylvania,
and the United States District Court for
the Eastern District of Pennsylvania. He
graduated from Penn State - Dickinson
Law in 1999. Rich has also been selected
as a Top 100 Trial Lawyer by The National
Trial Lawyers Association.
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
5
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When I graduated from law school in 1999, I joined the
Philadelphia District Attorney's Office under Lynne Abraham. Lynne
prided herself on her " tough on crime " approach and her " Tough
Cookie " nickname. Since then, our society has come to understand
the issues underlying crime, and the solutions to those issues, are far
more complicated and nuanced than a simple " These are bad people,
so lock 'em up " approach. It's been the hard work and advocacy of
groups such as PACDL, and of individual defense attorneys, that has
turned the tide in this positive direction. The Clean Slate legislation,
in its current form, might have been laughed out of the General
Assembly 15+ years ago. Now, it enjoys widespread and bi-partisan
support.

https://www.msn.com/en-us/news/politics/we-believe-in-second-chances-gov-shapiro-lawmakers-tout-clea https://www.msn.com/en-us/news/politics/we-believe-in-second-chances-gov-shapiro-lawmakers-tout-clea https://www.msn.com/en-us/news/politics/we-believe-in-second-chances-gov-shapiro-lawmakers-tout-clea https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2023&sessInd=0&act=36 https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2023&sessInd=0&act=36 https://penncapital-star.com/criminal-justice/shapiro-signs-clean-slate-3-0-into-law/ https://penncapital-star.com/criminal-justice/shapiro-signs-clean-slate-3-0-into-law/ https://mycleanslatepa.com/about-clean-slate/(lastvisitedJul.10,2024 https://mycleanslatepa.com/about-clean-slate/(lastvisitedJul.10,2024 https://whyy.org/articles/employee-criminal-records-expunged-philadelphia/

For the Defense - Vol. 9, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 9, Issue 3