In the past decade, state statutes on the expungement and sealing of criminal history records have multiplied and expanded, thanks to bipartisan legislative action. In 2019–2022 alone, almost every state amended its statutes to enhance expungement and sealing by increasing the number of eligible offenses, decreasing waiting periods, or removing other restrictions on eligibility. Further amendments to sealing statutes are being proposed and enacted every year. This article offers a snapshot of the current laws, revealing the wide range of mechanisms and strategies deployed by state legislatures.
Initiatives such as “Clean Slate,” “Fresh Start,” and “Second Chance” have promoted sealing or expunging adult criminal records. Advocates for these programs now include not only traditional reform organizations, such as the Restoration of Rights Project (NACDL), The Clean Slate Initiative, and the Cornell Project for Records Assistance, but also prosecutors and business leaders. See Press Release Fair & Just Prosecution, Over 80 Elected Prosecutors and Law Enforcement Leaders Call for Expansion of Clean Slate Initiatives (Apr. 22, 2021); Jamie Dimon, Opinion, If You Paid Your Debt to Society, You Should Be Allowed to Work, N.Y. Times (Aug. 4, 2021).
Sealing and expungement laws acknowledge that “a criminal history is a hindrance to a person’s present and future ability to obtain employment, housing, education, or credit” and that legislators must take steps “to protect persons from unwarranted damage which may occur when the existence of a criminal history continues indefinitely.” Del. Code Ann. tit. 11, § 4371. They are an expression of state policies “to favor the giving of second chances to offenders who are rehabilitated.” Neb. Rev. Stat. § 179.2405. At the same time, the procedures established must protect the public.
However, public safety and equity are not the exclusive drivers of these laws. Empirical studies have confirmed the disproportionate effect of a lingering criminal record on people of color—and revealed the potential economic benefits to be reaped from eliminating yet another barrier to employment. Among people with felony records in the United States, social scientists noted “extreme concentration by sex, race, and socioeconomic status.” Sarah K.S. Shannon et al., The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948–2010, 54 Demography 1795 (2017). Black Americans make up 13 percent of the general population but 38 percent of the prison population—not only overrepresented behind bars, but unduly burdened with the stigma and practical consequences of a felony record. Prison Policy Initiative. Twenty-seven percent of formerly incarcerated persons are unemployed, and their criminal history record is a significant barrier to their getting a job. Nele Van Hout, Criminal Record Statistics That Can Shock You in 2023, Tech Jury (Jan. 12, 2023) (citing Prison Policy).
Some studies also have shown that post-conviction unemployment is closely tied to recidivism rates; if a person receives a job post-conviction, he or she is much less likely to reoffend. Christy Visher, Sara Debus & Jennifer Yahner, Employment After Prison: A Longitudinal Study of Releasees in Three States, Urb. Inst.: Just. Pol’y Ctr., Rsch. Brief, Oct. 2008, at 8. Moreover, average rates of recidivism were lower in states with automatic expungement statutes and the rates of college attendance, college graduation, and average future income were all higher. Mackenzie J. Yee, Expungement Law: An Extraordinary Remedy for an Extraordinary Harm, 25 Geo. J. Poverty L. & Pol’y 169, 179 (2017). In one California county, a cost-benefit analysis “found that expunging criminal records produced cumulative quantifiable net benefits for the government, in the form of increased tax revenues, reduced provision of public assistance, and legal fees.” Id. Because stable housing and education also contribute to employability, an inability to obtain either weighs heavily against people with a criminal record, especially for relatively low-risk people and relatively low-severity offenses. Leah A. Jacobs & Aaron Gottlieb, The Effect of Housing Circumstances on Recidivism: Evidence from a Sample of People on Probation in San Francisco, 47 Crim Just. & Behav. 1097 (2020).
This article is based on a 50-state review of expungement and sealing statutes, as well as interviews with prosecutors in California, Massachusetts, Nevada, New York, Pennsylvania, and West Virginia. Many states have special or different provisions for juvenile, youth, first, or drug offenders, and the federal government has no general statute for sealing and expungement; however, those issues are beyond the scope of this article. A comprehensive list of relevant statutory provisions and a report with more detailed analyses are available from the Prosecutors’ Center for Excellence, 50 State Chart of Sealing and Expungement Statutes (May 30, 2023).
When a criminal record is expunged or sealed, persons can lawfully say that they were not arrested, charged, or convicted; deny that they have a criminal record; respond “no” when asked whether they have a criminal record; state that no record exists; and/or swear under oath that they have no record without risking a prosecution for perjury. Similarly, government officials must respond that no record exists, or no record is available.
Notwithstanding a statute’s ambitions, funding and current technology impose limitations. Moreover, even if a criminal record is officially destroyed in toto, it only “erases an individual’s involvement with the criminal justice system of record, not his actual conduct and certainly not his conduct’s effect on others.” Matter of Finley, 457 P.3d 263, 268 (Nev. App. 2019). And even where an official criminal record is destroyed or concealed from public view, published court opinions and news reports may remain. Finally, although a few statutes extend to databases kept by nongovernmental entities, not all of them do. Thus, while the information may not be available from the government, it may still be found online and in people’s memories.
The underlying rationale for each state statute finds expression in its technical provisions, particularly basic definitions. The reach of a statute depends on whether it seeks to result in the erasure of an event or offense, or a conviction, or just to limit the visibility of certain records to certain people.
Two states, by contrast, appear to take a more expansive view:
In describing records to be sealed, many states use a definition similar to that of the National Criminal Information Center (NCIC), that is, “information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, and release.” 28 C.F.R. § 20.3. Other jurisdictions refer to court, law enforcement, police, criminal history information system, central repository, and/or probation records. In New Hampshire, “although the statute requires that courts and the state police criminal records unit make annulled records ‘inaccessible to the general public,’ the records of arresting and prosecuting agencies may ‘remain subject to disclosure under the Right to Know Law.’” Grafton Cnty. Att’y’s Off. v. Canner, 147 A.3d 410, 415 (N.H. 2016).
Intelligence, investigative, and work product information are often excluded from sealing requirements, but such information generally is not publicly available in any event. A few states explicitly exclude prosecutors’ records and files from their definitions of records that can be sealed. Others make it clear that an order of expungement “shall not preclude a district attorney’s office from retaining a nonpublic record thereof for law enforcement purposes only”; does not prohibit evidence or information in prosecution files from being used for investigation and prosecution of a criminal case; allows prosecutors to keep such records separately and to hold them confidentially; or requires prosecutors to seal or sequester their records but does not restrict their access to or use of them for law enforcement purposes. A few states explicitly exclude prosecutors’ records and files from their definitions of records that can be sealed.
Even when some states refer to sealing by criminal justice agencies, the scope of sealing generally appears to be limited to official or formal records. Neither investigative work nor prosecutors’ files are formal or official records to which the public typically has access and are often specifically excluded. Nonetheless, agencies may be required to “clearly identify in their respective files and in their respective electronic records that the arrest or conviction and sentence have been annulled” or sealed.
As cases progress through the criminal justice system, they generate more records and they may include some that are difficult, if not impossible, to hide, such as published trial and appellate court decisions and media accounts of the case. Unlike arrest records that may not be public initially, cases that progress into the court system are more likely to be available to third-party data collectors as well.
Sealing, rather than destruction, can achieve the same objective of preventing unwarranted harmful effects of a criminal arrest or conviction. Sealing arrest records has several advantages over destroying them:
There are situations where fairness may dictate the complete destruction of an arrest or nonconviction record. This is particularly true where a person was wrongfully arrested.
For a person convicted of a low-level misdemeanor, the long-term harm resulting from a criminal record can far outweigh the short-term harm the person caused to society. Even where there is a cognizable victim, the harm may be relatively small compared to the negative effects of a criminal record on the person convicted, although there are exceptions.
In weighing the potential harm to the person convicted against the potential harm to other individuals or the community, most legislatures have enacted statutes that authorize sealing some or all adult misdemeanor convictions. They vary greatly in terms of which crimes they include or exclude from consideration, the waiting times, other eligibility requirements, and the findings a court must make if a prosecutor opposes making the criminal history record unavailable to the public. The most common exclusions from misdemeanor sealing statutes are violent crimes, domestic violence, sex offenses, offenses involving a child, and certain traffic offenses.
Approximately 15 states have no statutory provisions for sealing felony conviction records and another two states permit it only when the sentence was suspended or was for probation only. As of 2022, about a dozen states allow for sealing or expungement of most felonies and two dozen states either limit eligibility for sealing to lower-level felonies or restrict the number of felony offenses eligible.
Almost all of the states with statutory provisions for sealing felony convictions exclude, in some or all circumstances, violent crimes, domestic violence, sex offenses, offenses against a vulnerable person, felony firearm or armed offenses, and/or crimes that carry a maximum penalty of life or 10 or more years of imprisonment. However, less than a handful allow some violent felonies to be sealed.
States may impose other restrictions on eligibility for sealing a conviction record that may include one or more of the following in some or all circumstances: prior convictions; intervening convictions or pending cases; a limit on the number of cases to be sealed; incarceration status; the number of times sealing can be granted; the full payment of fees, fines, and/or restitution; and a court finding of “rehabilitation,” which may include good conduct in prison, no further arrests or prosecutions, participating in substance abuse or mental health treatment, obtaining an education or employment, working with others, and family involvement.
Sealing and expungement statutes may also be responsive to changes in the laws themselves. Fewer than a dozen states authorize sealing a criminal history record for any offense that has been legalized or decriminalized. However, as states decriminalize possession of marijuana and other drugs, sealing convictions for these offenses is not far behind. Altogether two-thirds of the states have legalized or decriminalized some or all offenses relating to the possession or use of marijuana; of these, more than half now permit or require convictions for these offenses to be sealed, referencing marijuana specifically or decriminalized offenses generally. A handful of states make a conviction for the possession of any drug eligible for sealing under some or all circumstances.
Increasingly, state legislatures are authorizing criminal records of victims of human trafficking to be sealed. The burden is usually on the person to prove by a preponderance of the evidence that they were trafficked, and the offense was committed as the result or direct result of being trafficked. Additional notice and approval may be required: In Connecticut, the victim must be notified and heard; in Pennsylvania, the Commonwealth attorney must consent to a motion to vacate and expunge a conviction based on human trafficking for it to be considered.
Hawaii, however, changed its law so that persons convicted of prostitution and related offenses no longer must prove that they were the victims of sex trafficking to be eligible for sealing and the prosecutor’s review and written approval is no longer required. Empirical data motivated this amendment: A study conducted by the Hawaii State Commission on the Status of Women found that a majority of the state’s sex trafficking victims were forced into sex work as children, with an average age of under 15 years old. Cmty. Against Exploitation Haw. & AF3IRM Haw., No Such Thing as a Youth Sex Worker (Jan. 2022). Nevertheless, victim advocates fear that the likely absence of documentation and the risk of violent retaliation from pimps may discourage requests. Casey Leins, Hawaii Passes Law Protecting Sex Trafficking Victims, US News & World Rep., July 3, 2019. Hawaii’s law does not provide for sealing other offenses committed as a result of human trafficking.
Pardons, unlike sealing and expungement statutes, reach into a grey area where an executive act may be wholly discretionary. Less than a third of the states address pardons in their sealing statutes—and their approaches vary. Most of these states require a petition to the court. In Arkansas, however, the governor is required to notify the court upon issuing a pardon and the court is required to seal the criminal record except for offenses involving minor victims, sex offenses, and offenses resulting in death or serious physical injury. In Virginia, sealing is required “upon receiving a copy of the pardon,” without specifying who the sender is. And in Utah, the Board of Pardons and Parole issues an expungement order when it grants a pardon. Two states explicitly prohibit prosecutors from opposing a motion to seal a pardoned offense, but five more states require the court to grant such a motion, so an opposition would be futile. An additional two states require sealing if a pardon was granted on grounds of innocence. In the remaining states, a pardon merely authorizes the person to petition to have the conviction sealed without dictating how the petition is to be decided, and some offenses may be excluded from consideration.
Whether the process is automatic or requires a petition carries significant logistical and financial implications. Indeed, the requirement of a petition can exacerbate the gaps that have led to racial and economic disparities in the criminal justice system, paticularly for low-level offenses.
If the sole criterion for sealing an arrest record is the fact that it did not initially result in charges being filed or is otherwise disposed of favorably to the accused, then there is little to be gained by not sealing the record automatically and immediately, or within a short amount of time after final disposition. Automatic sealing under these circumstances, if achieved by a computer program, would impose no administrative burden on the court and no additional work for the parties (police, prosecutor, pretrial services, court) except to mark the records as having been sealed, and, if required, to store them in a separate physical or electronic area. The more expeditiously the sealing occurs, the less potential for harm to the arrestee. It also would not prevent the police and prosecutors from continuing to investigate the case and, if warranted, to bring charges at a later time.
In states where arrests did not result in a charge and are not automatically sealed, the arrestee is allowed to petition to seal or destroy their arrest records. This gives prosecutors an opportunity to object, although they are not required to do so. However, these petitions are filed infrequently, probably because the arrestee is either unaware of the process or does not have the means to pursue it. As a result, this process can be more easily used by those who are well-off or have legal representation.
In most of the states that permit misdemeanor convictions to be sealed, the conviction is not sealed automatically, and the person must file a petition. Again, it may be difficult for people to know that they can petition and to do so successfully without help. From a public safety perspective for those who committed low-risk misdemeanors or have had no further involvement in the criminal justice system, requiring a petition may be counterproductive as it may keep the petitioners from gainful employment.
In almost all jurisdictions that permit felonies to be sealed, the person must file a petition. If the prosecutor (or, in some instances, the victim) objects, the court must schedule a hearing, although, without objection, it can decide on the papers. If the petitioner satisfies the basic eligibility requirements, among the factors that various legislatures have directed courts to consider are the nature and gravity of the offense or conduct that resulted in the petitioner’s conviction; the petitioner’s age, criminal history, and employment history; the petitioner’s behavior since the conviction(s), such as rehabilitative activities in prison and living a law-abiding life since release; the specific adverse consequences to which the petitioner may be subjected if the petition is denied; and, notably, whether sealing the record is consistent with the welfare and safety of the public and warranted by the interests of justice.
In most states where a person must petition the court, it is not always clear whether the court determines eligibility or relies on the prosecutor to oppose the petition if it believes the person is ineligible. A few states delegate eligibility determinations to a centralized office.
In some states, when they object to sealing, prosecutors bear the burden of proof by a preponderance of the evidence or by clear and convincing evidence; in others, petitioners bear the burden of proof by a preponderance of the evidence or clear and convincing evidence that the harm they will suffer from not sealing the record is greater than the harm to the public from sealing.
Some states require victim notification and allow victims and others to weigh in on the issue either on the papers or at a hearing, or both. The requirement of victim notification may be found either in sealing statutes or victims’ rights statutes.
States generally have some period in which a person demonstrates rehabilitation before either automatically wiping a misdemeanor record clean or permitting the person to bring a petition. This is to provide some time for the person to demonstrate that they are now leading a law-abiding life. However, the tension here is that people may be hobbled by a criminal record until their conviction is sealed. If the purpose of such statutes is to remove an obstacle to employment and housing, and thereby reduce the chances of recidivism, then the longer the wait, the less effective the sealing process may be.
The waiting period for misdemeanor convictions is generally five years, more or less, from completion of the sentence. The waiting periods for felony convictions are generally much longer than for misdemeanors, and may be up to 15 years. Most jurisdictions require the waiting time to be crime-free; Vermont, by contrast, extends the waiting time if the applicant has an intervening conviction. Most states require all financial obligations to be satisfied before sealing can be granted; a few do not. For people without a job or without a job that covers basic living expenses, this may be an impossibly high hurdle.
From a practical standpoint, the more decision-making a statute requires (as opposed to automatic sealing), the greater the cost. Responding to petitions, determining eligibility, parsing which records are implicated, conducting court hearings, and managing the appropriate retention or destruction of those records are resource intensive. Nevertheless, giving the prosecutor, the public, the victim, and the court the opportunity to assess the merits of sealing more serious misdemeanor and more serious felony cases is necessary to strike the right balance between the public and the individual.
It is rare that expungement statutes address the cost of implementing them; when they do, the solutions range from an appropriation in the annual Budget Act, as in California, to disbursing petitioners’ filing fees to various entities to offset the costs of sealing, as in Vermont. New Jersey makes no reference to funding; and Utah directs that reasonable efforts be made to seal cases as quickly as possible “within available funding.”
Notably, the District of Columbia statute underwent significant amendments in 2022; however, the new, broader provisions cannot go into effect until funding is secured.
A court, law enforcement agency, central criminal information bureau, or other government agency that possesses sealed records is not permitted to make them publicly available. However, sealing statutes have different ways of expressing how sealed records must be kept. The variations include:
Almost all states with sealing provisions carve out exceptions for certain employers, including law enforcement agencies, prosecutors, courts, criminal and juvenile justice agencies, and/or state bars. Some states also except insurance, regulatory, or licensing agencies; utilities, banks, and financial institutions; health care agencies; agencies serving children, the disabled, or the elderly; and certain lottery and gaming or racing positions, among others. Several states have special provisions related to candidates, public officials, or selected employers.
But even sealing a criminal history record may not end the matter forever.
Certain states authorize the person or the agency to disclose a sealed record under some circumstances.
Most states make sealed records available to prosecutors, attorneys general, or criminal justice agencies. A significant portion of these laws state that such records may be used for criminal justice, law enforcement, investigative, or prosecution purposes or proceedings; carrying out their duties; any lawful purpose; or any purpose; and make it clear that confidential or sealed files are accessible or available to, can be disseminated or disclosed to, or can be retained by prosecutors or criminal justice agencies.
Presumably, prosecutors in any state that makes sealed records available to them would have them for use as Brady information. In Virginia, however, “[n]o arrest, charge, or conviction that has been sealed may be used to impeach the credibility of a testifying witness at any hearing or trial unless (i) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect and (ii) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.” Va Code Ann. § 19.2-392.13(H). Without a specific reference to criminal trials, Kansas and Rhode Island authorize witnesses to say that they have never been arrested or convicted of a crime. Vermont requires witnesses to respond only with respect to arrests and convictions that have not been sealed.
Even where prosecutors can access sealed records, a court order may be required, at least under some circumstances, though some states explicitly state that no court order is required. Minnesota requires a court order if the defendant was acquitted or the case was dismissed for want of prosecution, but otherwise does not. The absence of a statutorily mandated court order to make sealed records available to prosecutors suggests none is required.
By implication, statutes in jurisdictions giving prosecutors access to sealed records for general or specific criminal justice purposes authorize their disclosure in court, which may have the practical effect of unsealing. In addition, several states authorize unsealing in a variety of circumstances.
No matter the scope of a sealing statute, if it does not consider third-party companies who routinely purchase and disseminate criminal justice records, the basic goal of concealment may be difficult to achieve.
A number of states have addressed nongovernmental databases directly. They include, for example:
Background check companies have an independent obligation under the Fair Credit Reporting Act to “maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported, it is complete and up to date.” 15 U.S.C. § 1681k. But the remedy is a private lawsuit, which would be difficult for a wronged individual to mount.
While news media are rarely mentioned in expungement and sealing statutes, a few states provide guidance:
In short, regardless of a state’s efforts to promote sealing or expungement, there remains a vast amount of information on the internet that employers, housing providers, and educational institutions may be able to access with a few clicks of a mouse.
Sealing and expungement laws can be complex and daunting for all in the criminal justice system—and most particularly for those who wish to petition for the relief. It is a given that the laws and practices on expungement and sealing will continue to evolve and change. With provisions and practices now in place—in one form or another—in almost all 50 states, legislators, courts, subjects of criminal records, law enforcement officials, and employers would benefit from rigorous, longitudinal studies of their efficiency and effect both for the accused and for public safety.
