Criminal justice is impossible to achieve without a system of erasing past mistakes. A growing number of states and the federal government have enacted ways to erase past arrests and convictions. A criminal record limits a person's ability to pursue a productive civic life. That record can restrict access to education, employment, public housing, student financial aid, welfare benefits, military service, and the right to vote. Expungement typically clears the arrest and conviction record from the public view and thus ameliorates some of the negative consequences of having a criminal record. When a criminal record is expunged, it is as if it never existed. There are measures, such as the sealing of records, that restrict the availability of records but do not expunge them.
A person with an expunged record may say no, if asked whether he or she has been arrested or convicted. Expungement of records significantly eases barriers to the pursuit of a full civic life. Measures to erase past criminal records, such as the sealing of court records, also enhance the quality of civic participation. The availability of record-erasing measures depends on the jurisdiction.
Federal Law: No Constitutional Right and No General Statute
There is no constitutional right to an expungement and no federal expungement statute. Very few statutes specifically provide for it, and federal courts rarely expunge criminal records except when it is statutorily authorized. The Federal First Offender Act, 18 U.S.C. § 3607 (2012), however, does permit expungement of a federal criminal record in cases where the individual is under 21 and has no prior drug conviction. Two other federal statutes—10 U.S.C. § 1565(e) and 42 U.S.C. § 14132(d)—permit the expungement of DNA records held by the Department of Defense and the Federal Bureau of Investigation, respectively. Courts are divided over whether a federal court possesses the inherent equitable power to expunge a criminal record absent statutory authorization. It is said that federal courts may expunge records in the Second, Seventh, Tenth, and D.C. Circuits. But these courts rarely do so in practice. For example, in Abdelfattah v. United States, 787 F.3d 524, 528 (D.C. Cir. 2015), the court acknowledged its power to expunge records but disclaimed a citizen's "right" to it. The court then explained that it could not see "injury to a legally protected interest" that would permit Abdelfattah's criminal record to be expunged. The First, Third, Eighth, and Ninth Circuits do not find any equitable power to expunge records at all. The U.S. Supreme Court has not resolved the split.
State Law: A Patchwork of Expungement Statutes
Almost every state has a mechanism for clearing criminal records. Arizona "sets aside" a qualifying record. California "dismisses" the record. It is "vacating a judgment" in Washington and "erasure" in Connecticut. Colorado and New York "seal" the record and New Hampshire "annuls" it. The process is "expunction" or "order of nondisclosure" in Texas and "expunction" or "setting aside" in Oregon.
State laws are strict about what can be expunged. Generally, answers to five questions show arrests and convictions that may be expunged.
• Was the applicant merely arrested or was the applicant convicted by a court as well?
• What is the crime?
• How long has it been since the arrest or conviction?
• Has the applicant completed the terms of the sentence or other disposition by the court?
• Is the applicant a repeat offender?
There is no substitute for reviewing the state statute, and it is important to remember that the records are likely located in a county. The Electronic Information Privacy Center, the Papillon Foundation, and the National Association of Criminal Defense Lawyers, provide comprehensive, nationwide resources for expungement.
State expungement statutes vary by the type and severity of crimes covered, whether the court considers other crimes that were committed by the same offender, the persons from whom the records are sealed, and whether statutorily required obligations (such as a waiting period) have been met. Some states allow only the record of an arrest, when no conviction results, to be expunged.
Others allow convictions to be expunged as well. Most jurisdictions, like Arkansas and the District of Columbia, expunge only misdemeanors; a fewer number, including California and Wyoming, allow felony records to be expunged as well. But many serious crimes, such as murder, kidnapping, sex crimes, terrorism, child endangerment, and treason, cannot be expunged anywhere.
Limitations to Expungement
Likewise, an expungement or sealing may not affect the negative impact a criminal conviction can have on an application for a security clearance for national security jobs or on removal proceedings in immigration court. Public trust professions—like law, child care, or banking—may be able to reach expunged arrests and convictions to certify new entrants.
Courts' websites usually provide forms for expunging criminal records and are excellent places to look for accurate information. See, e.g., Washington Courts, A Guide to Sealing and Destroying Court Records, Vacating Convictions, and Deleting Criminal History Records in Washington State (Oct. 2015). Individuals applying for expungement generally are not entitled to appointed counsel under the Criminal Justice Act or the state equivalent, because expungement applications are civil proceedings. Fortunately, legal services agencies, volunteers, local bar associations, and law clinics in the various states provide assistance with expungements for the indigent. Legal Services of New Jersey, for example, provides a six-step guide for clearing a criminal record, Clearing Your Record: A Six-Step Guide to Expunging Criminal Records in New Jersey (2015). Nolo.com—no substitute for legal counsel, of course—provides a comprehensive expungement law guide on the webpage Expungement and Criminal Records.
Appeals and Pardons as Other Available Avenues
A person seeking expungement may appeal a court's denial of his or her petition. For federal crimes, if it is not possible to expunge a record through the courts, a person may seek a pardonfrom the president of the United States. For a state criminal record, a pardon must be sought from the state governor.
A criminal record can limit your client's ability to pursue a productive civic life. The expungement of a criminal record allows your client to move forward from a past mistake to pursue a full civic life. Expungement statutes vary widely. If expungement is not possible, a pardon is another option.
Keywords: criminal litigation, expungement, criminal justice, civic life