November 20, 2018

What Is “Expungement?”

What is “expungement?”

It is not uncommon among juvenile court proceedings to encounter the term “expungement,” or find an expungement order issued by the court. What does it mean? Here, Teaching Legal Docs will explore an expungement order, and try to place the document in a larger context of law and culture.

To “expunge” is to “erase or remove completely.” In law, “expungement” is the process by which a record of criminal conviction is destroyed or sealed from state or federal record. An expungement order directs the court to treat the criminal conviction as if it had never occurred, essentially removing it from a defendant’s criminal record as well as, ideally, the public record.

It is important to clarify that expungement is not “forgiveness” for committing a crime—that is a legal pardon. Likewise, pardons are not expungements and do not require removal of a conviction from a criminal record. In the United States, pardons may be granted by public officials. The President, for example, issues pardons annually. State governors may also pardon certain defendants in their states. Expungement proceedings, however, must be ordered by a judge, or court.

A State Affair

In the United States, virtually all expungement proceedings take place in state courts. Expungement orders from federal courts are extremely rare, and there is no federal statute governing its application at the federal level. Each state, however, has its own laws about whose records are eligible for expungement, which offenses may be expunged, procedures for application, and definitions of how records will be managed under an expungement order. Juvenile records are the most common, but many states also allow adult defendants to seek expungement of their records. In Kentucky, for example, an adult may petition the court for expungement of certain records. Maine and North Dakota, however, limit expungements to juveniles and other specific defendants. All states limit the types of offenses that may be expunged. Driving offenses, for example, may not be expunged from records in some states. Other serious offenses, including murder, kidnapping, and rape, may also be ineligible for expungement. Once a record is ordered by a court to be expunged, states then have laws about how the record is to be handled, typically sealed (Kentucky, for example) or destroyed (Washington). If a record is sealed, it may remain available to law enforcement officers, but removed from the public. If a record is destroyed, all relevant documentation is removed from the state court system following the state’s protocols for records destruction.

The example expungement order documents in this Teaching Legal Docs were issued by the Family Court of South Carolina and the Allegheny County Court in Pennsylvania. The documents complement one another by providing two important pieces of the expungement action—case information (South Carolina) and the actual expungement order from the court (Pennsylvania).
Both documents clearly indicate, with titles, that they are orders for expungement. An expungement order will typically identify a case, the parties involved, and the matter to be expunged from the court record. The South Carolina example includes entries for all of this information. If we consider this document alongside the document from Pennsylvania, we might get a sense of how the court order for expungement is actually carried out. The order lists eight different agencies within the Allegheny County court system that are to receive a copy of the order, with instructions to “expunge and destroy the official and unofficial arrest, expungement, and other documents” pertaining to the referenced criminal proceedings. It includes a date and state seal, which certify its filing with the court. The order is signed by a judge, who also wrote “By The Court” in script to indicate the court’s directive. Finally, at the bottom of the order, there is an “Affidavit of Expungement,” by which the person signing certifies that the indicated records “have been expunged and destroyed” as directed.

There are Limits

An expungement order concerns specific matters and specific courts, and nothing more. Expungement orders do not remove records from the press, Google, or social media, for example. It depends on the matter that is being expunged, but sometimes additional documentation about the matter exists outside of the court’s jurisdiction. Without additional legal actions, the court cannot expunge such things as news stories, social media posts, interviews, or, in some cases, arrest reports made by police departments outside the court’s purview. Basically, expungement orders cannot completely erase public record. A recent federal court decision from the Tenth Circuit, Nilson v. Layton City, explains:

An expungement order does not privatize criminal activity. While it removes a particular arrest and/or conviction from an individual criminal record, the underlying object of expungement remains public. Court records and police blotters permanently document the expunged incident, and those officials integrally involved retain knowledge of the event. An expunged arrest and/or conviction is never truly removed from the public record and thus is not entitled to privacy protection.

So, while a person’s reasons for seeking expungement of a record, and a court’s reason for allowing expungement of a record, might, ultimately, include desires for privacy, it is important to realize that there are limitations. Courts are working daily to strike a balance between public record and expunged matter in today’s Information Age.