A criminal record limits a person’s ability to pursue a productive civic life. It can restrict access to education, employment, public housing, student financial aid, welfare benefits, military service, and the right to vote. If your client is looking to move forward from a mistake in their past, expungement is the answer. The expungement process typically clears the arrest and conviction record from the public view and ameliorates the negative consequences of a criminal record.
In most cases, when a criminal record is expunged, it is as if it never existed. The person with an expunged record may answer no if asked whether they have been arrested or convicted. Expungement of records significantly eases barriers to pursuing a full civic life.
There is no constitutional right to an expungement and no federal expungement statute. Apart from the very few statutes specifically providing for it, federal courts rarely expunge criminal records. The Federal First Offender Act, however, does permit expungement of a federal crime 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 FBI, respectively.
Absent a statute, does a federal court possess the inherent equitable power to expunge a criminal record? It depends on where your client’s records are located. The circuit courts of appeal are split. Federal courts may expunge in the Second, Seventh, Tenth, and DC Circuits. But these courts rarely, in fact, expunge records.
In Abdelfattah v. United States, 787 F.3d 524, 528 (D.C. Cir. 2015), the court acknowledged its power to expunge but disclaimed a “right” to it and could not see “injury to a legally protected interest” as a prerequisite for the court to expunge a record. The First, Third, Eighth, and Ninth Circuits find no equitable power to expunge at all. The US Supreme Court has not resolved the split.
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 non-disclosure” in Texas and “expunction” or “setting aside” in Oregon.
There is no substitute for reviewing the state statute, and remember that the records are likely located in a county as well. 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 or 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, such as Arkansas and the District of Columbia, expunge only misdemeanors. Fewer still, 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. 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 immigration court removal proceedings. Public trust professions—such as 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. 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 various states provide assistance for the indigent. The Legal Services of New Jersey, for example, provides a six-step guide for clearing a criminal record. Nolo.com (no substitute for legal counsel, of course) provides a comprehensive expungement law guide.
A person seeking expungement may appeal a court’s denial of his or her petition. For federal crimes, if a record cannot be expunged through the courts, a person may seek a pardon from the President of the United States. For a state criminal record, a pardon must be sought from the applicable state governor. If your client’s record includes a criminal record that can be expunged, and the client has complied with the waiting period and paid the fees required by the statute, it is time to file that petition for expungement.
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.
