Criminal Record Expungements: An in depth overview of expungment in the United States
The reality of living with a Criminal Record
77 million, or one in four Americans, has some type of criminal record. However, this doesn’t mean that one in four Americans is a criminal. Criminal records can include anything from an arrest without a conviction to a conviction with time served. Most employers and landlords aren’t going to delve into the particulars of why someone has a criminal conviction: simply having one is enough to decide whether to deny someone a home or a job. In fact, a criminal record can bar a person from public services, professional licenses, employment in certain sectors, and from receiving certain government benefits.
Not only do the people with criminal records lose, society loses. These people can’t contribute to society to their fullest potential. They can’t find work, become licensed, or become educated in a field in which they can apply their skills and talents. They hesitate to put themselves out there for fear that their past will get in the way.
For those who were arrested but not convicted, were placed on probation, or simply did a very stupid thing years ago when they were younger, a criminal record is like a tattoo they never wanted. However, like tattoos, criminal records can be removed. One method of removing a criminal record is expungement.
Expungement may be just the thing for someone who made a mistake, is a new person now, and needs a fresh start for a new life.
What is expungement?
Expungement is the process of completely removing a criminal record from access as if it never existed. Expunged records are destroyed by the state holding the records. No record exists after expungement in the eyes of the law because there is no actual record for anyone to read. The state will destroy all parts of an expunged record, from the mugshot to the sentencing. This means that the person who once had a criminal record can honestly answer “no” when asked if they have a criminal history.
There is no record of the process of expungement itself, either. Likewise, no one can contact the state and ask for expunged records or even for information on whether a record was expunged. For example, if someone performs a background check on a person with an expunged record, the check will show no results for any of the expunged records. It will not read that the record was removed or destroyed.
Why would a state expunge records? Who does it actually help? Hint: Everyone.
You have to understand why the state would have an interest in maintaining a public record of the crime, arrest, or conviction in the first place. As anyone with a criminal record knows, these things are public record if they’re not sealed or expunged. The public has a right to know the important details of arrests, convictions, and criminal procedures in our courts (except in cases of certain sex crimes and crimes against minors, in most states). The state has an interest in keeping the public informed of people and events that could cause them harm, crimes that have been committed, and what the state has done to protect its citizens.
The state thus has to balance the interest between the public’s right to know and the person’s desire for privacy and to live their life outside the shadow of a single bad moment.
For example, a man is convicted of possession with intent to sell for having a half-ounce of marijuana in his possession. Say that this person goes to prison and is a model prisoner. He’s released and completes parole. Three years after the end of his sentence, he’s a law-abiding citizen with a family. He wants to move his family into a larger, more affordable apartment. Yet, he’s having trouble getting public housing because of the conviction. He’s had a clean record since his one and only conviction. He works. He has a family. He obeys the law. In addition, marijuana has recently been decriminalized in the state he lives in, and there’s likelihood that the governor will sign a bill to make recreational marijuana legal this year.
Consider a different case: A high school senior is arrested for using a fake ID to buy beer for a party. She’s booked, and arraigned. She pleads guilty and is given probation for six months and ordered to pay a $200 fine. She pays the fine, seamlessly goes through probation, and completes her sentence. Years later, she’s newly graduated from college with honors and is currently looking for a job. However, because she has a criminal record, she fails the background checks and can’t get a job in her field.
Which of these persons could have their records expunged? The answer is actually both, depending on the states where they were convicted. The woman who used a fake I.D. would probably have an easier time convincing the state to expunge her record. In her case, she’s not going to reoffend because she’s over 21 now, is not a danger to the public, and is rehabilitated. She is not a danger to the community. It does more harm than good to keep her record open because she can’t get jobs she’s qualified for.
The man with the possession conviction went to prison. However, he may be eligible for expungement of his records because it does more harm than good to keep him and his family from public housing. Since his crime is no longer recognized as a crime in his state, it benefits no one to keep his conviction on his record, but it harms his family because he spends too much money on the rent, leaving too little money for his children’s other needs.
Expungements are good for the community, too.
Expungements are rarely required by law for offenses committed by adults. There is no constitutional rule in any state that the state courts must grant petitions for expungement. States recognize that in some instances, it’s better for everyone if certain criminal records are destroyed. The state benefits when people are productive to their fullest extent, but also when they have no incentive to go back to committing crimes.
A return to a life of crime, or recidivism, often occurs when a person feels they have no choice but to engage in criminal behavior again. For example, a convicted drug dealer may end his sentence but still go back to dealing marijuana because he can’t get a legitimate job because of his criminal record. He can’t get federal financial aid for college because of his drug conviction. He can’t get a private loan for college because he has no credit history and has a criminal record. The only skill set he has to make money to pay the rent and buy food is selling drugs. The only social network he has is other people who sell and use drugs because he can’t get out of the neighborhood he came from. He can’t move away because he doesn’t have money or the opportunity to get an apartment in a better place because of his criminal record.
If this man was young when he started selling drugs and only had one offense, it may be better to expunge the record and give him the opportunity to start over again. This is especially true if the offense occurred years ago and if he tried to start over as a law-abiding citizen. The criminal record continues to punish him after the end of his sentence. Not only would he be committing a crime again, he’d be more likely to end up in a criminal lifestyle, making it even more difficult to rehabilitate. The state now has to pay for his arrests, convictions, and incarcerations, as well as the police force that will attempt to stop the crime, and deal with any collateral crime that could occur, like shootings when drug deals go bad.
Note: federal crimes can’t be expunged.
Expungement is only available for state criminal records. Federal law governs federal crimes, federal courts, and federal criminal procedure. There is no federal law on expungements. However, a person convicted of a federal crime can seek a pardon from the President of the United States if 1) the person was convicted of the crime and doesn’t deny that a crime took place, and 2) five years have passed since the conviction. The person must submit a petition to the Office of the Pardon, Attorney of the United States Department of Justice to request a pardon.
A presidential pardon will not destroy or seal a federal criminal record. Anyone pardoned by the president must admit to having a criminal record.
The difference between expungement, pardon, and sealed records:
There are a few ways to lessen the impact of a criminal record. However, they’re not all the same. In general, states offer three ways to lessen the impact of a criminal record: expungement, pardon, and sealing of records. While they can all help to lessen the damage a criminal record can do, they’re not the same things.
An expungement is the destruction of a criminal record, as if it never existed. It wipes the slate clean.
A pardon, on the other hand, does not erase a conviction. In fact, in order to get a pardon, one not only has to be convicted, but admit that a crime occurred. A pardon, also known as clemency or executive clemency, occurs when the governor, on behalf of the state, officially forgives someone for a crime. In some states, a person with a criminal record has to first seek a pardon before seeking expungement of their record. They may then petition for expungement of the record once the state grants the pardon.
Unlike an felony expungement, a pardon doesn’t erase a criminal record. However, a pardon usually means that the restrictions placed on ex-convicts don’t apply. For example, in states where ex-felons lose their rights to vote forever, pardoned ex-felons are not barred from voting. Unlike sealing a record, the details of a criminal record are still available to the public.
Pardons tend to be granted for crimes, convictions, and arrests that are widely known to the public anyway, such that expungement or sealing the record wouldn’t really help. Pardons also tend to have a political motivation or reason. However, governors are not required to pardon anyone, and some may choose not to pardon anyone for fear that they will look soft on crime. For example, a governor may pardon a convict on death row when there is clear evidence that the person is profoundly developmentally disabled, and there are protests and petitions from citizens demanding a pardon.
Sometimes, the words “sealed” and “expungement” are used interchangeably to describe the sealing of criminal records. However, they’re not the same thing.
Sealing records is similar to expunging them in that most people and organizations do not have the right or privilege of accessing sealed criminal records. It’s as if they’re duct taped shut. However, they’re not destroyed. They exist, and it’s public information that the records merely exist, but in most circumstances, no one can know the content. They can however, be accessed by law enforcement in some states, the military for enlistees and officer candidates, and in other circumstances.
Most juvenile records are sealed rather than expunged.
Someone who has a sealed record as an adult has to say that they do have a criminal record, but they’re not obligated to disclose what the record is for. While this may seem sketchy to the employer, organization, or person asking about the criminal record, the good news is that states generally will not seal records of dangerous, violent, and extreme crimes. Misdemeanors, arrests that don’t lead to conviction, traffic offenses that aren’t felonies, and convictions for which the sentences have ended years before are usually eligible for sealing.
Possible First Steps Toward Expungement:
Some states may require that a person clear their name before seeking expungement. While not always necessary, getting a certificate of actual innocence or certificate of rehabilitation can greatly aid in getting an expungement later on.
- Certificate of Actual Innocence: A certificate of actual innocence is a document asserting that the criminal record should never have existed because the person had committed no crime. The certificate of actual innocence exists to erase any doubt that the individual in question committed no crime. In some states, the individual granted a certificate of actual innocence is automatically qualified to have their criminal record destroyed.
- Certificate of Rehabilitation: Proof of rehabilitation may be granted to those who have been convicted but have served their sentence. While it doesn’t expunge the record automatically, it can be the first step toward getting a criminal record destroyed if the record is otherwise qualified for felony expungement.
Who is eligible for expungement?
Anyone with a criminal record who has either not been convicted or has been convicted but has completed any sentence can have their records expunged. Juveniles who reach the age of majority likely have their juvenile records expunged or sealed automatically. Also, persons who are found innocent upon appeal and have their convictions overturned are eligible for expungement.
However, some conditions — although not always required — generally help a person seeking an expungement:
- First, a person usually has to have had a clean record for a while since the original arrest and/or conviction. The older an arrest or conviction, the better the chances of an expungement.
- Second, the person should be living on the straight and narrow. A person who has been a productive citizen since their arrest, conviction, release, or parole is more likely to be eligible for expungement than someone who hasn’t been arrested again but is known gang member.
- Third, the person should have a compelling reason to have the record expunged. While everyone with a criminal record would like their records to disappear, the state will not make it happen without a good reason. Someone with a very old record that isn’t reflective of who they are because they’ve been a productive, good, law-abiding citizen is a place to start. However, petitions for expungement of criminal records require a reason. It could be as simple as an arrest without a conviction that is keeping a willing and able worker from finding gainful employment. It could be because the person is now demonstrably rehabilitated after incarceration.
Good reasons for expungement can vary. For example, say someone’s criminal record is only an arrest that happened at a lawful, peaceful demonstration because the police arrested everyone in violation of their First Amendment rights. This person has a reason that is very compelling for getting their criminal record destroyed.
However, what is a good reason depends on timing, too. It would be more difficult to get an expungement if the reason for the expungement is that the individual plead guilty, asserting ineffective counsel but didn’t appeal the conviction. However, it’s not impossible. This is where an expungement lawyer would be especially helpful.
If my record is destroyed, why is my arrest still on my local newspaper’s website?
Expungement only destroys the state’s records. It doesn’t destroy any other public record. In fact, that state can’t force any media to take down or to stop publishing something that is a matter of public record, and criminal procedures are matters of public record. When someone is arrested, it’s public record and can be published to the world. Unfortunately, expungements don’t come with time machines.
However, an official expungement can aid in removal of some material from the Internet. It can also help ensure that the expunged record isn’t re-published in other places. Moreover, if someone’s criminal record is destroyed by the state, they can honestly say they have no criminal record, and a legitimate criminal background check will show no record despite what may be read on a website.
Most importantly, a criminal record is forever if it’s not sealed or destroyed. It’s also public record. However, things on the Internet can be buried deeply. Eventually that newspaper article is going to disappear from the website to make room for more timely articles. It’ll be buried in the Google results, too.
Even if someone clicks on a free background check website to follow up on a criminal record, they probably won’t get any actual criminal information, because most of these sites don’t actually pay to get actual criminal records or go through the effort of getting real criminal records. They may crawl government websites for criminal record information, but once a record is destroyed, that information is no longer available to mine from government websites.
Creating positive web pages, profiles, and social media can further help push criminal record results onto Google’s results page 2 or further, which may as well be page 1,000. Reputation managers scrub Google for a living. However, they can’t scrub the state, nor can they give anyone the right to deny having a criminal record if they do have one. Only an official expungement can do that.
What can be expunged?
This depends on the state. Crimes that are not inherently dangerous to the public or have happened long in the past and under specific circumstances may be eligible for expungement. Most states will expunge the records of single-incident misdemeanors with completed sentences, minor traffic offenses, arrests without conviction, and crimes that are no longer considered criminal.
States may also expunge records of those who are exonerated and/or have had their sentences vacated. This means that the state declares them innocent and/or has ended their sentence and freed them because they should not have been convicted or sentenced in the first place.
Most states will only destroy the records of first-time offenses, and will only destroy records for someone once. The state won’t destroy a record with multiple offenses that occurred at various times, or a record that contains a variety of different offenses. However, this doesn’t generally apply to juvenile records, which are still eligible for expungement and/or sealing even if they’re long records.
What can’t be expunged then?
While this varies from state to state, generally, violent crimes, violent felonies, felonies that are depraved, crimes that indicate “moral turpitude,” and crimes that would for other reasons be difficult or repugnant to pretend they never happened usually can’t be expunged. For example, no state will expunge child pornography, human trafficking, or first-degree murder.
Crimes that could easily happen again generally can’t be expunged, either. Many states also don’t allow DUIs to be expunged.
A state will not expunge a record while the sentence is still being served and/or with any outstanding fines. In many cases, the state will not expunge records until a certain number of years have passed since the end of the sentence.
A state may also choose not to expunge a crime that is particularly dangerous to the community, such that it would be better to know someone’s criminal history for the safety of the public. For example, crimes that require someone to become a registered sex offender will not be expunged. White-collar crimes, in which multiple laws are broken in multiple instances very quickly, may be more difficult to get expunged than say, stealing a car once.
No conviction: dismissals, no charges, releases, and acquittals
A conviction occurs when a person is formally charged with a crime and is either tried and found guilty or pleads guilty. Most states will expunge criminal records that don’t include convictions.
Arrest records are still criminal records, even without a conviction!
Why worry about an arrest that didn’t lead to charges or a conviction? Arrests are still part of a criminal record, and they show up on a background check. Whoever is doing the background check may not even care that it was simply an arrest, because just seeing an arrest on someone’s record may make the checker think that the person must have done something illegal in the past.
Juvenile criminal records are commonly destroyed once the minor becomes of age. Many states automatically expunge or seal juvenile records once the offender or person reaches the age of majority. However, these records may still be accessible to certain groups for specific reasons. For example, the military may seek a recruit’s juvenile records. A person applying to the state bar to practice law may also have to admit to a juvenile record if they have one, and the state bar will do background check and search for it.
Automatic expungement as a matter of policy
Some state and municipalities are or have made plans to expunge the records of persons arrested and convicted of crimes that are no longer crimes. For example, the Cook County, Illinois, state attorney plans to expunge hundreds of thousands of marijuana-related conviction records for citizens of Cook County when recreational marijuana becomes legal in Illinois in 2020. These persons will be eligible to have their record expunged automatically without petitioning for it. Cook County follows in the footsteps of many counties in California doing the very same thing. This could lead to potentially hundreds of thousands of criminal records being destroyed for hundreds of thousands of Americans.
If you’re a person with a marijuana conviction in a state where recreational marijuana is legal, you may be eligible to petition for an automatic expungement of your record. However, the qualifications for expungement vary from state-to-state. For example, Colorado currently allows for automatic expungement of possession convictions only. This doesn’t mean all is lost for someone who has a marijuana-related conviction for something other than possession. It just means that person will have more work to do in attempt to destroy the record.
How are criminal records expunged?
A person with a criminal record they wish to see destroyed has to first petition the government. Each state has different rules, but generally, the petition should identify the individual, show what’s in the criminal record so the court can determine if the offenses are eligible for expungement, and explain why the individual wants the record expunged. Some states are very specific about what can and can’t be put in an expungement petition. However, it’s helpful to the court to have reasons why it should order the records destroyed. It’s in the Petitioner’s best interest to let the court know if they have no other criminal record and if the criminal record is very old.
Once the petition is complete, it usually must be filed in the state where the arrest and/or conviction happened. Often, the petition must be filed in the actual county where the arrest and/or conviction occurred. The Petitioner must send copies of the petition to the government agencies involved, such as the police and the state prosecutors. They must be notified or the petition will not be granted. They may object to the petition, but they have the right to that opportunity.
The court will schedule a hearing on the petition. The police and/or prosecutors may object to the petition. If so, the court will consider those objections, but that doesn’t mean the court will simply deny the petition. The court will still make careful consideration of the petition and a ruling based on all facts presented by all parties.
The court must first consider whether the individual is eligible for expungement according to state law. It will then consider other factors, such as the severity of the crime, how long ago it occurred, and if the individual has committed any crimes since. It will consider other “soft” factors as well, like the kind of life the Petitioner has lead since the arrest or conviction. A law-abiding citizen who has contributed to society or has tried to do so will have an easier time convincing a judge to order an expungement than someone who hasn’t done much with their life since the record was created.
The court will also consider the reason for the petition in the first place and how harmful the criminal record is to the person. The court may look more favorably on a petition brought by someone having trouble finding a job in their professional field than someone who is just simply embarrassed of their criminal record.
If the judge grants the petition, the judge will create an expungement order that requires that all criminal records be destroyed. This order applies to all government entities that have the criminal record. It would be unlawful if they did not.
The rules and procedures for expungement differ from state to state. Anyone is free to petition for expungement themselves and argue in court on their own behalf. However, the difference between a petition denied and a petition granted can be who is doing the work.
Usually, you only get one chance to petition the court for expungement. If it’s denied, you can appeal, but you can’t re-file a petition later on, and you can’t file an amended petition once the first one is denied.
Since you only get one shot at expungement, it’s probably best to go with a pro than to wing it.
Who can help me expunge my records?
Almost every courthouse has a pro-se desk for petitioners without a lawyer. However, they can’t give legal advice (and they will tell you that they can’t give legal advice if you ask). Moreover, many of the employees assisting pro-se filers are not lawyers and not eligible by law to give legal advice. While they can help you fill out forms, they can’t tell you what to write.
Likewise, you may be able to hire a service to help you create your petition. Again, these services are not given by an attorney with whom you have an attorney-client relationship, so the service providers may not give you legal advice. This means that the writing is all up to you.
On the other hand, post-conviction relief attorneys who specialize in helping persons expunge and seal criminal records can help you. These lawyers have experience and training in petitioning for expungement and for ensuring it happens. They know the courts, the rules, and the judges. They know the attorneys for the police. They know the states attorney’s who will respond to your petition. Most importantly, they know the law. They have the experience and expertise in record expungements to formulate sound arguments, draft successful petitions, and argue them at the hearing.
Do you have a criminal record that you want expunged?
It’s time to look forward to your future without always having to glance back to see if the past is still following you. If you want to have your own criminal record expunged, an expungement lawyer is your best bet to have that criminal record out of sight and out of mind.
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