Expungement
The social consequences of a criminal record can effectively lead to the denial of an individual's right to civic participation. Life, subsequent to an arrest, is permanently altered. Regardless of whether an individual has been convicted and the overall outcome in court, an arrest or citation will typically appear on a criminal record. Therefore, even a person who has had the charges against them dropped may be subject do a degree of social public ostracism and a de facto public finding of guilt.
Although generally reserved for individuals who have not been convicted of a crime, certain states permit offenders to apply for expungements after a specific amount of time has passed from the completion of their sentences, provided they were not convicted of a crime that fell under a list of certain enumerated crimes.
State and federal legislatures recognized the difficulty of reintegration for offenders and the difficulty for those with an arrest on their records to obtain employment.[1] As a result, expungements laws were created. While there is no uniform process known as expungement, it is commonly accepted that the purpose of expungement is to conceal criminal records from the public. Depending on the jurisdiction, this process may be referred to as "erasure, destruction, sealing, setting aside, expunction, and purging."[2]
Four Key Common Elements of Expungement among State Statutes[3]
A. Extent to which an individual can deny expunged record
Expungements are based on the premise those with criminal records an individual will have trouble reingrating into society and may face barriers from participating in public life unless they have a legitimate means of being able to honestly deny that they have ever been charged with a crime or possessed a criminal record. As a result, most states permit individuals who have had their records expunged to answer in the negative if asked whether they have been arrested or charged of a crime. Therefore, if asked on a job or school application, an applicant with an expunged record may honestly answer "no" to having been charged with a crime. Additionally, for those states that permit expungements even after convictions, the same negative answer may be given for questions concerning conviction.
B. Crimes that may be expunged
The type of crime which has been allegedly committed will invariably determine the availability of expungement. In states where expungement is granted after a conviction, the severity of the crime will play a determinative role in whether or not expungement is possible. Conversely, states which prohibit the expungement of convictions (before a pardon is obtained) will often contain restrictions depending on the process taken to complete the case without a conviction. For example, it is quicker and easier to obtain an expungement when a charge has been dismissed as opposed to when a case has been placed on a "stet docket" (an inactive group of cases which are generally not reopened).
C. Rehabilitation - Worthiness of Having Records Expunged
Typically, the waiting period before an application can be made is used as an indication of rehabilitation. In addition, a waiting period free of arrests or any trouble with the law is further used to affirm rehabilitation. State codes also contain provisions on the number of times expungement may be granted.
D. Expunged Records and Access to Criminal Records
The practical effects of expungement remain questionable when considering the number of people who can still access criminal records even after they have been expunged. It has even been advocated that licensing bodies of professions charged with upholding the public trust should have access to the expunged records of their members.[4]
Expungement Simplified
The process of getting your criminal records sealed, destroyed, or cleared is referred to as expungement. The actual language, process, and effects of expungement vary depending on the state. The overall effect of an expunged record is to treat is as if it does not exist.
Differentiating between expungement and pardons
While state policies vary widely, expungement is usually only available to those who have not been convicted of an crime. Even without a conviction, a criminal record often reveals any arrest or citation regardless of the outcome in court. Therefore, individuals who have been charged with, but not convicted of, committing a crime have a great social and personal interest in clearing their records.
For those who have been convicted of a crime, the option which remains is the application for a pardon. A pardon is granted by the Governor but for U.S. federal convictions, they are issued by the President. The effect of a pardon is also different from an expungement - an expungement removes an arrest or citation from a record whereas a pardon will indicate that the state has pardoned you for your crime.
Depending on the length of time that has passed since the conviction and the nature of the crime, some states permit applications for expungements.
What types of records can be expunged?
Although guidelines are state dependent, typically all records on file within a court, correctional facility or law enforcement agency concerning a person's apprehension, arrest, detention, trial or disposition of a crime can be expunged.
Serious concerns are raised when DNA samples have been taken from individuals who have subsequently been acquitted or have had their convictions reversed. While thirty-nine state codes contain provisions relating to the procedures for DNA samples and profiles of individuals in these circumstances, the burden is often placed on the individual to petition the court for the expungement of these records from state databanks.[5]
[1]Margaret Colgate Love, Starting Over With a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J 1705 (2003).
[2] Carlton J. Snow, Expungement and Employment Law: The Conflict Between an Employer's Need To Know About Juvenile Misdeeds and An Employee's Need to Keep Them Secret, 41 Wash. U. J. Urb. & Contemp. L. 3, 21 (1992).
[3] Michael D. Mayfield, Revisiting Expungement: Concealing Information in the Information Age, Utah L. Rev. 1057, 1059 (1997).
[4] Steven K. O'Hern, Note: Expungement: Lies That Can Hurt You In and Out of Court, 27 Washburn L.J. 574, 584-90 (1988).
[5] Jonathan Kimmelman, Risking Ethical Insolvency: A survey of Trends in Criminal DNA Databanking, 28 J.J. Med. & Ethics 209, 211 (2000).
