Focusing public attention on emerging privacy and civil liberties issues

Expungement

Introduction

The social consequences of a criminal record can 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, an arrest or citation typically persists on a criminal record. Therefore, even a person who has had the charges against them dropped may be subject to a degree of social ostracism and a de facto public finding of guilt.

Some states permit individuals who are arrested, but not convicted, to expunge their arrest records. Others permit some convicts to apply for expungements after time has passed from the completion of their sentences.

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. As a result, expungement 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."

  • 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, 1705-08 (2003)
  • Lahny R. Silva, Clean Slate: Expanding Expungements and Pardons for Non-Violent Federal Offenders, 79 U. Cin. L. Rev. 155, 164-75 (2010).
  • 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).

Four Key Common Elements of Expungement among State Statutes

Michael D. Mayfield, Revisiting Expungement: Concealing Information in the Information Age, Utah L. Rev. 1057, 1059 (1997).

A. Extent to which an individual can deny expunged record

Expungements are based on the premise that those with criminal records 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, some permit the same negative answer to be given for questions concerning conviction.

Of the forty states that allow expungement or sealing of arrests not leading to conviction, twenty-nine permit an individual to deny the arrest. Of the sixteen states that allow expungement or sealing of convictions, thirteen permit an individual to deny the conviction. Ben Geiger, The Case for Treating Ex-Offenders as a Suspect Class, 94 Cal. L. Rev. 1191, 1200 (2006).

B. Crimes that may be expunged

The type of crime which has been allegedly committed will invariably determine the availability of expungement. For example, some states allow expungement for many types of crimes (e.g. Colorado), others prohibit expungement of any criminal record (e.g. Wyoming), and some states only allow expungement for arrest records (e.g. Oklahoma). 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 that prohibit the expungement of convictions (unless 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 that 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. Differences in length of waiting period times depend on a multitude of factors which may include:

  • the severity of the crime
  • the age of the offender
  • whether the offender is alive
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 (e.g. health care, nursing, pharmacology, investment advising, accounting, banking, child care, engineering, and architecture) should have access to the expunged records of their members. Steven K. O'Hern, Note, Expungement: Lies That Can Hurt You In and Out of Court, 27 Washburn L.J. 574, 584-90 (1988).

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 it as if it does not exist.

Differentiating between expungement and pardons

Expungement procedures vary from state to state. But all involve an application to a judge or administrative officer. If expungement is granted, the judge enters an expungement order requiring the arrest or conviction to be deleted from court records.

Alternatively, those who have been convicted of a crime may apply 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.

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, most states place the burden on the individual to petition the court for the expungement of these records from state databanks. Jonathan Kimmelman, Risking Ethical Insolvency: A survey of Trends in Criminal DNA Databanking, 28 J.J. Med. & Ethics 209, 211 (2000). See also Julie Samuels et al., Collecting DNA from Arrestees: Implementation Lessons at 23, Nat'l Inst. Just. J., June 2012.

State Statutes, Federal Courts, and Availability of Expungement

Most states have statutes addressing expungement in one form or another.

  • 45 states and the District of Columbia provide for expungement for some ex-offenders or other similar relief
  • A majority of states provide expungement for arrests not resulting in conviction
  • Most states provide expungement for misdemeanor convictions
  • Some states provide expungement for felony convictions, after a waiting period
Fruqan Mouzon, Forgive Us Our Trespasses: The Need for Federal Expungement Legislation, 39 U.Mem. L. Rev. 1, 32-34 (2008).

At the federal level, there is no overarching federal statute governing whether courts may grant expungement orders. A patchwork of statutes governs the rules for the expungement of records in special circumstances. For example, one statute allows a court to order the expungement of public records related to certain offenses under the controlled substances act where the person was under the age of twenty-one at the time of the offense. 18 U.S.C. § 3607(c) (2012). See also 10 U.S.C §1565(e) (expungement of DNA records held by the Department of Defense); 11 U.S.C. §303(k)(3) (records pertaining to involuntary bankruptcy); 42 U.S.C. § 14132(d) (expungement of FBI DNA records). Aside from the rare statute expressly providing for the availability of expungement, whether expungement is available is not based on the type of crime committed, but in which circuit the crime was committed. At the federal level, criminal records are maintained by executive branch agencies (e.g. FBI), which raises the question of whether courts have the power to expunge executive branch records.

The Seventh Circuit held in United States v. Janik that there was no constitutional or legislative authority for the courts to order any executive branch agency to expunge records. 10 F.3d 470, 473 (7th Cir. 1993). The court instructed that if any individual sought to expunge records maintained by an executive branch agency, he would be required to go directly to the executive branch. The Fifth Circuit and several other federal circuits have held that the courts may order the expungement of criminal records held by other branches of government under narrow circumstances. Thomas R. Frenkel, Sealed Appellant v. Sealed Appellee, 130 F.3d 695 (5th Cir. 1997), 24 S. Ill. U. L.J. 627, 634 & 643 (2000). Similarly, the Sixth Circuit held in United States v. Lucido that a request “to remove records of [an indictment] held by the executive branch (the FBI) and kept at the direction of the legislative branch, . . . if granted, would amount to an extraordinary inter-branch incursion . . . .” 612 F.3d 871, 875 (6th Cir. 2010).

As to records maintained by the judicial branch, the circuits are split as to whether federal courts have the authority to expunge records it maintains. The First, Third, Sixth, Eighth, and Ninth Circuits, and District Courts in the Eleventh Circuit have held that federal courts do not have jurisdiction to consider expunging criminal records unless there is a claim of unlawful arrest or prosecution. The Second, Fourth, Fifth, Seventh, Tenth and D.C. Circuits have held that federal courts may consider expungement of criminal records for equity reasons. These circuits have adopted a balancing test to determine whether judicial records can be expunged: "if the dangers of the unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records, then expunction is appropriate." United States v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004). However, these courts rarely grant expungement. Gabriel T. Thornton, Case Comment, Criminal Law - First Circuit Holds Federal Courts Lack Jurisdiction to Expunge Criminal Records on Equitable Grounds - United States v. Coloian, 480 F.2d 47 (1st Cir. 2007), cert. denied, 128 S.Ct. 377 (2007), 41 Suffolk U. L. Rev. 395 (2008).

Thus far, the Supreme Court has passed on three requests for certiorari to resolve the split between the circuits in United States v. Coloian and Rowlands v. United States, and Sapp v. United States.