Expungement is the removal or concealment of a conviction from the public record. Having a conviction expunged may provide the hope for a fresh start to people who have a conviction on their record. Yet expungement is not always as valuable as people think it will be. This article will help you to understand the benefits and limitations of state laws that help people clean up their criminal records.
How does expungement work?
Courts order expungement on the theory that once a criminal defendant has paid their debt to society, the defendant should no longer be burdened by the conviction. Disclosing a conviction on an application for a job, lease or loan may jeopardize the defendant’s ability to move forward in life. When a criminal record prevents someone from obtaining employment, housing or bank loans, the temptation to turn to crime is stronger. Therefore, it is believed that expungement encourages rehabilitation.
State laws vary as to when and how expungement will be ordered, as well as to its legal effect. The general purpose of expungement is to "erase" the public record of a criminal conviction. In the age of the Internet, however, erasing records has become more difficult.
When public records are kept in the form of paper documents that are stored in files, the expungement of a conviction usually means that the file is sealed. In other words, a judge enters an order prohibiting the public from gaining access to the file. The clerk of court either flags the file as unavailable for public inspection, or moves it to a different location where sealed files are stored. Rarely does an order of expungement result in the actual destruction of the file.
Am I eligible for expungement?
Expungement is considered a reward rather than a right, and it is not available in every state. Even when state law allows expungement, it is not available for every crime or to every defendant. To determine whether you are eligible to have a conviction expunged, you will need to investigate the law of the state in which the conviction occurred. The simplest way to do that is to talk to a criminal defense lawyer.
When expungement is permitted, the decision to grant it is usually left to the discretion of the judge who sentenced the defendant. Judges are more inclined to grant expungement to first offenders than to individuals who have a history of violating the law. Judges also tend to think that people who commit minor offenses are more deserving of expungement than those who commit serious crimes.
Some judges are more willing than others to grant expungement requests. Again, it is often helpful to obtain advice from a criminal defense attorney who is familiar with the tendencies of local judges.
When can I ask for expungement?
In some states, expungement is available only if the judge orders it at the time that the conviction is entered. In other words, when the judge pronounces the sentence, the judge will also state that the record will be expunged after the completion of a specific action or event (such as payment of a fine or discharge from probation). In those states, it may be too late to ask for expungement if you did not do so at the time of your sentencing hearing.
In other states, expungement can be ordered after the conviction is entered. Some jurisdictions require a certain amount of time to pass before expungement is authorized. On the other hand, some jurisdictions impose a deadline for seeking expungement and will not allow an expungement request to be granted if too much time has passed.
Can my arrest record be expunged?
Some states allow an arrest record to be expunged if the arrest does not lead to a conviction. Those states may limit that remedy to cases in which charges have been dismissed or the defendant has been acquitted. Some laws that permit expungement of arrest records allow the defendant to apply for the return of their fingerprint card.
Are there limitations on expungement?
An expungement restricts access to the record of a conviction. It does not remove the conviction. Access to the record of an expunged conviction is usually available to the police, prosecutors, courts and certain other government agencies. Since an expunged conviction is still a conviction, it will probably count against you as a prior offense if you are convicted of another crime.
Depending on state law, expungement may result in the removal of a conviction from an electronic database maintained by the court system. A record of the charges that were filed may or may not continue to appear in the database. A problematic aspect of the Digital Age is that private data collection services often harvest information from public databases. Therefore, even if your conviction is removed from a court’s website, it may still appear in the database of a private business that sells information to other businesses and to private consumers who conduct background checks. As a result, a prospective employer may become aware of your expunged conviction by using one of those services.
Although you probably do not need to disclose an expunged conviction on applications for employment in the private sector or on lease applications, some applications expressly require the disclosure of expunged convictions. Government licensing agencies generally enforce "good character" requirements and are entitled to ask you about expunged convictions if you apply for a business or professional license, such as a real estate salesperson license or a license to operate a daycare center. If you apply for a law enforcement job or a job that requires security clearance, you will probably be required to disclose expunged convictions. A failure to do so may subject you to prosecution for providing false information to the government.
What can I do if expungement will not help me?
If expungement is unavailable, another remedy is to remove a criminal conviction by obtaining a pardon. The governor of a state is generally empowered to grant pardons to individuals who demonstrate a compelling need for one (such as the inability to secure employment because of a conviction). A pardon removes the conviction rather than the record of the conviction. An individual who is pardoned is in the same position as an individual who was never convicted.
Pardons are not easy to obtain. They are rarely granted unless several years have passed since the conviction was imposed. To learn whether a pardon is applicable in your case, you should consult with a criminal defense lawyer who handles pardon applications.