Obtaining or Expunging a Criminal Record
By Aaron Larson
Notice: Please note that if you have been charged with a criminal offense, you will likely benefit from consulting a criminal defense lawyer. You may find this article on "How To Hire A Criminal Defense Lawyer" to be helpful.
The procedure for obtaining a criminal record varies depending upon the jurisdiction which holds the record, and the purpose for which you require the record. For example, if you are trying to obtain a criminal background check of yourself, for purposes of applying for a job, security clearance, or professional license, you will probably have to have your fingerprints taken by a local police agency, then submit original copies of your fingerprints to the state, provincial, or national police force where you reside along with a fee. The police agency will then check your personal information and fingerprints against known criminals, and will report back to the potential employer or licensing agency with either the expression that you don't have a criminal record, or a recitation of your public criminal history. In the United States, depending upon the purpose of the record check, you may need to separately request records checks from both the state police and FBI. (Some employers will submit the records check requests, rather than requiring you to submit the requests yourself.)
If you are trying to learn the criminal history of an individual, there are a number of available options. If you are concerned that the individual may be a sex offender, you may look them up in the public registry required under "Megan's Law". If you are trying to check to see if somebody is incarcerated, many state departments of corrections now have "inmate lookup" features on their websites. (Note that a state department of corrections search will not include people incarcerated in a county jail, nor would they reveal federal convictions.) Some states will list all persons who have been incarcerated with, or placed under the supervision of, the state department of corrections, enabling you to find out at least of an individual has committed a crime of sufficient gravity to be placed in prison or on parole.
If you require a person's full criminal history, you may have to check with several locations. First, if you want to be sure you find every conviction, you should submit a request for a criminal record with every jurisdiction where the person has lived as an adult. Second, you should request records from both the state or province and federal authorities. Third, you will need to be sure that you follow the proper procedure for obtaining a criminal record in the state at issue, and pay any required fee. Your request should be as specific as possible about the person, including if available the person's legal name, prior names or known aliases, Social Security number, race, date of birth, and present and past street addresses. Particularly where a person may have a criminal record in more than one jurisdiction, many people will find it less burdensome to have a private investigator or background investigation service do a full criminal background check on the individual in question.
If a record has been sealed or expunged, you may not be able to obtain it. Sometimes, evidence of the criminal conduct will remain part of the public record. For example, even if a conviction is expunged or the court record was sealed, there may be a public arrest record associated with the event which gave rise to the prosecution, and there may also be a record of the fact that a criminal charge was filed even though its resolution is not publicly available.
When a criminal record is "expunged", in most senses the record is treated as if it does not exist. There are limits to expungement - for example, some states maintain separate registries for people who have been convicted of child abuse or sex offenses, and the expungement of a criminal record may not affect those registries. Also, for some subsequent purposes such as applying for a job which requires a government security clearance, the odds are very high that the employer will discover the full criminal history so it may be best to admit having an expunged conviction when applying for such a job.
People seek expungement for a variety of reasons. Some simply wish to remove an embarrassing blot from their personal history. Others want to have their right to vote reinstated, in a state which suspends voting rights for convicted felons. Some wish to have their right to possess a firearm restored, so that they may go hunting. Some require an expungement in order to be eligible for desired employment. As a general rule, chances for successfully obtaining an expungement go up with the demonstration of need, and with evidence of complete rehabilitation.
States have very different policies on expungement. Some states may exclude the possibility of expungement, others may limit its availability to people who have no more than one criminal conviction on their records, while others may be more generous. You will also be required to have been discharged from your sentence for a considerable period of time, without further legal incident. You will need to investigate the policies of the jurisdiction which issued the conviction or convictions, in determining whether you are eligible for expungement.
Expungement is not the only option available to people who wish to clear their criminal records. Most jurisdictions have systems whereby people can apply for pardons. While an expungement is typically issued by the court in which a person was convicted of a crime, a pardon is an executive action which can partially or fully lift the effects of the conviction. Another option is to seal a criminal record, although this usually occurs only with juvenile records (and sometimes even then only if they stay out of trouble during their first few years of adulthood). In some jurisdictions, juvenile records are sealed automatically, while in others it is necessary to bring a motion within a certain number of years of adulthood in order to have the record sealed. It is very unusual for the criminal convictions of adults to be under seal. Finally, it may be possible to bring a "collateral attack" on the conviction, to try to have the conviction set aside. Usually, this is a difficult process, involving a separate court action which must be commenced within a limited period of time after the conviction is entered.
The system of applying for a pardon or executive clemency varies significantly between jurisdictions. Generally speaking, if your jurisdiction has a more generous expungement law, your first recourse should probably be under that law. If your jurisdiction has a restrictive expungement law, or if you do not qualify, you may consider applying for a pardon as an alternative. As with expungement, some jurisdictions have relatively liberal policies of issuing pardons to people who evidence rehabilitation, while other jurisdictions are very restrictive.
For U.S. federal convictions, pardons are issued by the President. In states, pardons are issued by the governor, with varying levels of control and influence over the pardons process given to state pardons boards. If your conviction is for a U.S. military offense, you will have to apply for clemency with the branch of the military which issued the conviction before you can apply for a pardon with the President. Ordinarily, your pardon application will include extensive personal information, an explanation of the facts of the offense for which you wish to be pardoned, your other criminal history (if any), your rehabilitation, your residences, financial, and employment history, and affidavits from people who know you about your present good character. Ordinarily, you must serve out your sentence in full, including any term of probation or parole, before you will be considered for a pardon.
Copyright © 2003 - 2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.