Once you have been convicted of a crime as an adult, and sometimes even as a juvenile, your criminal record can follow you for life. If you have a criminal conviction on your record, you probably wonder what you can do to clean up your record, and to at least reduce its impact on your life. The answer depends upon the laws of the jurisdiction in which you were convicted.
The most widely available remedy is to petition a court to seal or expunge the record of a criminal conviction.
What Does it Mean to Expunge or Seal a Record
In general terms,
Expungement - Expungement or expunction involves the physical destruction of records relating to an offense or prosecution.
Sealing - Sealing involves the placement of restrictions on who may access information relating to a charge, prosecution or conviction.
Sometimes these terms are used with less precision within state laws, or even by lawyers. For example, a statute that seals a criminal record may sometimes be referenced as an expungement law.
Some states have laws that may expunge certain information from police, court, or state records, while placing other records or information under seal. Those laws may be referenced as expungement laws, even though they do not result in the complete expungement of the record of a conviction.
When Can a Criminal Conviction be Expunged or Sealed
State laws vary significantly in relation to the availability of expungement and sealing, both for juvenile dispositions and adult criminal convictions.
Juvenile Records - Some states allow for the automatic sealing of juvenile records, while others require a motion. Many states restrict expungement or sealing of serious offenses, or where the juvenile offender commits an adult offense before the record is sealed.
Adult Records - States take a variety of approaches to expungment or sealing of adult criminal records:
Most states offer at least a limited remedy for sealing or expunging a criminal record, or reducing its future impact.
A few states offer minimal relief, such as setting aside a conviction in favor of a dismissal but leaving the full record of proceedings open to the public, or allowing the a defendant to get a certification that indicates that his criminal record should no longer be considered for certain purposes, such as employment or professional licensing.
Some states offer no mechanism to seal or expunge a criminal record that results from conviction, or so limit the availability of the remedy that few offenders benefit.
Some states exclude certain types of convictions, such as convictions for traffic offenses or certain serious felony offenses, from eligibility for sealing or expungement. Expungement and the sealing of records are rarely available following federal prosecution.
As your remedies depend upon the laws of the jurisdiction in which you were convicted, and may also depend upon the nature of your conviction offense and other offenses on your record, it is important to research the specific laws of that jurisdiction when evaluating whether and when to try to get relief from a conviction or criminal history.
The Process of Application
Although details will vary by state, the process of applying for an expungement or the sealing of a criminal record is broadly as follows:
Verification of Eligibility - Some states require that a petitioner seeking an expungement go through a formal process to verify their eligibility for an expungement.
Preparation of a Petition - The person seeking an order sealing records, or requesting an expungement, prepares a petition that states the factual basis for their application, and attests that they meet the eligibility requirements for the relief that they are requesting. Some states and courts offer standard forms that the petitioner may use.
Filing of the Petition - The petition is filed with the court in which the conviction occurred, or that has jurisdiction over the police agency that has arrest records that are the subject of the petition, with notice to the prosecuting attorney's office and possibly also to the police agency. The court schedules a hearing on the petition.
Hearing - The court holds a hearing on the petition and which the petitioner presents testimony and evidence in support of the petition. A prosecutor may be present to oppose the petition, and may present evidence to counter the petitioner's case.
Disposition - The court issues an order either granting or denying the petition.
The formality of the proceedings to seal or expunge a record may vary depending upon state law, the nature of the underlying offense, and whether a prosecutor's office decides to oppose the petition.
People may seek expungement of a criminal record for a wide range 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.
When the remedy of expungement is available, as a general rule, the chance of successfully obtaining an expungement improves with the demonstration of need, and with evidence of complete rehabilitation.
In its most literal terms, an expungement or expunction involves the physical destruction of a record. In many states, the process of expungement may involve only the partial destruction of a record while the court or state maintains some information on the underlying offense and its disposition. To make matters more confusing, in some states, laws that serve only to seal a record by making it nonpublic may at times be referenced as expungement laws.
Once a criminal record is expunged, for most purposes the record is treated as if it does not exist.
Availability of Expungement
As was previously explained, states have very different policies on expungement.
Some states may exclude the possibility of expungement;
Some states limit the availability of expungement to people who have no more than one criminal conviction on their records, or who have no more than one felony conviction;
Some states limit expungement to cases in which a charge was dismissed, or to cases in which a court finds a probability of factual innocence;
In some states the availability of expungement may depend upon the terms of the applicant's sentence from the underlying charge;
Some states limit expungement for most crimes to cases in which a convicted offender has already received a pardon from the governor.
For applicants who have been convicted of a crime, states may require significant waiting periods before a court may review the petition, starting on the date that the offender is fully discharged from the sentence after completing any term of incarceration, parole or probation. Waiting periods for misdemeanor offenses are often in the range of two to five years, and for more serious offenses the waiting periods may be significantly longer.
Expungement in Federal Court
Under federal law, expungements are rarely available, and are limited to cases involving the simple possession of small amounts of a controlled substance,1 and to the DNA records of servicemembers who have had their convictions overturned.2
In some federal circuits, judges are recognized as having a common law power of expungement, the inherent authority to grant relief from a conviction based upon extraordinary circumstances. Other federal courts completely prohibit the practice.
Even where allowed, judicial expungements are rarely granted. As one federal court put it, the judicial power to expunge "is a narrow one, and should not be routinely used whenever a criminal prosecution ends in an acquittal, but should be reserved for the unusual or extreme case". Another federal court4 identified some of the types of cases in which federal judges had granted expungement:
- Where procedures of mass arrests rendered judicial determination of probable cause impossible;
- Where the court determined the sole purpose of the arrests was to harass civil rights workers;
- Where the police misused the arrest records to the detriment of the defendant, and
- Where the arrest was proper but was based on a statute later declared unconstitutional.
Thus, even if a defendant is fortunate enough to have been prosecuted in a federal circuit that permits judicial expungement, the defendant probably won't qualify for relief.
The Effect of Expungement
Most expungement laws permit a person who has successfully obtained an expungement to deny having been convicted of the offense. The laws generally also prohibit employers from considering the expunged charge or conviction when making a hiring decision or during the course of employment. As state laws vary significantly, it is important to check the laws of the state for the specific relief granted.
Even when expungement is available for a criminal charge or conviction, states and the federal government may impose limits on the effect of 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.
For some subsequent purposes such as when completing immigration forms or applying for a job that requires a government security clearance, the applicant may be required to disclose an expunged conviction.
A conviction that was expunged from a criminal record may remain accessible through a driving record, for example if the offense carried driver's license points or triggered a suspension.
An expunged record may also sometimes show up in a private criminal records database, or even through an Internet search that produces results from a police blotter, news coverage of a prosecution, or a "mugshot" website.
When a criminal record is sealed, the record is maintained but is no longer available to the public. The eligibility requirements for sealing vary considerably from state to state. Sealing generally carries the same benefits as expungement, such as allowing the person whose record was sealed to deny having been convicted, and barring employers from considering the sealed record. Due to the significant differences in laws between states, it is important to verify the details of your state's records-sealing laws.
The Availability of Sealed Records
A sealed record from a criminal prosecution may be available for a narrow range of purposes, such as for review by a prosecutor's office if the defendant faces new criminal charges, to a law enforcement agency that is reviewing the defendant's application for employment, or in other contexts in which the state has determined that it is appropriate for the defendant's full record to be considered in the interest of public safety.
The sealing of a record may be more broadly available when a charge is dismissed or a conviction is later set aside.
Some states provide for the automatic sealing of criminal records if a charge is dismissed without a conviction.
Some states limit sealing to defendant's first criminal offense, or require that the defendant bring a motion and prove that the record should be sealed.
Some states permit the sealing of a record only if the defendant establishes that the dismissal was based upon a finding of factual innocence.
The availability and criteria for sealing a federal criminal charge or conviction are the same as those outlined above, under the topic of expungement.
Options When Expungement and Sealing are Not Available
Following a criminal conviction, when neither expungement nor the sealing of a conviction are available, a few additional options may be available:
Executive Clemency - A defendant may petition for a pardon or commutation, although executive clemency is rarely granted.
Certificates of Rehabilitation - Some states offer a mechanism through which a defendant can obtain a certification attesting that the defendant is fully rehabilitated, or is otherwise relieved from the consequences of conviction, a remedy that may help the defendant in some contexts, such as when trying to obtain a job.
Collateral Attacks on the Conviction - In rare cases, it may be possible to file a new lawsuit that contends that the conviction should be set aside based upon significant errors in the prior proceeding or other extraordinary circumstances. The most common form of collateral attack is a petition for habeas corpus. The available grounds for seeking relief through a collateral attack are narrow, the action may also be subject to time limits that require it to be filed within a relatively short period of time after the conviction is entered, and the burden of proof placed on the defendant is substantial;
Motions for Relief from Judgment - States have mechanisms for the direct challenge of a conviction, even after the deadline for appeal has passed or an appeal has been decided. As with collateral attacks, time constraints may be significant, the error or injustice that is cited as a basis for relief must be substantial, and the defendant has a very high burden of proof.