Expungement in the United States


Expungement in the United States is a process which varies across jurisdictions. In general, expungement is a process through which all records of an arrest and of any subsequent court proceedings are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged.
Many states allow for state criminal records to be sealed or expunged, although laws vary by state. Some states do not permit expungement, or allow expungement under very limited circumstances.
There is no standard or system for expungement of a federal criminal record.

Federal

Federal offenses are difficult to obtain expungement and vary based upon the federal circuit. Unlike expungement for state offenses, there is no automated or standard system for federal expungement. Some federal circuits have upheld the inherent right of judges to order expungement while others have held the opposite. Most persons who have been convicted of federal offenses and who want relief from the consequences of the conviction are limited to seeking a pardon, but pardons are rarely granted.

Legislation

A number of bills have been introduced in Congress that would allow expungement of a federal criminal record, but none have become law.

Second Chance Act

proposed amendments to the Second Chance Act in 2009 and 2011, which were intended to " the federal criminal code to allow an individual to file a petition for expungement of a record of conviction for a nonviolent criminal offense." Representative Rangel was unsuccessful in this pursuit.

Fresh Start Act

introduced H.R. 2449 or The Fresh Start Act of 2011 during the 112th Congress, which would have allowed certain non-violent offenders to seek expungement of otherwise lifelong felonies. The bill was introduced but was not brought for a vote.

REDEEM Act

In July 2014, Senators Rand Paul and Cory Booker introduced the Record Expungement Designed to Enhance Employment Act during the 115th Congress, a bipartisan bill in an effort to reform the criminal justice system which would, in part, allow for the expungement of Federal criminal records for one time, non-violent offenses. The bill was introduced but was not brought for a vote.

State

Expungement laws are different for each state. States do not necessarily have to give full effect to orders of expungement or record sealing from other states, provided that they treat all persons equally when considering the effect of a person's criminal history.

Alabama

passed expungement legislation in 2014. The law allows for expungement for multiple situations, with applications fees, court fees, and lawyers fees to be paid by the applicant.
However, convictions are not eligible for expungement.

Arizona

's expungement equivalent is "setting aside" a conviction. Arizona's setting aside statute allows a defendant to petition the court to have a conviction set aside after the terms of the sentence are met. If the court grants the petition, the defendant is "released from all penalties and disabilities resulting from the conviction other than those imposed by the Department of Transportation." The conviction can be used in any subsequent criminal prosecution.

California

California has several post-conviction remedies that are sometimes called expungement. For misdemeanor, and felony crimes, a petition for expungement is filed in the court of conviction, seeking to have the conviction dismissed pursuant to Penal Code section 1203.4. For crimes involving a prison sentence, a petition for a Certificate of Rehabilitation is issued by the courts and filed with the California Department of Corrections and Rehabilitation. Unlike an expungement, which is filed in the court of conviction, a petition for a Certificate of Rehabilitation is filed in the current county of residence. If the certificate of rehabilitation is granted, it automatically becomes an application for a pardon by the California Governor.
Further, Penal Code 851.8 provides that defendants whose cases have been dismissed or who were never charged after arrest may petition for a Declaration of Factual Innocence. If granted, all records of arrest and prosecution are to be sealed for three years, then permanently obliterated. Copies of this order are sent to both the CA Department of Justice and the FBI. Those granted this remedy may legally deny being arrested in all instances as the arrest is deemed "never to have occurred" in the first place.

Colorado

law has recently been changed via Colorado HB 11–1167, which allows drug conviction to be sealed. This requires strict conditions to be met concerning the original violation and the time and behavior since the conviction. This is part of a greater movement by the Colorado Criminal Justice Reform Coalition to create a way for forgiveness and redemption for people who have been convicted based on past drug convictions.

Connecticut

In the State of Connecticut, individuals within a certain age group are defined as "Youthful Offenders" and the majority of those convicted within the defined age limitations may have their criminal record erased under Sec. 54-76o of CHAPTER 960a.

Delaware

In Delaware, and were passed and combined leading to the Clean Slate Law. The American Civil Liberties Union of Delaware assist in the expungement process.

Florida

law allows for expungement of criminal records where the criminal case resulted in a dismissal by the court, a nolle prosequi by the state attorney, or an acquittal by the judge or jury. Criminal records associated with cases receiving a final disposition of adjudication withheld are eligible for sealing in most but not all situations. To be eligible for sealing or expungement, the defendant must not have been adjudicated guilty of any criminal offense, must not have previously received an expungement or sealing, and must not be in the process of obtaining another sealing or expungement in another court.

Eligibility

A Certificate of Eligibility from the Florida Department of Law Enforcement is required prior to petitioning the court for an order to seal or expunge a record. An application to the FDLE must be completed and be accompanied with a certified disposition of the charge seeking to be sealed or expunged. If an expungement is sought, the application to the FDLE must also be signed by the State Attorney attesting to the fact that the charges were dropped, dismissed, or that the person was found not guilty after trial. There is a $75.00 charge for the Certificate of Eligibility. After obtaining the required certificate of eligibility, the person then must file a petition to seal or expunge and attach the FDLE certificate of eligibility, an affidavit indicating that they are eligible for sealing or expungement, and a proposed order for the judge to sign if the petition is granted.

Effect

The person who is the subject of a criminal history record that is expunged or sealed may lawfully deny or fail to acknowledge the arrests covered by the expunged record, except when the subject of the record:
  1. Is a candidate for employment with a criminal justice agency;
  2. Is a defendant in a criminal prosecution;
  3. Concurrently or subsequently petitions for relief under the record sealing or expungement statutes;
  4. Is a candidate for admission to The Florida Bar;
  5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
  6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities;
  7. Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services; or
  8. Is seeking to be appointed as a guardian pursuant to Florida Statute Section 744.3125.

    Georgia

law allows for "records restriction" which allows for the record of an incident to be restricted from the publicly available criminal records that the public are able to view. It does not allow for expungement in the traditional sense.

Illinois

law allows the sealing or expungement of parts of the records of a conviction. Sealing a conviction prevents the public, including employers, from gaining access to that record. To be eligible for sealing of a conviction record in Illinois one must have been sentenced to supervision. A waiting period of four years also is required, beginning at the time of discharge from supervision, where no convictions were entered. Some misdemeanors are ineligible for sealing. Effective January 1, 2014, many class 3 and 4 felonies are eligible for sealing.

Indiana

's Second Chance law, sponsored by Sen. Greg Taylor, D-Indianapolis, allows for the expungement of certain misdemeanor and felony offenses. Indiana Code 35-38-9-2 through 35-38-9-6 allows for the expungement of misdemeanors, and non-violent felonies. Most crimes of a sexual nature are excluded from the law but each section has other specific exclusions, and anyone determined to be a Sex or Violent offender is also ineligible. A waiting period of 5 years is required for misdemeanors, as well as 8 years for a lesser felony. Ten years must have passed for more serious felonies. In addition to the waiting period, Section 2, Section 3, and Sections 4 and 5 of the expungement statute also contain a lookback period equivalent to the waiting period. This means that in addition to the waiting period, the petitioner cannot have any other convictions anywhere in the U.S. in the previous 5, 8, or 10 years from the date of filing the petition for expungement. No charges must be pending against the individual and a fee must be paid to the clerk of the court. The individual's driver's license must not currently be suspended and they may not have a pending suspension. The person must have successfully completed their sentence, including any term of supervised release, and satisfied all other obligations placed on the person as part of the sentence. More serious felonies may require consent of the prosecutor.