Convictions and arrests can be an embarrassment and may limit options in a career, employment or education. Many state laws give persons with arrest and conviction records a remedy – they may be removed or “expunged” if certain legal requirements are met.
State Expungement Laws
“Expungement” generally means the removal and isolation, and sometimes destruction, of records concerning a person’s arrest, detention, investigation, trial or other disposition relating to certain criminal offenses. However, the laws and procedures for expunging criminal records are the creation of states, and sometimes even counties or municipalities. Disparity therefore exists in the principles, procedures and effects.
In most jurisdictions, expungement is available for both arrest and conviction records, but in others only arrest records may be expunged. Usually the expungement may only take place after a specified period of time from the date of conviction or arrest, and then only if the person requesting expungement has fulfilled all the terms of the conviction. Some states also limit expungement to once in a lifetime.
Factors Courts Consider
In most cases an application or petition to expunge must be submitted to the court where the conviction took place or in which trial would have taken place. Courts commonly have discretion to grant or deny the request and frequently consider factors such as:
- The nature of the crime (convictions for some crimes cannot be expunged)
- Whether the individual was an adult or a juvenile at the time of arrest or conviction
- Convictions and arrests prior to the one under consideration
- Any arrest, conviction or proceeding since the conviction or arrest to be expunged
- Any objections raised by prosecutors, victims or other
- The interests of the petitioner and public safety
Convictions Which Cannot Be Expunged
Laws in most jurisdictions prohibit expungement of convictions for certain crimes. These crimes vary among jurisdictions, but typically include the following:
Serious, violent felonies – such as murder, manslaughter, kidnapping, arson, etc.
Sex crimes – such as rape, forcible sodomy, etc.
Certain crimes against children, especially sex crimes
Motor vehicle offenses
Crimes by those holding public office
Procedures for Expunging a Criminal Record
Procedures vary significantly among jurisdictions, but are often initiated with the filing of a petition or application with the court. Time is usually given for the filing of objections, and a court related agency may thoroughly investigate the petitioner’s criminal records to establish qualification or disqualification. A hearing might be required; in some states the petitioner must appear to swear to the truthfulness of the petition and be questioned.
Effects of Expungement
The intended effect is usually to put the person in the same position as if the arrest or conviction never occurred. More specifically, the persons whose record has been expunged can usually then state on some employment, credit, professional license or school applications that she has never been convicted (or arrested), without fear of committing perjury. At other times disclosure may still be required, such as:
- Aliens applying for entry into the United States (with the exception of expunged drug-related convictions in some jurisdictions)
- When applying for certain government issued licenses
- When applying for law enforcement and court related employment
- When testifying in a criminal case as a defendant
In connection with sentencing for a subsequent crime
Expungement will usually not restore the right to own firearms, if that right was lost due to the conviction.
The expunged records are usually transferred to another location where access is limited, but may be subject to disclosure under certain circumstances and to certain persons or agencies. In some states, the expunged records must be destroyed. State law expungement does not control what federal agencies, such as the FBI or INS, do with records they have of the same state arrests and convictions.
No Expungement For Federal Crimes
Currently, there is no expungement procedure in effect for federal crimes, “pardon” being the only relief available to avoid the effects of a conviction. The “Second Chance for Ex-Offenders Act of 2003″ seeks to establish federal expungement rights and limitations similar to those of many state and local ones discussed above. This Act is currently under consideration.