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How Can You Clear Your Criminal Record? A Review of State Laws
In my last article, I explained the process of sealing or expunging criminal records in the state of Florida. In response to requests, I will now discuss some of the similarities and differences in various states across the United States.
It is a fact that the social consequences of a criminal record can lead to the denial of an individual’s right to civic participation. Life, subsequent to an arrest, is permanently altered. Regardless of whether an individual has been convicted, an arrest or citation typically persists on a criminal record. Therefore, even a person who has had the charges against them dropped may be subject to a degree of social ostracism and a de facto public finding of guilt.
State and federal legislatures recognized the difficulty of reintegration for offenders and the difficulty for those with an arrest on their records to obtain employment. As a result, expungement laws were created.-Myles B. Schlam
Some states permit individuals who are arrested, but not convicted, to expunge their arrest records. Others permit some convicts to apply for expungements after time has passed from the completion of their sentences. State and federal legislatures recognized the difficulty of reintegration for offenders and the difficulty for those with an arrest on their records to obtain employment. As a result, expungement laws were created. While there is no uniform process known as “expungement,” it is commonly accepted that the purpose of expungement is to conceal criminal records from the public. Depending on the jurisdiction, this process may be referred to as “erasure, destruction, sealing, setting aside, expunction, and purging.”
Common Elements of Expungement Among State Statutes
Expungements were much simpler before the Information Age and the existence of a myriad of websites such as Arrest.com, Jailbase.com, and Mugshot.com, which get a hold of public records as soon as someone is arrested. It’s their business model to then post this information on the internet, making it easy to find with a Google search.
Expungements are based on the premise that those with criminal records will have trouble reintegrating into society and may face barriers from participating in public life, unless they have a legitimate means of being able to honestly deny that they have ever been charged with a crime or possessed a criminal record. As a result, most states permit individuals who have had their records expunged to answer in the negative if asked whether they have been arrested or charged with a crime. Therefore, if asked on a job or school application, an applicant with an expunged record may honestly answer “no” to having been charged with a crime. Additionally, for those states that permit expungements even after convictions, some permit the same negative answer to be given for questions concerning conviction.
Of the forty states that allow expungement or sealing of arrests not leading to conviction, twenty-nine permit an individual to deny the arrest.-Myles B. Schlam
Of the forty states that allow expungement or sealing of arrests not leading to conviction, twenty-nine permit an individual to deny the arrest. Of the sixteen states that allow expungement or sealing of convictions, thirteen permit an individual to deny the conviction. The types of crimes eligible for expungement will invariably differ from state to state. For example, some states like Colorado and California allow expungement for many types of crimes. Others such as Wyoming prohibit expungement of any criminal record. Still other states, such as Oklahoma, only allow expungement for arrest records. In states where expungement is granted after a conviction definitely not Florida), the severity of the crime will play a determinative role in whether or not expungement is possible.
Conversely, states that prohibit the expungement of convictions (unless a pardon is obtained) will often contain restrictions depending on the process taken to avoid a conviction. For example, it is quicker and easier to obtain an expungement when a charge has been dismissed, as opposed to when a case has been placed on a “stet docket” (an inactive group of cases).
Typically, there is a waiting period before an application can be made for expungement. This waiting period will also vary from state to state and is used as an indication of rehabilitation. Factors taken into account may include 1) the severity of the crime, 2) the age of the offender, and 3) whether the offender is alive. State codes also contain provisions on the number of times expungement may be granted. As I stated in my last article, Florida – being one of the toughest states on expungements – prohibits any more than one criminal record to be either expunged or sealed in a person’s lifetime.
California expungement laws seem to be the most lenient… I have even heard of sex offenders getting their records expunged.-Myles B. Schlam
The practical effects of expungement remain questionable when considering the number of people who can still access criminal records even after they have been expunged. It has even been advocated that licensing bodies of professions charged with upholding the public trust (e.g. health care, nursing, pharmacology, investment advising, accounting, banking, child care, engineering, and architecture) should have access to the expunged records of their members. In Florida, for example, there are six agencies which one must divulge an expunged arrest to. Other states perform a balancing test, essentially weighing the rights of the rehabilitated offender against the right of the public to be informed of this past record. California expungement laws seem to be the most lenient, where I have even heard of sex offenders getting their records expunged.
While the actual language, process, and effects of expungement vary depending on the state, the overall effect is the same – to treat an expunged record as if it does not exist.
Although expungement procedures vary from state to state, all involve an application to a judge or administrative officer. If expungement is granted, the judge enters an expungement order requiring the arrest or conviction to be deleted from court records. Alternatively, those who have been convicted of a crime may apply for a pardon. A pardon is generally granted by the Governor, but for U.S. federal convictions, they are issued by the President. The effect of a pardon is also different from an expungement – an expungement removes an arrest or citation from a record, whereas a pardon will just indicate that the state has pardoned you for your crime.
The effect of a pardon is also different from an expungement – an expungement removes an arrest or citation from a record, whereas a pardon will just indicate that the state has pardoned you for your crime.-Myles B. Schlam
Guidelines are state-dependent, but typically all records on file within a court, correctional facility or law enforcement agency concerning a person’s apprehension, arrest, detention, trial or disposition of a crime can be expunged. Thirty-nine state codes contain provisions for individuals who have had their convictions reversed or been acquitted due to DNA samples taken. As opposed to the burden of proof being on the state in a criminal trial, most of these states still place the burden on the individual to petition the court for expungement of such records from state databanks.
What About Federal Expungement Authority?
I am aware of one federal statute… which allows a court to order the expungement of public records related to certain offenses under the Controlled Substance Act, where the person was under the age of 21 at the time of the offense.-Myles B. Schlam
At the national level, there is no overarching federal statute governing whether courts may grant expungement orders. I am aware of one federal statute [18 USC § 3607c (2012)] which allows a court to order the expungement of public records related to certain offenses under the Controlled Substance Act, where the person was under the age of 21 at the time of the offense. However, at the federal level criminal records are maintained by the executive branch (FBI) and there are serious questions about whether the courts have the power to expunge executive branch records.
As to the records maintained by the judicial branch, the circuits are split as to whether federal courts have the authority to expunge the records. Half of the circuits have held that federal courts may consider expungement for equity reasons. For these cases another “balancing” test was adopted to determine whether the dangers of the unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records. [United States v. Flowers, 389 F. 3d 737, 739 (7th Cir. 2004)]. However, these courts rarely grant expungement. Thus far, the Supreme Court has passed on three requests for certiorari to resolve the split between the circuits.
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