Expungement and Record Sealing
A criminal record can follow a person for an entire lifetime, affecting his or her ability to find a job, continue with education, or even sign a lease. Even if a criminal case does not result in a conviction, a record of an arrest and a criminal prosecution remains. It is possible for a person to have records of a criminal case sealed, meaning that no one may view the contents of his or her file without a court order. It is also possible, through a process known as expungement, for a person to have the criminal file removed from the public record entirely. Laws regarding expungement, including the types of offenses that may be expunged and the procedure for doing so, vary widely from one state to another.
Expungement vs. Record Sealing
The key difference between expunging a person’s criminal record and sealing it is that a sealed record still “exists” in both a legal and physical sense, while expungement results in the deletion of any record that an arrest or criminal charge ever occurred. It is typically standard procedure to seal records of juvenile criminal proceedings once the person turns 18, along with other criminal cases involving a juvenile, but those records are still accessible with a court order.
Expungement vs. Pardon
Expungements are typically available for criminal cases that were dismissed, or that resulted in some form of deferred disposition. They are rarely available for cases that resulted in a conviction. A pardon, which forgives a person for an offense and cancels any remaining punishment, is only necessary after a conviction.
A person’s criminal file remains in the public record after a pardon, although a person may then be able to petition for expungement, depending on the laws of his or her jurisdiction. The authority to grant an expungement is vested in judges, while the authority to grant a pardon rests with the President of the United States for federal crimes, or state governors for state-level offenses.
Eligibility for Expungement
State laws defining the requirements to qualify for expungement vary widely. Some states only allow expungements in cases that resulted in the dismissal of the charges before the entry of a plea, such as through successful completion of a deferred prosecution agreement. Other states might allow expungements after a conviction, but only for certain offenses categorized as minor infractions or misdemeanors. Serious felonies are rarely, if ever, eligible.
Criteria for expungement eligibility might include:
- Sufficient time since the indictment or the conclusion of the criminal case;
- No additional criminal history since the end of the case;
- No convictions for certain disqualifying offenses, which usually include serious felonies;
- Minimal prior criminal history; and
- Completion of all terms of deferred disposition, probation, parole, or the sentence.
A person must file a petition for expungement, often in the same court in which the criminal prosecution took place. The petition only addresses a single criminal case. If a person wants to expunge records of multiple cases, he or she must file more than one petition. The judge must review the petitioner’s file and determine whether he or she meets that jurisdiction’s requirements. Individual courts may also have their own procedural rules regarding expungement cases.
If the court grants the expungement, the petitioner might be responsible for providing copies of the order to any and all law enforcement agencies that have records related to the case. The court clerk typically keeps the main criminal file, but records may also be in the possession of the police department, sheriff’s office, jail, and probation office, as well as any office involved in community service or other requirements.