Expungement

Last updated

In the common law legal system, an expungement or expunction proceeding, is a type of lawsuit in which an individual who has been arrested for or convicted of a crime seeks that the records of that earlier process be sealed or destroyed, making the records nonexistent or unavailable to the general public. If successful, the records are said to be "expunged". Black's Law Dictionary defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed from the state or Federal repository." [1] While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.

Contents

A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called "executive clemency") does not "erase" the event; rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by the President of the United States for federal offenses, and the state governor, certain other state executive officers, or the State Board of Pardons and Paroles (varies from state to state) for state offenses.

Each jurisdiction whose law allows expungement has its own definitions of expungement proceedings. Generally, expungement is the process to "remove from general review" the records pertaining to a case. In many jurisdictions, however, the records may not completely "disappear" and may still be available to law enforcement, to sentencing judges on subsequent offenses, and to corrections facilities to which the individual may be sentenced on subsequent convictions.

Australia

Criminal records in each state of Australia are covered by state law. In New South Wales, the relevant legislation is the Criminal Records Act 1991. Under the Act, an offender's criminal record may become spent if they do not re-offend for a period of 10 years. Offenses resulting in a prison term of more than six months will not become spent. Additionally, for certain employment occupations (e.g. education or child services), a "full disclosure" check is required, and spent convictions are still visible.

Canada

In June 2018, the Parliament of Canada enacted the Expungement of Historically Unjust Convictions Act, in order to further promote LGBT rights and cancel out certain criminal laws that were once effective. Under the Act, the Parole Board of Canada must order expungement of a conviction in respect of an offence that relates to acts of gross indecency, anal intercourse or buggery, as defined prior to 1969 and later on under the now repealed section 159 of the Criminal Code, if the activity for which the person was convicted was between persons of the same sex, the persons other than the person who was convicted had given their consent to participate in the activity, and the persons who participated in the activity were 16 years of age or older at the time the activity occurred.

When notified of the expungement order, the RCMP and any federal department or agency must destroy or remove any judicial record of the conviction to which the expungement order relates that is in its repositories or systems. Provincial and municipal police forces and courts must also be notified of the expungement order. The person convicted of the offence is then deemed never to have been convicted of that offence.

Europe

The European Court of Human Rights has ruled that a person has a right to have their convictions erased from all records after the passing of certain time. As of September 2020, there is currently a case pending with the Court which aims at the ruling that permanent keeping of the records is excessive. [2]

South Africa

In 2008 there was an amendment to sections 2 and 3 of the South African Criminal Procedure Act (51 of 1977) known as the Criminal Procedure Amendment Act (65 of 2008). This new law came into effect on 6 May 2009. In summary, the new law says that those convicted of a minor offense, determined by the type of sentence imposed, 10 or more years ago, qualify for the expungement of their criminal record. The sentence must have been a suspended jail term, correctional supervision or a fine.

United Kingdom

In the United Kingdom the term "spent conviction" is used. The relevant legislation is the Rehabilitation of Offenders Act 1974. In the data retention model of the Police National Computer, arrests which do not lead to a finding of guilt "step down" as soon as the relevant decision is made (typically a "not guilty" verdict or a dismissal of charges) and become visible to law enforcement only. Records of cautions and minor convictions do not step down and remain on the PNC and on enhanced CRB checks until the offender's 100th birthday.

Since the passing of the Protection of Freedoms Act 2012, people convicted for homosexual acts between consenting adults under section 12 of the Sexual Offences Act 1956 can apply to have the conviction totally removed from their criminal record. [3] Clause 96 confirms the effect of a successful application would ensure the person is considered as having not committed, nor been charged, prosecuted or convicted of a homosexual act.

United States

In the United States, most states allow for expungement of criminal records, though laws vary significantly by state. The availability of expungement and the type of charge or conviction that may be expunged will depend upon the laws of the state in which the case was prosecuted. In some states, once sealed or expunged, all records of an arrest and/or subsequent court case 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. Even after expungement, other states may maintain a public or confidential record of the charge and its disposition.

Eligibility for expungement

State expungement

Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased.

Requirements may include one or more of the following: [4]

  • Fulfilling a waiting period between the incident and expungement;
  • Having no intervening incidents;
  • Having no more than a specified number of prior incidents;
  • That the conviction be of a nature not considered to be too serious;
  • That all terms of the sentence be completely fulfilled;
  • That no proceedings be pending;
  • That the incident was disposed without a conviction; and
  • That the petitioner complete probation without any incidents.

Types of convictions that are often not eligible for expungement include: [4]

  • Murder
  • Felonies and first degree misdemeanors in which the victim is under 18 years of age
  • Rape
  • Sexual battery
  • Corruption of a minor
  • Sexual imposition
  • Obscenity or pornography involving a minor
  • Serious weapons charges

Most jurisdictions have laws that allow the expungement of juvenile records once the juvenile reaches a certain age, and some states have automatic expungement procedures for juvenile records. In some cases, the records are destroyed; sometimes they simply are "sealed." The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, "delinquent acts," to erase his record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a "clean slate," shielding him or her from the negative effects of having a criminal record. [5]

States have taken significantly different approaches when it comes to expungement for controlled substance violations such as marijuana and hashish. Typically, only convictions of possession or possession with the intent to distribute are eligible for expungement. Factors such as the weight/amount of the particular substance, age of the offender, and the number of offenses may impact eligibility for expungement as well. For example, in New Jersey, the threshold is 25 grams for marijuana and 5 grams for hashish if the offense occurred when the offender was 21 years of age or younger. [6]

Procedures for obtaining an expungement are different in each state, but tend to follow a similar process:

  • The petitioner verifies his or her eligibility for expungement under state law;
  • The petitioner prepares a petition for expungement, often using a standard petition form;
  • The petitioner files the petition with the court where the conviction occurred, and serves copies of the petition on other interested parties such as the prosecutor's office;
  • The court holds a hearing on the petition to verify that the petitioner is eligible for expungement and that the grant of expungement is proper;
  • The court issues an order either granting or denying the petition.

Federal expungement

There is no post-conviction relief available in the federal system, other than a presidential pardon. [7]

Congressman Charles B. Rangel proposed the Second Chance Act in 2007, 2009, and 2011, which was intended to "[amend] the federal criminal code to allow an individual to file a petition for expungement of a record of conviction for a nonviolent criminal offense".[ citation needed ]

Benefits of expungement

In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged, or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he/she can decide to represent themselves. This is called appearing pro se.

Limits of expungement

A criminal record can only be expunged by the jurisdiction in which it was created. The federal government cannot order the expungement of state criminal records. States cannot order the expungement of records from other states or jurisdictions.

When applying for a state professional license or job that is considered a public office or high security (such as security guard, law enforcement, or related to national security), you must often disclose that you have an expunged conviction. Failure to disclose an expunged criminal charge may result in denial of a license or denial of a security clearance by the Department of Justice. Some criminal convictions may warrant automatic denials of licensure, whether expunged or not.

Firearm rights restoration

One of the major benefits for the individual of expunging a criminal record is that there is a chance the individual may regain their right to possess a firearm. Federal laws deprive individuals with felony and domestic violence offenses of their firearm rights. Some states also have statutes depriving individuals of certain gun rights, usually for a definitive period of time.

Expungement may restore gun rights in some states but will not be sufficient to restore firearms rights in others. Seeking restoration of firearm rights may require that the petitioner specifically request restoration of those rights, or may require that the petitioner obtain a pardon that fully restores his or her civil rights.

California

Petition for expungement

California's expungement law permits someone convicted of a crime to file a Petition for Dismissal [8] with the court to re-open the case, set aside the plea, and dismiss the case. [9] In order for one to qualify for expungement, the petitioner must have completed probation, paid all fines and restitution, and not currently be charged with a crime. [9] If the requirements are met for eligibility, a court may grant the petition if it finds that it would be in the interest of justice to do so. [9] A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal. [9] The petitioner then can honestly and legally answer to a question about their criminal history, with some exceptions, that they have not been convicted of that crime. [9] What is actually stated on the record of the case is that the case was dismissed after conviction. If the petitioner is later convicted of the same crime again, then the expungement may be reversed.

Certificate of rehabilitation

For persons who serve sentences in the state prison system (felons), they must apply to the Superior Court for a Certificate of Rehabilitation (CR). [10] The CR does not remove or expunge anything negative from the individual's record; however, it places something positive on it. Among other requirements, the applicant must live in California and have done so for at least 5 consecutive years prior to applying, and been law-abiding for 7 years starting from the sooner of their release from prison or court supervision. After they meet all requirements and receive a CR, certain rights of theirs are restored [11] and a request for a pardon is automatically sent to the governor. [12]

Juvenile records

Juvenile criminal court records remain unless the individual petitions to have them sealed. This may be done when they reach their 18th birthday, [13] even though some states provide for automatic expungement of certain juvenile records regardless of age.

Impaired driving expungement

There is not much that can be done to remove or conceal a driving under the influence record, but in the state of California, it can be expunged. California Penal Code 1203.4 [14] allows most types of convictions may be expunged. To qualify, the person must have completed probation, satisfied all financial obligations, not currently be facing charges or court supervision, and not have been sentenced to prison or parole.

Reduction of a felony to a misdemeanor

In states like California, state laws allow an individual to reduce a "wobbler" offense [15] from felony to misdemeanor, which will effectively restore firearm rights, provided that the individual has not been convicted of another felony or has not lost his or her firearm rights for another reason.

See also

Related Research Articles

A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law to describe an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments, including capital punishment, could be added; other crimes were called misdemeanors. Following conviction of a felony in a court of law, a person may be described as a felon or a convicted felon.

The Domestic Violence Offender Gun Ban, often called the "Lautenberg Amendment", is an amendment to the Omnibus Consolidated Appropriations Act of 1997, enacted by the 104th United States Congress in 1996, which bans access to firearms for life by people convicted of crimes of domestic violence. The act is often referred to as "the Lautenberg Amendment" after its sponsor, Senator Frank Lautenberg (D-NJ). Lautenberg proposed the amendment after a decision from the United States Court of Appeals for the Ninth Circuit, involving underenforcement of domestic violence laws brought under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. President Bill Clinton signed the law as part of the Omnibus Appropriations Act of 1997.

A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the jurisdiction.

<span class="mw-page-title-main">Gun Control Act of 1968</span> US federal law

The Gun Control Act of 1968 is a U.S. federal law that regulates the firearms industry and firearms ownership. Due to constitutional limitations, the Act is primarily based on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except by manufacturers, dealers and importers licensed under a scheme set up under the Act.

Probation in criminal law is a period of supervision over an offender, ordered by the court often in lieu of incarceration.

<span class="mw-page-title-main">Criminal record</span> Record of a persons criminal history

A criminal record is a record of a person's criminal convictions history. The information included in a criminal record and the existence of a criminal record varies between countries and even between jurisdictions within a country. In most cases it lists all non-expunged criminal offences and may also include traffic offences such as speeding and drunk driving. In most countries a criminal record is limited to unexpunged and unexpired actual convictions, while in some it can also include arrests, charges dismissed, charges pending and charges of which the individual has been acquitted. The term rap sheet refers to Record of Arrest and Prosecution, similar to a criminal record.

Actual innocence is a special standard of review in legal cases to prove that a charged defendant did not commit the crimes that they were accused of, which is often applied by appellate courts to prevent a miscarriage of justice.

Collateral consequences of criminal conviction are the additional civil state penalties, mandated by statute, that attach to a criminal conviction. They are not part of the direct consequences of criminal conviction, such as prison, fines, or probation. They are the further civil actions by the state that are triggered as a consequence of the conviction.

<span class="mw-page-title-main">Adam Walsh Child Protection and Safety Act</span> U.S. federal statute

The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by U.S. President George W. Bush on July 27, 2006. The Walsh Act organizes sex offenders into three tiers according to the crime committed, and mandates that Tier 3 offenders update their whereabouts every three months with lifetime registration requirements. Tier 2 offenders must update their whereabouts every six months with 25 years of registration, and Tier 1 offenders must update their whereabouts every year with 15 years of registration. Failure to register and update information is a felony under the law. States are required to publicly disclose information of Tier 2 and Tier 3 offenders, at minimum. It also contains civil commitment provisions for sexually dangerous people.

A sex offender registry is a system in various countries designed to allow government authorities to keep track of the activities of sex offenders, including those who have completed their criminal sentences. Sex offender registration is usually accompanied by residential address notification requirements. In many jurisdictions, registered sex offenders are subject to additional restrictions, including on housing. Those on parole or probation may be subject to restrictions that do not apply to other parolees or probationers. These may include restrictions on being in the presence of underage persons, living in proximity to a school or day care center, owning toys or items targeted towards children, or using the Internet. Sex offender registries exist in many English-speaking countries, including Australia, Canada, New Zealand, the United States, Trinidad and Tobago, Jamaica, South Africa, the United Kingdom, and the Republic of Ireland. The United States is the only country that allows public access to the sex offender registry; all other countries in the English-speaking world have sex offender registries only accessible by law enforcement.

The Second Chance for Ex-Offenders Act of 2009 is a proposed federal law introduced to the United States House of Representatives Charles B. Rangel as H.R. 1529. This bill seeks to:

A deferred adjudication, also known in some jurisdictions as an adjournment in contemplation of dismissal (ACOD), probation before judgment (PBJ), or deferred entry of judgment (DEJ), is a form of plea deal available in various jurisdictions, where a defendant pleads "guilty" or "no contest" to criminal charges in exchange for meeting certain requirements laid out by the court within an allotted period of time also ordered by the court. Upon completion of the requirements, which may include probation, treatment, community service, some form of community supervision, or some other diversion program, the defendant may avoid a formal conviction on their record or have their case dismissed. In some cases, an order of non-disclosure can be obtained, and sometimes a record can be expunged.

Loss of rights due to criminal conviction refers to the practice in some countries of reducing the rights of individuals who have been convicted of a criminal offence. The restrictions are in addition to other penalties such as incarceration or fines. In addition to restrictions imposed directly upon conviction, there can also be collateral civil consequences resulting from a criminal conviction, but which are not imposed directly by the courts as a result of the conviction.

A rehabilitation policy within criminology, is one intending to reform criminals rather than punish them and/or segregate them from the greater community.

Criminal records in the United States contain records of arrests, criminal charges and the disposition of those charges. Criminal records are compiled and updated on local, state, and federal levels by government agencies, most often law enforcement agencies. Their primary purpose is to present a comprehensive criminal history for a specific individual.

Expungement in the United States is a process which varies across jurisdictions. Many states allow for 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. In general, once sealed or expunged, 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.

Expungement in Texas is a legal process through which individuals seek erasure of an event from their criminal records.

Missouri has two forms of expungement, one generally applicable to criminal cases and a unique one for the crime of being a minor in possession of alcohol. On July 13, 2016, governor Jay Nixon signed Senate Bill 588 into law, which expands the opportunities available for expungement of criminal convictions in Missouri. The new law went into effect January 1, 2018.

<span class="mw-page-title-main">Criminal justice reform in the United States</span> Reforms seeking to address structural issues in criminal justice systems of the United States

Criminal justice reform seeks to address structural issues in criminal justice systems such as racial profiling, police brutality, overcriminalization, mass incarceration, and recidivism. Reforms can take place at any point where the criminal justice system intervenes in citizens’ lives, including lawmaking, policing, sentencing and incarceration. Criminal justice reform can also address the collateral consequences of conviction, including disenfranchisement or lack of access to housing or employment, that may restrict the rights of individuals with criminal records.

The president of the United States is authorized by the U.S. Constitution to grant a pardon for a federal crime. The other forms of the clemency power of the president are commutation of sentence, remission of fine or restitution, and reprieve. A person may decide not to accept a pardon, in which case it does not take effect, according to a Supreme Court majority opinion in Burdick v. United States. In 2021, the 10th Circuit ruled that acceptance of a pardon does not constitute a legal confession of guilt, recognizing the Supreme Court's earlier language as authoritative.

References

  1. ↑ Black's Law Dictionary , p. 582 (6th ed. 1999)
  2. ↑ Toplak, Jurij (20 May 2020). "The ECHR and the right to have a criminal record and a drink-drive history erased". Strasbourg Observers. Retrieved 13 September 2020.
  3. ↑ "Cameron Pledges Pardons for 'Outdated' U.K. Gay-Sex Convictions". Bloomberg. 14 April 2015. Retrieved 20 October 2016.
  4. 1 2 "Restoration of Rights Project". Collateral Consequences Resource Center. Retrieved 29 June 2017.
  5. ↑ Shah, Riya Saha; Fine, Lauren (2014). "Juvenile Records - A National Review of State Laws on Confideniality, Sealing and Expungement" (PDF). Juvenile Law Center. Retrieved 29 June 2017.
  6. ↑ Wu, Stella. "NJ Rev Stat § 2C:52-5 (2013)". Justia US Law.
  7. ↑ Dietrich, Sharon (3 June 2015). "Why we need a federal expungement law". Collateral Consequences Resource Center. Retrieved 29 June 2017.
  8. ↑ Form CR-180 Petition for Dismissal
  9. 1 2 3 4 5 "CA Codes (Pen:1191-1210.5)". Archived from the original on 22 August 2010. Retrieved 10 September 2010. California Penal Code section 1203.4
  10. ↑ California Penal Code § 4852.01-4852.21
  11. ↑ CDCR Quick Reference Guide for CRs & Pardons
  12. ↑ How to Apply for a Pardon Archived 2010-10-08 at the Wayback Machine
  13. ↑ Calif. Courts Self Help -- Juvenile records Archived 2010-09-15 at the Wayback Machine
  14. ↑ "California Penal Code Sections 1191-1210.5". CA.gov. State of California. Archived from the original on 13 August 2015.
  15. ↑ https://stage-ips.stanford.edu/sites/default/files/shared/DA%20Discretion%20Final%20Report.pdf Archived 23 December 2016 at the Wayback Machine [ bare URL PDF ]

Further reading

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.