Expungement: Definition and Examples

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Expungement is the destruction of court records related to an arrest or criminal proceeding. Even arrests that do not result in conviction end up on someone's criminal record. That record can impact the person long after an offense is committed, limiting their ability to get a job, sign a lease, or attend college. Individual states have provisions for expungement to allow someone to remove a past incident from their record so that it no longer impacts them.

Key Takeaways: Expungement Definition

  • Expungement is a legal tool used by offenders and courts to eliminate past records of criminal activity. This tool can only be applied at the state level.
  • When evaluating a petition to expunge records, a judge looks at criminal history, time lapsed, frequency of the offense, and type of offense.
  • There is no federal statute governing expungement. The most common tool used to destroy the record of a crime is a pardon.

Expunged Definition

Different states have different procedures for expungement. Most states require a court order, signed by a judge, in order to expunge a record. This order includes the case number, offenses, and parties involved. It may also include a list of agencies where the records should be destroyed. Once a judge adds their signature to the order, records managers at these agencies follow state protocol for destroying the records.

The standards for expungement at the state level are typically based on the seriousness of the crime, age of the offender, and time passed since conviction or arrest. The number of times an offender has committed the crime may also factor into whether a judge decides to grant an order of expungement. Most jurisdictions offer juvenile offenders a way to expunge their records. In some circumstances, a record may be expunged due to age, to make room in a state database for new records. Expungement has also been used to acknowledge prolonged periods of good behavior and as a remedy to an unlawful arrest.

Expunging a record is different from sealing a record. Expungement destroys the record while sealing it limits who can view it. A court might order a record to be sealed rather than expunged to allow law enforcement to view someone's criminal history, but not a potential employer during a background check. Different states have different standards for whether a court can order expungement of a record or for it to be sealed. 

Expungement vs. Pardon

A pardon is similar to expunging a record but makes use of a different structure of authority. An expungement order is issued by a judge, empowered to preside over legal proceedings in a court of law. A pardon is issued by an executive power like a governor, president, or king. The pardon removes any remaining sentence or penalty for a crime. It essentially forgives someone for the offense and treats them as if the offense had never occurred.

Article II Section 2, Clause 1 of the U.S. Constitution gives the president the power to pardon someone convicted of a federal offense. The president does not have the authority to pardon someone convicted in state courts of a state level offense. The Justice Department’s Office of the Pardon Attorney accepts requests from pardon seekers five years after their federal conviction or release. The office uses standards of evaluation similar to the courts in expungement cases. They look at the seriousness of the crime, behavior after sentencing, and whether the offender has acknowledged the extent of the crime. The office issues recommendations to the president in terms of the applications they’ve received. The president has final pardoning authority. 

Expungement Laws in the United States

There is no federal standard for expungement. The most common example of forgiveness for a federal crime is a pardon. Expungement laws and procedures at the state level vary. Some states only allow expungement after someone has been convicted of a low-level crime like a misdemeanor or infraction. The process for expungement at the state level includes a petition and hearing. In general, states do not allow expungement for serious crimes like rape, murder, kidnapping, and assault. Felonies and crimes in the first degree are also often ineligible, particularly when the victim of the crime is under the age of 18.

Most state statutes require offenders to wait a set amount of time before making a request for their records to be expunged. For example, if someone wanted a speeding ticket expunged from their record, they might have to wait a set amount of years to request it and show that it was a one-time incident. Some states allow families to request expungement of a crime committed by someone who has died.

Expungement only concerns records kept at state agencies. An expungement order cannot force a private entity to remove a record of someone’s criminal offense. For example, if someone commits a crime, and a local newspaper publishes an article about it, that article would not be affected by an expungement order. Interviews and social media posts are also beyond the extent of a court order. An expungement order never fully removes the history of a crime from the public record.

Sources and Further Reference