Criminal convictions can have a lasting impact on an individual’s life, affecting their employment prospects, educational opportunities, housing, and even social relationships. However, in certain cases, individuals may have an option to pursue the expungement of criminal records, giving them a fresh start. Expungement, while not available in all situations, offers a legal process through which a criminal conviction is erased or sealed from public view. Understanding what expungement means, the criteria involved, and the steps required can be pivotal for individuals seeking to rebuild their lives after a criminal conviction.

What Does Expungement Mean?

The expungement of criminal records refers to the legal process of removing a criminal record from public access, typically through a court order. When a criminal record is expunged, it is if the offense never occurred in the eyes of the law. The individual’s criminal history will not appear in background checks, and they may lawfully deny the existence of the conviction under most circumstances.

However, it is important to note that the expungement of criminal records is not the same as pardoning or wiping away a conviction entirely. The difference lies in how criminal records are treated. A pardon is a formal forgiveness granted by a government official, whereas expungement simply removes the criminal record from public databases. In some cases, an expungement may also include the sealing of the record, meaning it is hidden from public view but still accessible to certain entities, like law enforcement.

Who Can Expunge Their Criminal Record?

Not everyone is eligible to pursue the expungement of criminal records. Eligibility depends on several factors, including the type of crime, the jurisdiction, and the individual’s criminal history. Common eligibility criteria may include:

  • Type of Offense: Generally, non-violent crimes and offenses that were committed at a young age are more likely to be expunged. Misdemeanors may have a higher chance of expungement than felonies. However, certain serious crimes (e.g., violent crimes, sex offenses) may be ineligible for expungement. See: State v. Tyau, 250 Ariz. 659 (Ariz. Ct. App. 2021).
  • Time Passed Since Conviction: Many states have a waiting period that must be observed before applying for expungement. For instance, in some jurisdictions, individuals must wait anywhere from five to ten years after completing their sentence before they can apply for the expungement of criminal records. Some minor offenses may have shorter waiting periods.
  • Completion of Sentence: An individual must usually have completed their sentence (including probation, fines, or restitution) and demonstrated good behavior during the period following the conviction.
  • No Subsequent Offenses: To qualify for the expungement of criminal records, the individual often must not have committed any additional crimes during the waiting period or afterward. A clean record in the time since the conviction is essential to the process.
  • Successful Completion of Diversion Programs: For individuals who were granted diversion programs or alternative sentencing (such as drug court or rehabilitation), expungement may be available upon successful completion of the program.
  • No Pending Charges: If the individual is currently facing additional criminal charges, they may not be eligible for expungement.

Pursuing the Expungement of Criminal Records

While the specific process varies by jurisdiction, there are several common steps involved in seeking the expungement of criminal records. These steps include:

  • Assess Eligibility: Before applying for expungement, it’s important to confirm eligibility. This often involves researching local laws or consulting with an attorney. Each state has its own criteria, forms, and application process.
  • Obtain a Copy of the Criminal Record: In many cases, people are surprised to find inaccuracies in their criminal history, such as wrong charges or old offenses that are not eligible for expungement. By obtaining a copy of the record, the applicant can ensure it is complete and accurate before moving forward.
  • File a Petition for Expungement: If eligible, the individual must file a formal petition for expungement with the court that handled the case. This petition typically includes:
    • 1) a request for expungement or sealing of the criminal record 
    • 2) a detailed explanation of the circumstances of the conviction 
    • 3) evidence of rehabilitation (e.g., proof of employment, completion of treatment programs and letters of recommendation).
    • The individual will generally need to pay a filing fee. Some jurisdictions may offer reduced or waived fees for indigent individuals.
  • Court Hearing: The court will likely schedule a hearing to review the petition. During the hearing, the petitioner may be required to explain why they should be granted expungement. Prosecutors and law enforcement may have the opportunity to argue against the expungement if they believe the individual is not deserving of a second chance or if they believe the person is still a threat to public safety. In some cases, the judge may approve the expungement without a hearing, particularly when the petition is uncontested and the individual meets all the required criteria.
  • Wait for a Decision: After the hearing or after filing the petition, the judge will make a ruling. If the judge approves the expungement, the criminal record will be removed from public databases, and the petitioner will be informed of the court’s decision. If the expungement is denied, the individual may have the opportunity to appeal the decision or apply again in the future if circumstances change.
  • Update Records: If expungement is granted, relevant agencies (e.g. law enforcement, the court system, and any other governmental entities) will be required to update their records. The expunged conviction should no longer appear in background checks, and the individual can begin the process of rebuilding their life without the stigma of a criminal conviction
pursuing the expungement of criminal records
Photo by ron dyar on Unsplash

Factors Affecting the Expungement of Criminal Records

There are several factors that can affect how long it takes to expunge a criminal record and whether it will be successful. These factors will include:

  • State or Local Laws: Laws governing the expungement of criminal records vary significantly by jurisdiction. Some states may offer broad expungement opportunities, while others have strict limitations on what can be expunged. It’s critical to understand the rules that apply to your specific location.
  • The Severity of the Offense: Serious offenses, such as violent felonies or sexual crimes, are often not eligible for expungement, though there may be exceptions for certain situations. The more severe the offense, the less likely expungement will be granted.
  • Time and Process Delays: Expungement can take several months, depending on the jurisdiction and the complexity of the case. Court backlogs, administrative processing, and other delays can extend the timeline.
  • Criminal History: Individuals with a lengthy criminal history may face more difficulty in getting an expungement. Judges may consider the applicant’s past behavior, rehabilitation efforts, and community ties when making a decision.

The Expungement of Criminal Records Improves Life

If you qualify for, and are granted, an expungement of criminal records, the benefits can be substantial. Expunged records can make it easier for individuals to:

  • Find Employment: Many employers conduct background checks, and an expunged record can remove barriers to employment.
  • Pursue Educational Opportunities: Students applying for scholarships or financial aid may face fewer hurdles with an expunged record.
  • Obtain Housing: Landlords often perform criminal background checks, and expunged records can reduce discrimination based on past convictions.
  • Regain Civil Rights: In some cases, expungement may restore lost rights, such as the right to vote or own firearms, depending on the nature of the crime.

Challenges and Considerations to Expungement

While the expungement of criminal records can offer a second chance, it’s important to understand that it is not a guaranteed or automatic process. Several challenges can arise including:

  • Complexity of the Legal Process: The expungement process involves legal filings and procedures that can be complex, especially for those without legal expertise.
  • Partial Expungement: In some cases, only part of the criminal record may be expunged. For example, a conviction may be removed, but arrest records or other related information may remain.
  • Ongoing Background Checks: Certain entities, such as law enforcement or immigration authorities, may still have access to expunged records.

My Final Thoughts

The expungement of criminal records provides individuals with the opportunity to move forward without the weight of a past conviction affecting their daily lives. While not everyone qualifies, those who do can experience a significant improvement in their personal and professional opportunities. The process can be complex, and eligibility varies based on jurisdiction and offense, but for those who are eligible, expungement can represent a vital step toward rehabilitation and a brighter future.

If you, or someone you know, will be proceeding to trial, challenging a criminal sentence, pursuing post-conviction relief, or litigating a Civil Rights Section 1983 lawsuit, our books are crucial resources in the pursuit of justice. Purchase your copy today, or on behalf of someone incarcerated.