The Limits of Expungement

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In the American legal system, “expungement” of criminal records generally refers to the process by which the subject of a previous arrest or conviction seeks to have their criminal record either sealed or destroyed, thereby making it generally unavailable for public perusal.  An arrest or conviction on record can make it difficult to obtain housing, employment and eduction; expungement can therefore be invaluable to those wishing to turn their lives around after a criminal past.

Almost every state offers a chance for certain offenders to obtain an expungement.  The criteria for obtaining an expungement vary by jurisdiction, but often include a waiting period during which no other crimes are committed, that the crime not be too serious and that the offender not have too many previous convictions.  Regardless of how the expungement is obtained, the question then arises: once a criminal record has been expunged, did it ever really exist?  Will it show up on background checks?  Can it be used against a defendant in a future conviction?  Will it affect future employment opportunities?  These are intriguing questions, and like so many in the legal world the answer to them all is “it depends.”

A typical example of expungement law is that in Utah. There, under the Utah Expungement Act, expunged records are not necessarily destroyed.  Instead, according to the Utah State Courts website, “expunged court records are placed in an envelope which is securely sealed. The clerk records the case number and record classification on the envelope and inscribes across the sealed part of the envelope the words ‘Not to be opened except upon permission of the court.’”  Agencies such as the Parole Board, the Division of Professional Licensing and the State Office of Education may still obtain information contained in expunged records.  Therefore, although laws exist to protect the former offender from discrimination based on his record, the expunged record may still affect him or her in seeking certain types of employment that require licensing.

New Jersey recently confronted the issue of expunged records in a case that asked whether disseminating information about an expunged conviction could constitute libel. In the case of G.D. v. Hudson County Democratic Organization, the New Jersey Supreme Court unanimously decided that the plaintiff, who had had his 1993 drug conviction expunged, could not sue for defamation over the revelation of his conviction by a political opponent.  The court noted that the expungement did not mean “the wholesale rewriting of history.”  The information released by the defendant was in fact true, and truth constitutes an absolute defense to defamation crimes.  Therefore, even though the conviction had been expunged, it remained a part of the plaintiff’s past and could be used to discredit him.

Expungement of criminal records rarely erases them completely. Regardless, having a criminal record expunged can only help an offender in rebuilding his or her life.  Unfortunately, most courts do not yet provide expungement self help information online.  To find the ones that do, refer to CourtReference.  The site contains links to expungement self-help information for the following states: California, Florida, Illinois, Louisiana, Minnesota, Ohio, Pennsylvania, South Carolina, Utah, Virginia. Expungement information for more states is being added to the site as it becomes available.

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