What is Expungement?

A Criminal Record Removal Alternative

Those familiar with juvenile courts will likely hear the term “expungement” at some periods of the proceedings. The term is also commonly used during negotiations and parole hearings for young adults. At the same time, experienced adults may also be familiar with the term—but conflate it with other terms like “seal.” Sealed and destroyed criminal records differ from each other, as well as expungement. The main difference between sealed, destroyed, and expunged records are privacy; some things must remain public records, like driving offenses and heinous crimes (i.e., murder, kidnapping, etc.).

What are Sealed or Destroyed Criminal Records?

Sealed and destroyed criminal records differ from expunged records because they are implements of expungement. Expungement is a court process that hopes to grant more opportunities to those convicted. By practicing expungement, states can encourage lower re-offense rates in disproportionately affected communities. Depending on the state, criminal records given expungement are either ordered to be sealed or destroyed.

The records remain available to authorities even if the defendant’s charges receive a sealing order. The records become invisible from public sight, but things like police blotters will still show an event that happened. Additionally, some states offer record sealing, clear slate sealing, or charge-by-charge sealing. Conversely, if a defendant’s charges receive a destruction order, the records are systematically removed from the court system. They cannot be used again later because the documents will no longer exist. Further, like sealed records, authorities will destroy the crime and punishment, but police blotters will still show an event that happened.

Privacy differs between sealed or destroyed records because those that are sealed can become unsealed. In some states, more than just the authorities can request the unsealing of a record or charge; employers, landlords, and licensing agencies may ask for the unsealed records—which subsequently reaps disaster for victims of systematic oppression. The only way to avoid the potential exposure of information is by having the records destroyed through court-ordered expungement.

what is expungement

Expungement Definition

A good expungement definition hinges on privacy, as sealing and destroying do. To "expunge" something in action is to "completely remove or delete it." Combined with legal linguistics, "expungement" comes to mean the process of how a criminal record is sealed or destroyed. Expunged charges are not "forgiven," nor should they be condemned; when a person's background check returns with an expungement, the charges against them have been ultimately dismissed.

What Does it Mean to "Expunge" a Record?

Criminal records that have been expunged are treated as if they do not exist—they never happened. Invisibility does two things: it frees the defendant from convictions and legal consequences, and it hopefully clears the public record.

Note: Expungement does not mean the record will never come to light. It does not mean the case is sealed or destroyed; rather, the case has passed a court process, the goal of which was to separate those records from public access.

Removing criminal records from public view is significantly helpful for those with past legal trouble. Those with deleted records, for example, can answer “no” when asked about past convictions on applications. It’s worth noting again that the results of an in-depth background check will return with the expungement as the record. In California, this may be listed as “set aside or dismissed,” while other states may list “expunged” or “vacation” (Washington).

What Crimes Can Be Expunged?

Court officials can delete many types of crimes; the trick is timing and paperwork. Unfortunately, the disqualifications for expungement are vast—changing, sometimes significantly, across state lines. The disqualification criteria for a record expungement generally consist of the following rules:

  • If the defendant has multiple felony convictions or the sum of their criminal record could equal multiple felony convictions. Depending on the state, this could look like one low-level felony for two high-level misdemeanors—or many disorderly persons convictions.
  • Suppose the convictions are regarding any controlled or dangerous substance. Sale, distribution, and possession all disqualify a defendant in many states. Additionally, some states have exceptional rules, meaning exclusion from expungement hinges on the crime’s severity. In New Jersey, 25+ grams of marijuana will disqualify the defendant from expungement.
  • Suppose the defendant’s charges were dismissed via intervention or conditional discharge. Diversionary programs do not qualify for expungement because these programs happen before a conviction occurs. Sometimes they are called pre-trial interventions or run through education programs. The aim is to offer an offender another chance before receiving criminal charges.
  • Additionally, some felonies disqualify them: murder, arson, robbery, sexual assault (aggravated and criminal), kidnapping, criminal homicide, false imprisonment, criminal restraint, and endangering a child. Other charges can include prostitution of a minor, stalking, burglary, and in some cases, manslaughter.

What's Next? Consult Experts

All criminal charges can be expunged if the defendant is willing to wait. The timing of the expungement process is not part of the sentencing given in the courtroom. Instead, the timer starts after the conviction has been served (or dismissed later). As with all legal doctrine, the specifics of the timetables differ between states. For example:

  • Category A felonies in Nevada have a 15-year waiting period; gross misdemeanors catch five years; misdemeanors only have two.
  • Only specific charges can be expunged in Illinois; those that can be are two to five years from their last sentencing.
  • Colorado also has niche criteria of only felony convictions of class four to six and some drug felonies. It takes five to ten years to qualify for a Colorado expungement.
  • In Vermont, there are 14 types of felonies able to be erased, and nearly all are non-violent, non-sexual misdemeanors. After conviction, a period of ten years needs to pass, or the defendant must turn 25.

Expungement does many good things for defendants that win them. However, getting to the point where they can “petition” or “request” the expungement records may be a long road. The best way to approach legal problems is to consult experts; attorneys specializing in expungement for your local area are the best option.