Restrictions on access to criminal records: A national survey

We have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement.  This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records.  The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004.  We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials.

A brief overview of research methodology and conclusions follows.

Background

A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life.  Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse.  In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety.  One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.”  Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.

At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions. The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.

Notes on research methodology and terminology

The 50-state chart summarizes the law in each state in several different categories, with citations to the relevant laws.  To accompany the chart we have created two color-coded maps, one identifying record-closing laws that affect adult conviction records, and the other identifying programs administered by courts that close records after successful completion of a deferred disposition.  We did not create a separate map for access to other non-conviction records, since all but three states (Arizona, Idaho and Wisconsin) make at least some provision for judicial sealing of arrests that did not result in a prosecution.  Similarly, only a handful of states make no provision for sealing the record of juvenile adjudications.

Readers should keep in mind that states within the same color-coded category on each of the two maps may have widely varying laws.  We have done our best to choose the most appropriate category, but our choices may be somewhat arbitrary at the margins.  For a more precise picture of record closing laws in each state, we encourage readers to consult the 50-state chart, and the state profiles posted on this site that analyze laws and policies in detail.

On the matter of terminology, we caution that terms like “sealing” and “expungement” have widely varying meaning in operation, and are frequently misunderstood.  Because most of the laws identified on the 50-state chart do not result in “clearing” a record in the literal sense that it is removed entirely from official files, we have chosen the general term “record-closure” to signal their most common effect.  In general, the authorities cited limit public access to court records as well as records in a state repository.

One important final note:  We have tried to present a complete and accurate picture of state record-closing laws, but are well aware that any such effort will necessarily fall short. Accordingly, we welcome additions and corrections from our readers.  Above all, this research does not constitute legal advice, and there can be no substitute for the text of the law itself, and judicial interpretations of it.

Overview of national landscape of record-closing laws

A. Convictions

It should come as no surprise that only a small number of states provide a comprehensive approach to record-closure, and most of these states have done so for many years.  Of the 12 states that give courts broad authority to limit public access to a substantial number of felonies as well as misdemeanors, only three (Indiana, Louisiana, and Missouri) have enacted this relief for the first time in the past ten years.  Seven other states (Arkansas, Connecticut, Kansas, Massachusetts, Oregon, Utah and Washington) have had well-developed statutory record-closing schemes for many years, some dating back to the 1970s.   The Minnesota courts have historically used their inherent authority to seal conviction records, and the legislature has now put that practice on firmer legal footing. New Hampshire courts have had authority to “annul” or set-aside conviction records for decades, though annulment has only recently resulted in limiting public access to court records.

Closure of conviction records (click to enlarge)

A few states have slightly expanded eligibility criteria for closing the record of minor felonies (Illinois, Michigan and Kentucky); Colorado now makes minor drug convictions eligible for expungement; and, a handful of additional states have recently limited public access to some categories of misdemeanor convictions, frequently confining relief to defendants who have no other criminal record.  Many states have created significant exceptions to restrictions on public access for certain categories of crime (e.g., sexual or violent offenses) or categories of user (licensing boards or employers working with vulnerable populations).

The map at the right indicates in yellow the 12 states that authorize courts to limit access to many misdemeanors and a significant number of felonies.  The 15 dark blue states make provision for limiting public access to many misdemeanors and a few felonies.  Eleven light grey states make no provision for sealing of valid convictions.  Most of the rest of the states in lighter shades of blue allow record closure only to a few specific categories of convictions (e.g., drug possession) or offenders (youthful defendants).  Eligibility criteria, waiting periods, and applicable standards vary widely, as indicated on the 50-state chart.

B. Non-conviction dispositions

By far the most common recent expansion of record closure laws involves non-conviction dispositions, including deferred adjudication dispositions.  These dispositions originated in the 1970s as a way of enabling less serious offenders to avoid a conviction record. The map at left below shows that 37 states authorize court-supervised deferred dispositions, in which defendants charged with a crime are allowed to avoid imposition of judgment and a conviction record if they successfully complete a term of probation.  All but five of these deferred adjudication schemes provide the possibility of closing the record as an added incentive for defendants to take advantage of what are frequently more-onerous conditions than a straight term of probation.

deferredadjducation

Deferred adjudication programs (click to enlarge)

In most states the benefits of deferred adjudication are restricted to a narrow class of offenses (e.g., misdemeanors) or offenders (e.g., defendants with no prior criminal record).  Defendants are generally required to first enter a guilty plea, and a failure to complete what are frequently more onerous terms of probation may result in a more severe sentence.  Deferred adjudication may be appealing to prosecutors who are willing to offer a defendant a second chance but do not have the resources (or inclination) to manage a diversion program.

There are many states that have broad sealing authority that extends to arrest and other records in cases not resulting in a conviction, including all of the states that have deferred adjudication schemes.  As previously noted, only three states make no provision for sealing any records (Arizona, Idaho and Wisconsin).  The federal system has a very narrow deferred adjudication authority that applies only to drug possession offenses, and that authorizes expungement only if the defendant was under the age of 21 at the time of the crime.

The 50-state chart of judicial record-closing authorities provides a general description of the eligibility criteria for deferred adjudication in each state.  Additional details about record sealing in each state can be found in the profiles.         

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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