The many faces of expungement in America

An article from The Marshall Project published on September 17 got us thinking about the elusive term “expungement” and what it really means, both functionally and philosophically.  In Five Things You Didn’t Know About Clearing Your Record: A primer on the complicated road to expungement, Christie Thompson describes an unusual class action lawsuit recently filed by a public-spirited lawyer in a Tennessee county court seeking “to have the case files destroyed for hundreds of thousands of arrests and charges that never resulted in a conviction.”  She proceeds to point out some of the pros and cons of expungement relief, including that expunged records may still be available from private background screening companies or the internet.

But the problems with expungement laws are deeper than the article suggests. Quite apart from theoretical objections to relief based on pretense, the fact is that expungement laws have functional flaws even where public records are concerned.  For example, the Tennessee expungement law described in the Marshall Project article has no effect on records in the possession of law enforcement or prosecutors, or on appellate court records and opinions.  See Tenn. Code Ann. § 40-32-101(b)(1).  Moreover, it authorizes release of expunged arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding upon request. See § 40-32-101(c)(3).

Expungement schemes in states other than Tennessee have an even more limited effect on public access to criminal records.  For example, expunged convictions must be reported to certain employers in Kansas and Louisiana. Perhaps the most extreme example of expungement not meaning what the term suggests is the comprehensive relief scheme enacted in Indiana in 2013, described in detail in a post on this site some months ago.  “Expungement” under Indiana law does not involve any limitation on public access at all, though nonconviction and misdemeanor records may be “sealed” after they have been “expunged.”

Conversely, California’s law authorizing set- aside of certain minor convictions is popularly known as “expungement” even though it involves no limitations on access at all. Michigan’s set-aside law has a similar mistaken identity.

As evidenced by the chart on this site, state laws authorizing “expungement” have in recent years been riddled with exceptions, including for public employments or licenses that authorize a background check.  A subsequent conviction may result in lifting whatever restrictions on public access are imposed.  Even the proposed federal REDEEM Act contains numerous exceptions that would allow many employers and others to gain access to “sealed” records.

The point is that the terms “expungement” and “sealing” (or “erasure” in Connecticut, and “shielding” under a new Maryland law) are not legal constructs that are uniformly defined or understood, and there are almost as many variations on their functional effect as there are states.  Even juvenile records, where the concept of expungement was pioneered in the 1940s, remain in the public domain far more frequently than in the past.

Older forms of judicial relief like set-aside or vacatur, which were extended to valid convictions by the Model Penal Code in the 1960s specifically to restore rights, and to guilty pleas under deferred adjudication schemes in the 1970s specifically to avoid their loss, are considerably clearer and more uniform in legal effect from state to state.

As the focus of criminal law reform begins to shift from mass incarceration to mass conviction, it will become ever more important to develop forms of relief from collateral consequences that are clear and effective.  It is not clear that “expungement” or “sealing” laws premised on limiting public access to records will be the most effective approach to restoring rights and status.