Difference Between Expungement & Sealing of Criminal Records

Having a criminal record can cripple a person’s chances for many opportunities in life. Along with potentially hampering a person’s chances for employment in many areas, things like professional licenses, visas, the ability to adopt a child, college admission, and the ability to qualify for some types of housing. A person’s self-confidence and motivation can also suffer when a criminal record seems to stand between him and a decent future.

Some people are able to clear their criminal records, but it’s not a quick and easy process. There are several ways of removing some low-level offenses from one’s record: expungement, sealing, vacated, and pardoned. Much depends on what is available in the state where the record was created.

The first step is accessing your criminal records and examining them for accuracy and completeness. Sometimes things don’t get recorded appropriately, such as confirming that you completed the terms of probation or community service. At other times, records get confused and the wrong information is recorded, quietly destroying your reputation while you are unaware.

To compile your criminal record, request documents from any of the places where you have lived or been arrested. These can be found through the clerk of courts offices in those counties or cities. Many are available online but you may need to submit a fingerprint to obtain official records.

Clearing your record: Expungement VS Sealing

Expungement is a formal process of requesting to have one’s record cleared of certain convictions. It is the best option for blocking future employers and landlords from seeing a negative background check. This process requires time and paperwork, and often the assistance of an attorney familiar with the process. If you cannot afford an attorney, check with the free legal help office at your local courthouse, which can provide some assistance. It can be worth the time and effort, because once the process is complete and the expungement executed, you can check the box on applications that says you have no convictions on your record.

Expungement

When a record is expunged it is destroyed and unavailable through the courts, it may still be saved and unfortunately searchable online by those with skills to dig up hidden background information. The expungement process that is most commonly available allows an individual to erase arrests that did not lead to conviction and low-level, non-violent convictions such as possession of marijuana, loitering, and the like. Many states have recently created special categories for expungement that apply to victims of sex trafficking, including for convictions on prostitution and related charges. Not all states allow expungement of records. If you successfully expunge your record you may legally say you have no convictions when asked in an application – with a few exceptions. Some states require expunged convictions to be disclosed when applying to law enforcement and other sensitive positions.

Sealing

The process of sealing a record is similar to expungement but not quite as permanent. Law enforcement officials and judges, as well as some other authorities, may have access to sealed records.

Vacated

When a conviction is vacated it’s the same as a dismissal of the case. This most often happens in appeals courts, rather than by petition. These records are likely to show up during a search but some states are working to limit the damage to individuals by controlling the release of such records.

Pardons

Governors generally have the authority to pardon offenders, but this action does not erase a criminal conviction from one’s record. The pardon process is often handled through a panel appointed by the governor, which suggests persons to pardon. This process can free one from prison and from fulfilling a subsequent related sentence but nothing more. The conviction will stay on the individual’s record.

State Expungement Statutes

Alabama, Alaska, Florida, Georgia, Hawaii, Montana, Nebraska, Virginia, the Virgin Islands,.. offer no opportunity to expunge records of adult convictions (although some will remove records of arrests that did not result in convictions and many states are moving to limit access to less serious records that could have a punitive effect).

Other states have varying requirements for expungement:

• Arizona will set aside low-level convictions at the end of the term of punishment; expungement is a separate matter.
• Arkansas offers a liberal policy of sealing records, even minor felonies, if a specific time has elapsed without further criminal activity.
• California offers set-asides or dismissals for low-level convictions, even felonies. Sealing records was historically allowed if the prosecuting attorney agreed, but a new law that goes into effect in 2021 will effect an automatic process of cleansing records.
• Colorado offers “collateral relief” at the end of a person’s sentence to allow records to be sealed more easily for the purposes of employment and housing. A 2019 law allows sealing of records of all but the most serious felonies after a waiting period.
• Connecticut will erase records and keep them from being used in future criminal proceedings if the charges were not prosecuted or acquitted.
• Delaware has a new law effective in 2020 that expunges certain records such as low-level misdemeanors and in cases where probation is served prior to conviction being recorded.
• District of Columbia allows sealing records depending on previous convictions and severity of the infraction.
• Idaho will not seal or expunge records but will reduce felony convictions to misdemeanors after the sentence is served. Sex offenders may also have their records expunged from the database after certain criteria is met.
• Illinois offers a route for sealing all but serious felonies after a three year, post-sentencing period during which no further criminal activity is charged. Check the app expunge.io to determine your availability.
• Indiana will expunge records of all sorts after a mandatory waiting period of about 10 years.
• Iowa automatically expunges records of non-conviction arrests after 180 days but otherwise does not expunge adult felonies.
• Kansas requires a waiting period of up to five years to expunge records and will maintain copies for certain circumstances, such as application to law enforcement duties.

• Kentucky allows expungement of most records after a waiting period, but allows the authorities to use discretion if the individual has a lengthy criminal record.
• Louisiana requires a waiting period before expungement but allows low-level felonies to be removed from an individual’s record.
• Maine will not expunge adult felonies and seeks to limit circulation of other records unless the defendant’s specific information is provided.
• Maryland offers a liberal menu of expungement but requires a lengthy “clean” waiting period before honoring such petitions. Low-level misdemeanors are easily expunged. Those with probation before judgement cases must wait three years before expungement.
• Massachusetts does not offer expungement but will seal felonies after 10 clean years and misdemeanors after 5 clean years; the state automatically seals charges that are dismissed.
• Michigan will set aside a person’s first felony or two misdemeanors under specific circumstances (otherwise clean records).
• Minnesota will expunge all misdemeanors as well as nonviolent felonies and records of juveniles convicted as adults.
• In Mississippi, employers may enquire about criminal records even when a misdemeanor or felony is expunged.
• Missouri and West Virginia require a waiting period of 3 to 7 years for expungement but will allow records of misdemeanors and most felonies to be erased.
• Nevada will seal records (not expunge) that meet certain criteria after a 2- to 7-year waiting period without further criminal activity.
• New Hampshire’s process is called “annulment” and applies to nonviolent criminal convictions after a waiting period is satisfied.
• New Jersey and Vermont offer expungement of several misdemeanors (up to five) following a waiting period.
• Utah expunges nonviolent offenses after a waiting period, and will enact an automatic process in 2020 for certain convictions.
• Washington courts have limited ability to seal their own records but offer to vacate convictions after a specific waiting period.
• Wisconsin classifies those under age 25 as youthful offenders and treats those records differently; expungement of first-time felonies are generally allowed after the sentence is served.