Trending Topics: How Process Affects Access to Record Clearance

While every state allows for some criminal and juvenile delinquency records to be cleared, the process varies depending on the state, the charges, and the type of information involved.

By CSG Justice Center Staff

For the millions of people who have criminal and juvenile delinquency records in states across the U.S., record clearance can improve access to employment, housing, and education, among other benefits. But while every state allows some records to be cleared, the process varies depending on the state, the charges, and the type of information involved. In most situations, the person with a record has to file a petition in the court where the case was heard. In other circumstances, a judge has the power to clear a record without first receiving a petition. Where the process is more burdensome, fewer eligible people succeed in getting their records cleared.

In some cases, however, records c­­­an be cleared automatically—meaning that clearance occurs according to a procedure laid out in state law, without a petition by the person with a record or any review by a judge or prosecutor. Automatic record clearance is an efficient process, as it requires very little effort by court personnel, meaning it saves tax dollars. It also saves those who are eligible the time, effort, and expense involved in getting legal advice, filing a petition, paying a fee, and appearing in court. Below is an overview of the processes states use to clear records and the effect these processes have on how many people can access the benefits of record clearance.

Petition-based clearance

Petition-based record clearance involves filing a petition, and often paying a fee, usually in the court that originally handled the case. In some states, even before filing a petition in court, a person must get a certificate of eligibility to begin the record clearance process. For instance, in Florida, a person seeking to seal or expunge a record of arrest must first apply to the Florida Department of Law Enforcement for a certificate of eligibility to show that they meet all statutory criteria for sealing or expungement. The application must be accompanied by a $75 fee, a set of fingerprints taken by authorized law enforcement personnel, and a certified document showing the criminal charges are no longer pending. In Kentucky, a person seeking expungement of court and arrest records must first request a certification of eligibility from the administrative office of the courts and pay $40 for processing. If granted, the certification of eligibility is valid for just 30 days. Then, within those 30 days, the person must submit the certification and an expungement petition to the court. These additional steps require a person with a record to spend substantial time, effort, and money. That time, effort, and money can discourage and even prevent eligible people from pursuing record clearance.

Judge-initiated clearance

In certain situations, no petition is required because a judge may clear a record without the person with a record having to file any documents. This is most commonly authorized at the end of a pretrial diversion or deferred judgment program. For example, in California, the records of a case dismissed after successful completion of a drug diversion program or deferred judgment may be sealed by the presiding judge immediately. Similarly, in Texas, records of a case dismissed after successful completion of a veterans treatment court program may be expunged by the judge immediately or at any time within 30 days of program completion. Such processes save time and resources compared with petition-based processes, but still require the participation of a judge and, in some instances, a defense lawyer and a prosecutor who may present arguments supporting and opposing clearance.

Automatic clearance

In contrast, automatic record clearance is typically done without the need for an adversarial process. If a person has a record that is eligible for clearance, the process is completed without the person having to pay money or convince a judge. For instance, when the Utah Board of Pardons and Parole issues a pardon, it also issues an expungement order to all criminal justice agencies that have the person’s record. This order has the same authority and effect as an order of expungement issued by a court, without involving a judge. When a North Carolina prosecutor moves to dismiss charges against someone named as a defendant because of identity theft or mistaken identity, the judge automatically includes an order expunging all official records of the charges. In Maine, whenever a case ends without a conviction, all related records immediately become confidential and cannot be disclosed, except in specific circumstances.

Some statutes set up systems that start automatically, so the person with the record need not initiate the process, but prosecutors or other officials are allowed to step in and oppose clearance. Nevada law provides an example of this type of clearance system. If a defendant has a mental illness or intellectual disability, the presiding judge can suspend proceedings and place the defendant on probation. If the defendant successfully completes probation, the judge dismisses the case. The judge then orders the record sealed, as the statute directs, unless the Division of Parole and Probation petitions the judge not to do so and requests a hearing. In situations such as these, the process is automatic, but clearance is not mandatory.

In uncontroversial cases where charges ended in dismissal, acquittal, or a conviction for a low-level offense, record clearance that is automatic and mandatory can serve many more people than a petition-based process. An analysis by the Philadelphia District Attorney’s Office concluded that 22 percent of all convictions in Pennsylvania from January 1, 2003 to November 1, 2008 would be sealed as a result of the state’s automatic record-sealing law, the Clean Slate Act. In such a system, people whose records are eligible to be cleared do not have to know of their eligibility or follow a potentially complex process to its conclusion. They do not have to hire a lawyer or pay a fee, which can be unaffordable for people whose income is depressed because of a criminal record. When access is designed into the system, the reach of record clearance can be enormous.

For more information on automatic record clearance, see Clean Slate Campaign Targets Record Clearance “Gap” in States and Pennsylvania Becomes First State in Nation to Automate Record Sealing.