How to Expunge a Felony
According to a study in 2010, nearly eight percent of the population has a felony conviction. This comes with a felony on record for life, unless actions are taken to have them removed or the records sealed. California, Colorado, Kansas, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New York, Texas, and Washington remove a felony from record after seven years. In all other states, however, a felony will be on record for life.
This obviously comes with a lot of prejudice and stereotypes, making it hard to get a job, perhaps rent an apartment, even applying for a loan, or anything else that requires a background check. The difficulty this imposes on life is a big one, and it may seem like it’s entirely permanent, but this isn’t necessarily the case. There is the option to make a defense that expunges a felony from the records.
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What does Expungement Mean?
In the case of an expungement, after going through all of the court proceedings, an individual’s records will be sealed, or their felony itself will be taken off the record. This is typically only available for those convicted of a felony for the first time, and it’s much easier to accomplish with more minor crimes or for those who were underage when the crime was committed. It requires filing a petition for the court, and it may be beneficial to get a lawyer to help through the process. This process can vary greatly from state to state, however.
What are the Requirements?
Unfortunately, only state felony convictions are eligible to be expunged. The federal government currently has no system in place, and the only chance of removing the crime from record is a presidential pardon. Ex-felons must wait a certain amount of time after serving their sentence before they are eligible to apply for expungement. They must have completed the entire sentence agreed upon, including jail time, probation, fines, restitution, or any other consequences they were assigned. If there are criminal convictions following the felony, it’s not likely expungement is possible, so they must remain without any legal trouble for the best chances. It’s also important to prove that they have been rehabilitated, meaning that they have served their sentence, paid their debt, and have now turned their lives around in a way that won’t be a danger to society any longer.
What is the General Process?
First, a petition must be submitted, as well as any court or record fees that the state requires. Most of the specific information regarding these fees can be found on the court’s website for that specific area. If there are multiple convictions to be expunged, there usually must be a separate petition for each.
The court will then contact those involved in the case – such as law enforcement and the prosecutor – informing them of the request, and inquiring their opinion. Once they give the okay, or express their doubts, then the judge will decide whether there must be a hearing or not. Sometimes, if the rehabilitation is evident and the crime was minor, the judge will simply approve the expungement without the need for a hearing. If not, there will be a hearing scheduled.
Once at the hearing, it is necessary to explain why it is a valid request for expungement. Details about the circumstances surrounding the crime (if applicable) and efforts made to become a more law-abiding citizen are helpful points to make. It’s also important to demonstrate the effect that the felony on the record has on life, whether it’s preventing them from getting a job, housing, or other necessities.
If the authorities they had contacted did have an issue with the expungement, they will here provide their case and why they think the felony needs to remain on record. This could be for the safety of others, because the crime or the incident surrounding the crime was too serious, or if they believe reparations have not been made. The judge will then make a decision. If they agree that it’s proper, then the record will be expunged. However, if they do not believe an expungement is appropriate, but the convict disagrees, it is possible to file an appeal in the attempt to further prove the need for an expungement.
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What Felonies Can be Expunged?
Not all felonies are likely to be expunged. Crimes involving a sexual offense, violent crimes, or those containing evidence of endangering others are not likely to be expunged, as it’s a harder case to make that an expungement is deserved if the crime was particularly bad. Some of these crimes include:
- Felonies where the victim is a child
- Sexual battery
- Serious weapon charges
Unfortunately, some states don’t allow expungement for felonies at all. However, if the case had be thrown out or resulted in no conviction, then there may be a chance to expunge.
In What Cases Does Expungement Not Apply?
There is the possibility that, even if you do receive an expungement, there are circumstances where certain individuals can still see a record, namely law enforcement and the court. The court can also use a previous felony, even if it was expunged, in the decision making process for a new conviction.
Additionally, there are cases where one may be required to disclose felonies, regardless of if it’s on the record or not. These cases may be:
- Seeking a job in law enforcement
- Seeking a job with children
- Applying for a professional license
What’s the Best Way to Find a Lawyer?
It’s going to be most beneficial to hire a criminal defense lawyer, as they are technically arguing that you are no longer a criminal that is a threat to society.
It’s best to start by asking around. The best professionals are often found through word of mouth, as they can have real, honest reviews from friends that are trusted and may be or have been in the same situation.
The next step is a Google search. Keep in mind that paying to show up earlier in Google searches is a common practice now, so the top results might not always be the best option for someone; it may just be the firm with the most money to spare. Some things to consider are:
- Does their website look professional?
- Do they have proof of a good record on defending criminals with intended results?
- How long have they been practicing?
- How many trials have they done so far?
- Do they have good reviews elsewhere?
If a lawyer is not affordable, there is always the option of using the public defender. They often are very familiar with the courts they often serve in, and have most likely done the same for others many times before.
Overall, it can be incredibly beneficial to have a lawyer to help guide the process along, as they’re definitely going to be much more familiar with the system and what the court is looking to hear. Putting in the extra cash may just be worth the results that could come, and could also streamline the process and make it go by much quicker. The time and effort that can be avoided definitely makes considering this option worth it.
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What are Some Other Options?
While an expungement completely removes the record of a felony, there are other options that aren’t quite so complete, but still do a good job of improving the record.
This also keeps the public from being able to see a felony conviction on someone’s record. The difference, however, is that the public can still know that there is a record; they just can’t see it. The convicted is still required to disclose their criminal record, but it is not necessary to inform anyone on what that conviction was for. Since it’s not often that the violent crimes mentioned above are sealed, it’s going to be obvious to whoever hears of the sealed record that it was a lesser crime, not one that is likely to happen again or is particularly dangerous.
A pardon does not erase a conviction from the record. To receive a pardon, one must admit their wrongdoing and that they were in fact guilty of the crime they were convicted of.
There is a presidential pardon, but more common is a pardon for the state governor. It is also necessary to actually file for a pardon; it doesn’t just happen. Additionally, more often than not, it’s going to be for political reasons for the governor.
While this doesn’t remove a felony from record, it does remove some of the negative consequences that follow behind even after serving the full time.
What are the Benefits of Having a Record Expunged?
The benefits are obvious for the person with the record. They are now less likely to be prejudiced against for a crime that may not be totally serious, may have been from a different time in their life, or was a stupid mistake that they regret and does not define them. This will allow them to not worry about what may arise when background checks are required. It can be increasingly difficult for felons to find work once being released, even though they have served their debt to justice and have turned their lives around. They often find themselves wanting to create a better life for themselves, but not able to because of a past mistake. Convicts may also have their rights restored that were taken away because of the felony conviction, such as voting rights and the ability to own a firearm.
This is also going to give them something to work towards, or something to have hope in and a desire to improve for. It’s easy to lose hope when there seems to be no change in sight. The motivation of having it removed and being able to start fresh can be a great contributor to these individuals pursuing better paths. Plus, it can just make them feel more a part of the community they live in, as they’re able to contribute and have the same rights afforded to their fellow citizens.
Additionally, the community benefits from this as well, as they now get a new contributing member of society. The expunged record may lead to new hires, residents in apartment complexes, or excellent loan candidates. It can also be beneficial to a community to see the progress of someone that is making an effort to right their wrongs and be more effective among their jobs and with their peers.
What are the Downfalls?
Unfortunately, in today’s age of internet, nothing is ever truly gone. If there are any newspaper articles referencing the arrest, Google results, or social media that addresses the arrest, there is not a way to remove those. In the federal court decision of Nilson v. Layton City shows where the limits of the court are when it comes to completely removing all record of a crime:
While it removes a particular arrest and/or conviction from an individual criminal record, the underlying object of expungement remains public. Court records and police blotters permanently document the expunged incident, and those officials integrally involved retain knowledge of the event. An expunged arrest and/or conviction is never truly removed from the public record and thus is not entitled to privacy protection.
The best options for removing these as well is pursuing further legal action if applicable, asking for content to be removed, or creating positive content that outweighs the results of the conviction on search engines.
Specific State Requirements
Here are the general authorities that states have for expungement. For more specifics visit this Restoration of Rights chart outlining all laws.
Alabama – No authority to expunge or seal adult convictions.
Arkansas – No authority to expunge or seal adult convictions.
Arizona – Convictions can be set-aside upon discharge, not including violent and sexual crimes, but the record isn’t sealed and the crime must be disclosed. It does, however, relieve all collateral consequences.
Arkansas – Minor felonies and drug convictions can be expunged after five years as long as there isn’t more than one prior conviction.
California – Charges may be dismissed or set aside for probationers, misdemeanants, and minor felony offenders with rights restored, but no sealing of records.
Colorado – After one to five years, records can be expunged for minor felonies
Connecticut – Pardons are available often and result in erasure of the conviction.
Delaware – Discretionary expungement is available for some felonies.
D.C. – Expungement is only available for some misdemeanors.
Florida – No authority to expunge or seal adult convictions.
Georgia – No authority to expunge or seal adult convictions.
Hawaii – No authority to expunge or seal adult convictions.
Idaho – Felonies can be reduced to misdemeanors as long as prosecutors agree.
Illinois – After three years, eligible felonies can be expunged.
Indiana – Five years after serving the sentence, lesser felonies are available for expungement. However, they are still on record, just marked as expunged.
Iowa – No authority to expunge or seal adult convictions.
Kansas – Excluding violent and sex crimes, expungement is available after three to five years.
Kentucky – Class D and lower felonies can be expunged after three years following completion of sentence.
Louisiana – After ten clean years, felonies are eligible to be expunged.
Maryland – Enumerate felonies after ten to fifteen years may be expunged.
Massachusetts – Ten years with no convictions can make a felony able to be expunged.
Michigan – First time felony offenders with less than three misdemeanors can have felony convictions set-aside.
Minnesota – Expungement is available for non-violent felonies.
Mississippi – It’s possible to expunge first time offenders of less serious felonies.
Missouri – They allow expungement for less serious crimes, excluding violent and sex crimes, after seven years.
Montana – No authority to expunge or seal adult convictions.
Nebraska – No authority to expunge or seal adult convictions.
Nevada – Records can be sealed after two to ten years.
New Hampshire – After one to ten years, non-violent offenses can be sealed.
New Jersey – Indictable offenses can be expunged after ten years.
New Mexico – Conviction records are able to be expunged following two to ten years.
New York – It’s possible for lesser felonies to be sealed after ten years.
North Carolina – Fifteen years after the sentence, non-violent, first time offenses can be expunged.
North Dakota – Non-violent felonies can be petitioned to be sealed after three to five years, and ten years after a sentencing, violent felonies may be sealed.
Ohio – Records can be sealed for one felony after one to three years.
Oklahoma – If there are no prior convictions within seven years, one nonviolent felony is eligible to be expunged after five years.
Oregon – Less serious felonies can be set-aside after one to twenty years.
Pennsylvania – No general authority for limiting access to records of felony convictions.
Puerto Rico – All felonies, including violent ones, are available to be expunged after six months to five years, as long as DNA is provided.
Rhode Island – Five to ten years after the sentence is completed, expungement is available.
South Carolina – Expungement for first time offenders is available after five years without new convictions.
South Dakota – No authority to expunge or seal adult convictions.
Tennessee – For no more than two convictions, less serious, non-violent felonies can be expunged after five years.
Texas – No authority to expunge or seal adult convictions.
Utah – Most felonies can be expunged after three to ten years.
Vermont – Three minor felonies may be expunged after five years if they are not convicted of another crime, or if it “better serves the interest of justice.”
Virgin Islands – No general authority to seal or expunge adult felony convictions.
Virginia – No general authority to seal or expunge adult felony convictions.
Washington – After three to five years, most felonies can be expunged.
West Virginia – Five years after serving the sentence, non-violent felonies can be expunged.
Wisconsin – Offenders under 25 years old can have first time offenses expunged.
Wyoming – Lesser felonies expunged after ten years.
Expunging a record can be a life-saving process for someone with a felony conviction that finds it greatly affects their life. The process can be a difficult one, but definitely worth it. It’s important to be realistic about the type of crime committed and whether or not it’s even possible to be expunged. Then, following the steps provided by the court for the specific state is essential to have a successful expungement, and it may be beneficial to consider hiring a lawyer for the best results. If an expungement isn’t possible, perhaps consider a pardon or sealing of the records. These efforts can make the biggest difference in starting a new life on a clean slate.