SEALING/EXPUNGING ARREST AND CONVICTION RECORDS

Model Laws

 

 

 

 

 

 

 

 

 

 

The Legal Action Center has drafted a Model Sealing/Expungement Law that states can use to seal/expunge both arrests that never led to conviction and old/minor convictions.

In this section we also are providing you a summary of key provisions and examples of good statutes that some states have passed for both the sealing/expungement of arrests that never led to conviction and for the sealing/expungement of old or minor convictions. You will see that these two sets of model provisions have many common elements.

I. Sealing/Expunging Records of Arrests That Never Led to Conviction

Legislation to seal/expunge arrests that never led to conviction should include the following key provisions:

  • All arrests that never led to conviction should be sealed/expunged and not made publicly available in the court or at the state criminal record repository.

  • You may want to allow law enforcement agencies to obtain sealed records. If any other entities can obtain sealed records (we do not recommend that), narrowly define the agencies that can do so, the circumstances and purposes.

  • Employers and others should not be allowed to ask about or consider those records.

  • If asked, the individual should be permitted to answer as if it never occurred.

  • Specify whether sealing/expungement is automatic (we think this process is cost effective and less cumbersome for the courts and the individual) or whether the individual must file a motion with the appropriate court.

  • Specify the effects of a sealed arrest record, including: (1) state that the accused would be restored to the status he or she occupied before the arrest and/or prosecution that never led to conviction, and (2) state that the accused need not disclose that arrest if asked about prior criminal history when seeking employment, licensing, housing, or any other benefit.

  • Include enforcement mechanisms such as criminal and/or civil penalties for wrongfully obtaining or disseminating sealed records to ensure that information from a sealed record is not improperly disclosed.

Connecticut’s sealing law for arrests that did not lead to conviction is a model states may consider.

    • Connecticut General Statutes § 54-142a - Erasure of Criminal Records

      This law (click here for full statute) allows arrest records to be automatically “erased” when someone is not convicted and allows him or her to deny having an arrest record when asked.

II. Sealing/Expunging Records of Old or Minor Convictions

The Legal Action Center has drafted Model Legislation For the Sealing of Conviction Records that States can use to draft their own legislation. The key provisions of this legislation are described below.

Legislation to seal/expunge arrests old or conviction should include the following key provisions:

  • Determine which types of records will be eligible for sealing or expungement. All convictions could be sealed/expunged, or only non-violent offenses and/or first felony offenses, misdemeanors and violations.

  • Employers and others should not be allowed to ask about or use those records.

  • If asked, the individual should be permitted to deny the existence of the record.

  • Specify whether sealing/expungement is automatic or whether the individual must file a motion with the appropriate court.

  • Determine whether there will be a waiting period before records can be sealed or expunged. If there will be: (1) define a clear, reasonable period of time; (2) specify what triggers the beginning of the time frame, such as discharge by the court or the completion of all conditions of the sentence; and (3) state whether the length of the waiting period varies according to the seriousness of the crime.

  • State whether an individual must demonstrate rehabilitation in order for the record to be sealed/expunged, and if so, what kinds of evidence the applicant must present.

  • You may want to allow law enforcement agencies to obtain sealed/expunged conviction records. If any other entities need to be given access to sealed/expunged records, narrowly define the agencies that can do so, the circumstances and purposes.

  • Specify the effects of a sealed/expunged conviction record including: (1) state that the records could no longer be used as a disqualification for employment (as noted in bullet two); and (2) state that the individual need not disclose that arrest if asked about prior criminal history when seeking employment, licensing, housing, or any other benefit.

  • Include enforcement mechanisms such as criminal and/or civil penalties for wrongfully obtaining or disseminating sealed/expunged records to ensure that information from a sealed record is not improperly disclosed.

  • If sealing/expungement is not automatic, specify procedures for application process, including:
    • Documents that must accompany the application, such as court certificates of disposition, fingerprint card, proof of identity, etc.
    • If there are required application fees, allow for reduced or no-fee waivers for indigent applicants.
    • Specify which entity is responsible for the investigation of evidence, recommendations, and determinations (e.g. probation department, judge, parole).
    • Specify the timeline for the application process. If a hearing is necessary, state time period for scheduling the hearing and the maximum amount of time an applicant must wait before the investigation is completed and a decision rendered.
    • Require that applicants receive all reports and decisions in writing.
    • State the process for re-applying if initial application is denied, including how often and after what period of time applicant can re-apply.

States can also model sealing/expungement laws on the laws enacted by Illinois or Nevada:

    • Illinois Compiled Statutes Chapter 20 §2630/5—Illinois Criminal Identification Act—Sealing of Certain Misdemeanor Records

      This law (click here for full statute) authorizes the sealing of misdemeanor conviction records 3 years following the completion of supervision for the conviction if no intervening conviction or supervision has occurred; and after 4 years following the completion of the sentence if no intervening convictions or supervision has occurred.

    • Nevada Revised Statute Chapter 170.245, 170.259, 453.3365

    This law (click here for full statute) provides a graduated time frame for eligibility to seal convictions of both misdemeanors and felonies. The state’s criminal convictions classification starts from misdemeanor up to “A” felony. For certain less serious misdemeanors defined by statute, there is a 3-year waiting period after completion of sentence. For individuals who complete a reentry program, there is a 5-year waiting period from the date of completion. For “gross” misdemeanors its 7 years, E felonies—10 years, C or D felonies—12 years and A or B felonies can be sealed 15 years from the date of release from custody or discharge from parole or probation, whichever is later.

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