The expungement myth.

• Author: Shlosberg, Amy
• Position: Revealing the Impact & Aftermath of Miscarriages of Justice

1. INTRODUCTION

   This article stems from a study of the post-release behavior of individuals following exoneration. (1) In the course of conducting research on post-release behavior, the most comprehensive such study to date, an interesting and troubling finding emerged: expungement does not always follow exoneration. (2) Expungement is the "[p]rocess by which [a] record of criminal conviction is destroyed or sealed" from the state or federal repository. (3) In instances where a former defendant is exonerated, expungement is sometimes part of the relief granted. (4) In most cases, however, it must be secured in a separate civil action. (5) Though every member of our sample has been deemed not guilty by an official body, approximately forty-two percent of these exonerees still had evidence of the wrongful conviction on their record. (6) This disturbing statistic has significant consequences for exonerees and the criminal justice system generally.

   The principal research examines post-release offending of 117 individuals who were exonerated and released between 1999 and 2009. (7) The study explores a variety of questions: What is the risk posed by these individuals? Are they victims of prisonization? In other words, does their time in prison convert them into criminals? Do exonerees with prior offenses offend more than exonorees with no prior offenses? Do exonerees who were found guilty of certain types of crimes offend more than others?

   The sample consists principally of exonorees whose cases have been documented by the Center on Wrongful Convictions ("CWC") at the Bluhm Legal Clinic of Northwestern University Law School. These records are publicly available. To explore post-release offending, the authors ran public record searches in four states--Florida, Illinois, New York, and Texas--using the assistance of a commercial data provider. (8) In order to obtain criminal history information, a subject's date of birth had to be provided. (9) If we were unable to obtain that information, that case was excluded from the study. Everyone for whom we could find the necessary identifying information was included. Gathering this data presented a unique opportunity to look at the criminal history records of exonerees. (10) We were immediately struck by the fact that many exonerees have evidence of the crime for which they were wrongfully convicted on their criminal record.

   This article explores the relationship between exoneration and expungement. Part II presents our findings regarding expungement. We attempt to explain some of the results by offering a brief overview of current expungement laws and procedures in the four subject states. Within this section we also briefly discuss the relationship between executive pardons, exoneration, and expungement. Part III discusses the implications of having a criminal record. These include loss of privileges of citizenship, barriers to employment, loss of benefits, and access to government documents. The section notes that criminal records are increasingly accessible, which enhances the associated stigma. The article concludes with a brief review and recommendation for legal reform.

2. EXPUNGEMENT IN PRACTICE

   1. Present Data on Expungement

      We collected criminal history data in 117 cases in which a defendant was determined by an official act to be not guilty of the crime for which they were convicted and incarcerated. (11) Eighteen of the cases were from Florida, thirty-one from Illinois, twenty-four from New York, and forty-six from Texas.

      The situation was most encouraging in New York. None of the twenty-four New York cases showed any record of the prior wrongful conviction. New York law permits the sealing of cases where charges have been dismissed, vacated, set aside, not filed, or otherwise terminated. (12) In our experience, this process was automatic.

      In the three states where clearing the record is discretionary, expungement is irregular and possibly random. Among the ninety-three cases from Florida, Illinois, and Texas, thirty-nine (41.9%) had evidence of their wrongful conviction crime still present on their record. (13) Florida had the lowest number and percentage of cases that were expunged. Only six defendants (33.3%) had no evidence of the wrongful conviction on their record. Illinois had the highest percentage of expungement. Twenty of the exonerees (67%) had no evidence of the wrongful conviction offense on their record. Twenty-eight of the Texas wrongful convictions (62%) had been successfully expunged. This data suggests that expungement after exoneration is often more myth than reality.

   2. Current Expungement Laws and Procedures

      Part of the variation is attributable to variation in the law. Federal courts have the power to expunge federal criminal offenses. (14) Most federal offenses, however, are not eligible for expungement. (15) A recent proposed bill allows for the expungement of certain offenses in limited circumstances. (16) Only nonviolent, first-time offenders are eligible. (17)

      Expungement is thus typically a function of state law, specifically the law of the state with jurisdiction over the crime. Here, there is widespread variation. Some states do not allow certain records to be expunged. (18) Other states allow records to be expunged only under very limited circumstances. (19) Each state has its own procedure for securing expungement. Expungement may also have different meanings in different states. For example, in some jurisdictions an expunged record may not completely "disappear." (20) It may be available to law enforcement, to sentencing judges on subsequent offenses, and to correctional facilities and correctional officers. (21) The variation among Florida's, Illinois's, and Texas's laws is illustrative and partially explanatory of the variation.

      1. Florida

         Florida does not currently have a law regarding expungement in cases of wrongful conviction. To be eligible for sealing or expungement, the defendant must not have been convicted of or have pled guilty to any criminal offense and must not have previously received an expungement or sealing. (22) In other words, if an exoneree has any prior offenses or has plead guilty to the offense for which he or she was wrongfully convicted, (23) he or she is not eligible for an expungement. A "Certificate of Eligibility" from the Florida Department of Law Enforcement is required prior to petitioning the court for an order to seal or expunge a record. (24) There is a $75.00 charge required to secure this certificate. (25) A successful sealing will limit disclosure of the record to only the Florida Bar, the Florida Department of Children and Families, the Florida Board of Education, and law enforcement. (26) In a few other circumstances an expunged record will be unavailable for dissemination to any private or public entity. (27)

      2. Illinois

         Illinois law allows the sealing or expungement of parts of the records of a conviction, preventing the public, including employers, from gaining access to that record. (28) To be eligible for sealing of a conviction record in Illinois, one must have been sentenced to supervision and must wait four years, beginning at the time of discharge from supervision. (29) Some misdemeanors are ineligible for sealing. (30) All felony convictions are ineligible for sealing except for Class 4 felony drug possession and prostitution offenses. (31)

         In Illinois, expunging and sealing a criminal record are two different things. (32) If an individual has never been convicted of a crime or violated a municipal ordinance, they may be eligible to have their record expunged, whereas if they have been convicted of a prior offense they may only be able to have their records sealed. (33) Expunged records...