Pardon vs. Expungement: How to Fix a Criminal RecordMay 3, 2017
Nearly one-third of American adults have some sort of a criminal record. According to a 2012 survey by the Department of Justice, there are more than 100 million records contained in state criminal history databases. Unfortunately, those records are largely made available to the public. Consequently, many people with a criminal record have difficulty applying for a job, seeking housing, or otherwise enjoying a civil right such as gun ownership. Luckily, many states have legal remedies for those that want to remove the record of their arrest and/or conviction in order to move forward in life without the stain of a criminal background.
The most common way to remove a criminal record is through an expungement order issued by the sentencing court. According to a report from the Vera Institute of Justice, between 2009 and 2014, 31 states passed laws on expungement, many of which expanded the number of crimes that can be expunged or destroyed. Some laws allow for the record to be completely expunged or destroyed, and others simply offer a record seal, removing it from the public record and limiting its use to certain agencies (usually law enforcement). Another way to cure a criminal record is to obtain a pardon for that offense. Many people are aware of the “presidential pardon,” which is a form of clemency conferred to the President of the United States through the Constitution. However, the President’s authority to grant clemency is limited to federal offenses and offenses prosecuted by the United States Attorney for the District of Columbia in the name of the United States in the D.C. Superior Court.
Clemency, n. Mercy or leniency; esp., the power of the President or a governor to pardon a criminal or commute a criminal sentence.
An offense that violates state law is not an offense against the United States. A person who wishes to obtain a pardon for a state offense should contact the authorities of the state in which the conviction occurred. Such state authorities are typically the Governor or a state board of pardons and/or paroles, if the state government has created such a board. Pardons are much less frequently granted than expungements, and both options should be fully understood by someone looking to correct a criminal record. The following article will address some of the differences between a state-issued pardon and expungements in general.
What is an expungement?
An “expungement” is the removal of the records of an arrest and/or a conviction as a result of a criminal offense. The very meaning of what an expungement consists of typically depends on the state. For example, an expungement in Kentucky results in the underlying charge being vacated and dismissed. Then, the court orders that all records related to the offense be physically destroyed. In other states like Ohio, a criminal record can only be “sealed” from the general public. Here, the record technically still exists, but it is sealed from the public view and is available to be examined only in very limited circumstances—usually by law enforcement personnel. For more on the difference between an expungement and a record seal, see our blog on the WipeRecord website.
What is a pardon?
A “pardon” is the act of officially forgiving the commission of a crime and absolving the offender of its legal consequences. As mentioned earlier, only certain parties within the state government can pardon a state conviction (not the President). In most cases, a state will set up a board of pardons and paroles, which issues recommendations to the governor concerning pardon applications. The governor, however, usually has the ultimate say and exclusive authority in granting pardons. Pardons can be issued in the form of a full pardon, a partial pardon, or several other slight variations.
What is the difference between a pardon and an expungement?
To a certain extent, both a pardon and an expungement serve to help exonerate and clear the name of the individual receiving it. The main difference between a pardon and an expungement is that a pardon does not erase, clear, nor seal a criminal record. Depending on the state, a pardoned offense may thereafter be eligible for expungement when it originally would not be. Yet, a gubernatorial pardon is simply an official recognition by the state that the applicant has turned his or her life around, and therefore the pardoned crime has been absolved. The criminal record, unless thereafter expunged, will still show up on a background check. Still, a pardon is a distinct honor which is only granted to those who have either proved their innocence or shown exemplary behavior as a law-abiding, productive member of society. Therefore, a pardoned offense should no longer hold a person back from seeking employment, obtaining licensure, or otherwise enjoying the same type of privileges as any other person. *
Another difference between a pardon and an expungement is that a pardon is granted by the executive branch of the state (i.e. the governor), and expungements are granted by the judicial branch (i.e. a judge). The pardon application process generally consists of filing out an application and submitting it to the appropriate state agency. Then, it gets reviewed and there may be a hearing on the matter to bring all the evidence of good conduct before the board. Finally, a final recommendation is made to the governor, who has the last decision as to whether the pardon will be granted or not. In contrast, the expungement process generally consists of drafting a petition and filing it with the sentencing-court clerk. Then, a hearing may be set on the matter in which a judge will examine the case and determine whether to issue an order for an expungement of the criminal records.
The following chart explains the pardon or expungement process for states we currently serve:
|California||A Certificate of Rehabilitation from the court, or a direct application to the board if non-resident or misdemeanant. Eligible 10 years after completion of sentence. Decided by the governor, and board may recommend.||The case is re-opened, the guilty verdict or plea is withdrawn, the charges are dismissed, and the case is closed without a conviction.|
|Florida||Public hearing on the matter. Governor decides with concurrence of two cabinet members. Governor and three cabinet officials act as pardon board. Eligible immediately following completion of sentence.||Record seal available for cases that were acquitted or withheld from adjudication. The seal restricts access to the records by the public. Expungement available for offenses that were dismissed. Expunged records not available to public nor agencies given access under seal, and such agencies are issued a statement indicating that “criminal information has been expunged from this record.”|
|Illinois||Hearings by the Prisoner Review Board, which makes a recommendation to the Governor. Governor then decides, and there are no eligibility requirements.||Expungement available for non-convictions generally. Expunged records are destroyed or returned to the petitioner. Many misdemeanors, some Class 3 and 4 felonies available for record sealing. Sealed records are maintained by agencies, most of the general public will not have access, but law enforcement will.|
|Indiana||Public hearing held by the parole board, which makes recommendations to the Governor who then decides. Recently, governors require 5-year waiting period and evidence of rehabilitation.||Many offenses now eligible for expungement. Records may be available to public, but are marked “expunged” and cannot be held against you for employment. Non-conviction records eligible for record sealing, which removes all files from public view.|
|Kentucky||Applications sent directly to the Governor for review. Governor decides, and parole board may be consulted. 7-year waiting period for pardons.||Some Class D felonies, misdemeanors, and non-convictions are eligible for expungement. Original conviction is vacated, and record completely expunged and deleted from all systems.|
|Louisiana||Public hearing for approval by 4/5 board members. Governor may grant pardon. Must complete sentence and pay outstanding costs.||Certain felonies and misdemeanors, along with non-convictions eligible for expungement in Louisiana. Records not available to public, but are accessible to law enforcement, licensing boards, and other government agencies.|
|Michigan||Apply to the board, who may recommend to the Governor. Governor then informs, and there are no eligibility requirements.||When the State “sets-aside” a conviction, it is deemed not to have occurred, and the record is removed from the public. Records are available to limited government agencies/law enforcement.|
|Minnesota||Commissioner of corrections screens applications, which may go to the board. Public hearing on the matter, and Governor, with other officials, act as board to decide. 5-10 year waiting period depending on the offense.||Expungement available for non-convictions, some misdemeanors and qualifying felonies. Expunged record is not destroyed, law enforcement and government agencies have access. Records are sealed from public access.|
|New Jersey||Parole Board may make recommendation, but the Governor decides. No eligibility requirements.||Non-convictions, misdemeanors, and lower-level felonies eligible (called “disorderly persons” offenses & “crimes” or “indictable offenses”). Expungement acts as seal, removing it from public access but keeping a record available to law|
|New York||Board of Parole must advise if requested. Must be no other available remedy under the law. Governor ultimately decides. Otherwise, no eligibility criteria.||Certain felony drug and other specified convictions eligible for a record seal, but are subject to further requirements. Records not available to public, only law enforcement and some government agencies.|
|Ohio||Apply to Parole Board, which conducts investigation and may recommend to Governor after hearing. Governor decides after receiving consultation. Eligible at any time.||Certain felony and misdemeanor convictions eligible. All records are sealed, the conviction is deemed not to have occurred, yet the record may be used in a subsequent court proceeding. Sealing also restores civil rights lost because of the conviction.|
|Oklahoma||Public hearing on the matter, recommendation made to Governor. Governor decides per recommendation of the board. Eligible following completion of sentence or 5 years under supervision.||Expungement available for some misdemeanor and felony records, as well as non-convictions. The record is sealed and removed from public access. Two forms of expungement: one erases the whole record, and the other leads to a dismissal.|
|Oregon||Application filed with governor’s office, and is then reviewed by legal staff. Governor gives final decision. Lower-level offenses generally not considered, as other legal remedies may be available.||Persons who meet certain qualifications can have an arrest record, misdemeanor conviction or certain lesser felony convictions set-aide. Set-aside restores civil rights, and seals the record from public view. Record may be available for viewing in limited circumstances by court order.|
|Pennsylvania||Public hearing on the matter. Governor decides per favorable recommendation by pardon board. No further eligibility requirements.||Low level misdemeanors and non-convictions are eligible for expungement. Effect is a record seal, and record is not destroyed. Records are not available to general public, but disclosure is authorized to certain agencies for limited access.|
|Texas||No public hearing, rather informal review process. Governor decides per recommendation of Board of Pardons and Paroles. Eligible upon completion of sentences.||Expunction available for arrest records, non-convictions, or pardoned cases. The records are removed from agency possession, are completely sealed, and the person may deny the existence of the offense (may state under oath “the matter has been expunged”). Orders of nondisclosure available for certain first offender misdemeanor convictions. The record may not be disclosed, except to criminal justice agencies and other specified persons per the law.|
|Washington||Public hearing on the matter. Governor decides, and may seek consultation of the board. No further recommendations.||Certain felonies and misdemeanor convictions are eligible to be vacated and dismissed by the court. A conviction that has been vacated may not be disseminated or disclosed to any person, except criminal justice enforcement agencies. Vacated convictions may be further sealed under certain circumstances, sealing the records held by the state police.|
For more state-specific information on the pardon or expungement process, it’s always best to consult the relevant state law. Each state has their own set of requirements and varying procedures, which can be difficult to correctly navigate without the assistance of an attorney. If you’re seeking relief from a criminal record, it’s usually best to consult a law firm experienced in such matters. This way, you can feel confident knowing that the matter will be handled in an efficient and competent manner.
*The restoration of firearm rights may vary by state
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