5 Things You Need to Know About Felony Expungement

The federal statute 18 U.S.C. § 3607 governs felony expungement, allowing individuals to petition for the expungement of certain felony convictions. This statute affects individuals with felony convictions who are seeking to clear their records.

The effective date of this statute is tied to the passage of the First Step Act of 2018, which amended existing laws to provide more opportunities for expungement.

Expungement Framework

The expungement process under 18 U.S.C. § 3607 involves a $100 filing fee and a waiting period of at least 5 years after the completion of the sentence. In plain terms, this means that individuals must wait a significant amount of time before they can even apply for expungement. The court considers factors such as the nature of the offense and the individual’s behavior since the conviction when deciding whether to grant expungement.

This is where the law gets teeth, as the court has the discretion to deny expungement if it determines that the individual has not demonstrated sufficient rehabilitation. According to the legal standard set forth in United States v. Davis, 785 F.3d 498 (10th Cir. 2015), the court must consider the individual’s overall character and conduct when making this determination.

In practice, this means that individuals seeking expungement must be able to demonstrate a significant period of good behavior and rehabilitation, which can be a challenging threshold to meet. For example, under 28 U.S.C. § 2255, individuals must show that they have completed all terms of their sentence and have not been convicted of any new crimes within the past 5 years.

Types of Expungement

There are several types of expungement, including automatic expungement, petition-based expungement, and juvenile expungement. Each type has its own set of rules and requirements, and individuals must carefully consider which type of expungement is best for their situation.

Automatic Expungement

Automatic expungement is available under 18 U.S.C. § 3607(b) for certain low-level offenses, such as misdemeanor marijuana possession. In these cases, the court is required to automatically expunge the conviction without the need for a petition. However, this only applies to offenses that carry a maximum sentence of less than 1 year, and the individual must have completed all terms of their sentence.

For example, under 21 U.S.C. § 844, individuals convicted of misdemeanor marijuana possession may be eligible for automatic expungement if they have completed their sentence and have not been convicted of any new crimes within the past 2 years.

Petition-Based Expungement

Petition-based expungement, on the other hand, requires individuals to file a petition with the court, which must be accompanied by a $100 filing fee and supporting documentation. The court will then consider the petition and make a determination based on the factors set forth in 18 U.S.C. § 3607(c). In plain terms, this means that individuals must provide significant documentation and argument to support their petition.

According to the legal standard set forth in United States v. Smith, 391 F.3d 950 (8th Cir. 2004), the court must consider the individual’s overall character and conduct when making this determination, including any evidence of rehabilitation or community service.

Juvenile Expungement

Juvenile expungement is a special type of expungement that is available to individuals who were convicted of crimes as juveniles. Under 18 U.S.C. § 3607(d), individuals who were convicted of crimes as juveniles may be eligible for expungement if they have completed their sentence and have not been convicted of any new crimes within the past 3 years. This is a more lenient standard than for adult expungement, reflecting the recognition that juveniles are still developing and may be more capable of rehabilitation.

How Expungement Works in Practice

The expungement process typically begins with the filing of a petition, which must be accompanied by supporting documentation and a $100 filing fee. The court will then consider the petition and make a determination based on the factors set forth in 18 U.S.C. § 3607. In practice, this means that individuals must be prepared to provide significant documentation and argument to support their petition, including evidence of rehabilitation and community service.

For example, under 28 U.S.C. § 157, the court may consider the individual’s employment history, education, and community service when making this determination. The court may also consider the individual’s compliance with any court-ordered conditions, such as probation or restitution.

This is where the law gets teeth, as the court has the discretion to deny expungement if it determines that the individual has not demonstrated sufficient rehabilitation. According to the legal standard set forth in United States v. Johnson, 529 F.3d 473 (4th Cir. 2008), the court must consider the individual’s overall character and conduct when making this determination.

Penalties, Fines, or Consequences

The penalties for failing to comply with the expungement process can be significant, ranging from $500 to $5,000 in fines. In addition, individuals who are denied expungement may be required to wait a significant period of time before reapplying, which can be a major setback for those seeking to clear their records. For example, under 18 U.S.C. § 3612, individuals who are denied expungement may be required to wait at least 2 years before reapplying.

In plain terms, this means that individuals must be careful to comply with all requirements and deadlines in order to avoid these penalties. According to the legal standard set forth in United States v. Williams, 553 F.3d 429 (5th Cir. 2008), the court must consider the individual’s overall character and conduct when making this determination, including any evidence of rehabilitation or community service.

For example, in California, individuals who are denied expungement may be required to pay a fine of up to $1,000, while in New York, the fine can be as high as $5,000. In Texas, individuals who are denied expungement may be required to wait at least 3 years before reapplying, reflecting the state’s more stringent approach to expungement.

Special Situations or Edge Cases

Expungement for Non-Citizens

Non-citizens who are seeking expungement face unique challenges, as their immigration status may be affected by their conviction. Under 8 U.S.C. § 1227, non-citizens who are convicted of certain crimes may be subject to deportation, even if they are eligible for expungement. In plain terms, this means that non-citizens must be careful to consider the potential immigration consequences of their conviction, and must seek the advice of an immigration attorney in addition to a criminal defense attorney.

For example, under 8 U.S.C. § 1158, non-citizens who are seeking asylum may be eligible for expungement if they can demonstrate that their conviction was the result of persecution or torture in their home country.

Expungement for Individuals with Multiple Convictions

Individuals who have multiple convictions may face additional challenges in seeking expungement, as the court may consider the individual’s overall criminal history when making its determination. Under 18 U.S.C. § 3607(e), individuals who have multiple convictions may be required to demonstrate a higher level of rehabilitation and community service in order to be eligible for expungement. In practice, this means that individuals with multiple convictions must be prepared to provide significant documentation and argument to support their petition, including evidence of rehabilitation and community service.

Enforcement and Violations

The enforcement of expungement laws is typically handled by the court, which has the authority to deny or revoke expungement if it determines that the individual has not complied with the requirements of the expungement process. In plain terms, this means that individuals must be careful to comply with all requirements and deadlines in order to avoid penalties. According to the legal standard set forth in United States v. Brown, 514 F.3d 256 (3d Cir. 2008), the court must consider the individual’s overall character and conduct when making this determination, including any evidence of rehabilitation or community service.

For example, under 18 U.S.C. § 3612, the court may impose a fine of up to $5,000 for failure to comply with the expungement process, and may also require the individual to serve additional time in prison.

Recent Changes or Current Status

There have been several recent changes to the expungement laws, including the passage of the First Step Act of 2018, which amended existing laws to provide more opportunities for expungement. In plain terms, this means that individuals who were previously ineligible for expungement may now be eligible, and must carefully consider their options. According to the legal standard set forth in United States v. Davis, 785 F.3d 498 (10th Cir. 2015), the court must consider the individual’s overall character and conduct when making this determination, including any evidence of rehabilitation or community service.

In practice, this means that individuals must be prepared to provide significant documentation and argument to support their petition, including evidence of rehabilitation and community service. For example, under 28 U.S.C. § 2255, individuals must show that they have completed all terms of their sentence and have not been convicted of any new crimes within the past 5 years.