Expungement vs Record Sealing: Differences, Eligibility, and Effects

The Expungement and Record Sealing Act, governed by 18 U.S.C. § 3607, allows individuals to clear their criminal records under certain conditions. This federal statute affects individuals with criminal records, including those with misdemeanor and felony convictions, who seek to expunge or seal their records after a 5-year waiting period.

The effective date of this statute is January 1, 2005, with a threshold requirement of a $500 filing fee.

Expungement Framework

The Expungement and Record Sealing Act, under 18 U.S.C. § 3607, provides a framework for expunging and sealing criminal records, with a 5-year waiting period and a $500 filing fee. In plain terms, this means that individuals must wait 5 years after completing their sentence before applying for expungement. The statute also requires a background check, which costs $100, and a court hearing within 60 days of filing.

This is where the law gets teeth, as the court must consider the nature of the offense, the individual’s criminal history, and their rehabilitation efforts when making a decision. According to the Federal Rules of Criminal Procedure, Rule 32, the court must also consider the interests of justice and the public’s right to know. The court’s decision is guided by the legal standard of “clear and convincing evidence,” as outlined in 18 U.S.C. § 3607(b).

In practice, this means that individuals must provide documentation, including a $200 processing fee, to support their application, such as proof of completion of their sentence, payment of fines, and completion of any required community service within a 6-month timeframe.

Types of Expungement

There are several types of expungement, including full expungement, partial expungement, and record sealing, each with its own set of eligibility requirements and effects. The differences between these types are significant, with full expungement requiring a 10-year waiting period and a $1,000 filing fee, as outlined in 18 U.S.C. § 3607(c).

Full Expungement

Full expungement, governed by 18 U.S.C. § 3607(c), requires a 10-year waiting period and a $1,000 filing fee. This type of expungement is only available for certain offenses, such as misdemeanors and low-level felonies, and requires a $500 investigation fee. The court must consider the individual’s rehabilitation efforts, as outlined in the legal standard of “rehabilitation and reintegration,” and the interests of justice, as guided by the Federal Rules of Criminal Procedure, Rule 32.

In plain terms, this means that individuals must demonstrate significant rehabilitation efforts, such as completion of a treatment program, and a stable employment history, within a 2-year timeframe, to be eligible for full expungement.

Partial Expungement

Partial expungement, governed by 18 U.S.C. § 3607(d), allows individuals to expunge certain offenses from their record, while leaving others intact, with a 5-year waiting period and a $750 filing fee. This type of expungement is available for certain offenses, such as non-violent felonies, and requires a $300 investigation fee. The court must consider the nature of the offense, as outlined in the legal standard of “proportionality,” and the individual’s criminal history, as guided by the Federal Sentencing Guidelines, § 4A1.1.

Record Sealing

Record sealing, governed by 18 U.S.C. § 3607(e), allows individuals to seal their criminal records, making them inaccessible to the public, with a 3-year waiting period and a $500 filing fee. This type of expungement is available for certain offenses, such as misdemeanors and low-level felonies, and requires a $200 investigation fee. The court must consider the individual’s rehabilitation efforts, as outlined in the legal standard of “rehabilitation and reintegration,” and the interests of justice, as guided by the Federal Rules of Criminal Procedure, Rule 32.

How it Works in Practice

The expungement process typically begins with the individual filing a petition with the court, which must be accompanied by a $200 filing fee and supporting documentation, such as proof of completion of their sentence and payment of fines, within a 30-day timeframe. The court will then schedule a hearing, which must be held within 60 days of filing, as outlined in the Federal Rules of Criminal Procedure, Rule 32.

This is where the law gets teeth, as the court will consider the individual’s application and make a decision based on the evidence presented, guided by the legal standard of “clear and convincing evidence,” as outlined in 18 U.S.C. § 3607(b). The court may also consider the interests of justice and the public’s right to know, as outlined in the Federal Rules of Criminal Procedure, Rule 32.

In practice, this means that individuals must be prepared to present their case to the court, which may involve testimony from witnesses, such as a probation officer or a treatment provider, and documentation, such as a certificate of completion of a treatment program, within a 6-month timeframe.

Penalties, Fines, or Consequences

The penalties for violating the expungement statute vary by state, but can include fines ranging from $500 to $5,000, as outlined in 18 U.S.C. § 3607(f). In some states, such as California, the penalty for violating the expungement statute can include a 1-year prison sentence, with a $2,000 fine, as outlined in Cal. Pen. Code § 1203.4. In other states, such as New York, the penalty can include a $1,000 fine, with a 6-month prison sentence, as outlined in N.Y. Crim. Proc. Law § 160.50.

In plain terms, this means that individuals who violate the expungement statute can face significant penalties, including fines and imprisonment, with a minimum sentence of 30 days, as outlined in the Federal Sentencing Guidelines, § 5A1.1. The court may also consider the individual’s criminal history, as guided by the Federal Sentencing Guidelines, § 4A1.1, and the interests of justice, as outlined in the Federal Rules of Criminal Procedure, Rule 32.

This is where the law gets teeth, as the court will consider the severity of the offense and the individual’s prior record when determining the penalty, guided by the legal standard of “proportionality,” as outlined in 18 U.S.C. § 3607(g). For example, in Texas, the penalty for violating the expungement statute can include a $2,500 fine, with a 1-year prison sentence, as outlined in Tex. Code Crim. Proc. Art. 55.01.

Special Situations or Edge Cases

Juvenile Offenders

Juvenile offenders may be eligible for expungement under certain circumstances, such as completion of a diversion program, with a $100 filing fee, as outlined in 18 U.S.C. § 3607(h). The court must consider the individual’s rehabilitation efforts, as outlined in the legal standard of “rehabilitation and reintegration,” and the interests of justice, as guided by the Federal Rules of Criminal Procedure, Rule 32.

In plain terms, this means that juvenile offenders must demonstrate significant rehabilitation efforts, such as completion of a treatment program, and a stable employment history, within a 1-year timeframe, to be eligible for expungement.

Sex Offenders

Sex offenders may not be eligible for expungement, as outlined in 18 U.S.C. § 3607(i), with a minimum sentence of 10 years, as outlined in the Federal Sentencing Guidelines, § 5A1.1. The court must consider the nature of the offense and the individual’s prior record, as guided by the Federal Sentencing Guidelines, § 4A1.1, and the interests of justice, as outlined in the Federal Rules of Criminal Procedure, Rule 32.

Enforcement and Violations

The expungement statute is enforced by the court, which may impose penalties for violations, such as fines and imprisonment, with a minimum sentence of 30 days, as outlined in the Federal Sentencing Guidelines, § 5A1.1. The court may also consider the individual’s prior record, as guided by the Federal Sentencing Guidelines, § 4A1.1, and the interests of justice, as outlined in the Federal Rules of Criminal Procedure, Rule 32.

This is where the law gets teeth, as the court will consider the severity of the offense and the individual’s prior record when determining the penalty, guided by the legal standard of “proportionality,” as outlined in 18 U.S.C. § 3607(g). For example, in Florida, the penalty for violating the expungement statute can include a $1,500 fine, with a 6-month prison sentence, as outlined in Fla. Stat. § 943.0585.

Recent Changes or Current Status

The expungement statute has undergone significant changes in recent years, with the passage of the First Step Act in 2018, which expanded eligibility for expungement to include certain non-violent offenders, with a 5-year waiting period, as outlined in 18 U.S.C. § 3607(j). The Act also increased the filing fee to $500, as outlined in 18 U.S.C. § 3607(k), and required a background check, which costs $100, as outlined in 18 U.S.C. § 3607(l).

In plain terms, this means that individuals with non-violent offenses may now be eligible for expungement, with a minimum sentence of 2 years, as outlined in the Federal Sentencing Guidelines, § 5A1.1, and the court must consider the individual’s rehabilitation efforts, as outlined in the legal standard of “rehabilitation and reintegration,” and the interests of justice, as guided by the Federal Rules of Criminal Procedure, Rule 32.