NCJ Number
73572
Journal
FEDERAL BAR JOURNAL Volume: 35 Issue: 2 Dated: (1976) Pages: 107-118
Date Published
1976
Length
12 pages
Annotation
This article attempts to clarify the status of the expunged or set aside State or Federal conviction and recommends additional legislation or regulations to end administrative abuses caused by the confusion.
Abstract
The term 'expunction' should be used only to indicate a complete removal of a conviction from the record, although unless specified, it does not include expunction of the indictment, arrest, or other entries' If the erasure is not intended to be complete and for all purposes, it should be called 'sealing,' which means that the records remain, although the offenders are explicitly allowed to state that they have never been convicted; if the offenders are pardoned, only their disabilities are removed. The existing statutes (California P.C. 4852.17, and 18 U.S.C. 5038) adequately describe procedural requirements for carrying into effect pardon and sealing. However, the only statute that provides for unrestricted expunction, 18 U.S.C. 5021 (1950), contains no descriptive instruction on how to treat an order under that section, which weakens the effectiveness of the statute and causes abuses. Instead of deleting the conviction, the Federal Bureau of Investigation annotates it on the record and the clerk's office of the district court adds a certificate setting aside the conviction to the public file. To avoid the abuses, definitions of the scope and method of expunction should limit consideration of the expunged conviction. It should also be made clear that section 5021 expunges the arrest, indictment, and all other entries on the record. Along with the passage of the clarified expunction statutes, legislatures should enact statutes prohibiting consideration of expunged convictions regardless of the source of the information about the conviction. Discussion of relevant cases is included.