Author: Julian Stroleny
Date: August 10th, 2016
Expungement is the process of removing a charge from an individual’s official state-performed background check, so that the records of a prior criminal conviction are sealed and made unavailable through government repositories. Securing expungement is often only done under extremely limited circumstances, or in some states, not allowed.
Expungement eligibility is often set on a state-by-state basis. In Kentucky, any person who has been convicted of a class D felony or a series of class D felonies listed in KRS 431.073(1) or has been granted full pardon is eligible for expungement. However, in Michigan, the criteria for expungement were set through MCL 780.621 in 2011, stating that criminals with up to three offenses are eligible for expungement, as long as at least two of those offenses are “minor offenses”, defined as a “misdemeanor or ordinance violation for which the maximum permissible imprisonment does not exceed 90 days, for which the maximum permissible fine does not exceed $1,000.00 and that is committed by a person who is not more than 21 years of age.” In addition, the conviction must not have a maximum punishment of life imprisonment, which would include offenses such as murder and other serious violent crimes.
In most cases, criminals are not able to apply for expungement until at least five years have passed since their original conviction, or five years after the completion of their term of imprisonment and parole or probation. Stricter regulations state that an offender must also not have any other felony or misdemeanor charges against him or her in the prior five years to filing the application, or have any charges against him or her while filing the application.
Offenders must apply for an expungement through an Application to Vacate and Expunge Felony Conviction filed through the state court. In some states, it may also be required to send a copy of the application to the state police, State Attorney General, and the prosecuting attorney. The Attorney General and prosecuting attorney may have the opportunity to contest the expungement, and if the crime was assaultive or for a serious misdemeanor, the prosecuting attorney is obligated to notify the victim of the crime. Multiple convictions stemming from one crime count as multiple convictions in the case of expungement, and therefore multiple filings may be necessary.
Upon filing, the offender may be required to pay an application fee, some of which may be non-refundable. In addition, the offender may be asked to pay for an expungement certificate. If the offender is unable to afford an attorney, there are a number of nonprofit organizations that may be able to provide assistance for an inexpensive or free price.
Even if the offender meets all criteria for expungement, the court has a right to decide whether or not expungement should be granted. Federal expungement, which includes the court and multiple state agencies, may take several months to complete. Once an expungement is granted, the prosecuting attorney has 60 days to file an objection and the court has 120 days to review the application and schedule a hearing if necessary. Once an Application to Vacate and Expunge Felony Conviction is filed, it may take time for law enforcement and other agencies to update their records.
Commonwealth of Kentucky. “How to Vacate and Expunge a Felony Conviction.” Felony Expungement (n.d.): n. pag. Commonwealth of Kentucky Court of Justice. Commonwealth of Kentucky Court of Justice. Web. 2016 September 23
Michigan State Appellate Defender Office. “Expunging Adult Convictions.” N/a(n.d.): n. pag. Michigan State Appellate Defender Office. Michigan State Appellate Defender Office. Web. 23 Sept. 2016.
Shlosberg, Amy, Evan Mandery J., Valerie West, and Bennett Callaghan.”Expungement and Post-exoneration Offending.” Northwestern Scholarly Commons. Northwestern University, 2014. Web. 23 Sept. 2016.