Getting Your Record Sealed
Understand the difference between a sealed record and an expunged record. If a criminal record is sealed, it’s hidden from the general public but still exists. Sealed records can actually be unsealed in some instances. Expungement, on the other hand, erases the record permanently. If your record is sealed, the felony typically will not appear when someone runs a criminal background check on you, as when you apply for a job or seek to rent an apartment. Some states (Illinois, for example) do not allow records of any felony convictions to be either expunged or sealed under any circumstances absent pardon from the governor.
Make sure the required time has elapsed since your conviction. All states require you to wait a few years after you’ve served your sentence before you can get your record sealed. During that waiting period, you should go out of your way to avoid any further brushes with the law. The waiting period may differ depending on the severity of your crime. For example, Massachusetts requires you to wait ten years before applying to have a felony record sealed, compared to five years for a misdemeanor conviction. Know when the waiting period starts. In some states you must first complete any period of probation and pay all fines. In other states the waiting period begins the day you’re convicted. Elsewhere it may begin on the day you leave jail. In many states, records may be sealed upon request after a certain period of time has elapsed without further review. However, you must maintain a clean record during that waiting period.
Complete the state's forms. Documents for sealing your criminal record may be available at a state court or probation office. Legal aid offices may also have the appropriate forms. You may need to file other documents with the form, such as copies of your criminal record or the final order of conviction.
File or mail the state forms. The forms will tell you how to direct them to the right person for review. In some states, petitions to seal records are reviewed by a judge. In others you can mail them to the probation office. If you have to file your forms with a clerk of the court, expect to pay filing fees ranging from less than a hundred dollars to a few hundred dollars.
Attend your hearing, if necessary. Some states require a hearing before a judge or parole board in order to seal your record. In other states sealing a record is an administrative process requiring nothing from you apart from your signature on the petition. You generally don’t have to do anything if your petition is granted. Your records will automatically be sealed, although it may take some time for that to happen. If your petition is denied, you’ll be informed of the reasons for its denial, the steps you can take to address those reasons, and when you can reapply to have your record sealed.
Getting Your Record Expunged
Find out if expungement is available in the state where you were convicted. Expungement acts to dismiss the felony, almost as though it never happened. Only 16 states allow expungement of a conviction. The general public may not know about your expunged felony, but law enforcement agencies and courts still have access to that part of your record. If you’re convicted of another crime after having a prior conviction expunged, the expunged conviction may add to the severity of your sentence. Most states don’t allow expungement of serious, violent felonies. Some states do not allow you to expunge felonies at all. If you live in a state where this is true, you will have to work to get your felony reduced to a misdemeanor, and then you could possibly get that misdemeanor expunged. Some states allow the expungement of arrests only. If you live in a state like this, you might not be able to expunge felony or misdemeanor convictions at all. Even if you’re successful in getting your conviction expunged, you may still have to disclose it in some instances, such as if you’re applying for a professional license or a job in law enforcement.
Make sure the required time has elapsed since your conviction. Depending on the state, you might have to wait several years after your conviction before you can file to have your record expunged. The length of time you have to wait can depend on several factors, including your age and the severity of the crime. Those factors vary from state to state. The waiting period doesn’t start until after you’ve finished all aspects of your sentence. This includes successfully completing any probation period and paying all fines.
Gather your records. In many states you’ll have to present police and court records about your felony when you file for expungement. You probably will have to pay fees for certified copies of those documents. You also will need copies of your criminal history and fingerprint records from the arresting police department. In some states, such as Florida, you also must have new fingerprints taken to submit with your expungement petition.
Complete the required forms. States have a form, typically called a Motion or Petition for Expungement, to be filed with the court. All you have to do is fill in the blanks. You should consider talking to a criminal defense attorney if you find the forms or process difficult or have problems obtaining the documents or related information. You may be able to talk to someone in the public defender’s office or even the attorney who handled your case originally.
File and serve your expungement forms. After you’ve finished filling them out, you need to file your forms with the proper court clerk. Some states also require you to serve the form to district attorneys or law enforcement agencies. If the state requires you to serve your expungement papers to law enforcement officials, understand that you cannot do this yourself. The clerk’s office will have a list of local process-serving companies, and you’ll have to use one of those. You’ll pay fees to file your expungement request, which usually amount to a few hundred dollars. If your state requires you to serve the forms, there will be fees for that service as well. These fees are nonrefundable. When the clerk stamps and files your petition, s/he will give you a docket number and schedule your hearing.
Appear in court for your hearing. In some states judges hold expungement hearings, while others use parole boards. The hearing may be less formal than a trial, but you should treat it with the same respect. Dress neatly and conservatively, and arrive early with copies of all the documents you’ve filed. The judge or parole board must decide if you’ve been successfully rehabilitated, so you may be asked questions about your education, home and family life, financial health, physical well-being, and employment. Police officers and district attorneys may attend your hearing to object to the expungement of your record. If the judge grants your expungement, you need copies of the signed Expungement Order to deliver to law enforcement agencies. The clerk’s office will let you know where to send them. If the judge denies your request for expungement, ask him/her to list the reasons for the denial and to explain what you can do in response. After a period of time, during which you resolve those issues, you may well be able to reapply for expungement.
Getting a Certificate of Actual Innocence
Learn if you are eligible for a Certificate of Actual Innocence. This is a more powerful form of expungement. It not only erases or seals a record but establishes that the record should never have existed in the first place. Generally you can file a petition for this certificate if you believe you are innocent of a crime for which you were convicted, and you’ve discovered new and exonerating evidence that wasn’t available at the time of your conviction. Certificates of Actual Innocence serve to overturn wrongful convictions. For example, an accused person might be pressured to give a false confession after being unlawfully interrogated. Constitutional claims leading to Certificates of Actual Innocence often are brought by nonprofit legal-aid societies such as the Innocence Project or by clinics at law schools.
Complete a petition. Forms and instructions should be available at your state appeals court. Legal aid societies also may have forms and information. Which form you need will depend on whether you’re trying to prove your innocence using biological materials (such as DNA) or by other means. Unlike petitions for expungement or sealing of records, there is no waiting period to file an actual-innocence petition. If you cannot afford an attorney, you may be eligible for the free assistance of one appointed by the court. Do not pursue a Certificate of Actual Innocence without legal representation.
File the required documents with your petition. You’ll pay a fee ($50 to $100) for the filing., Along with the petition, you must file copies of any court or police records regarding the conviction at issue. Required documents may include complete transcripts of the proceedings at trial or appeal and complete court records. You’ll pay fees for these documents, which can be expensive, depending on the length and involvement of the trial.
Have the petition served on the state attorney general. You cannot serve this document yourself. The sheriff’s office or a private process-serving company of your choice will serve the document and file proof of service.
Attend your trial. Unlike expungement or record-sealing hearings, getting a Certificate of Actual Innocence requires a formal trial at the appeals-court level, and you must be represented by counsel. If you cannot afford an attorney, the court will appoint one to guide you through this process.
Getting a Certificate of Rehabilitation
Determine if you are eligible for a Certificate of Rehabilitation. This document certifies that, although you were convicted of an offense, you have since become a productive member of society and should not be penalized any further for your past. There are strict standards for proving you are rehabilitated, and these standards differ from state to state. Generally you cannot have had any further brushes with the law and must be a responsible and law-abiding member of the community. Not all convictions can be cleaned up with a Certificate of Rehabilitation. For example, in California those with convictions of certain felony sex offenses are not eligible.
Gather any necessary records. You’ll want to include with your petition any documents that support your claim that you’ve been rehabilitated. For example, if you’ve been working for the same employer since you were released or have earned an associate degree, documentation of these accomplishments should accompany your petition.
Complete your petition. Answer all questions on the form completely and honestly. Provide supporting documents to corroborate the statements you make. Some states also require letters from witnesses testifying to your character and rehabilitation since your release.
File your petition. Your petition for a Certificate of Rehabilitation should be filed at the court or parole board of the county where you live. In some states such as California you may be eligible for an appointed attorney if you can’t afford to hire one to represent you during this process.
Attend your hearing. You will have a hearing scheduled in front of a judge who will review your petition and ask you questions about your claim that you have been rehabilitated. At the hearing, the judge will hear testimony from witnesses about your conduct while incarcerated and while on parole, as well as your subsequent rehabilitation. In some states such as California, if you are granted a Certificate of Rehabilitation, it is automatically transmitted to the governor’s office as an application for a pardon. Some states such as Ohio may revoke your certificate if you plead guilty or are convicted of a criminal offense after the certificate has been issued.
Getting a Pardon
Understand that pardons are rare. To get a pardon, you must request one from the governor of the state in which you were convicted. If you were convicted of a federal crime, the pardon would have to come from the President of the United States. If you are pardoned, the conviction will remain on your record. However, a notice will be added, stating that you’ve been pardoned (forgiven) for committing the crime. Your civil rights, including the chance to own a firearm and serve on a jury, will be restored. Rules and procedures for applying for a governor’s pardon are different from one state to the next. Some require that you complete your sentence, including any probation, and establish that you’ve engaged in no criminal activity for a prescribed period of time since.
Complete an application for a pardon. State parole boards, prisoner review boards, and governor’s offices will normally provide fill-in-the-blank applications for you to complete. You can ask your local public defender’s office for assistance, although you do not need an attorney to apply for a pardon.
Send in your application for a pardon. Your parole board or local court clerk will have information on where to send the application and what documents should be included with it. There typically is no application fee, although you might have to pay for certified copies of orders or transcripts to accompany the application. In many states applications are first reviewed by the state’s parole or prisoner review board. The board then submits its recommendations to the governor’s office. Once you apply for a governor’s pardon, you typically cannot follow up on or check the status of your application. You simply wait until you hear back, and that can take six months or more. There is no appeal if your application is denied, although you may be able to reapply after a few years.
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