Are criminal records ever truly expunged?
by Jamison Koehler on September 2, 2020
Use of the phrase “expungement of a criminal record” suggests that the record in question is truly erased/obliterated such that it no longer exists. Whether this actually happens – both practically-speaking and from a legal standpoint – is a bit more complicated.
Legal ramifications of court order to seal/expunge
D.C. statutes tend to use the word “sealing” when dealing with the process for removing an arrest or conviction from a person’s criminal record. “Sealing” suggests that the record still exists; it is merely hidden from public view.
The statute uses the term “sealing” even when the actual effect of the action would be closer to expungement. For example, the effect of a successful motion to seal on the grounds of actual innocence is to restore the movant to the position he or she occupied before the arrest. Legally speaking, it as if the whole thing never happened. This sounds a lot like expungement.
Practical implications of court order to seal/expunge
As for the practical impact of a successful motion to seal or expunge, whether or not the record in question is in fact erased/obliterated or removed from public view depends on a number of considerations.
The first consideration is whether or not the recipients of the court order to seal/expunge the criminal record comply with its terms. In Washington, D.C., for example, D.C. Superior Court will order the prosecutor’s offices, the clerk’s office, and the Metropolitan Police Department (MPD) and other law enforcement agencies to seal the records. This means that the law enforcement agencies will destroy the fingerprints and mugshot. The Clerk’s office will take all mention of the case off the public docket and, if asked about the case, will reply that there is no such record.
Only once in my experience has one of these entities failed to comply. In that case, it was a simple fix: I reminded them of the order and the entity apologized for the oversight and brought itself into compliance.
The second consideration is whether or not the Federal Bureau of Investigation (FBI) takes the record out of its national database: the National Crime Information Center (NCIC). The NCIC is an electronic clearinghouse of crime data that, as it describes it, “can be tapped into by virtually every criminal justice agency nationwide, 24 hours a day, 365 days a year.” The police officer who pulls you over for a traffic citation has access to the database in his/her squad car. So too does the custom agent who checks your passport upon re-entry to the country.
The criminal clerk’s office notifies the FBI every time a D.C. Superior Court judge issues an order to seal. Because the FBI is a federal agency, the D.C. judge does not have jurisdiction over the agency and cannot enforce compliance. At the same time, the FBI will normally comply with the order as a matter of courtesy. Again, only once in my experience has the FBI failed to do so. Although this was a bit more complicated, necessitating a number of calls, the matter was eventually resolved in my client’s favor.
The final consideration is whether or not the record has somehow been downloaded – appropriated – by a private, third-party collector of criminal records. In this case, the holder of the records may be outside the jurisdiction of the D.C. court that issued the order and the record may continue to appear during background checks even though the record has been removed from D.C. and FBI databases. This, in my experience, is purely theoretical. In other words, I have never encountered this situation. Removing the record in this case, I would imagine, would involve direct negotiations with this third party.