Expungement: What does it mean and how do I get one?

As the War on Drugs comes to a close, America has started winning the peace of cannabis legalization.

That peace includes cleaning up the records of millions of Americans with marijuana convictions, for starters.

Expungement efforts are surging across the country, where 18 states have some form of conviction relief for marijuana. Expungement is a national issue, and is included in bills like the MORE Act, sitting in the House of Representatives in 2020.

But what does expungement mean? Why do we need it? Can I get an expungement? For free? We break it down for the 70 to 100 million US adults with a criminal record.

What does expungement mean?

Expungement generally means an arrest or conviction is removed (expunged) from main criminal records databases as though it was never there. Like a sponge washing a dirty dish clean. However, the definition of expungement varies greatly by jurisdiction.

Expungement is a form of “records relief.” It is one way to remove some of the collateral consequences of a criminal conviction. Other ways include record sealing, vacating, pardon, amnesty, or another affirmative act specifying restoration of civil rights.

Why do we need expungement?

Mass incarceration

There’s a growing interest in expungement in America due to the US’ problem with mass incarceration. According to a US Commission on Civil Rights 2019 report, the US leads the world in imprisonment, with about 2.2 million people behind bars. China is second with 1.7 million.

The US also leads the world in the per capita rate of incarceration (670 per 100,000 people), higher than:

• Rwanda (434 per 100,000)
• Russia (413 per 100,000)
• Brazil (325 per 100,000)

Furthermore, about 6.6 million people in the U.S. are under correctional supervision, like probation or parole.

The role of marijuana arrests

Marijuana arrests play a major role in mass incarceration and the need for expungement. There are about 660,000 marijuana arrests each year in America.

According to the FBI uniform crime report data, marijuana arrests are the number one type of drug arrests police make. And drug arrests are the number one type of arrests.

Pot arrest records are also a significant component in systemic racism in the US. As stated by the US Commission on Civil Rights report: “People of color are more likely to be arrested, convicted, and sentenced more harshly than are white people, which amplifies the impact of collateral consequences on this population.”

Collateral consequences exacerbate punishment

77 million Americans have a criminal record

Expungements are needed because punishment in America does not end with time served or a fine paid. Little-known, major, lifelong “collateral consequences” to arrest or conviction can bury a person and stay with them their entire lives.

The scale of people affected is enormous: about 70 to 100 million people in the US have been affected or will be affected by the collateral consequences of incarceration, arrest, or conviction.

For example each year, 620,000 people return to their old neighborhoods from federal or state prison. But how are they helped?

44,000 collateral consequences of a criminal record

Various sanctions block the successful reintegration of the nation’s offenders. Though their “debt to society” is served, individuals with criminal records can potentially face 44,000 separate collateral consequences via federal and state laws and regulations, according to the National Inventory of Collateral Consequences of Conviction (NICCC) of the Council of State Governments.

“These are sanctions, restrictions, or disqualifications that attach to a person because of the person’s criminal history and can affect the person’s ability to function and participate in society,” the US CCR report finds. They are “uniquely extensive and debilitating.”

Criminal background checks

The biggest collateral consequences have to do with one’s ability to earn legal income to feed, clothe, and house oneself and family members. Past offenders often lose out on jobs because they have to check a box saying they were convicted of a crime. A conviction can also show up in a background check.

“Employment discrimination can be one of the most ‘serious and pervasive’ collateral consequences faced by people with criminal convictions,” the US CCR found.

The Commission found that 1 in 4 Americans is locked out of the labor market, leading to between $57 and $65 billion in lost output and a significant loss in human capital.

Career barriers are a key part of systemic racism, as well.

“About 60 percent of all black applicants with criminal records did not receive callbacks or job offers, compared to 30 percent of all white applicants with criminal records,” the US CCR found.

Other collateral consequences include loss of rights to:

• Vote—22 states prohibit felons from voting until they complete their sentence; 12 states disenfranchise people with felony convictions indefinitely or until the governor pardons them, or have extra waiting periods before restoring voting rights. This practice is historical in the United States. After Black people got the right to vote, Jim Crow laws used felony convictions to re-disenfranchise them.
• Serve on a jury
• Hold public office
• Rent an apartment
• Receive public assistance
• Own a firearm
• Drive a car
• Financial aid and college admission
• Military service
• Stay in the US, ie deportation for noncitizens

Collateral consequences’ history

Collateral consequences have been a feature of the American justice system since colonial times. English colonial society also sentenced offenders to so-called “civil death”—the stripping of rights and property. The sentence was also used in Greek and Roman societies, where it could include banishment, as well.

Collateral consequences’ invisibility

Few people understand the scope these sanctions. Criminals and police don’t even know about most of them, the US CCR found. So they have little to no deterrent effect.

“In addition, the general public, attorneys, and the courts often lack knowledge of what the totality of the collateral consequences are in their jurisdiction.”

What happens to your arrest and adjudication data?

Getting adjudicated in the US leaves a data trail—from arrest, bail, arraignment, trial, conviction, sentencing, probation, imprisonment, parole, and release. There are records at the police department level, as well as the county courts, and state and federal databases—along with privately maintained databases, like those used for background checks.

According to the Commission on Civil Rights report, most dissemination of damaging information happens automatically, with little knowledge of it by any one actor at any stage. The records from felony and misdemeanor convictions can last a lifetime or a finite period. Those records may be incomplete, or inaccurate, but they often find a way of sticking around, like in background checks for employment.

In 2006, the US Attorney General estimated about 50% of the FBI records are incomplete or inaccurate.

“There are so many databases that can pick up an arrest or a conviction record,” said National Expungement Week legal advisor Cristina Buccola. “Expunged records still pop up in background checks from time to time.”

“It is not in anyone’s best interests to consign ex-offenders to a permanent second-class status. Doing so will only lead to wasted lives, ruined families, and more crime.”

—John Malcolm, Vice President of the Institute for Constitutional Government, and Director of the Meese Center for Legal and Judicial Studie, 2019, US Commission on Civil Rights.

Forms of post-conviction relief

There are a number of forms of post-conviction relief, or records relief, that can be part of re-entry services. They include:

• Expungement—including physically destroying the record
• Record sealing—which hides records from the public
• Re-sentencing—reducing a felony to a misdemeanor, under new drug law for example
• Vacating—turning a conviction into a not guilty verdict
• Pardon—granted by a state Governor or US President

The benefits of expungement

Increased job opportunities

The benefits of expungement primarily include increased life opportunities for offenders and their families. As one example, expungement and a clear record can help improve hiring chances.

An example of the impact this has in our society is that the US economy lost between $57 and $65 billion in output in 2008. This was due to vastly diminished employment opportunities for men with criminal records, according to the Center for Economic and Policy Research.

Expungement in some cases allows people to enter the cannabis trade—where licensing is mandatory and a clean record a prerequisite.

Lower crime

Crime is also lower when people who serve their time have a chance to keep a job and house.

“Evidence shows harsh collateral consequences unrelated to public safety increase recidivism by limiting or by completely barring formerly incarcerated persons’ access to personal and family support,” the USCCR finds.

“It is not in anyone’s best interests to consign ex-offenders to a permanent second-class status. Doing so will only lead to wasted lives, ruined families, and more crime,” stated John Malcolm, Vice President of the Institute for Constitutional Government, and Director of the Meese Center for Legal and Judicial Studies, in the report.

Expungement’s definition vs record sealing

What expungement means can vary in different states. But it’s generally different than “record sealing.”

Record sealing involves closing records to public view so only police, judges, and prosecutors can see what’s in the record. To the public, it’s like it never happened, but it may still show up in background checks. With expungements, the records can be physically destroyed. Check with an attorney.

Both are different from pardons, which come from either the President or a state governor. Usually, a pardon is post-conviction, after a defendant has admitted guilt, shown remorse, and completed rehabilitation.

Furthermore, there’s the concept of a vacated record. That’s where a conviction is turned into a ‘not guilty’ verdict. A vacated record may be available for expungement, depending on the jurisdiction, after a period of time.

Am I eligible for expungement? What types of offenses can be expunged?

Typically it’s lower-level offenses like misdemeanors that can be expunged. Serious felonies generally are not eligible for expungement. Eligibility varies by state. For more information on the statutes in the 18 states with marijuana conviction relief, click here.

An expunged misdemeanor

Misdemeanor marijuana offenses are a growing category of expungements. They’re newly available under legalization laws and automatic in four states including New York. Marijuana misdemeanors typically mean possession of a personal amount.

Expunging felonies

Some states do not permit the expungement of felonies. In states that do permit expunging felonies, serious crimes like weapons, sex, or violent felonies cannot be expunged.

In California, a felony can be expunged if it’s downgraded to a misdemeanor. Many types of non-violent drug felonies like felony marijuana cultivation can be reduced to a misdemeanor and expunged under Prop 64.

Expunging federal crimes

Expunging federal crimes is harder and requires a relatively rare presidential pardon, or judicial expungement, after a criminal conviction.

“There is no general federal expungement statute, and federal courts have no inherent authority to expunge records of a valid federal conviction,” states the Restoration of Rights Project (RRP), from the Collateral Consequences Resource Center.

How to get an expungement, or records sealed

In the broadest sense, you get an expungement by a) qualifying for one, and b) paying a lawyer to file the right paperwork and follow up in the right jurisdiction. “It can take up to $2,500 and months for an expungement to go through,” said Buccola, National Expungement Week’s legal advisor.

But there are cheaper ways to go about it.

How can I get my record expunged for free?

The first place expungement seekers should go is to their local legal aid organizations. For example, defenders organizations like the Legal Aid Society in Brooklyn or the Bronx regularly files these motions. Local legal defense groups know the contours of the local jurisdiction better than anyone and file expungements regularly.

Automatic expungement

In 2020, Vermont became the latest state to add a form of automatic expungement for low-level marijuana offenses. Several California cities have also used the Clear My Record tool from Code for America to automatically expunge records, under Proposition 64.

Find an expungement lawyer

You can also look up expungement lawyers in your area—checking for reviews and referrals.

Use expungement and record-sealing organizations

Use expungement and record-sealing organizations to help you do it for free. Here’s a few notable ones:

• Legal aid societies—Look to city, regional, and state legal aid societies for free or reduced-cost help with an expungement. The American Bar Association has an index.
• Clear My Record—This service from Code for America helps automate expungements where legal.
• Root and Rebound—This cannabis-focused group offers legal advocacy, public education, policy reform, and litigation.
• Last Prisoner Project—This cannabis-focused group offers re-entry services as well as early release advocacy.

Expungement events

As legalization spreads, expungement events have grown in popularity. The biggest is National Expungement Week, September 19 through 26 this year.

2020’s N.E.W. offers a mix of online and in-person clinics, workshops, and events. Supportive services including pop-up food pantries and voter registration at select locations. N.E.W. has a toolkit for year-round reform.

Brands that donate to post-conviction relief

You can also vote with your dollar for right the wrongs of the drug war. A number of brands donate to National Expungement Week and other groups. Among them:

• Lowell Herb Co—This N.E.W. sponsor offers a limited edition Expungement Indica black pack, a blend of Mendo Breath, GMO Cookies and Purple Gorilla Glue. Available across California.
• Canndescent—High-end cannabis flower brand Canndescent is a N.E.W. sponsor
• Farmer and the Felon—This 2020 California cannabis brand donates a portion of each purchase to the Last Prisoner Project
• Viola—The multi-state US cannabis brand working with Root & Rebound to offer a toolkit “A New Leaf: A ‘How-To Guide’ for Successful Reentry After A Cannabis Conviction.”

Next steps beyond expungement

Expungement is but one part of ending mass incarceration, and breaking the US’ uniquely cruel, costly, and wasteful cycle of victimization and punishment.

“More than 90% of the people who enter state prisons in this country will come out of those prisons and they will live next door to you and me, and we all have an interest in making sure that they are successfully reintegrated so they are not hurting people again,” Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute, told the US CCR in 2017.

Reintegration means:

• Re-entry services
• Certificates of rehabilitation—Some states permit correctional departments or courts to issue certificates of rehabilitation (or qualification for employment) to eligible individuals with criminal records.
• Cash assistance—It can prevent re-offending.
• Lowering court fees—A lifetime of court debt can bury a person who has already served their time
• Health, housing, rent assistance
• Immigration including DACA help—Many formerly incarcerated people have immigration issues
• Education and job placement—“Unemployment is a major cause of recidivism,” the USCCR finds. “Only 55 percent of formerly incarcerated people reported any earnings in the year after release. Among the formerly incarcerated who were employed, their median annual income was only $10,090.” A new 2020 California law allows firefighting inmates to continue the trade after their release. Previously law barred record-holders from such jobs.
• “Ban the Box”—Some states have tried to encourage employment through “Ban the Box”—removing the box on employment applications you must check if convicted of a crime. Similarly, there are laws granting the right to not disclose conviction in employment applications.
• “Clean Slate” campaigns—Clean slate campaigns endorse automatic record-sealing policies. Pennsylvania passed a Clean Slate bill in 2017, and Virginia considers one in 2020.
• Social equity programs—Drug war offenders can become licensed cannabis owners under city and state equity programs. These programs should include oversight committees to ensure goals are met.

Keep up with the latest news about expungement