A person’s criminal history is documented on a RAP sheet, also known as a criminal record or police record. Whether or not someone has a criminal record is determined by the nation in which they live as well as the jurisdictions within that country. Non-expunged criminal offenses and traffic offenses such as speeding and drunk driving may also be included. Depending on the country, a person’s record may only include actual convictions (where the person has pleaded guilty or been found guilty by a judge or jury), or it may also include arrests, charges that have been dropped or dismissed, charges that are still pending, or charges that have been acquitted.
Potential employers, lenders, and others may look into a person’s criminal background to determine whether or not they can trust them. People who commit new criminal acts may potentially face extra charges and penalties based on their prior backgrounds.
EXPUNGING A RECORD IN THE UNITED STATES
There is no general federal expungement statute, and federal courts have no inherent authority to expunge records of a valid federal conviction. However, some courts have held that federal courts have inherent ancillary authority to expunge criminal records where an arrest or conviction is found to be invalid or a clerical error is made. Occasionally, courts have agreed to expunge an arrest record upon a showing of need where the government did not object.
Courts may impose probation before entering judgment and then dismiss the case without entering judgment and no conviction if the individual has not broken a probationary term if the person has no previous drug convictions.
After an arrest or criminal proceedings, the person’s legal status will be restored to its pre-arrest or criminal procedures status. Anyone who fails to mention or recognize arrests or criminal procedures, or their outcomes, in answer to an inquiry for whatever reason, will not be considered to be guilty of lying under any provision of law.
WHAT IS DEFERRED PROSECUTION
When a deferred prosecution agreement is accepted by the court and a defendant is eligible for a Speedy Trial Act exemption, the Justice Department has the right to do so. As with non-prosecution agreements (NPAs), DPAs provide prosecutors with a middle ground option when they believe a criminal conviction may be difficult to obtain or may have undesirable collateral consequences for a defendant or third parties, but they also believe that the defendant should not avoid accountability altogether.
There is a limited function for the court, though. It was held that a district court overstepped its bounds by refusing to approve the terms of a DPA in United States v. Fokker Serv. B.V. because the Speedy Trial Act’s requirement for court approval did not give judges the authority ‘to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges. If the integrity of justice is endangered by providing court sanction to either overly-lenient prosecutorial activity or overly-zealous prosecutorial behavior, a court must consider the public and the defendant in its supervisory position,’ said the district court.
As evidence, the District Court cited an Eastern District of New York opinion from 2013 in which Judge John Gleeson questioned, but ultimately approved, the DPA between DOJ and HSBC (resolving sanctions-related and anti-money laundering violations by that bank) and the application by those parties under the Fast Track Act for abeyance. Decisions on whether or not to file charges, and on whether or not to drop charges, are two separate matters that must be handled by the court, according to a district court.
To support its conclusion that the executive branch has the sole authority to decide whether or not to prosecute based on a variety of factors, the court of appeals cited Supreme Court precedent that the judiciary was unable to conduct such an investigation because of its ‘lack of competence’ to do so. When it comes to deferring prosecutions and enforcing enforcement objectives, courts are ill-equipped to deal with issues like those raised by a DPA. The D.C. Circuit agreed that executive branch considerations like these are ‘ill-suited to meaningful judicial supervision.‘
HOW ARE CRIMINAL RECORDS IN THE UNITED STATES MAINTAINED
Criminal records in the United States are maintained and updated by numerous law enforcement agencies on all levels of government. A criminal record’s principal function is to provide an individual’s complete criminal history.
All tiers of government law enforcement authorities keep track of criminal history. Individual law enforcement agencies may have their own internal databases that are accessible only to those who are authorized to access them. Other law enforcement agencies, such as the state police, troopers, highway patrol, and prisons, also have their own databases. The information that law enforcement authorities collect and disseminate is made accessible to the public, who may then use it to further their own investigations.
Official ‘statewide repositories’ of criminal history data exist in every state, including information provided by local courts, police departments, and other law enforcement organizations. All states have procedures in place for the correction of inaccurate criminal history records that are reported and recorded. It is common for individuals to receive their own records from the state, although private individuals often require the permission of the subject of the record search in order to access their data.
The federal government keeps vast records of criminal activity and serves as a clearinghouse for all agencies to deposit their own data. It is a database kept by the FBI that contains information on criminal history. NGI (FBI). It acts as a gateway to the state that retains administrative control of that arrest information inside the National Geographic Information System (NGI System) via the Interstate Identification Index (III) System. Control of the federal agencies is maintained by the FBI. It is the responsibility of the competent agency to provide a criminal history record when requested.
There are a variety of uses for criminal records, including background checks for employment and security clearances; immigration/international travel and licensing; assistance in developing suspects in ongoing criminal investigations; and enhanced sentencing in cases of a felony conviction.
Acquittals and dismissals of charges are often followed by seven years or more of public access to court documents. The prejudiced character of the public records, especially violent ones, might adversely influence applications and candidates even if they have no real criminal past.
HOW DIFFERENT STATES EXPUNGE CRIMINAL RECORDS
RECENT CLEAN SLATE LAW IN PENNSYLVANIA
For those in society who have been negatively affected by the legal system, granting clemency is an important procedure in Pennsylvania. The Board of Pardons website makes it easy for the general public to apply to expunge the record in the Commonwealth. This administration has made Pennsylvania a national model for clemency reform. Free legal counsel is provided to low-income individuals whose criminal histories are preventing them from getting a job or housing, as well as assistance in obtaining expungements in criminal court and in obtaining pardons from the Governor.
Clean Slate closes the ‘second chance gap’ by automatically sealing records that are qualified. The Clean Slate Law allows those who have served at least a year in jail and have paid all of their court-ordered obligations to petition the courts for their records to be sealed.
All offenses punishable by two years or less in jail, as well as summary convictions, and charges that did not result in convictions, are eligible for Clean Slate. The Clean Slate system was implemented in Pennsylvania in 2019. In order to avoid minor infractions from jeopardizing job, housing, and other prospects, Community Legal Services of Philadelphia assists clients to manage the Clean Slate procedure.
To make it even simpler for some Pennsylvania residents to have their criminal records automatically sealed from the public, including landlords and most employers, a bipartisan law was enacted by the General Assembly. The courts and state police in Pennsylvania started sealing millions of criminal charges in July, including convictions for most nonviolent offenses, such as drunk driving, stealing, and prostitution, under the state’s Clean Slate statute.
Those with minor offenses must wait a decade before they may have their records automatically sealed. Any outstanding court penalties and costs are likewise a no-no for them. The financial duty would be erased, save for reparations, under the revised law that was enacted in early 2022.
The court records of set-aside convictions in California will be sealed from August 1, 2022. Pardoned convictions are eligible for record-clearing in Connecticut and Nebraska. A new automatic record-relief statute will take effect in Connecticut in 2023 for some crimes and most misdemeanors. Certain crimes and misdemeanors in Idaho and Nebraska are handled by separate authorities (these are the only two states remaining with traditional set-aside authority and no general record-sealing authority). Cases that have been ‘judicially dismissed,’ that is, erased, are now included in Labor Code 432.7. Expunged cases are no longer a basis for discrimination in employment, hiring, promotion, or termination for those who have been granted a California expungement under California Penal Code section 1203.4.
Additionally, employers are prohibited from requesting information about an expunged conviction and are subject to financial penalties if they do so. There are a few exceptions to this regulation, but they are mostly geared against those who want to work in law enforcement or other sectors where it is illegal to hire someone who has been convicted of a specific crime.
There is just one felony crime that qualifies for relief in D.C., which is criminal failure to appear. For expunging, sealing, or setting aside convictions in several of these jurisdictions, specific agencies exist. HB 2113 (2021) is one example. Criminal records are automatically expunged; fines apply. Automatic erasure of criminal records for specific convictions, deferred dispositions, acquittals, and crimes that have been nolle processed or otherwise dismissed is described in the law. This procedure will be implemented insofar as mistaken identification or illegal use of identifying information may also lead to the automatic erasure of criminal records under this statute. The bill’s delayed effective dates have been staggered to allow for the development of mechanisms to execute the bill’s requirements. The Virginia State Crime Commission had recommended this legislation when it was first proposed.
In addition, non-conviction records maintained by state criminal justice agencies may be automatically sealed, expunged, or kept secret in four states, but not the equivalent court records. There is broad automatic record cleaning legislation in California, Connecticut, New Jersey, and Virginia, as well as marijuana-specific regulations. In both California and New Jersey, a wide variety of marijuana-related infractions, including misdemeanors and felonies, are legal. Certain minor marijuana crimes in Connecticut are covered under the state’s law. Even though none of the automatic relief authorities in Virginia are slated to take effect until 2025, the state has permitted automatic relief for some marijuana-related minor crimes and certain non-convictions.
Non-convictions and some traffic infractions are also eligible for automatic remission under Vermont law. Non-convictions are automatically sealed in New York. It is not possible to have a criminal record expunged in New York. This means that the record is fully obliterated and the offense and conviction are wiped from the record. New York, on the other hand, permits the sealing of some criminal records under certain circumstances. For a long time, sealing a person’s criminal record in New York was only possible in the most restricted of situations, such as diversion courts and drug treatment dispositions.
Because of this, criminal convictions may now be erased in New York. The new legislation, which went into effect on October 7, 2017, grants universal sealing power for a wide range of adult criminal convictions provided certain qualifications are satisfied and different elements are determined to be favorable to the person seeking the sealing. It is generally permitted to seal a maximum of two criminal convictions, with the exception of felonies. However, even though one may only seal two qualifying criminal convictions, if someone were convicted of many felonies for the same illegal conduct, they may be classified as a single conviction for the purpose of sealing
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1. United States v. Jane Doe, 833 F.3d 192 (2d Cir. 2016), vacating 110 F. Supp. 3d 448 (E.D.N.Y. 2015); United States v. Crowell, 374 F.3d 790, 792-93 (9th 2004), cert. denied, 543 U.S. 1070 (2005
2. United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000); see cases collected in Jane Doe v. the United States, 110 F. Supp. 3d 448, 454, n. 16 (E.D.N.Y 2015); Hall v. Alabama, 2010 U.S. Dist. LEXIS 14082, at *22-30 (M.D. Ala. 2010)
3. Except for the nonpublic documents described in paragraph (b), all references to his arrest for the crime, the establishment of criminal proceedings against him, and their outcomes must be deleted from all official records.’
The Act establishes time limits for completing the various stages of federal criminal prosecution. The information or indictment must be filed within 30 days from the date of arrest or service of the summons. Trial must commence within 70 days from the date the information or indictment was filed, or from the date the defendant appears before an officer of the court in which the charge is pending, whichever is later.
Moreover, in order to ensure that defendants are not rushed to trial without an adequate opportunity to prepare, Congress amended the Act in 1979 to provide a minimum time period during which trial may not commence Thus, the Act provides that trial may not begin less than 30 days from the date the defendant first appears in court unless the defendant agrees in writing to an earlier date. In United States v. Rojas-Contreras, 474 U.S. 231 (1985), the Supreme Court held that this 30-day trial preparation period is not restarted upon the filing of a substantially similar superseding indictment.
4. 18 U.S.C. § 3607(c).
Congress has directed that DNA analysis be expunged from certain indices when a conviction has been overturned. 10 U.S.C. § 1565(e) (under military law); 42 U.S.C. § 14132(d) (FBI expungement); 18 U.S.C. § 921(a)(20), (33)(B)(ii) (defining certain crimes to exclude convictions that have been expunged or for which the person has been pardoned or had his civil rights restored).
5. The Speedy Trial Act of 1974 (88 Stat. 2080, as amended August 2, 1979, 93 Stat. 328, 18 U.S.C. §§ 3161–3174), establishes time limits for completing the various stages of federal criminal prosecution.
6. An accepted statement of the facts, ‘conditions intended [to] encourage compliance with relevant law and avoid recidivism’ are common in both DPAs and NPAs, which may last from one to three years in duration. Section 9–28.1000 of the U.S. Attorney’s Manual (2015).
7. .’ In re 818 F. 3d 733 (D.C. Cir., 2016)
8. The district court overstepped its authority under the Speedy Trial Act by rejecting the DPA ‘based primarily on concerns about the prosecution’s charging choices,’ and stated that the court’s review power under the Speedy Trial Act was limited to evaluating whether or not the parties entered into a DPA in order to evade speedy trial limits and whether or not the DPA served to allow the defendant to avoid a jury trial. Court approval is required under Speedy Trial Act to exclude time from proceedings. The D.C. Circuit stated that this approval should be read ‘against… settled constitutional understandings where authority over criminal charging decisions resides fundamentally with the Executive,’ with no involvement from, or oversight power in, courts. In 818 F. 3d, at 741–42.
9. No. 12-CR-763, 2013WL 3306161, is the case of the United States against HSBC Bank USA, Inc. (E.D.N.Y. July 1, 2013).
10. A F 3d of 818 at 742. It said that ‘[it] found no reason to acknowledge a considerably larger jurisdiction for courts to evaluate prosecutorial charging decisions in the context of a DPA than in the case of [a move to dismiss charges under Rule 48].’
11. For example, crimes that pose a risk to people, crimes against families, and offenses with firearms are all ineligible.
12. The statewide Pardon Project was formed by PLSE to assist other areas in educating their citizens about the pardons process by encouraging leaders to establish local, community-based centers.
13. PART 2. OF CRIMINAL PROCEDURE [681 – 1620] ( Part 2 enacted 1872. )
TITLE 8. OF JUDGMENT AND EXECUTION [1191 – 1233.11] ( Title 8 enacted 1872. )
CHAPTER 1. The Judgment [1191 – 1210.5] ( Chapter 1 enacted 1872. )
(a) (1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if they are not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if they have been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted, except as provided in Section 13555 of the Vehicle Code…
14. HB 2113 Criminal records; establishes a process for automatic expungement, etc., report
15. Georgia, Florida, Maine, Massachusetts