Expungement: The Missing Federal Piece

By Diana Kawka*

Under federal law, the ability for an individual to have an arrest, charge, or conviction expunged from their criminal record is limited to a narrow set of circumstances.[1] There is no general federal expungement statute available,[2] and the possible federal expungement mechanisms are disjointed with many gaps.[3] Expungement has become an important part in our criminal justice system with many states, including Minnesota, having greatly expanded expungement procedures individuals can take advantage of.[4] Criminal records can seriously impact the quality of life for an individual and cause barriers to employment, education, housing, and public assistance, among other issues.[5] Those with criminal records may not just face discrimination based on the stigma of a criminal record, but are sometimes forcibly barred from these areas by federal or state statutes based on their record.[6] It is important to note what exactly a criminal record may include. It can include arrests, charges, and convictions.[7] This includes arrests and charges that do not result in convictions and charges that were dropped or dismissed.[8] An individual who is arrested for a crime but never charged may still have a record. Due to the current state of federal law, an individual who is arrested for a federal crime, not a state crime, but never charged, may have no options to get that record expunged.[9]

Currently, when it comes to federal crimes, there are methods of expungement for incorrect records or to expunge DNA records when a conviction has been overturned.[10] There is also a federal statute that enables the expungement of criminal records for misdemeanor drug possession charges for offenders under 21 years of age.[11] However, that is the limit of the statutory remedies for expungement.[12] There are non-statutory options, but these are also limited in nature.[13] There is also the common law remedy of equitable expungement.[14] Courts may choose to expunge a criminal record on equitable grounds when it offends notions of fairness.[15] Unfortunately, the First, Second, Third, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have all held in precedential opinions that federal courts may not consider equitable expungement.[16] The Eleventh Circuit has indicated in nonbinding opinions that they hold a similar position.[17] Currently, only the Fourth, Fifth, and D.C. Circuits grant equitable expungement.[18] Even then, the standards are not broad enough to help the vast majority of those with criminal records.[19] Courts in these circuits may balance the harm a criminal record causes against the government interests in maintaining the record, but this is typically only in “unusual,” “extreme,” or “exceptional” circumstances.[20] As a result of these limitations, federal expungements are rare.[21]

The effects of a criminal record can be pervasive.[22] Close to nine out of 10 employers run background checks that include criminal records.[23] When employers have access to this criminal record information, studies have shown that they tend to use it.[24] Even minor criminal records can have large negative impacts.[25] In one study, researchers found that applicants without convictions receive 60 percent more callbacks than applicants with convictions.[26]

When it comes to public assistance, a criminal record can severely limit the benefits someone may receive.[27] One example is the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).[28] While states can and have opted out of some of these provisions, the Act denies federal benefits to people convicted of felony drug offenses in state or federal court.[29] The Act disqualifies individuals for life from receiving Supplemental Nutrition Assistance Program (SNAP) benefits, or federal food stamps.[30] In addition, it disqualifies individuals from receiving Temporary Assistance to Needy Families (TANF) benefits.[31] This disproportionately affects women, who are the majority of recipients of TANF and SNAP benefits.[32] It also has a significant effect on Black populations, who are disproportionately targeted by police, especially for drug offenses.[33]

Reduction of these benefits also has an impact on the children of those disqualified for these benefits.[34] For TANF, families may still receive benefits, but the household size is considered reduced, as if the disqualified person no longer lives there.[35] A household that needs benefits for three people will only receive benefits for two.[36] This can obviously create a substantial burden for these families.

When it comes to housing, public housing authorities (PHAs) have the right to exclude applicants based on their criminal records, a right which was later expanded by the Housing Opportunity Program Extension Act (HOPEA).[37] This allows PHAs to request criminal records from local police departments and national databases.[38] Nine out of 10 landlords also conduct automated background checks which often include searches for criminal records.[39] Landlords are even encouraged to screen tenants based on their criminal record.[40]

This kind of disqualification from employment, public assistance, and housing can lead to recidivism.[41] Inmates without stable housing are far more likely to recidivate than those with stable housing.[42] Job access is known to decrease recidivism rates.[43] Beyond issues of recidivism, this raises obvious concerns that this kind of discrimination from employment, housing, public assistance, and more can force not just individuals with criminal records into poverty, but their families as well.[44] States like Minnesota have created paths to expungements for those charged or convicted of petty misdemeanors, gross misdemeanors, and certain felony crimes.[45] In Minnesota, this statute takes into account not just the harms that an individual has experienced as a result of their criminal record but also reviews mitigating factors relating to the underlying crime.[46] Almost all states have expungement statutes that provide some path to relief, but federal law has nothing similar.[47] The federal gap in expungement procedures actively causes harm to those who have already served their sentences and should be remedied, either through the courts or through a federal statute.

* Staff Member, J.D. Candidate, University of Minnesota Law School – Class of 2024

[1] See Peter G. Barris, Cong. Rsch. Serv., Record Scratch: Expunging Federal Criminal Records and Congressional Considerations, 1–3 (2020),  https://crsreports.congress.gov/product/pdf/LSB/LSB10413.

[2] Id.; Kenny Lo, Center for Am. Progress, Expunging and Sealing Criminal Records (2020), https://www.americanprogress.org/article/expunging-clearing-criminal-records/.

[3] Barris, supra note 1, at 1–3.

[4] 50-State Comparison: Expungement, Sealing & Other Record Relief, Restoration of Rts. Project, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside-2/ (last visited Mar. 30, 2023); Minn. Stat. 609A.02 (2022), available at https://www.revisor.mn.gov/statutes/cite/609A.02.

[5] Lo, supra note 2.

[6] Id.

[7] Id.

[8] Id.

[9] What is “Expungement”?, Am. Bar Ass’n, (Nov. 20, 2018), https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-_expungement-/.

[10] Barris, supra note 1.

[11] Id.; 18 U.S.C. § 3607, available at https://www.law.cornell.edu/uscode/text/18/3607.

[12] Barris supra note 1, at 1–3.

[13] Id. at 3.

[14] Id.

[15] Id.

[16] Barris, supra note 1, at 3.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Am. Bar Ass’n, supra note 9.

[22] Lo, supra note 2.

[23] Id.

[24] Amanda Agan & Sonja B. Starr, The Effect of Criminal Records on Access to Employment, 107 Am. Econ. Rev.:

Papers & Proc. 560, 563 (2017), https://www.aeaweb.org/articles?id=10.1257/aer.p20171003.

[25] Id. at 560.

[26] Id. at 561.

[27] See Marc Mauer & Virginia McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits, The Sentencing Project (2015), https://www.sentencingproject.org/app/uploads/2022/08/A-Lifetime-of-Punishment.pdf.

[28] Id. at 1–2.

[29] Id.

[30] Id.

[31] Id.

[32] Id. at 3–5.

[33]  Id. at 5. Twenty-nine percent of those arrested and 33 percent of those incarcerated for drug offenses are Black, despite making up only 5 percent of illegal drug users. See Criminal Justice Fact Sheet, NAACP, https://naacp.org/resources/criminal-justice-fact-sheet (last visited Mar. 30, 2023).

[34] Mauer & McCalmont, supra note 27, at 5.

[35] Id.

[36] Id.

[37] Elayne Weiss, Housing Access for People with Criminal Records, Nat’l Low Income Hous. Coal., 1–3, https://nlihc.org/sites/default/files/AG-2019/06-07_Housing-Access-Criminal-Records.pdf (last visited Mar. 30, 2023).

[38] Id.

[39] Jaboa Lake, Preventing and Removing Barriers to Housing Security for People With Criminal Convictions, Center for Am. Progress (Apr. 14, 2021), https://www.americanprogress.org/article/preventing-removing-barriers-housing-security-people-criminal-convictions/.

[40] TransUnion Independent Landlord Survey Insights, TransUnion SmartMove (Aug. 7, 2017), https://www.mysmartmove.com/SmartMove/blog/landlord-rental-market-survey-insights-infographic.page.

[41] Lake, supra note 39; Weiss, supra note 37; Expungement: Criminal Records as Reentry Barriers, Nat’l Inst. of Just. (Oct. 26, 2022), https://nij.ojp.gov/topics/articles/expungement-criminal-records-reentry-barriers#citation–0.

[42] Weiss, supra note 37.

[43] Agan & Starr, supra note 24, at 560.

[44] See Mauer & McCalmont, supra note 27.

[45] Minn. Stat. 609A.02 (2022), available at https://www.revisor.mn.gov/statutes/cite/609A.02.

[46] Minn. Stat. 609A.03 (2022), available at https://www.revisor.mn.gov/statutes/cite/609A.03.

[47] Restoration of Rts. Project, supra note 4.