Introduction
A world without second chances is nothing but brutally cruel. Several programs and organizations have been initiated around the globe that aim towards providing a platform for convicts in requirement of rehabilitation and recovery to genuinely mend their ways. There are numerous ways how a person with previous criminal records can clear his slate to have a second shot at life. Legally, two popular methods allow a person to clear his records: Sealing and Expungement.
Sealing vs. Expungement
The main difference between record sealing and record expungement lies in the consequences that follow upon their execution. A record sealing means to ‘seal’ a record from the public, giving it an appearance of clearing the person’s records i.e., a particular arrest/ conviction on their record. In actuality, the case remains inaccessible to the public and can be ‘unsealed’ on a court order. An expungement means to destroy/ wipe off a person’s records concerning a particular arrest/ conviction.
Difference between Sealing and Expungement in Tabular Form
| Parameters of Comparison | Sealing | Expungement |
| Definition | An arrest or a conviction on a person’s record is made inaccessible for the public to view. | An arrest or conviction on a person’s record is deleted forever. |
| Accessibility | The record, once sealed, can only be viewed in the court grants permission. | An expunged record cannot be viewed by anyone even with the approval of a court. |
| Objective | Record sealing is usually done when a person wants to keep their criminal records hidden, making them inaccessible for the public to view. | Record expungement is preferred by people who need a clean slate to have a fresh start. |
| Benefit | The person can enjoy relaxation and privacy of his records while they still exist. | The person can live a free man’s life as there will be no existence of his records. |
| Conditions to execute | Record sealing is performed only when there is still a chance of conviction. | Record expungement is only executed when there is absolutely no conviction or if the other party drops the case. |
| Reviewability | A record can be unsealed if the court orders it to do so. | A record, once expunged, is destroyed forever and cannot be viewed again even if the court desires to do so. |
What is Sealing?
The practice of record sealing can be used in a literal sense, where the records are ‘sealed’ from the public’s view and made inaccessible. The records would otherwise be categorized as public records. Most of these records are those involving underage offenders and thus need a special court’s order to even be examined. Due to the sensitivity of these cases or to protect the identity of certain elements or people involved in the case, execution of record sealing is requested.
How does it work?
A record can be requested to be sealed upon the court’s orders. Sealing a record will mean that the public will not be able to access these files. Most files are sealed when trade secrets, inventions, business strategies, and matters regarding national security are involved. These kinds of cases have a higher potential to be approved for record sealing by the court. However, a record sealing does not ensure any erasure of the files but acts as a temporary shield. A record, just as it is sealed, can also be unsealed if the person requesting it receives the court’s approval to do so.
When your record is sealed, there are certain institutions and sectors of the public that will not able to view your records:
- Majority of the employers
- Certain academic institutions, and most of the schools
- General public crowd
- Landlords
You can deny any sealed records when anyone from the above-listed sectors questions you.
As previously mentioned, a sealed record can be viewed by the court on special occasions. Lets us look at more instances where a sealed record can be viewed and more importantly, who can view these records:
- At immigration offices or by immigration officers anywhere
- While traveling internationally
- Police officers, prosecutors, and others for law enforcement purposes
- Cases where the federal law needs to perform a background check concerning job opportunities.
- Certain court cases that’ll need access to sealed files, such as abuse, custody, etc.
There can be a possibility of a record(s) causing problems in your daily life chores, such as your job or work environment. Some jobs may also require popper FBI checks. For such cases, one can opt for expungement of their case. There are also criteria when a sealed case can be eligible for expungement:
- When the convicted is declared ‘not guilty by the judge.
- If the charges are dropped by the judge or by the defense prosecutor.
- If the charges are dismissed when the convicted goes through recommended programs/parole/probation periods.
- When the citizen was convicted of a petty offense or a summary offense and has not been arrested for about 5 years.
- When the convicted is of 70 years age or above and hasn't committed any offense for 10 years.
What is Expungement?
The burden of carrying around a criminal record can greatly impact a citizen's way of living and earning. While any kind of arrest will end up labeled as criminal records, regardless of the result of the case, i.e., if the person ends up convicted or not, it is much harder for the convicts to find jobs, places to live, or even education. To deal with this problem and allow second chances to people who genuinely want another shot at making a livelihood, convicts can try requesting the court to expunge their records. What exactly does expungement mean?
To carry out expungement of a record means to completely erase the records of a particular arrest or conviction. However, this option is only executed in state-level jurisdictions. An ‘erase’ can mean either deleting the files related and enforcing complete restrictions on anyone accessing the files or physically destroying the records regarding that particular conviction. However, there are several criteria that a certain ‘convicted’ will need to fulfill to be eligible for an expungement. These criteria need to be demonstrated in front of the court, upon approval of which, the records of that certain case can be expunged.
How does it work?
While nothing will make people forget the existence and the proceedings of a case, expungement can, in essence, erase records in legal terms. Different countries hold different jurisdictions, each handling expungements of records in their methods. Some jurisdictions erase records in a sense of preventing them from releasing them to the public or anyone at all while others physically delete the existence of the files and purge it. It is, however, important to note that an expungement is not the same as a pardon since no part of an expungement hints anything towards forgiving the crime. Similarly, pardons do not mean the same as an expungement.
An expungement can also potentially affect them in certain legal proceedings. In the case of any future crimes that the person might commit following the expungement, the court will consider the records, especially in case of serious felonies. An immigrant must choose his actions carefully in case he ever desires to have his records expunged.
Benefits of an expungement:-
- Housing: There are many times when an adult can face situations that require background checks. While looking for a new apartment, the homeowners or the renters require basic information that includes personal and professional questions regarding the person who needs the house. Most homeowners prefer to run these kinds of background checks on potential tenants to gain assurance of punctual payments of rent.
- Job opportunities: Similar to housing opportunities, many employers who are willing to provide job opportunities run a background check on their potential employees to keep their workplace safe and free of any danger.
- Academic institutions: Most of the current academic institutions, especially the prestigious ones, require loads of background checks to make their institution a safe environment for other students and the faculty employed.
Having executed an expungement on their records, any person is not required to disclose any details of their previous ‘convictions’ and past dealings. Thus it is much easier for a citizen to walk free and enjoy a fresh start in their lives.
When can a record be expunged?
Each country has its own set of laws defining its criterion, that when fulfilled, allows a case to be expunged. These criteria can vary widely in their definitions. While some countries allow expungement of a case even before the hearing, in the case where the defense prosecution withdraws the allegations i.e., drops the case whereas some countries allow the expungement of a case even when there is conviction. However, this happens only in cases with minor consequences and offenses.
Some common criteria for eligibility of a record to be expunged:
- Seriousness of the offense: Most jurisdictions allow just misdemeanors to be eligible for expungement and not any kind of felonies. Any offense committed should be non-violent for the case to be considered eligible for expungement.
- Age of the convict: Several jurisdictions like to give the benefit of doubt to those with juvenile records. With other factors considered along with holding a clean slate for a considerable amount of time, courts are likely to grant these citizens second opportunities. However, one should keep in mind that not all cases with a juvenile record are eligible for expungement.
- History prior to the case: The convicted must have minimal criminal history following up with the case. Any criminal activity in the past must not include a certain set of offenses stated by that country’s laws and should not include any serious felonies.
- History following the case: The convicted should have made no offenses, even minor, following the conclusion of the case.
- Fulfillment of all terms: if the convicted has successfully finished all his terms from the conclusion of the case, such as possible parole, probations, any dispositions, or sentences, they are eligible to request the court for probation.
- Sufficient time: When a considerable amount of time has passed since the conclusion of the case while keeping your slate clean, there are higher chances that an expungement is approved by the court.
Main Differences Between Sealing and Expungement in Points
- Record sealing means to make a conviction or an arrest on a person’s record hidden and thus, inaccessible to the public. Record expungement means to destroy any records of the conviction or the arrest forever.
- A record sealing is usually demanded to allow a person to keep his records private and hide them from the public eye. A record expungement doesn't leave any record, allowing a person to have a fresh start with a clean slate.
- When a record is sealed, the person can enjoy the privacy of his case whereas a person whose record is expunged is considered a free man walking, allowing him to have a clean start.
- A record, when sealed, can be viewed with the approval of the court. On the other hand, a record when ordered to be expunged, cannot be viewed again as they are permanently deleted.
- A record sealing can only be performed when there is still a possibility of conviction whereas a record expungement is only done when there is full assurance of zero conviction or in a situation where the case is dropped from the other end.
- A record when sealed can be unsealed if a person obtains a court order. A record when expunged cannot be revived by any means, not even if the court itself would want so.
Conclusion
Record sealing and record expungement are effectively used to serve those convicts who are either declared not guilty or are arrested for petty offenses that do not involve any violence. It is important to note that these methods exist to help those in need of a second chance and must not be exploited for immoral purposes. Both methods allow a chance at redemption and must be utilized appropriately as per the criteria.
References
- https://www.ojp.gov/pdffiles1/bjs/grants/250561.pdf
- https://www.nytimes.com/2006/10/17/us/17expunge.html
