The Necessity of Post-Exoneration Expungement

By: Jordan Fries

Imagine the conflicting sensations that manifest when someone is released from prison after serving time for a crime he or she did not commit. The amorphous blend of joy and resentment, vindication and mourning for the years lost – the irretrievable time missed. It’s a heartbreaking reality to ponder, and one that invites so much emotional complexity before even touching upon some of the thornier legal implications of moving forward with a heinous crime strapped to one’s back.

Although it would be reasonable to assume that once a person is exonerated and walks freely back into the world all mention of their wrongful conviction would be wiped from every conceivable record, this is sadly not the case. Even when a judge tosses out a wrongful conviction, that exoneree still has a criminal record that must be expunged – a criminal record that can severely damage one’s ability to attain a decent job or even housing. Perhaps most troubling, expunging a criminal record – even for victims of the worst kind of injustice the legal system can inflict – is anything but automatic.

According to a 2014 study from the Center on Wrongful Convictions at Northwestern University, one-third of exonerees surveyed over a 10-year period did not have their records expunged. This disturbing number is exacerbated by the fact that failure to seek a criminal records purge is a “significant predictor of post-exoneration offending,” a reentry problem that is even worse when that exoneree had not committed a crime before the one for which he or she was wrongfully convicted. In fact, of the exonerees surveyed, 50 percent of those who did not receive an expungement committed a post-exoneration offense; conversely, less than 32 percent with an expungement did.

Since record expungement is a state issue, obtaining a clean slate can vary in difficulty from restrictive to nonexistent, with the one consensus being that the remedy is a limited one. Forty-five states and the District of Columbia have some form of record expungement, with a few common statutory provisions. One of those is a mandatory waiting period for filing, which can be deeply frustrating for individuals eager to move forward from a miscarriage of justice. They also include expungement for minor juvenile offenses and for arrest records and charges that did not end in convictions. Some states will offer expungement for participating in diversion programs that offer treatment for alcohol and drug dependency. A small number of states do make expungement mandatory or construed as a right in specific circumstances.

For example, in Illinois, exonerees may petition for a certificate of innocence under 735 ILCS 5/2-702 in order to be entitled to compensation and obtain legal redress against the parties responsible for the wrongful conviction. The statue mandates expungement of all records related to the wrongful conviction as a right, and the court must enter the expungement order regardless of whether the exoneree has prior criminal convictions. This is significant because in Illinois, like most states, even a single prior conviction, no matter the severity of the offense, bars one from pursuing expungement. Such individuals can only petition the court for a sealing of their records, which means those criminal records will still be available to law enforcement and certain employers like schools, health care providers, the military, and banks.

Even the certificate of innocence is not a perfect remedy; as the statute states, petitioners must prove their actual innocence, which includes showing that he or she did not “by his or her own conduct voluntarily cause or bring about his or her conviction.” Depending on the factual circumstances, this can be a difficult element to establish and leaves room for wide judicial discretion. It is probably no coincidence that the state with the most expansive expungement laws – New York – had the lowest post-exoneration offender rate at only 8.3 percent.

Ultimately, the importance of expunging criminal records post-exoneration is not only essential on common sense grounds like basic human fairness and justice, but also from a public policy rationale. Preventing reentry not only helps the exonerees, but society as a whole. It is a costless alternative to a costly incarceration for men and women who are not given a fair and reasonable opportunity to build their lives back to what they once were. Expungement is only a small remedy in a layered and convoluted transition away from a wrongful conviction, but it is a vital one. It is an important step into a semblance of normalcy for a too-great number of men and women whose encounters with the justice system have been anything but normal.




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