In
the absence of an authorizing statute, courts are ambivalent as to whether they
have the authority to grant an expunction, even when a defendant is found
innocent. In United States v. Cosme-Rivera, a defendant’s motion to expunge was
denied, even when found not guilty of illegally reproducing copyrighted
materials.[1] The court held it did not
have the jurisdiction to grant this type of motion. Additionally, in Carter v. United States, the third circuit denied a petitioner’s
motion to expunge his arrest record, even when he was never indicted.[2] The court reasoned that Congress had not
granted the court judiciary authority to expunge executive records, and the
petitioner had not been involved in a judicial proceeding to justify the
court’s jurisdiction to expunge his records. Conversely, other courts have recognized the
value of expunging a defendant’s record, especially when that defendant has
been acquitted of the charges brought against him. In United
States v. Benlizar, a court granted a defendant’s motion to expunge his
arrest record, holding that, despite the absence of statutory authority,
expunction was available where the government’s need to retain the records was
outweighed by the harm to the individual. [3] The court noted that courts and legislators
had become increasingly sensitive to the harm that criminal records may cause
to individuals when there is no conviction. Courts have also recognized that arrest records
have the potential to impact an individual’s opportunity for schooling or
employment.[4]
These concerns are particularly
prevalent in those circumstances where an individual is arrested without probable
cause.[5]
Critics
of the over use of expunction motions describe these motions as attempts to
rewrite history, making it more difficult to ensure the protection of the
public. Critics argue that criminal
records are very important because the licensing of professionals depends on
background checks and these records are instrumental for law enforcement
offices to identify potential perpetrators of criminal offenses.[6] An expunged state criminal record proved to be
an issue when a firearm and ammunition dealer sought a review of the revocation
of its licenses for having a “convicted” criminal as one of its employees. In Dickerson v. New Banner Institute, an employee
plead guilty for carrying a concealed handgun in Iowa, but his record was
expunged after his probation term had ended.[7] The Court held that federal authorities are
not bound by state expunction orders in a prosecution under federal gun control
laws that require a prior conviction.[8] Dickerson
only concerned a federal gun control law and a post-Dickerson Congressional amendment to that law provided that a
conviction that has been expunged in the jurisdiction where the proceeding is
taking place is not considered a conviction.[9] However, absent a federal statute saying the
contrary, Dickerson may, in fact, be
the controlling precedent regarding expunged convictions in state courts.[10] With language like “in the absence of a plain
indication to the contrary…it is to be assumed when Congress enacts a statute
that it does not intend to make its application dependent on state law” it is
not unreasonable to see how Dickerson applies
to the relationship of other federal statutes and the expunction of state
records.[11]
Luis
U. Asprino
Staffer, Criminal Law Practitioner
Image by Tracy Collins , via Wikimedia Commons.
[1] United States v. Cosme-Rivera, 556 F. Supp. 2d 66 (D.P.R.
2008) (holding that the defendant did not seek expunction under any federal
statute, denying the court the authority to expunge the criminal record).
[2] Carter v. United States, 431 Fed.Appx. 104, 105 (3d Cir.
2011) (denying a motion to expunge an arrest record finding that the court did
not have inherent jurisdiction to expunge non-judicial records).
[3] United States v. Benlizar, 459 F. Supp. 614, 619 (D.D.C.
1978) (noting the harm caused by a record that is not expunged can cause unjust
harm to a defendant as a person who becomes entwined with the justice system
may not be able to disconnect himself even when completely free from charges).
[4] See Kowall v. United States, 53 F.R.D. 211, 214-15 (D. Mich. 1971)
(observing how arrest records can substantially affect an individual’s
reputation which can impair that individual’s ability to pursue school,
employment, ability to obtain a professional license even if that individual
has been cleared of all charges).
[5] See Menard v. Saxbe, 498 F.2d 1017, 1025 (D.C. Cir. 1974) (finding
that the absence of probable cause for a defendant’s arrest is a sufficient
constitutional reason to expunge an arrest record for that defendant).
[6] See James
W. Diehm, Federal Expungement: A Concept
in Need of A Definition, 66 St. John's L. Rev. 73, 76-77 (1992) (discussing
the various potential policy concerns regarding the general use of expunctions
of criminal records).
[7] See Dickerson v. New Banner Institute, Inc., 460 U.S. 103
(1983) (reviewing a case where a firearms manufacturer was found guilty of
violating Title IV of the Gun Control Act of 1968 which makes it unlawful for a
person who has been convicted of a crime punishable by imprisonment for more
than one year to ship, transport, or receive any firearm ammunition in
interstate commerce).
[8] See id. at 114-22.
[9] See United States v. Pennon, 816 F.2d 527, 529 (10th
Cir. 1987) (citing 10 U.S.C.A. § 921
(West), finding that Congress’ decision to adopt expressly the states’
definitions of what constitutes a conviction effectively overrules Dickerson).
[10] See Diehm, supra note 6 at 100-1 (discussing the implications of the Dickerson ruling after Congress amended the federal gun control
laws to reflect that expunction does not count as a prior conviction). See also United States v. Petros, 747
F.Supp. 368, 375 (E.D. Mich. 1990) (implying that because Congress did not amend
a narcotics statute in that cause then its intent was for Dickerson to apply to narcotics cases).
[11] See Dickerson, 460 U.S. at 119 (analyzing the purpose of the
federal gun control statute and its relationship to an expunction of state
conviction).
I love this article! It is a very big concern that I feel is not widely known. There are definitely prejudicial and potentially constitutional concerns that need to be addressed, especially in regard to those who were never indicted or charged with a crime officially. I also find it highly useful that you were able to tie this in to the gun debate, which is a very current and hot topic at the moment!
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