Friday, October 18, 2013

Inaccurate Background Checks: An Expunction of Job Opportunities?

For criminal defenders an acquittal usually means a job well done.  However, some acquitted defendants can still suffer from their interactions with the criminal justice system, due to the increasing reliance of potentially inaccurate FBI background checks.  These individuals can see their future job opportunities limited because an arrest can remain on their criminal record without an explanation.  An incomplete or incorrect background check can drastically impair a person’s ability to find or hold a job, especially when FBI background checks often fail to report the final outcome of an arrest.  Therefore, those who have been arrested, but have not been charged with a crime, suffer merely for their brief interaction with the criminal justice system.  For these reasons, when faced with a client who is acquitted or arrested and not charged, criminal defense attorneys must aggressively move to expunge arrest records to prevent a future detriment to a client from an inaccurate background check.

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]

Whether Dickerson’s assessment of the relationship between federal statutes and state expunctions applies to FBI arrest records has yet to be determined.  Efforts in Congress to remedy the inaccuracies of FBI background checks have already been proposed, but, absent comprehensive federal legislation, these inaccuracies will remain.  It will be up to the courts to determine whether they have the power to expunge unduly harmful arrest records, particularly for acquitted defendants or those individuals never charged with a crime.  Practitioners, therefore, need to be aware of the expunction rules within their individual jurisdictions.  In addition, to ensure that clients are not harmed from future employment opportunities, practitioners need to aggressively pursue an expunction of a client’s record even in a jurisdiction that has no authorizing statute.  These efforts are especially relevant when working with clients who have been acquitted or have never been charged.  The argument that an innocent individual’s employment options are undeservedly affected unless his records are expunged can be extremely compelling in the current economic environment; the lack of authorizing statutes or ambivalent precedents should not stop practitioners from tending to their client’s needs.

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).


  1. 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!

  2. Thank you for your great insight! Yeah this issue is not widely known which is why I decided to write about it. There is also a big concern on the disparate racial impact that these incomplete background checks might have since minorities are more likely to be arrested and without a final outcome of the arrest in a background check they can be rejected from jobs or even fired just for being arrested.

  3. I got an even deeper insight to the harsh realities of this topic today at the Criminal Justice Institute conference. That is at least supportive of a showing that a few people do recognize this as a huge problem affecting out society at large. Even this little knowledge helps to start discussions that could help influence a solution!

  4. This is some good information Sir, I wonder what the percentage of the background checks in error. As an attorney I bet you are not surprised.
    I write about this same topic over at I would appreciate your input on any of my articles. thanks

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