Still Waiting For Federal Alternatives To Expungement

As criminal practitioners know, many states have well-defined procedures for expunging and sealing criminal convictions.  California, for instance, allows defendants who have successfully completed probation in some cases to apply for reduction of charges and dismissal of their cases, a procedure that is routine and form-based in most California courts.

Federal defendants are not so lucky.  There is no statute permitting dismissal or expungement of federal convictions.  Federal defendants are generally restricted to three choices:

  • Seeking a Presidential pardon.  Pardons are purely discretionary.  Their success rate varies among presidents, but is generally low, and pardons are highly disfavored sooner than five years after a conviction, and while a defendant is still on any sort of supervised release or probation.
  • Attacking the conviction with a motion to vacate under 28 U.S.C. section 2255.  Such motions require the defendant to identify a material flaw in his or her conviction or sentencing, are rarely granted, and are restricted by a strict one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996. 
  • Attacking the conviction with a writ of coram nobis. A defendant may file a writ of coram nobis years after a conviction, without the one-year statute applicable under the AEDPA to Section 2255 motions.  However, the applicable standard is a challenging one:  the defendant must demonstrate an error in his or her conviction, and that (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of a fundamental character.  United States v. Monreal, 301 F.3d 1127, 1132 (9th Cir. 2002).

These methods are often not practical.  Many defendants wish to expunge a conviction not because it was legally flawed, but because they have paid their debt to society and seek to remove the legal impediments that criminal convictions impose.  Convictions often prevent individuals from obtaining gainful employment.

The best hope for federal defendants may be a bill like S. 675: The Record Expungement Designed to Enhance Employment Act of 2015, which would provide a path to expungement of certain federal convictions. Unfortunately, though federal expungement laws have been proposed in every recent Congress, they’ve all failed.

Ken White

Ken White

Ken White is a founding partner of Brown White & Osborn LLP. He focuses on criminal defense and civil litigation, and particularly on white collar crime and First Amendment issues. He is a contributor to the Brown White & Osborn LLP blog.
Ken White