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Can I get my federal record expunged?

17-Sep-2014

In previous expungement articles, we have dealt only with Oklahoma expungement laws and the sealing of state criminal records. Those who have been arrested, charged, and convicted of federal crimes do not have recourse through state laws, but must seek expungement through the federal courts that handled their cases. 

Unfortunately, for most people asking, "Can I get a federal expungement," the answer is no. In general, federal circuit courts have ruled that the judicial branch of the government--the courts--has no authority to order the sealing and purging of records held by the executive branch, which includes agencies such as the FBI. 

All is not lost, however, if you have a federal criminal record. There are some specific statutes that allow for the expungement of federal records under narrow circumstances. These include the following:

  • A conviction based on unconstitutional law
  • Government misconduct by law enforcement or prosecutors
  • Certain drug offenses committed before the defendant was 21 years of age

The first two options are extremely rare in obtaining expungement. Even if a person was convicted of violating a law that was later ruled unconstitutional, or even if there was prosecutor or police misconduct in obtaining a conviction, the person seeking expungement must prove to the judge that sealing the record is in the interest of justice. If the judge determines that the public interest in maintaining records is greater than the personal privacy rights of the person seeking to have his or her records sealed, the expungement may be denied.

The expungement of youthful federal drug crimes, on the other hand, is somewhat more common. Whereas most states have an overarching expungement law--for example, 22 O.S. § 18 in Oklahoma--the federal government statutes regarding expungement are piecemeal throughout the code. The expungement of certain youthful drug offenses is explained in 18 U.S.C. § 3607.

This statute provides "special probation and expungement procedures for drug possessors." Under this law, first time drug offenders convicted of simple drug possession under 21 U.S.C. § 844 are eligible for probation rather than prison. If such a person was under the age of 21 at the time of the offense, the disposition may be expunged:

If the case against a person found guilty of an offense under section 404 of the Controlled Substances Act (21 U.S.C. § 844) is the subject of a disposition under subsection (a), and the person was less than twenty-one years old at the time of the offense, the court shall enter an expungement order upon the application of such person. The expungement order shall direct that there be expunged from all official records, except the nonpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, and the results thereof. The effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings. A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose. 18 U.S.C. § 3607(C)

Options for federal expungement are limited, but there are some conditions which allow for the expungement of a federal record. Contact an attorney to learn more.



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