A. Extent to which an individual can deny expunged record
Expungements are based on the premise that those with criminal records will have trouble reingrating into society and may face barriers from participating in public life unless they have a legitimate means of being able to honestly deny that they have ever been charged with a crime or possessed a criminal record. As a result, most states permit individuals who have had their records expunged to answer in the negative if asked whether they have been arrested or charged of a crime. Therefore, if asked on a job or school application, an applicant with an expunged record may honestly answer "no" to having been charged with a crime. Additionally, for those states that permit expungements even after convictions, some permit the same negative answer to be given for questions concerning conviction.
Of the forty states that allow expungement or sealing of arrests not leading to conviction, twenty-nine permit an individual to deny the arrest. Of the sixteen states that allow expungement or sealing of convictions, thirteen permit an individual to deny the conviction. Ben Geiger, The Case for Treating Ex-Offenders as a Suspect Class, 94 Cal. L. Rev. 1191, 1200 (2006).
B. Crimes that may be expunged
The type of crime which has been allegedly committed will invariably determine the availability of expungement. For example, some states allow expungement for many types of crimes (e.g. Colorado), others prohibit expungement of any criminal record (e.g. Wyoming), and some states only allow expungement for arrest records (e.g. Oklahoma). In states where expungement is granted after a conviction, the severity of the crime will play a determinative role in whether or not expungement is possible. Conversely, states that prohibit the expungement of convictions (unless a pardon is obtained) will often contain restrictions depending on the process taken to complete the case without a conviction. For example, it is quicker and easier to obtain an expungement when a charge has been dismissed as opposed to when a case has been placed on a "stet docket" (an inactive group of cases that are generally not reopened).
C. Rehabilitation - Worthiness of Having Records Expunged
Typically, the waiting period before an application can be made is used as an indication of rehabilitation. In addition, a waiting period free of arrests or any trouble with the law is further used to affirm rehabilitation. Differences in length of waiting period times depend on a multitude of factors which may include:
- the severity of the crime
- the age of the offender
- whether the offender is alive
D. Expunged Records and Access to Criminal Records
The practical effects of expungement remain questionable when considering the number of people who can still access criminal records even after they have been expunged. It has even been advocated that licensing bodies of professions charged with upholding the public trust (e.g. health care, nursing, pharmacology, investment advising, accounting, banking, child care, engineering, and architecture) should have access to the expunged records of their members. Steven K. O'Hern, Note, Expungement: Lies That Can Hurt You In and Out of Court, 27 Washburn L.J. 574, 584-90 (1988).