Federal expungement refers to the removal of a criminal record from official databases. Unlike many state expungement systems that provide clear pathways for expungement or sealing after conditions and an amount of time has been met, the federal government has yet to create a standardized process. As a result, past convictions continue to hinder employment, housing, and reentry for many Americans, even for those who have received presidential clemency or a pardon.
Is there a federal expungement process?
No. The Congressional Research Service (CRS) states that federal law has no clear general authority to expunge records of people who were lawfully arrested or convicted. It identifies three situations where expungement is available: a record that is inaccurate under the Privacy Act, a record from an invalid or unconstitutional arrest or conviction, and the few statutes that expressly allow it (CRS Legal Sidebar LSB10413, February 2020).
The statutes are narrow:
- 18 U.S.C. 3607 covers people under 21 who received pre-judgment probation for simple possession of a controlled substance. The court must expunge references to the arrest and its results, with a nonpublic record kept by the Justice Department for limited purposes.
- 21 U.S.C. 844a provides a similar remedy for civil penalties for possessing certain controlled substances. The Justice Department’s implementing rule is 28 CFR 76.41.
- Separate provisions require DNA records to be removed in specific circumstances, such as when a conviction is overturned. CRS lists them.
Can a federal felony be expunged?
In general, no. None of the statutes above lets a person expunge a valid felony conviction. Two cover simple drug possession by young first offenders and civil drug penalties, and the DNA provisions apply when a conviction is overturned. Most federal appeals courts have also held that a judge has no power to expunge a valid conviction on equitable grounds, as the next section explains. A presidential pardon forgives the offense, but the conviction stays on the record. A federal felony conviction therefore stays on a person’s record for life unless Congress creates a process, which is what our position asks for.
What have federal courts decided?
Federal courts have considered whether they can order expungement on equitable grounds when no statute applies. CRS reports that the circuits are divided, and that the Supreme Court has not resolved the question:
- The First, Second, Third, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have held in precedential opinions that courts lack jurisdiction for equitable expungement. The Eleventh Circuit reached the same result in a non-precedential opinion. These courts rely on the limits of ancillary jurisdiction set out in Kokkonen v. Guardian Life Insurance Co. of America (1994).
- The Fourth, Fifth, and D.C. Circuits allow equitable expungement only in unusual or exceptional circumstances, using a balancing of the equities.
This summary reflects CRS’s 2020 report. Anyone relying on it should check the current law of their circuit with a licensed attorney.
How expungement differs from sealing, pardon, and vacatur
The terms are often used loosely. In legislative text and in Justice Department guidance they mean different things.
Expungement. The Justice Department describes expungement as “a judicial remedy” that “cannot be granted within the Department of Justice or by the President” (DOJ Office of the Pardon Attorney FAQ). In the juvenile provisions of the 2017 REDEEM Act, the bill defines it as destroying the record and obliterating the person’s name (S. 827, 115th Congress).
Sealing. A sealed record is closed to public view but still exists. In the same bill, sealed records are labeled “SEALED” and closed from public access.
Pardon. A presidential pardon restores rights and lessens stigma, but the Justice Department says both the conviction and the pardon appear on the record, and a pardon “does not signify innocence” (DOJ FAQ). Prisonpedia explains presidential clemency and pardons in more detail.
Vacatur or setting aside. A court may set aside a conviction found to be invalid. CRS notes that courts may expunge records that come from an invalid, unlawful, or unconstitutional process. That is a remedy for a legal defect and does not apply to a valid conviction.
What the Initiative proposes
Congress should create a comprehensive expungement process for federal offenses. Expungement would be managed by the federal courts and would include hearings and processes for prosecutors and interested parties to inform courts about matters relevant to the expungement decision. Read the full position on Our Position, the reasons in Why Now, and answers to common questions.
Members who work on these issues include Mark Osler on clemency, Rachel Barkow on sentencing and the U.S. Sentencing Commission, and Douglas Berman on sentencing policy.
This page is general information and is not legal advice. For advice about a specific record, speak with a licensed attorney.