I meet all of the requirements for federal expungement. What are my next steps for pursuing the expungement?

Situation 1: If you were under 21 at the time of the drug offense.

When your probation term ends, you can ask the judge to expunge your conviction. If you have successfully completed your probation with NO violations, and you meet all the other requirements, the judge is required to grant your expungement. This means that ALL official records of your conviction, all references to your arrest, and the results of any criminal proceedings against you will be destroyed. You will get back any rights that you lost because of your conviction, and you can say that you have never been arrested, prosecuted, or convicted of the offense.[3244]

Situation 2: If you were over 21 at the time of the drug offense.

If you were over the age of 21 at the time of your offense, your conviction will not be completely expunged (i.e. erased). However, if you successfully complete your probation with NO violations, and you meet all the other requirements described above, the judge is required to dismiss your conviction at the end of your probation term. You can also ask the judge to dismiss your conviction and release you from probation early (before the end of your probation), but it will be up to the judge whether or not to grant this early.

Once your conviction is dismissed, the record will be sealed—meaning the record will still exist, but it will NOT be public, and it will NOT show on your criminal record that you were ever convicted of the offense. You will also get back any rights that you lost because of your conviction.[3245]

NOTE: If your conviction is expunged (Situation 1) or dismissed (Situation 2), the U.S. Department of Justice will keep a confidential, non-public record of your conviction in case you try to get another conviction expunged or dismissed in the future. Remember: You can only get a federal expungement once in a lifetime![3246]

Situation 3: Is there any other way to get my federal conviction expunged?

Maybe. It is sometimes possible to convince a federal judge to ORDER that your conviction be expunged. This is called a “judicial expungement.” However, judicial expungements are VERY, VERY rare—and some courts won’t do them at all.[3247] Many federal courts only grant judicial expungements when it is necessary to correct an error in a criminal case that amounts to a violation of your basic rights (i.e. a “miscarriage of justice”). In these courts your only chance of being granted a judicial expungement is if your conviction was the result of illegal or invalid conduct by the government, such as an unlawful arrest, an unconstitutional law, or a gross administrative error.[3248] The federal courts in California follow this rule—so if your federal conviction happened in California, you will need to show that your conviction was caused by a “miscarriage of justice,” otherwise the judge will NOT grant you a judicial expungement.[3249]

Other federal courts will grant a judicial expungement only under specific and extraordinary circumstances, when they determine that it is necessary in all fairness.[3250] These courts balance the harm that you suffer because of your criminal record (for example, if you are denied public housing or benefits, you cannot be with your family, or you are disqualified from certain jobs), against the public’s interest in preserving the record of your conviction.[3251] If your federal conviction is from a state where the federal courts allow the judge to balance the factors of your situation, you will still have to convince the judge that the expungement is necessary to preserve your basic rights.[3252]

  1. 3244

    18 U.S.C. § 3607(c). ↑

  2. 3245

    18 U.S.C. § 3607(a)(b). ↑

  3. 3246

    18 U.S.C. § 3607 (b). ↑

  4. 3247

    Federal courts are divided into thirteen “circuits” across the country, comprised of district trial courts and circuit courts of appeals. Each of these circuit courts decides how the law should be interpreted within that circuit, which the district courts below must follow. This means that there are often discrepancies in the law at the federal circuit level—in other words, the same law can mean different things depending on where you live. These differences persist until the Supreme Court rules on which interpretation is correct. This is the current state of federal expungement law. Several federal circuit courts have ruled that the courts should be allowed to order expungements based on their inherent equitable powers—their duty to make things fair. Others have decided that expungements are beyond the scope of the court’s duties and that they infringe on the powers allocated to the other branches of government. The Supreme Court has not resolved the dispute. See U.S. v. Mitchell, 683 F. Supp. 2d 427 (2010). ↑

  5. 3248

    Courts of Appeal in the First, Third, Sixth, Eighth, and Ninth Circuits, as well as some district courts in the Eleventh Circuit, do not allow expungements based on equitable grounds (i.e. to reward rehabilitation) and will not even hear these motions. See U.S. v. Meyer, 439 F.3d 855 (8th Cir. 2006), U.S. v. Coloian, 480 F.3d 47 (1st Cir. 2007); U.S. v. Sumner, 226 F.3d 1005 (9th Cir. 2000). ↑

  6. 3249

    U.S. v. Sumner, 226 F.3d 1005 (9th Cir. 2000). ↑

  7. 3250

    Federal U.S. courts in the Second, Fourth, Fifth, Seventh, Tenth, and D.C. Circuits allow judicial expungements for equitable purposes under extraordinary circumstances. See U.S. v. Flowers, 389 F.3d 737 (7th Cir. 2004), U.S. v. Schnitzer, 567 F.2d 536 (2nd Cir. 1977), Camfield v. City of Oklahoma City, 248 F.3d 1214 (10th Cir. 2001). ↑

  8. 3251

    U.S. v. Flowers, 389 F.3d 737 (7th Cir. 2004). ↑

  9. 3252

    Livingston v. U.S. Dep’t of Justice, 759 F.2d 74, 78 (D.C. Cir. 1985). ↑