California and Pennsylvania Expungement Law Comparative Analysis

By Brigitte Alexander, New England Law School
Honorable Mention in the first annual law student writing competition.

Currently, criminal records are available to the public through background checks. Not only are background checks available through fingerprinting, but they are now also available to anyone through a simple search on the internet. These background checks are used to inform potential employers, potential landlords, or even the general public of an individual’s past behavior. This past behavior can be detrimental to a person’s livelihood if there is a criminal charge on their record. Unfortunately, even if a person has tried to proceed forward with their life, they are often turned down employment, housing, and other possibilities for improvement due to their previous decisions during their life. This can often lead to frustration, causing a downward spiral into a tendency to commit other crimes because they are forced to continue living a life labeled as a criminal and only being seen as such, rather than having the opportunity to change the course of their path for better. If a record is expunged, a person is given a second chance and can potentially get a better job, better housing, or a more fulfilled way of life because they are being considered based on their attributes and talents without the stigma of being unlawful.

In California, in order to have a record removed from a person’s criminal record, it must be sealed. However, in order to seal a record, it must be proved that there was factual innocence. This can be difficult to prove in most cases since cases that are dismissed in court are not necessarily because of innocence, but rather other conditions such as a diversion program. A diversion program is a program that once completed, removes the judgment of guilt and allows the case to be treated as a dismissal instead of a conviction.

For those convicted of a criminal offense, the only option is an expungement. Unfortunately, expungements do not completely erase a criminal record. After an expungement is granted, the case will appear as dismissed or expunged on a background check through the California Department of Justice. An expungement is a better option than having a conviction. But, there are other states that have effective expungement laws that treat the criminal cases as if they never occurred. California should mirror these expungement laws. For example, in Pennsylvania, an expungement completely removes the case by having the court and police records sealed. Therefore, removing the case from a background check.

The eligibility requirements for Pennsylvania are different than California. A lessor offense, such as retail theft, is called a summary offense. Once all the terms for a summary offense have been completed, there is a five year waiting period without another conviction in order for the case to be eligible for an expungement. Some may argue that a five year waiting period is a long time to wait for an offense similar to an infraction. Nevertheless, this allows a substantial amount of time for the court to properly determine the likelihood that the person applying for the expungement will not be a repeat offender.

For first-time offenders, the judge may offer a program called Accelerated Rehabilitative Disposition (ARD). This program is similar to California’s diversion program in that it treats the case as a dismissal once all terms of the sentence has been completed successfully. Unlike California, Pennsylvania allows for cases completed through ARD to be eligible for an expungement immediately upon completion of the program without a waiting period to apply for the expungement. For cases for first-time offenders, allowing ARD cases to be removed from a record after successful completion of the program, it encourages them to continue down a law- abiding path without the constant reminder of one unlawful mishap that was encountered.

Also, age can play a role in eligibility. If an applicant for an expungement is over the age of seventy and all cases have been completed (probation finished and no outstanding fines) for at least ten years, the case is eligible for an expungement. In many cases, persons over the age of seventy have had a conviction lingering for several years, following them during every step of their life, often originating during their youth.

For higher offenses, such as misdemeanors and felonies, there are also options for post- conviction relief. There are specific requirements for class 2 and class 3 misdemeanors that may allow them to be sealed. However, if those exact requirements are not met or if the conviction is for a felony or a class 1 misdemeanor, and the record holder is not over the age of seventy, the case is only eligible for a pardon, which must be granted by the governor. The pardon process is offered to allow for all ineligible cases the opportunity to become eligible for an expungement. It is the governor’s discretion whether a pardon is granted or denied. Although obtaining a pardon can be difficult, once a pardon is granted, the case is automatically eligible for an expungement.

In the process for all expungement cases, including after a pardon is received, it is in the judge’s discretion whether to grant or deny an expungement. This allows for the judge to determine whether the applicant has shown sufficient characteristics and evidence that they have been rehabilitated and are deserving of having their record removed from their background.

Through the pardon process, the long-term impact of a criminal record will still influence an individual’s decision making since pardons are difficult to obtain, which still allows for preventative measures against being too lenient on more serious offenses. However, at the same time, it helps prevent individuals with less serious offenses or first-time offenders from having the same reputation as someone with a serious offense. With the allowance of complete removal of a criminal record, deserving candidates can re-establish themselves.

The expungement process is beneficial to society since it improves the chances that a previous offender will have the opportunity for employment, housing, or other everyday duties, that will allow them to productively live in their community, providing for themselves and their families. However, currently, employers do not always hire prospects if they have a previous arrest or conviction, even if the case was dismissed. By running criminal background checks, former offenders are denied desirable employment, and therefore must struggle to earn decent wages, making it difficult for the individual to escape the cycle of recidivism. There are certain states, such as Pennsylvania, that allow certain offenses to be removed from public record, including state and federal background checks, after a specific waiting period has been met and the judge has deemed the applicant as rehabilitated.

The expungement laws in Pennsylvania allow worthy criminal record holders to learn from their mistakes and provides the opportunity for a clean slate to start anew. California should have expungement laws that reflect Pennsylvania and provide the same opportunity for its residents to not be judged for their past, but rather have the option to enlighten their future based on their ambitions of creating a better life for themselves and their families. This will allow for a break in the cycle of recidivism and creating the foundation for paving a road full of possibilities for previous convicts, their families, and society in general.