Individuals with criminal records often face extraordinary hurdles in rebuilding their lives due to the significant collateral consequences of their conviction—even after years or decades of law abiding conduct. The lifelong collateral consequences, imposed by state and federal statutes and regulations, can make it nearly impossible for many to obtain gainful employment, support their families or otherwise live productive lives. See Robert G. Morvillo and Robert J. Anello, “The Need for 'Second Chances' After Suffering a Federal Conviction,” N.Y.L.J., April 7, 2009. Expungement, the removal of a criminal record, particularly after a period of demonstrated rehabilitation, is one remedy that can assist individuals to avoid the “scarlet letter” of a criminal record and the associated collateral consequences.¹ Unfortunately, under today's federal legal framework, expungement—even by the judge who imposed the underlying conviction—is virtually impossible. Although a near-term legislative fix may be a long shot, recent bipartisan legislation proposed in both houses of Congress shows that the issue at least is on federal lawmakers' radar screen.

Many federal judges readily acknowledge the often unfair difficulties faced by individuals convicted of a crime. They vary widely, however, in their approach to applications for expungement. Some district courts routinely deny such applications, often asserting that they do not have jurisdiction over applications for expungement. Those courts that believe they have jurisdiction to order the expungement of a criminal record typically reserve such power for “unusual or extreme” cases. Even in instances such applications are denied, however, federal judges—most recently the Second Circuit—have called upon Congress to step into the fray to provide an avenue to redress the collateral consequences of criminal convictions in appropriate cases.

In the past decade, many state lawmakers have enacted laws providing for expungement or sealing remedies, with over 60 percent of states broadening their expungement laws between 2009 and 2014. Brian M. Murray, “A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels,” 10 Harvard Law and Policy Review 361, 369 (2016). Newly proposed federal legislation offers hope that the federal system may follow these states' lead, even with a conservative Congress and administration. Recent Republican pronouncements regarding criminal justice reform, and evidence that expungement opportunities might result in a reduction of recidivism rates and corresponding savings in spending on federal incarceration are reasons for optimism.