Revisiting Expungement: Concealing Information in the Information Age
![handle is hein.journals/utahlr1997 and id is 1067 raw text is: Revisiting Expungement: Concealing
Information in the Information Age
[P]eona moripotest, culpaperennis erit (punishment can terminate, guilt endures
forever),,
--Lord Coke
I. INTRODUCTION
Over four centuries have passed since Lord Coke penned this insightful passage
that succinctly defines one of the major problems faced by offenders attempting to
reenter society. Having completed official sentences imposed by law, many offenders
find the unofficial sanction of public ostracism to be as confining as prison bars and
an equally formidable obstacle to reintegration into society.2 The effect of public
ostracism may essentially extend an offender's one-, two-, or three-year sentence into
a defacto life sentence without the possibility of parole.
In an attempt to alleviate the effects of such ostracism, and to help offenders
reenter society, federal and state governments created expungement laws3 designed to
conceal criminal records4 from the public.5 The concept of expunging criminal records
is referred to by different names,6 but entails the destruction or sealing of a criminal
record when the offender completes certain requirements. The prerequisites for
successfully petitioning a court for expungement vary by jurisdiction; however, they
generally require the petitioner to demonstrate rehabilitation. Such rehabilitation is
evidenced by a petitioner who has reentered society for a prescribed period of time
without committing additional offenses.
Whether the criminal record is obliterated or merely sealed, the intent of
expungement is to assist offender reintegration into society by prohibiting public
'Barry M. Portnoy, Employment of Former Criminals, 55 CORNEL L. REV. 306,306 (1970) (quoting
Brown v. Crashaw, 80 Eng. Rep. 1028 (K.B. 1614)).
2See Aidan R. Gough, The Expungement ofAdjudication Records of Juvenile and Adult Offenders:
A Problem of Status, 1966 WASH. U. LQ. 147, 148.
3See BLACK'S LAW DICTIONARY 582 (6th ed. 1990) (defining expunge as t]o destroy; blot out;
obliterate; erase;... [t]he act of physically destroying information-including criminal records-in files,
computers, or other depositories); see also id. at 582 (defining expungement of record as the [p~rocess
by which record of criminal conviction is destroyed or sealed after expiration of time).
'For the purposes of this Comment, a criminal record encompasses all records associated with arrest
and conviction. In cases where only the arrest record is intended, the term arrest record shall be used.
-See infra notes 11-23 and accompanying text (discussing various state expungement laws).
'See Carlton J. Snow, Erpungement and Employment Law: The Conflict Between an Employer's Need
To Know About Juvenile Misdeeds and An Employee's Need to Keep Them Secret, 41 WASH. U. J. URB. &
CONTEMP. L 3,21 (1992) (explaining that [tihere is no uniform terminology in the world of expungement
statutes). Snow reports that [t]he process [of concealing criminal records] is variously described as
expungement, erasure, destruction, sealing, setting aside, expunction, and purging. Id. at 21-22 (citations
omitted).
See, e.g., OR. REV. STAT. ANN. § 137.225(l)(a) (Supp. 1996) (providing that for some crimes an
offender may petition the court for entry of an order setting aside the conviction after three years from date
ofjudgment).
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Revisiting Expungement: Concealing Information in the Information Age
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