Reducing barriers to employment:
EXPUNGEMENT
Training at Cozen O’Connor- October 15th, 2014
Sharon Dietrich, Esq.- Litigation Director
Michael Hollander, Esq.- Staff Attorney
Jamie Gullen, Esq.- Staff Attorney
Agenda
• Overview- how expungements help our clients
become employed
• Explanation- what can be expunged and how
– Substantive law
– Procedures for filings, hearings, etc.
• Demo- how to find criminal records, draft
expungement petitions, and file with the courts
• Questions
Why Clear a Criminal Record?
• USDOJ estimates 100 million American adults, or
1 of 3, have a record.
• Applying this ratio to Philadelphia, conservative
estimate of 400,000 people.
• 2011 Arrest Statistics in Philadelphia
• 61,032 arrests with 354,951 charges
• 52,193 charges ended in conviction (15%)
Why Clear A Criminal Record?
• Though “innocent until proven guilty,” non-conviction
charges remain on a criminal record until expunged.
– Courts sell this data to background check companies who
sell it to employers.
– Society for Human Resource Management study: 87% of
employers look at criminal records when hiring.
• Under PA and federal law, employers should NOT consider
arrests without convictions, but they often DO.
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Expungement Movement
• Whether someone has been convicted or not,
clearing up a record as much as possible is KEY
to helping people become employed.
• We have had many clients who have been
able to get jobs after an expungement.
• The need is HUGE and the more we can
expand expungements the more we help lift
individuals and communities out of poverty.
What is on a criminal record?
• Convictions: plea agreements & guilty verdicts
• Charges resulting in a not-guilty verdict
• Charges that were dismissed, withdrawn, etc.
• Charges resulting in a diversion program like Section 17 or ARD
• Juvenile adjudications- in some cases may stay on record
Non-Conviction Dispositions
Disposition
Definition
ARD/Section 17
Pre-trial diversion programs. After completing requirements,
participant (usually) receives completion letter and should attach
letter to petition for expungement.
Withdrawn
Motion by the Commonwealth to remove the charge(s) from a bill of
particulars. Usually made when witness fails to appear.
Dismissal
Motion granted by Judge for a variety of reasons, including lack of
evidence and lack of prosecution.
Nolle Prossed
Pa.R.Crim.P. 585 – Voluntary withdrawal of charges by the DA (legally
speaking for a lack of evidence).
Not Guilty
A finding of non-culpability following a trial before Judge or Jury.
Acquittal
A finding that the Commonwealth failed to carry its evidentiary burden
that a crime was committed or that the defendant was involved.
Conviction Dispositions
Disposition
Definition
Guilty
A finding of culpability against the
defendant following a trial before a
Judge or Jury.
Guilty Plea
A defendant’s formal answer in court to
the charge(s) admitting that he or she
did in fact commit the offense(s) listed.
Nolo Contendere
A defendant’s formal answer in court to
the charge(s) stating that he or she will
not contest the charge(s), but neither
admits guilt nor claims innocence.
Grading of offenses
Felonies
Misdemeanors
Summaries
• Most serious
• May include:
• Less serious
• May include:
• Least serious
• May include
– Aggravated assault
– Simple assault
– Drug dealing
– Burglary
– Robbery
– Drug possession
– Some types of theft
– Traffic citations
– Low-level retail theft
–Disorderly conduct
Where Can You Find Criminal History
Record Information?
• Court records: available for free online at
https://ujsportal.pacourts.us/docketsheets.aspx
• PA State Police Report ($10 fee)
• FBI Record ($36 fee)
• Report from private background check companies
Eliminating Criminal Record Information
• Expungement: Completely remove an arrest from a criminal
record. Generally only for non-conviction charges.
• Redaction (partial expungement): Removal of non-conviction
charges only from an arrest where some charges resulted in a
conviction. The conviction(s) will remain on the record.
• Pardon: The process by which felony and misdemeanor
convictions may be expunged from a criminal record.
Cleaning Up Your Record: Expungement
• Expungements: A relatively short process
(approximately 6-10 months)
• Under 18 Pa. C.S.A. § 9122, expungement is
possible for:
• Non-convictions (charges withdrawn, dismissed,
nolle prossed, or not-guilty)
• ARD/Section 17 if the program was completed
• Summary convictions if arrest-free for five years
• Felony & misdemeanor convictions if you are 70+
and have been free from arrest for 10 years
Sample CHR (Expungement)
Sample CHR (Redaction)
Redaction/Partial Expungement
Sample CHR (Redaction)
Redaction/Partial Expungement
Can’t be expunged
Sample CHR (Redaction)
Redaction/Partial Expungement
Can be expunged
Drafting and Filing Expungements
• An expungement petition and order must be
created for each case you want to expunge/redact.
• Pa.R.Crim.P 490 & 790 list what information is
required- but we have automated the process
through the expungement generator.
• Once the petitions and orders are drafted and you
have reviewed them for accuracy, they can be efiled with the court.
What Happens After Filing?
• Just because someone is eligible to have a record
expunged does not mean it will be expunged.
• The District Attorney is given an opportunity to
object to all expungement petitions at a status
listing before a trial commissioner.
– If the DA does NOT object, the petition is granted.
– If the DA does object, the case is listed for a hearing
before a judge.
Legal Standard
Commw. v. Wexler, 494 Pa. 325 (1981)
– At the hearing, the DA has the ultimate burden and
must present specific compelling evidence justifying
the retention of the record.
– If they do so, then the DA’s interest is balanced
against the petitioner’s right to expungement.
Legal Standard Cnt’d
Under Wexler, the court must weigh several
factors including:
– Strength of the Commonwealth’s case and reason
for wanting to retain the record
– Criminal record history of petitioner
– Age and employment history of petitioner
– Adverse consequences to the petitioner caused by
the record
Exceptions to this general framework:
– Charges that resulted in “not guilty” or “dismissed for
lack of evidence”  should almost always be expunged.
• Commw. v. D.M., 695 A.2d 770 (Pa. 1997)
• Commw. v. Rodland, 871 A.2d 216 (Pa. Super. Ct. 2005)
– Charges associated with a guilty plea: DA has to prove by
“clear and convincing evidence” that the charges were
dropped in exchange for pleading guilty.
• Commw. v. Lutz, 788 A.2d 993 (Pa. Super. Ct. 2001)
Common Objections
• The DAs tend to object if the charges were “serious,”
“recent,” or if there are multiple cases that show a
“pattern of criminal behavior.”
– None of these are legally recognized objections.
• To show a “pattern of behavior” under the case law, the
DA must prevent evidence of a modus operandi.
– See Commw. v. McKee, 516 A.2d 6 (Pa. Super. Ct. 1986).
• If petitioner is on probation or owes court fines and
costs- may complicate case.
After Expungement Is Granted
• Orders are sent to us (and we send to client)
– Expunged information comes out of court system
quickly
• Court sends orders to the PA State Police and
Phila Police who then expunge their records
– Confirmations are sent to us (and we send to client)
– This process can take up to six months or more
Demonstrations
• How to review and download criminal records
online.
• How to draft expungement petitions using the
Expungement Generator
• How to e-file expungements and request
hearing dates.
• For an in-depth demonstration:
– https://www.youtube.com/watch?v=7iT5pXGIOzc