“I want to expunge my record”

One of the most common inquiries I receive is from people looking to “expunge” their criminal record.  This most commonly comes to the forefront of someone’s mind when going through the process of applying for a job.  The employer may ask for a list of criminal convictions, or indicate that they are going to conduct a background check as part of the hiring process.  Understandably, those who have made significant life changes in an effort to better themselves are eager to put an end to the oftentimes debiliating consequences that stem from decisions they may have made years ago at a different point of their life.

Nebraska law does provide for some relief in this context.  However, this is an area fraught with confusion both among the general public and even many attorneys who practice in the area.  First, it is helpful to provide some context with regard to the applicable terminology and how statutory language differs from the more common phrases used among the public.

Expungement:  While the phrase “expunge” or “expungement” is generally what people are referring to when requesting that criminal records be made unavailable for access, Nebraska law (Neb. Rev. Stat. 29-3523) uses the term only in relation to the sealing of arrest or court records in circumstances where a person was either acquitted of the crime for which they were arrested, or were ultimately not convicted because of satisfactory participation in a diversion or drug court program.  Legislative changes in 2016, originating from draft legislation prepared by myself, in consultation with the Nebraska Criminal Defense Attorneys Association, have made it possible for those arrested but not ultimately convicted of a crime to completely seal–or “expunge”–all records stemming from the arrest.  This happens automatically through the court system and has brought about meaningful relief for many Nebraskans.

While Nebraska law has recently improved so as to help those arrested, but not convicted, of criminal offenses to avoid the associated stigma, the unfortunate reality is that there is currently no mechanism to seal or “expunge” a prior conviction.  That said, those convicted of criminal offenses do have some ability to obtain relief on account of criminal offenses, albeit too often inconsequential and incomplete.

Set Asides: Under Neb. Rev. Stat. 29-2264, if a person convicted of a crime was sentenced to either a period of probation or a fine only, then that person is potentially eligible to have the conviction “set aside.”  There is no designated period one must wait before being eligible for a set aside other than they must have completed the term of probation and/or paid the imposed fine.

Under 29-2264, if the court is convinced that a person previously convicted of a crime has rehabilitated himself to a sufficient degree, then the court may issue an order “setting aside” the conviction.  While, in theory, this sounds like significant relief, there are two major caveats that are important for people to understand.  First, even if the court issues an order setting aside a criminal conviction, such an order does not result in the sealing of arrest or court records.  As a result, evidence of the case will still show up on most routine background checks conducted by potential employers.  Second, an order setting aside a criminal conviction does not restore one’s ability to own or possess firearms if previously prohibited on account of a felony or domestic violence-related offense.  See State v. Illig, 237 Neb. 598 (1991).  Rather, in order to restore one’s right to own or possess a firearm, that person must obtain a full pardon from the Nebraska Board of Pardons.

Pardons: The Nebraska Constitution provides for the establishment of a Board of Pardons, consisting of the Governor, Nebraska Attorney General, and Nebraska Secretary of State, to grant pardons or commutations for prior offenses.  This is a rather complicated and lengthy process that is wholly separate and apart from the court system.  As previously noted, this is currently the only mechanism under Nebraska law where one may have firearm rights restored.    However, those seeking pardons should know that the same concerns noted in relation to set asides also apply to pardons in that, even in the event that a pardon is granted, the underlying arrest and court records are not sealed and remain visible to the general public.

Conclusion:  If you are seeking relief from the collatoral consequences of a prior criminal conviction, Nebraska law provides rather limited and oftentimes ineffectual measures.  Many states from throughout the country have enacted much more thorough and comprehensive statutes allowing for the sealing of arrest and court records for those who have demonstrated law-abiding conduct for a period of time after the conviction.  This not only encourages good behavior even in the absence of direct court or probation oversight, it is consistent with society’s interest in promoting employment and appropriate life decisions.  On the other hand, when people in seek of legitimate employment are met with resistance due to background checks that disclose prior convictions from a fundamentally different time in one’s life, we are directly undermining our societal goal of rehabilitation and redemption.  It is my hope that the Nebraska legislature will take consider measures taken by many other states and implement legislation providing for more thorough and comprehensive relief for those previously convicted of crimes.