By Laurie T. Baulig
According to the U.S. Department of Justice, nearly one in three adult Americans has a criminal record. In Pennsylvania, those records are publicly available and can result in the denial of employment, housing, education and credit. Certain records in Pennsylvania may, however, be permanently removed from public view through a legal process known as "expungement."
In determining which criminal records may be expunged, it is important to distinguish between conviction and non-conviction data. Conviction data consists of charges resulting in guilty verdicts, guilty pleas, and pleas of nolo contendere ("no contest"). Non-conviction data consists of charges that were dismissed, withdrawn, or "nolle prossed," meaning the district attorney declined to prosecute the alleged offense. In Pennsylvania, all non-conviction data is eligible for expungement. Convictions are eligible for expungements if:
• The individual received a pardon from the Governor for that conviction.
• The individual is over 70 and has been arrest-free for last 10 years.
• The individual has been dead for 3 years or more.
Additionally, convictions for lesser crimes, known as "summary offenses" may be expunged if the individual has been arrest and conviction free for a period of at least five years. Summary offenses are neither misdemeanors nor felonies and include, for example, shoplifiting, disorderly conduct, underage drinking, and public drunkenness.
The first step in the expungement process is therefore to determine which records are expungeable and which are not. An individual's criminal records are available on the Unified Judicial System of Pennsylvania Web Portal,. From the home page, click on "Docket Sheets." From the dropdown menu, click on the level of court you wish to search, typically either the magisterial district courts or courts of common pleas. Searching both are recommended. Under "Search Type," enter "Participant Name" and enter the individual's first and last name. Then enter the county where the arrest was made. The results are for that county only. Separate searches are required for each county where the individual was arrested and prosecuted. The results of the Docket search will appear on the left-hand side at the bottom of the screen. Click on the icon on the far left and click on "Docket Sheet" (this is the so-called "rap" sheet).
The Docket Sheet has a section called "Charges." It will list the offenses the defendant was charged with, their grade (for example, "F1" means felony in the first degree; "M2" means misdemeanor in the second degree) and the "disposition" of the charges. As mentioned above, only non-conviction data and summary offenses are eligible for expungement.
Expunging criminal records in Pennsylvania requires the filing of a petition for expungement in the county court where the charges were filed. Forms for the petition, as well as sample court orders, are available on the UJS Webportal (click on "Forms for the Public"). The petition must also include a criminal records history from the Pennsylvania State Police ("PSP") website. There is an $8 fee for ordering the report on-line; the fee is $10 if the request is made by mail. The petition for expungement must be filed within 60 days of receiving the PSP report. A filing fee must accompany the petition. That fee varies by county: in Lancaster County, the fee is $137; in York County the fee is over $200. The fees may be waived if the individual has income below a certain threshhold; typically, if the individual would qualify for legal aid, the waiver will be granted.
The legal standard for granting an expungement petition is that no compelling state interest is served by having the charges remain on the petitioner's criminal history record. The District Attorney's Office must receive a copy of the petition and must sign-off on the expungement before the court can grant the request. While there is no deadline for the D.A.'s Office to act on the petition, it generally takes at least 30 days for the Office to review the petition and report to the court. The court may take up to an additional 30 days to act on the petition. Once the petition is granted, an order is issued requiring the arresting agency to destroy all criminal records, fingerprints, photographic plates and photographs that resulted from the arrest. The order is also sent to the D.A.'s office, PSP, the Federal Bureau of Investigation, and other criminal justice agencies involved in the arrest and prosecution of the petitioner.
While the process for expungement is fairly straightforward, most individuals would benefit from assistance of counsel in reviewing their criminal history information and preparing the petition for expungement, which is essentially a legal document. Fortunately, there are several organizations in Central Pennsylvania that can provide these services, in some cases, pro bono. These include: Mid-Penn Legal Services; the Dauphin County Bar Association; and the York County Bar Association.
Another non-profit that has assisted both individuals and attorneys in the expungement process is the Philadelphia Lawyers for Social Equity, headed by attorney Michael Lee. PLSE conducts expungement clinics around the state to assist individuals and local bar associations in navigating the expungement process. PLSE is also an advocacy organization that is working to expand the types of offenses that may be expunged.
It is estimated that 3.8 million Pennsylvanians have criminal records. For individuals who have been arrested but not convicted of a crime, or those convicted of summary offenses, the expungement process offers a path to removing harmful information from public view. Indeed, expungement is more than a path: it is a legal right that should be accessible to every qualified citizen in the Commonwealth. Fortunately, there are resources in central Pennsylvania to assist in reaching this goal.