Fractured Justice: No Expungement for Exonerees

By Brandon Haubert

Expungement is the legal process by which a citizen can clear his or her record of a prior criminal conviction and start fresh. In Arkansas, when an individual’s record is expunged, the “conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred, and that no such records exist.”[i] Expungement allows a person to tell an employer that he or she has not been convicted of a crime; to become eligible for student loans, housing assistance, professional licenses and certificates; to secure credit; and to stop the embarrassment and fear that would otherwise be associated with background checks.

In Arkansas, expungement is a statutory right granted by the legislature. Apart from statutes that specifically provide for expungement, the courts have no power to expunge an individual’s record.[ii] The Arkansas legislature has provided a number of instances where individuals can get their records expunged pursuant to a specific statute. The following is a short explanation of some of the charges and convictions that can be expunged in this state.

Misdemeanors can be expunged when an individual has completed the actions required by the court.[iii] Misdemeanor such as negligent homicide, battery in the third degree, indecent exposure, public sexual indecency, sexual assault in the fourth degree, domestic battering in the third degree, or driving while intoxicated, require an individual to wait until five years have passed since the conviction to seek expungement.[iv] If, for any criminal offense, the charges are subsequently deemed nolle prossed (dismissed), or the individual is acquitted at trial, a person is then eligible to have records relating to the case expunged.[v] Individuals who plead guilty, nolo contendere, or are found guilty of possession of a controlled substance can have their conviction expunged if the individual has never before pleaded guilty nor been convicted of possession of a controlled substance.[vi]

Expungement is also permitted when an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, and the individual has not been previously convicted of a felony. Expungement, however, is only permitted under these circumstances if the defendant is placed on probation for a period of not less than one year and has not been fined in excess of $3,500.00. An individual who is a habitual offender, has committed a serious felony involving violence, or is found guilty of or pleads guilty or nolo contendere to a sexual offense, incest, or child pornography shall not be eligible for expungement.[vii]

Arkansas does not, however, provide a method by which exonerees may have their records expunged. An exoneree is person who has been legally found wrongfully convicted. Astonishingly, most states refuse to expunge the criminal records of exonerees. Employers often decline jobs to exonerees because of their prior convictions, even once the circumstances are explained. The State of Arkansas allows people who have pleaded guilty to a crime to be eligible for expungement; however, a person whom the State has recognized was wrongfully convicted has no opportunity for expungement. The purpose behind legislatively-provided methods of expungement is to provide a party with a fresh start, without the encumbrances and hindrances of a criminal record. Where an individual has suffered the constraints of wrongful imprisonment, the legislature should provide a method by which the exoneree can free himself or herself from the stigma of a wrongful conviction.[viii]

Arkansas needs to remedy this injustice by providing a means for exonerees to have their criminal records expunged.  In doing so, Arkansas will act as an example to other states regarding the appropriate way to treat those whom our justice system has failed.