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October 14, 2018

"Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement"

In this post last week, I noted a New York Times article headlined "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." A helpful reader made sure I also posted about this article on SSRN with the title of this post authored by Brian Murray. Here is its abstract:

Criminal record history information pejoratively brands those who contact the criminal justice system, whether they were guilty or not.  In theory, the remedy of expungement is designed to mitigate the unanticipated, negative effects of a criminal record.  But the reality is that prosecutors — driven by a set of incentives that are fundamentally antithetical to expungement — control many of the levers that determine who is able to obtain expungement.  The disjunction between the prosecutorial mindset and the minister of justice ideal could not be starker and the consequences can be significant. 

Prosecutors, as agents of the state, can either argue forcefully for the retention or deletion of such information, dramatically affecting the situation of an arrestee or ex-offender given the pervasive web of collateral consequences associated with a criminal record.  This discretion, as it relates to theories of punishment, prosecutorial discretion overall, the ethical responsibilities of prosecutors to do justice, and public policy interests, has been grossly under-analyzed despite the serious implications it has for the prosecutorial role within the criminal justice system and for reentry efforts. 

While many scholars have paid attention to how prosecutorial incentives conflict with the theoretical responsibilities of prosecutors in charging, plea-bargaining, and post-conviction situations involving innocence, none have provided a theoretical framework focused on the role of the prosecutor during expungement.  Many of the complicated incentives that undermine holistic prosecution during those earlier phases exist during the expungement process as well.  But scholarly responses to those incentives are not adequate given the range of considerations during the expungement phase.  As such, this Article argues that scholarly discussions related to prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pre-trial or the questions of factual and legal guilt.

Given that the primary role of the prosecutor is to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of non-conviction and conviction information.  In doing so, it hopes to provide a framework for exercising such discretion, and to initiate additional conversation about the role of prosecutors during the phases following arrest and prosecution.

October 14, 2018 at 11:10 AM | Permalink


Within the last few years, I have seen an interesting local case at the intersection of the law of pardons and the law of expungement. A Kentucky man was convicted of a felony in 1958, but then lived a crime-free life until 1975, when he received a full pardon from then-Kentucky Governor Wendall Ford (who went on to become a U.S. Senator). Despite his pardon, the man could not buy a gun because his 1958 felony conviction remained in the NCIC system, so he could not pass a firearms background check. Unlike more modern pardons, which expressly do not restore the pardonee's gun rights, the 1975 pardon did restore his right to bear arms. Thus, he filed a Petition for Expungement in the Circuit Court of Fayette County. Ray Larson, then the Fayette Commonwealth's Attorney, opposed the expungement, on the grounds that there is no Kentucky law that provides for expungement based upon a pardon! The Circuit Judge ruled in the pardonee's favor, so the Commonwealth's Attorney appealed to the Kentucky Court of Appeals, where he won and the Circuit Court's expungement order was overturned. It seems truly perverse that even where a pardon restored gun rights, as a practical matter the pardonee still can't legally buy a gun because his 1958 felony conviction remains in the NCIC system.

Posted by: Jim Gormley | Oct 14, 2018 3:59:17 PM

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