Understanding Criminal Record Clearance Laws
From sealing to clean slate laws, learn which states have laws that enable automatic criminal record clearance.
At the end of 2022, President Biden granted mass pardons for all prior federal simple cannabis possession offenses and urged governors to follow in his footsteps by pardoning state simple cannabis possession offenses. While this proclamation doesn’t expunge records or release those who are incarcerated for state offenses, it is one of many federal and state actions that support a growing trend to help eliminate barriers to employment for the 79 million US adults with criminal records.
Even after completing their sentence or demonstrating evidence of rehabilitation, individuals with a criminal record often face collateral consequences—restrictions that limit or prohibit them from gaining employment, obtaining occupational licenses, and more. According to The Court Statistics Project, “more than 40,000 collateral consequences exist across the United States in the form of laws, ordinances, and organizational rules, policies, and procedures.” People of color are disproportionately affected by these barriers.
2024
State of Screening Compliance
A new survey report highlights seven key insights into how organizations are managing background check compliance.
The second chance gap
Many states have “second chance” or “second look” laws allowing people with criminal histories to clear their records based on certain qualifications. However, there’s a significant gap between opportunity and ability. Petitioning to have one’s arrest or conviction record expunged can be complicated, time-consuming, and costly– and often requires legal assistance. As a result, fewer than 10% of Americans eligible for record clearance succeed in clearing their record.
The federal government and a growing number of states are showing support for closing this second chance gap. Programs and legislation designed to automate record clearance help bypass the complexities of petition-based clearing. The Second Chance Act, passed by Congress in 2008, authorizes federal grants for programs and systems to improve the reentry process, reduce recidivism, and support those returning from state and federal prisons, local jails, and juvenile facilities. Additionally, eight states have passed clean slate laws that require courts to automate the process of expunging eligible criminal records. Automatic expungement is one of four ways that enable justice impacted individuals to move beyond the barriers to opportunity.
Types of criminal record clearance
- Sealing: Sealed records remain in a person’s criminal history but can no longer be viewed by the public.
- Set-aside: Also known as vacating the sentence, a set-aside annuls, or dismisses, a previous judgment. Although the record may still exist, it will no longer have a conviction disposition. Oftentimes these can still be seen.
- Expungement: Expungement wipes the slate clean by removing a record from the person’s criminal history as if it never existed. Typically, people must petition the court to have their records expunged, although automatic expungement is available in some states. Most federal crimes can’t be expunged.
- Pardon: A pardon exempts an individual from the legal consequences of a conviction for a crime. Pardons for federal crimes can only be granted by the President. Pardons for state crimes are generally granted by governors or by state “pardon boards.” Rules regarding pardons vary from state to state but in general, a pardon doesn’t seal or expunge a criminal record.
Record clearance and background checks
Criminal record clearance may affect the results of a criminal background check. For example, sealed cases can’t be reported in most pre-employment background checks, and records that once appeared in a screening report may no longer be reportable due to expungement (or sealing). Since many court records are not digitized, or may not be updated in real-time, there could be a time lag between when a record is approved for removal and when its status is updated and reflected accurately in a background check.
It is important for employers to follow fair hiring practices to reduce unconscious bias and expand their hiring pool. Whether employers search records directly or partner with a consumer reporting agency (CRA), you are ultimately responsible for following the federal Fair Credit Reporting Act (FCRA) and any state or local regulations, such as Ban the Box laws, which govern the use of criminal records in employment background checks.
Record clearance laws by state
In total, 25 states have some form of automatic record clearing, including laws permitting expungements of dismissed records, arrests and non-convictions, juvenile records, or marijuana-related offenses.
Automatic expungement
The following 8 states have “clean slate” laws requiring automatic record clearance:
| State | Legislation |
|---|---|
| Colorado | Beginning in July 2025, most convictions will be automatically sealed after four years for civil infractions, seven years for petty misdemeanors, and 10 years for eligible felonies. Eligible non-conviction records will be sealed immediately. |
| Connecticut | All police and court records are automatically erased (i.e. expunged) in criminal cases where the individual is found not guilty, or where charges are dismissed or dropped or the case was put on hold and 13 months have passed. Effective January 1, 2023, misdemeanors and certain felonies will be erased automatically after a waiting period of seven or 10 years after conviction. |
| Delaware | Effective January 1, 2023, misdemeanors and certain felonies will be automatically expunged. |
| Michigan | Beginning in April 2023, up to two qualifying felony convictions will automatically be expunged 10 years after sentencing or 10 years after release from custody, whichever is later. Up to four qualifying misdemeanors will automatically be expunged seven years after sentencing. |
| New Jersey | The state is developing an automated system that will remove eligible offenses by “sealing, expunging, or some equivalent process.” An e-filing system is being used in the interim. A 2021 amendment to the law automatically seals records for certain marijuana offenses, and automatically expunges or vacates the remaining sentences for certain marijuana offenses prior to February 22, 2021. |
| Oklahoma | Records are automatically expunged for first-time drug offenders who receive deferred sentencing and probation. |
| Pennsylvania | Non-convictions are eligible for automatic sealing with no waiting period. Third- and second-degree misdemeanor convictions, first-degree misdemeanor convictions with a sentence of two years or less in prison, and summary convictions are eligible for automatic sealing. |
| Utah | Certain infraction and misdemeanor records are automatically expunged, as are acquittals, dismissals with prejudice, and certain dismissals due to a plea in abeyance. |
Automatic record sealing
Two California state laws affecting record clearance were recently passed:
- Senate Bill 731, which takes effect July 1, 2023, will auto-seal most records four years after the last case activity (such as completing parole or completing a sentence) if the person isn’t convicted of another felony during that time. Offenses resulting in sex offender registration or certain violent crimes will not be auto-sealed. The bill also expands eligibility for petition-based relief, allowing anyone convicted of a felony on or after January 1, 2021, to petition for relief two years after completing their sentence (registered sex offenders are not eligible).
- Assembly Bill 1706, which takes effect March 1, 2023, requires California’s Department of Justice and courts to work together to seal records related to marijuana possession. Previously, sealing of such records was at the discretion of the courts.
Additionally, eligible convictions that occurred on or after January 1, 2021, and eligible non-convictions occurring after January 1, 2022, are automatically sealed in California.
At Checkr, we understand that even minor offenses can present barriers to employment. Our expungement service helps candidates in California to expunge eligible records, without the complexities and high fees involved in filing court petitions.
These 10 states also offer some type of automatic record sealing:
| State | Legislation |
|---|---|
| Arizona | Effective December 31, 2022, misdemeanors and all but violent and sexual felonies may be sealed after waiting from two to 10 years after completion of sentence and payment of court debt. House Bill 2067 allows individuals to seek a set-aside for certain felony and misdemeanor convictions. Courts order a “Certificate of Second Chance” for individuals to support second chances for employment opportunities, occupational licenses, and housing. |
| Montana | Youth court and probation records are automatically sealed upon reaching majority. |
| Nevada | Juvenile records for most offenses are automatically sealed when the individual turns 18. |
| New York | Records are automatically sealed in deferred adjudication drug cases and in delinquency proceedings resolved in the defendant’s favor. Non-convictions are automatically sealed upon termination of the action in favor of the individual (including deferred adjudication). |
| Rhode Island | Juvenile records are automatically sealed upon final disposition, with limited exceptions. |
| South Dakota | Arrests and convictions for Class 2 misdemeanors, municipal violations, and petty offenses are automatically expunged from public record after five years if all court-ordered conditions have been satisfied and the defendant has not been convicted of any further offenses. |
| Texas | Misdemeanor juvenile adjudications are automatically sealed at age 19. For some nonviolent misdemeanors, an Order of Non-Disclosure (OND) is automatically entered once the person is placed on deferred adjudication community supervision. Veterans who successfully complete a reemployment program are also eligible for automatic OND. |
| Virginia | Effective, July 1, 2025, non-convictions, many misdemeanor convictions, and some felony convictions will be eligible for sealing. A variety of these records will be automatically sealed instead of going through the typical court process. |
| Washington | Juvenile records are automatically sealed when the individual turns 18 (or upon release from confinement or supervision) for most offenses if the terms of disposition are satisfied. |
| West Virginia | Juvenile records are automatically sealed when the individual turns 19 or one year after termination of jurisdiction (whichever is later) unless the case is transferred to adult court. |
How employers can support fair chance hiring
Clean slate laws are a step in the right direction to help justice-impacted individuals with employment opportunities and upward mobility, but employers and candidates also have roles to play in helping to level the playing field.
As an employer, you can start by implementing fair chance hiring practices. Consider reviewing your company hiring policies, including your background screening process, and make changes where necessary to help ensure inclusion of all qualified candidates and alignment with Equal Opportunity Employment Commission (EEOC) guidance about the consideration of arrest and convictions records during the hiring process. You may also work with a sourcing partner to recruit qualified fair chance candidates, while providing additional training and support to help these new hires succeed.
A candidate whose background check report includes criminal records can use our Candidate Stories tool which makes it easy for candidates to provide additional context around their records and the efforts they’ve made to improve themselves. Candidate Stories help employers support fair chance hiring by empowering candidates to have a voice in the hiring process.
Building a fairer future
The growing trend toward criminal record clearance can make background check compliance challenging for any HR team. Partnering with a trusted CRA, like Checkr, can help simplify compliance no matter your location. At Checkr, we believe everyone deserves a fair chance at employment. Through built-in tools to deliver accurate screening results and automated workflows for bias-free filtering and adjudication, we can help build a fairer future for all Americans.
2024
State of Screening Compliance
A new survey report highlights seven key insights into how organizations are managing background check compliance.
Disclaimer
Nothing in Checkr’s Blog should be construed as legal advice, guidance, or counsel. Companies should consult their own legal counsel about their compliance responsibilities under the FCRA and applicable state and local laws. Checkr expressly disclaims any warranties or responsibility or damages associated with or arising out of information provided.