What Happened to Expungement?

Expungement is the term we all use when talking about clearing a criminal record. This makes sense as it was the first word ever used to describe erasing someone’s record, dating back to 1602 when attorney William Fulbecke wrote “these words…were ordered by the Court to be expunged or blotted out.” For centuries expungement actually meant erasing the fact of conviction so that your criminal history would no longer haunt you. Unfortunately throughout Arizona, whether you live in Phoenix or Flagstaff or Tucson, expungement no longer exists. But there is some good news, and it is called the conviction set aside.

So what happened to expungement? Back in the 1970s there was a “get tough on crime” attitude that swept the nation. Laws were then enacted, reflecting this attitude, when the crack epidemic hit. Much to the dismay of criminal defense attorneys harsher sentences were put in place at the federal level, especially for those who had criminal histories. Every single state followed. And then there was a problem. How could you sentence someone to a harsher prison term if they expunged their record (if the fact of their conviction did not exist)? Like dominoes, all 50 states and the federal government’s laws changed so that expungement was no longer an option. Criminal defense attorneys since then have been begging for laws that will allow people to once again move on with their lives.

Fortunately some states did replace expungement with something similar. Here in Arizona, in 1976, our legislature in Phoenix enacted a state wide law that allows for anyone to have their conviction “set aside.” While defense attorneys would like something even stronger, the conviction set aside process is a powerful tool for anyone convicted of almost any crime in Arizona. The process is basic: here at my firm we interview the client and pull their file to get the information we need to write an excellent motion. It is then filed with the court and served on the appropriate parties. In most cases a court hearing is set and we appear at the hearing on your behalf.

If the order is granted your conviction is set aside and you receive a signed order from the court “setting aside the judgment of guilt in the case, vacating the conviction, and entering a finding of not guilty.” It also relieves you of “all penalties and disabilities resulting from the conviction.” What does that actually end up meaning? Well that will be the subject of my next blog, but I can tell you this: having your conviction set aside can only help you.

Author: Bretton Barber

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