FAQ: Colorado Criminal Law – The Federal Expungement and Sealing Law

Incredible as it may sound, there is NO inherent expungement authority in the Federal Law – no general federal expungement statute, and federal courts have no inherent authority to expunge records of a valid federal conviction.

However, some courts have held that federal courts have inherent ancillary authority to expunge criminal records where an arrest or conviction is found to be invalid or a clerical error is made.

The One Exception: Federal Misdemeanor Marijuana Possession:

Congress has provided that where a person with no prior drug conviction is found guilty of misdemeanor marijuana possession under 21 U.S.C. § 844, courts may impose probation before entry of judgment, and subsequently dismiss the case without entry of judgment and no conviction resulting.

18 U.S.C. § 3607(c). Expungement of all records is available if the defendant was less than 21 years of age at the time of offense.

The effect of expungement under § 3607 is explained as follows:

“The expungement order shall direct that there be expunged from all official records, except the nonpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, and the results thereof.

The effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings. A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him or any purpose.”

18 U.S.C. § 3607(c). (Before its 1984 amendment, § 844(b) itself permitted expungement for misdemeanor marijuana possession. See § 219(a), Pub. L. 98-473, 98 Stat. 1837.)