Pardons and Expungements

Delaware Expungement Lawyer & Delaware Governor’s Pardon Attorney

Good people sometimes make mistakes and poor decisions that result in a criminal arrest record. It could have been a one-time minor lapse in judgment, a regrettable, emotional response during a dispute, a difficult period in their life, or a serious accusation. Other people have been falsely accused of a crime and the charges are eventually thrown out. No matter what the underlying issue is, people contact us every week to explain that the arrest record is hurting them - they can’t get a job, can’t get into college, can’t coach their children, etc.  They explain that years have passed since the arrest, that they have led a law-abiding life, and they still can’t escape from the consequences of the arrest record.  For many people, now is the time to erase the public record of their criminal arrests and convictions. I have helped more than a thousand people clean up their records, and I have worked with other attorneys, court personnel and legislators to make the expungement process more accessible and more comprehensive. 

There are generally two ways to clean up your criminal record: an expungement and a governor’s pardon.

EXPUNGEMENT

An expunged record is a publicly erased record. If the Petition is granted, the court will order the Delaware State Bureau of Identification, the arresting police department and all associated courts to remove your criminal record from the view of the public, prospective employers, educational facilities, etc. 

"Many individuals wrongly believe that their criminal record is sealed or destroyed over time; nothing could be further from the truth. In today’s day and age of readily available information, a person’s arrest record — even their juvenile record — may be accessed and made public. Some investigating firms make a lot of money researching the court files and downloading vast amounts of information about you and your past mistakes. In addition, employers and educational institutions are now requiring applicants to divulge arrests -- even for cases that were ultimately dismissed. An expungement is an opportunity to protect your privacy and to regain your good name."

A person who’s record has been expunged is legally entitled to report that they have never been arrested or convicted.  It’s important, therefore, that the expungement process is handled correctly, efficiently, and in a timely manner.  

Not all criminal records qualify for an expungement, however. You are not eligible to apply for an expungement if you were convicted of some specific crimes, or  have convictions in multiple cases, or have any pending cases in any Court, or are currently on probation, or have outstanding fines, fees or restitution that have not been converted into a civil judgment.

Recently, Delaware’s Legislature substantially rewrote the laws regarding the expungement of adult arrest and prosecution records. The Adult Expungement Reform Act took effect on December 27, 2019; this new law has greatly expanded the options for expungement, but it’s also very complex.

If you were charged with the commission of one or more a crimes and you were either found ‘not guilty’ following a trial, or a nolle prosequi was entered (i.e., the prosecutor dropped the charges), or the charge(s) were otherwise dismissed by the court, then you will probably want to immediately request an expungement of your police and court records. This is a two-part process: (1) obtain a certified copy of your Delaware criminal record, and (2) apply, if eligible, for an expungement in the appropriate venue. 

There are two categories of expungable arrest records: mandatory and discretionary. For certain case dispositions, the expungement is “mandatory” once you obtain your record and pay a fee to the State Bureau of Identification. If you were arrested for any of the following charges, however, you are not eligible for a “mandatory” expungement, even if the prosecution was subsequently terminated in your favor (i.e., case dismissed, not guilty, etc.): any felony, any misdemeanor sex offense, a domestic violence offense or an offense against a child or vulnerable adult, or about 25 other misdemeanors dealing with public trust, safety and decency issues. In these cases, you’ll need to apply for a more involved and formal “discretionary” expungement process: you’ll be required to pay a filing fee with the appropriate court, serve notice to the court and to the Attorney General, and prepare and file a detailed application/petition. Some expungement matters may require a hearing, but a hearing is not required in all cases. The burden will be on the applicant/petitioner to prove that the continued existence and possible dissemination of information relating to their arrest constitutes “a manifest injustice.” If a person has a previous conviction on their record, then their expungement request will most likely be denied.

Previously, if a person had a criminal conviction, they could not apply for an expungement until after they were “pardoned” by the Governor. Also, prior to the new legislation, no one with a felony conviction could ever apply for an expungement, even if that person received an unconditional Governor’s Pardon. Under the new expungement law, however, if a person was convicted of some low level criminal offenses in a single case and, if a specified time has passed, they may now apply for an expungement without going through the more expensive and time-consuming process of a Governor’s Pardon. Additionally, most felony convictions are now eligible for expungement following an unconditional Governor’s Pardon.

GOVERNOR’S PARDON

An individual may apply for a Governor’s pardon if they have been convicted of a criminal offense as an adult. If you were found guilty or pled guilty or ‘no contest’ to anything other than a traffic violation, then you were convicted of a criminal offense.

 A Governor’s pardon is an act of executive grace, which completely eliminates all consequences of a conviction but does not, in and of itself, remove the record of the conviction. For example, if you were convicted of a felony and the charge was unconditionally pardoned, you could once again vote or possess a weapon; if you were on the sex offender registry and the charge was unconditionally pardoned, you would be relieved of the obligation to register and your name would be removed from the registry. However, a pardon does not remove the historical fact of the conviction from the state’s official arrest and conviction records; it simply adds to the record that a pardon has been granted. When an individual is asked whether they have ever been convicted of a criminal offense, they must answer “yes”, but they may explain that they were granted a pardon.

EXPUNGEMENT FOLLOWING A GOVERNOR’S PARDON

Under the Adult Expungement Reform Act, if a person was convicted of a one or more criminal offenses, including most felony offenses, and is, thereafter, unconditionally pardoned by the Governor, then they may apply to the Court for a discretionary expungement of their arrest and prior conviction records. Some violent convictions are specifically exempted from the expungement process, regardless of whether the person is pardoned by the Governor. The law places a heavy burden on the petitioner, however, to prove that the continued existence of a criminal record constitutes a “manifest injustice.”

JUVENILES AND THE SEX OFFENDER REGISTRY

In a May 27, 2009 Delaware Supreme Court decision, Delaware v. Fletcher, the Court substantially opened opportunities for juveniles convicted of sex offenses.  Now, when a juvenile’s record is expunged, all indicia of the arrest, including placement on the Sex Offender Registry if the underlying adjudication was a sex offense, are removed from the record.  It is now clear, absent some subsequent legislation, that, when a juvenile’s record is expunged, his or her Sex Offender status will be removed.  When presenting a petition for an expungement of a juvenile’s Sex Offender adjudication, it will be important to establish the following:  (1) that the juvenile successfully completed probation, (2) that the juvenile successfully completed counseling (it will be important to record this in some form or fashion), (3) that the juvenile has not been subsequently arrested, (4) that the juvenile has suffered actual prejudice as a result of the adjudication (loss of job or educational opportunities; alienation, humiliation, retaliation and/or vigilantism from classmates, peers, neighbors, etc.), and (5) establish a need for the expungement so that the child can reinitiate his life without the burdens of the Sex Offender Registry.  As in most cases, it will be helpful to document (with the assistance of appropriate mental health experts) that the offenses were the result of “juvenile sexual immaturity” or “inappropriate sexual exploration,” as opposed to any predatorial type of conduct. 

If you or someone you know is seeking to expunge a criminal record or to seek a governor’s pardon, call Delaware Expungement Attorney John Deckers at (302) 656-9850 for a consultation.