Unlike most of the states, the federal system does not have a comprehensive set of statutes that allow expungement for arrest and conviction records for various offenses. The federal expungement statute covers only possession of small amounts of certain controlled substances, and even then, expungement is available only to people under 21. (To read more about juvenile and youthful offender expungements, see our article "Expunging or Sealing a Juvenile Court Record.)
However, several federal appellate courts have held that federal judges have the inherent power, aside from any statutory authority, to expunge arrest and even conviction records.
And when expungement isn't an option, dismissal of certain kinds of drug offenses might be a possibility.
The answer depends on where your conviction occurred. Here's how it works: The country is divided geographically into thirteen federal "circuits" that our federal courts are in. (For example, the Second Circuit covers the area of Connecticut, New York, and Vermont.) Some circuits view the law differently than other circuits. So, the law can vary from circuit to circuit, unless the U.S. Supreme Court steps in and resolves the conflict.
Several circuits have ruled that a federal judge's inherent power to "make things right" allows them to consider expunging arrest and even conviction records; other circuits have held the opposite. As it stands now, the U.S. Supreme Court hasn't resolved the issue one way or the other.
So, depending on where you were convicted—in which circuit—you may have a chance of convincing a federal district court judge to expunge an arrest or conviction.
But if your circuit does not think that federal judges have the power to order expungement, the court won't even hear the merits of your case.
Even in federal circuits that recognize a judge's ability to expunge arrest or conviction record, judges do so very, very rarely.
For a record to be expunged, a judge must find that it's in "the interests of justice" to do so. One court has noted that expunging a record should be reserved for "exceptional circumstances," as when mass arrests have made it impossible to determine whether the police followed the law; when arrests were made to harass civil rights workers; when the police misused police records; or when an arrest was proper at the time but based on a law that was later declared unconstitutional. (U.S. v. Schnitzer, 567 F.2d 536 (1977).)
In short, the bar is very high. You'll need to convince the judge that expungement is necessary to preserve your basic legal rights. Expungement may be justified when:
Unfortunately, in most cases, there are no hard and fast rules as to when and how to go about asking for an expungement order. The place to start would be in the district court where the conviction was entered. You could file an application (there's no form) in the clerk's office, or simply write a letter to the judge (or better yet, have a lawyer write it). You'll need all your powers of persuasion to convince a judge that a true miscarriage of justice will occur if you are forced to acknowledge your record to employers, landlords, and others.
As noted above, federal judges rarely expunge convictions, but there's an exception for people under 21 who have been convicted of possessing a small amount of certain kinds of drugs. But people who are 21 or older aren't necessarily out of luck if they have a simple drug possession conviction. They might qualify for the next best thing to expungement—dismissal of the case. Dismissal is not the same as an expungement, but it lets you deny that you have a conviction (more on that below).
(18 U.S.C. § 3607 (2022).)
Dismissal of a drug conviction is limited to first offenders. Generally, you're eligible for dismissal if you were convicted of simple drug possession (not possession for sale), it was your first drug conviction (either under state or federal law), and you've never had a federal drug conviction dismissed in the past.
Assuming those conditions are met, you should be able to get a dismissal when the following has happened:
If this chain of events describes what happened to you, you probably don't have to take any steps to dismiss your record—the judge should have done it already by filing a document called a "Discharge and Dismissal." If this didn't happen, you'll need to take steps to see that it does, and will probably need the help of a lawyer.
Once the "Discharge and Dismissal" is filed, the records of your case should have become a "non-public record." This means that the Department of Justice will keep the record of your case only for the purpose of making sure you can't benefit from a dismissal of this type again.
A dismissal of this nature means that the conviction can't be used to enhance a future sentence. And in most situations, you can deny that you have a conviction for the offense. But keep in mind that this dismissal is not the same as an expungement. Only an expungement can, essentially, erase a conviction.
The Department of Defense collects DNA samples from members of the armed forces who have been convicted of specified offenses (including offenses within the Code of Military Justice that provide for a sentence of more than one year). The DNA is analyzed and indexed. But if the conviction is overturned, the Secretary of Defense must expunge the record from the index. (10 U.S.C. §1565(e) 2022.)
If you think you might qualify for expungement of your federal arrest or conviction record, you will need the help of an experienced criminal defense attorney who regularly practices in the court in which you were convicted. It may be difficult to determine whether the federal court will even hear your request; and even if it will, you will need a thorough and persuasive presentation of your case.
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