Category Archives: Expungement

A Summary of Tennessee’s Expungement Law

By Daniel A. Horwitz:

*Note: This is a free informational resource about expungement law in Tennessee.  It is not intended to be construed as legal advice.  If you are seeking to hire an attorney to expunge your record for you, you can click here instead.*

The most common legal question I receive has nothing to do with constitutional law, appellate litigation, or other staples of my standard law practice.  Instead, on an almost daily basis, somebody wants to know whether they—or their son, daughter, husband, wife, mother, father, brother, or sister—can get their criminal record expunged.

Usually, the reason for the inquiry is that someone is having trouble getting a job, renting an apartment, or is experiencing some other collateral consequence of their public criminal record.  It’s a huge problem in Nashville, because criminal records are unusually accessible via this public search tool.  After I filed this case back in 2015, the number of inquiries that I received about expungement eligibility was so large that I created a free FAQ on expungement law in an attempt to provide some much-needed public information on the issue.  Unsurprisingly, it hasn’t been enough.

Because the criminal justice system has metastasized to the point where it is the default tool that society uses to address even the most harmless wrongdoing, between 2000 and 2012, more than 128,000 people in Nashville alone—representing roughly a quarter of the city—acquired 350,000 separate criminal records for charges that were ultimately dismissed outright.  In a sensible world, the magnitude of that figure would be staggering.  As far as the American criminal justice system is concerned, though, it’s fairly standard.  Across the United States, approximately 70 million adults have a criminal record of some kind, meaning that roughly a third of our eligible workforce is bogged down by a prior interaction with law enforcement.

Fortunately, Tennessee is better than many other states in enabling people to expunge their criminal records and move on with their lives, especially when it comes to dismissed and non-violent offenses.  Recent changes to Tennessee’s expungement statute have also expanded the number of people who are able to take advantage of the many benefits that expungement offers.  Accordingly, this post is intended to be a current—but non-exhaustive—summary of the most common scenarios in which a person is eligible to have their criminal record expunged in Tennessee.  It is not, however, intended to be a substitute for case-specific legal advice.  If you are looking to hire a professional to evaluate your expungement eligibility or expunge your record for you, then you should contact a lawyer who provides the service.  The attorney who represented you after your arrest may handle it for you for free.  Other attorneys may quote you a small fortune to handle your expungement.  For my part, I charge $100 to conduct expungement eligibility evaluations in Nashville and between $100 and $350 per charge to prepare and file your paperwork, depending on the type of charge at issue.  As always, if you are able to do so, hiring an attorney is a better idea than attempting to practice law yourself.

With that disclaimer in mind, here are the four most common scenarios in which a person will be able to expunge their record in Tennessee—a formal process that has the legal effect of “restor[ing] the person to the position he or she occupied prior to the arrest or charge.”[1]

1.  Dismissed and Retired Charges:  Far and away the most common charges that are eligible to be expunged under Tennessee law are those that were either dismissed or retired.  Any other charge that did not result in a conviction—such as a nolle prosequi or a not guilty verdict—is eligible to be expunged as well.  Tennessee law also provides that such charges are eligible to be expunged without payment of an expungement fee.  If you were assessed court costs, however, then those costs must be paid or waived by a judge before the charge can be expunged.

2.  Diversions:  Tennessee law has various forms of diversion.  As a general rule, though, if you successfully completed a pretrial diversion program or a judicial diversion program, then you will be eligible to have your record expunged.  There is, however, a $450.00 fee to expunge charges that were resolved via a diversion program.

3.  Non-Violent Convictions:  Many non-violent convictions are eligible to be expunged under Tennessee law.  As long as you have no more than two non-violent convictions on your record (excluding traffic offenses, like driving on a suspended license), your non-violent conviction is probably eligible to be expunged five years after your sentence expired.

If you were convicted of a felony, then you may be eligible for expungement if your charge appears on this list.  Alternatively, if you were convicted of a misdemeanor, then you may be eligible for expungement if your charge does not appear on this list.  Notably, despite a lot of advertising from DUI lawyers intimating that DUI charges will stay on your record forever if you don’t hire them to acquit you, DUI charges that were pleaded down to the reduced charge of either Reckless Driving or Reckless Endangerment are eligible to be expunged.  There is also a mandatory $280.00 fee to expunge convictions in Tennessee, which will have to be paid in addition to any outstanding court costs before your charge can be expunged.

Where convictions are concerned, however, there are both exceptions and grey areas.  For example, a person who has three total convictions for simple possession of marijuana can sometimes get all three convictions expunged due to a drafting error in Tennessee’s expungement statute.  Conversely, people who are otherwise eligible to expunge a conviction may be denied an expungement if the District Attorney opposes it.  If you are wondering whether your situation falls within a potential exception, then you should contact an attorney to evaluate your eligibility for you.

4.  “Partial” Expungements:  In many cases, a person is charged with several offenses in the same indictment, but has one or more charges dismissed at the end of the case.  Under these circumstances, a person can have any charge in their indictment for which they were not convicted expunged from electronic databases.  This is known as a “partial” expungement, and the electronic version of it is new.

For most people, expungement is a valuable and important tool, because a person’s criminal record is no longer accessible to prospective employers, and “persons whose records have been expunged may properly decline to reveal or acknowledge the existence of the charge.”[2]  For some people, however, expungement may be harmful, or may require additional precautions like certification of a person’s expungement order.  Thus, there is no substitute for contacting a licensed attorney to discuss your own individual situation with you.  If you are seeking to hire an attorney to expunge your record for you, you are welcome to click here instead.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

[1] Miller v. Tennessee Bd. of Nursing, 256 S.W.3d 225, 231 (Tenn. Ct. App. 2007).

[2] Pizzillo v. Pizzillo, 884 S.W.2d 749, 754 (Tenn. Ct. App. 1994).

New Law Reduces Tennessee’s Expungement Fee for Convictions from $450 to $280

By Daniel Horwitz:

A new law that reduces the total cost of expunging a conviction from $450 to $280 was officially signed by Governor Haslam on May 25, 2017.  The new law, sponsored by Representative Raumesh Akbari (D-Memphis) and Senator Mark Norris (R-Collierville), takes effect immediately.

Until yesterday, Tennessee had the third-highest expungement fee in the entire country.  Regrettably, even if a person is indigent, Tennessee also does not allow expungement fees to be waived—meaning that expungement still remains out of reach for many of the people who need it most.  However, reducing the total cost of expunging a conviction by nearly 40% will significantly improve access to expungement for those who are eligible to have their charges cleared.  As a result, this reform should be universally applauded.

In Tennessee, people whose charges were dismissed are eligible to have their records expunged for free.  However, only some convictions are eligible to be expunged.  If a person was convicted of a felony, then the person may be eligible for expungement if their charge appears on this list.  If a person was convicted of a misdemeanor, then the person may be eligible for expungement if their charge does not appear on this list.  Based on a new law enacted on May 5, 2017, some people with exactly two eligible convictions can now get both of their charges expunged as well.  Additional details on that new “double expungement” law are available here.

If you think you may be eligible to have your record expunged and want to hire an attorney to file your paperwork for you, please click here.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

Slate: An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of “Homosexual Acts”

By Mark Joseph Stern, for Slate:

Nashville attorney Daniel Horwitz was helping a man expunge his criminal record when he discovered something unexpected: a conviction for violating Tennessee’s Homosexual Practices Act—from 1995.

“Subject was engaged in sexual intercourse with another male subject,” the misdemeanor citation reads. The charge could have landed the defendant—whom I’ll call John Doe—in jail. Instead, Doe took a plea deal and avoided jail time by admitting that he had, indeed, had sex with a man, a practice forbidden by the law. Horwitz told me he was “aghast” to see the charge.

Continue reading Slate: An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of “Homosexual Acts”

AGREEMENT REACHED IN MASS EXPUNGEMENT LAWSUIT

Nashville citizens win the right to file expungement petitions offsite.

More than 128,000 Nashville residents stand to benefit from an agreement reached late Wednesday afternoon in a lawsuit that sought to help citizens who were arrested but never convicted of a crime clear their names.  The lawsuit aimed to ease filing requirements for criminal record expungement, which is a legal process that results in a person’s public criminal records being removed and destroyed.

Among other things, the expungement process allows people who have been wrongfully arrested to avoid being subjected to legalized discrimination in employment, housing, and educational opportunities.  “Consequences for criminal activity should be reserved for those who are guilty,” Davidson County District Attorney General Glenn Funk has explained.  Once an expungement petition has been processed, expunged records no longer appear on a public background check.

Currently, Tennessee law provides that anyone who has been arrested for a crime but never found guilty of it is eligible to have his or her arrest records expunged free of charge.  However, a persistent problem for many poor people who are eligible for expungement is that they are physically required to come down to the clerk’s office and file the necessary paperwork in person.  Unfortunately, for those who lack access to transportation, who can’t afford to take a day off of work, or who live out of town, this requirement has effectively become an insurmountable burden.  For example, in just a single court in Nashville in a single decade alone, more than 128,000 people with a combined 350,000 separate case records that were either dismissed or never prosecuted in the first place have not had their statutory right to expungement vindicated.

In September 2015, attorneys Daniel Horwitz and James Danly filed a lawsuit on behalf of three petitioners seeking to ease requirements for filing expungement petitions.  Among their demands was that eligible individuals be permitted to file expungement petitions by mail, rather than having to do so in person.

On Wednesday, attorneys representing state and local government agencies agreed to allow this reform to be implemented.  “This common sense reform will finally allow thousands of innocent people to access a legal right that has remained frustratingly out of reach for those without means,” said Horwitz.  Once Wednesday’s reform takes effect, eligible individuals will be permitted to file for expungement by mailing a notarized expungement petition to the Davidson County Criminal Court Clerk.

The reform also comes shortly after two bills modeled after the petitioners’ lawsuit that would expand access to the expungement process statewide were introduced in the state legislature.  The first bill, sponsored by Senator Steve Dickerson (R-Nashville) and Representative Harold Love (D-Nashville), would require courts to order that all dismissed case records be expunged “without further action by the person charged” within two years of the date of dismissal.  The second bill, sponsored by Senator Sara Kyle (D-Memphis) and Representative Jason Powell (D-Nashville), would further ease filing requirements by permitting eligible individuals to file expungement petitions online.

“Our efforts to ensure that poor Tennesseans enjoy meaningful access to the expungement process took a very important step forward today,” said Horwitz.   “We’re extremely encouraged by the overwhelming, bipartisan support for reform that this lawsuit has generated, and we’ll continue fighting to ensure that the expungement process becomes accessible to the hundreds of thousands of people who have previously been allowed to fall through its cracks.”

Additional information about the expungement process can be found at: www.ExpungementNashville.com

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

Officials, Organizations, Community Activists Proclaim Support for Mass Expungement Effort

Following last week’s historic filing of a proposed order – joined by District Attorney General Glenn Funk and Davidson County Criminal Court Clerk Howard Gentry – to expunge 350,000 dismissed case records involving 128,000 separate individuals, the following officials, organizations and community activists across Nashville have proclaimed their support for the effort.  Many more are expected to announce their support in the coming days and weeks.

Mayor-Elect Megan Barry:  “No individual should be unfairly penalized simply because they didn’t have the time, resources, or understanding of the law to have a charge expunged from their record.  I look forward to working with our criminal justice community to ensure this mass expungement program is implemented as efficiently and effectively as possible.”

State Senator Steve Dickerson (R-Nashville):  “Efforts like this help Tennesseans who want to buy a house, get a job or just get on with their lives. We all benefit when impediments to the American Dream are removed.”

State Representative Harold M. Love Jr. (D-Nashville):  “Our society gains a direct benefit when people are given a chance to improve their lives.  This is one such opportunity and I am glad to lend my support to the effort.”

Attorney David Raybin, Hollins, Raybin & Weissman, P.C.:  “Every week citizens call me to help with expungements because of the horrible effect some ancient arrest has on their life.  This Class action will help thousands of citizens.  I applaud the joint efforts of the court, the clerk’s office, the prosecutor and the private bar in making this a reality.”

 State Representative John Ray Clemmons (D-Nashville):  “Justice demands this momentous undertaking that will remove an undue stain on individuals’ records and help ensure their equal opportunity for employment.”

The Board of Directors of the Martha O’Bryan Center:  “The Martha O’Bryan Center joins in support of the recent class action suit which seeks to expedite without fees or charges the expungement process in Davidson County.  As an anti-poverty social services and education non-profit, we have seen many times when an arrest or charge, with no conviction, has prevented or compromised a citizen’s ability to gain employment.  This is a policy change that will positivity impact employability, housing availability, and improved HR practices in our city.”

A Voice for the Reduction of Poverty:  “We support the class action suit filed to automate and simplify  the expungement process in Davidson County.  We applaud and join in approval with Davidson County District Attorney, Glenn Funk and the Clerk of Courts, Howard Gentry, of this effort to make our county and court system more fair and equitable to all people regardless of economic status.”

District Attorney Glenn Funk:  “Consequences for criminal activity should be reserved for those who are guilty.”

Metro Council Member At-Large Erica Gilmore:  “​This will help put many Nashvillians back to work, add greatly to our economy and restore dignity to many who were hanging in the balance.  ​I wholeheartedly support this effort.”

Metro Council Member Fabian Bedne:  “When a system has such a huge number of people caught in the backlog, it’s time to re-examine the system.  People who have not yet had their records expunged can’t fully contribute to society.  Additionally, at a time when Nashville is enjoying unprecedented growth, we need to do what we can to maintain high levels of employment in order to lower costs and tame inflation.  This is the right thing to do from both a human and a business perspective.”

Metro Council Member Freddie O’Connell:  “This is a perfect example of a situation where what seems like a simple bureaucratic measure can have a lasting negative impact on the life of someone who has had an encounter with the justice system.  The impact of this simple effort should offer some additional procedural justice to a number of Nashvillians, and I’m glad to see it being supported by the administrators of our justice system.”

Jonathan Adair, Community & Civic Engagement Chair, Urban League Young Professionals of Middle Tennessee:  “Not only are so many unaware of expungement of dismissed criminal charges as a fundamental right, the inadvertent cost and time of the expungement process is an injustice to citizens everywhere.  For years, dismissed criminal charges and failed convictions have prevented individual progress while the criminal justice system blatantly neglects to acknowledge such a right.”

Judge Carol Soloman:  “Access to Justice is denied to an entire group of people when the process of getting a DISMISSED criminal charge removed from their record is so complicated and expensive that it’s out of their reach.”

Bettie Kirkland, Executive Director, Project Return:  “We at Project Return applaud the class action approach to expungements.  Every day, people are walking out of prison and returning to our community, and their successful reentry is important to all of us.  They face many challenges, as they strive, against the odds, to gain employment and housing.  Even though they’ve done their time and paid their debt to society, the records of their criminal history make this quest for a job and a place to live extremely difficult.  To chip away at these challenges by bringing Tennessee’s expungement law to bear is a benefit to them, and to all of us.  Every properly expungeable charge that can be taken off of a person’s record, the better off that person is as he or she strives to begin again.”

John Little III, Managing Partner, Strategy Redefined:  “This will truly help our justice system define that you are innocent until proven guilty.  This will help thousands of Nashvillians not have to face persecution in our job market, after wrongful prosecution.”

 Ashford Hughes, Nashville Organized for Action and Hope (NOAH): “The opportunity to achieve a second chance in our country is a fundamental value we all hold dear. This second chance will give these individuals an equal opportunity to further partake in the economic, social and family growth that we see happening throughout Nashville today.”

###

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org