Bench & Bar March/April 2026

FEATURE: POTPOURRI

THE CASE FOR A FEDERAL EXPUNGEMENT STATUTE SIGNED, SEALED, DELIVERED: BY PROFESSOR CHRISTOPHER J. NUNLEY

I n the United States, the collateral con sequences of a criminal record are no longer theoretical—they are routine. The mere existence of a record can follow an individual for decades, affecting employ ment, housing, professional licensure, and educational opportunities. Kentucky has taken meaningful steps to address these consequences through its expungement framework, recognizing that justice is not fully served when a resolved case contin ues to operate as a lifelong barrier. However, for defendants who encounter the federal system, comparable relief remains limited, inconsistent, and often unavailable. Unlike Kentucky, the federal system lacks a comprehensive statutory mechanism for expungement. Federal courts possess, at best, narrow equitable authority to seal or expunge records, and that authority is unevenly applied across the federal circuits. As a result, individuals with federal arrests or charges—even those that did not result in a conviction—frequently find them selves without a meaningful path to relief. This disparity is especially pronounced in jurisdictions such as Kentucky, where prac titioners regularly navigate both state and federal systems and must explain to clients why relief available in one forum is categor ically unavailable in the other. The absence of a federal expungement stat ute raises practical, doctrinal, and policy concerns. From a practical standpoint, it undermines rehabilitation by perpet uating barriers long after the purposes of punishment have been served—or where punishment was never imposed at all. Doctrinally, it places federal courts in the uncomfortable position of rely ing on uncertain inherent authority, producing inconsistent outcomes, and

“Upon the entry of an order to expunge the records, the proceedings in the case shall be deemed never to have occurred; the court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.” 1 The sealing outcome hides the criminal record from the public. Florida’s sealing statute is an example: “the preservation of a record under such circumstances that it is secure and inaccessible to any person not having a legal right of access to the record or the information contained and preserved therein.” 2 THE KENTUCKY EXPUNGE MENT FRAMEWORK In Kentucky, the expungement framework is illustrated in KRS § 431.073 to KRS § 431.0795. The framework in Kentucky consists of both the automatic and peti tion-based approaches, which result in the erasure outcome. Additionally, Kentucky’s framework provides for an expungement fund that is allocated to Kentucky govern ment officials. THE AUTOMATIC APPROACH IN KENTUCKY The automatic approach in Kentucky was enacted on July 15, 2020, and is outlined in KRS § 431.076. The statute provides: (1)(a) On or after July 15, 2020, if a court enters an order of acquittal of

inviting unnecessary litigation. From a policy perspective, it stands in tension with contemporary criminal justice reforms that emphasize proportionality, second chances, and public safety through reintegration. The purpose of this article is to make the case that Congress should adopt a nar rowly tailored federal expungement statute that mirrors the structure and safeguards already familiar to Kentucky practitioners. Such a statute would not mandate expunge ment in all cases, nor would it interfere with legitimate law enforcement or public safety interests. Rather, it would provide clear standards, judicial discretion, and proce dural uniformity—ensuring that federal courts can offer relief where equity and justice so require. A BRIEF OVERVIEW OF STATE EXPUNGEMENT SYSTEMS In the United States, there are two approaches and two outcomes in the ethos of expungements: petition-based and auto matic approaches, and erasure and sealing outcomes. The petition-based approach requires the petitioner to proactively file paperwork, pay fees, and avail themselves before a judge to erase or seal their crim inal record. The automatic approach, as the name suggests, automatically erases or seals a criminal record without the petitioner having to file or pay anything. Most states offer both. The petition-based approach typically applies to eligible crim inal offenses, and the automatic approach often applies to acquittals, dismissals, and failures to indict. The erasure outcome is the physical destruction of a criminal record. Ken tucky’s expungement statute is an example:

20 march/april 2026