Bench & Bar March/April 2026

FEATURE: POTPOURRI

original criminal case 8 within thirty (30) days of receiving the Eligibility Certifica tion. 9 The AOC has also provided Kentucky practitioners and pro se litigants with AOC forms for this as well: AOC-496.2 (Misde meanor, Violation, or Traffic Infraction Conviction) and AOC-496.3 (Felony Con viction). Fourth, alongside the petition, the petitioner must file the Eligibility Cer tification and the appropriate filing fee. As of 2026, the filing fee for a Misdemeanor, Violation, or Traffic Infraction Conviction is $100; 10 and the filing fee for a Felony Conviction is $50, 11 with $250 to be paid upon the issuance of an order vacating and expunging a conviction. 12 In December 2021, the Kentucky Supreme Court ruled that courts must waive the initial filing fee and the felony “expungement fee” for those who cannot afford to pay them. 13 Therefore, if a petitioner cannot afford to pay the costs of the filing fee or the felony expungement fee, they can file a motion to proceed in forma pauperis alongside their petition. Fifth, attend the hearing that will occur no later than 30 days for an expunge ment of a misdemeanor, violation, or traffic conviction; 14 and no later than 120 days for an expungement of a felony conviction, if the prosecutor does not respond within 60 days. 15 Sixth, at the hearing, if the court finds that the conviction was eligible for expungement and enters the order vacating the sentence, “the proceedings in the case shall be deemed never to have occurred, and the court and other agencies shall cause records to be deleted or removed.” 16 In felony expungements, this will only occur upon full payment of the felony expunge ment fee or if an IFP motion was granted at the beginning of the case. 17 The petition-based approach in Kentucky is not flawless. Nevertheless, it is well-delin eated, provides a structured mechanism for relief, and offers practitioners the ability to explain the process clearly to those seeking a fresh start after rehabilitation. The expungement framework in Kentucky creates an “expungement fund” for the rev enues and interest obtained from the felony expungement fee. 18 The money collected from expungement fees is distributed as follows: 10% to the Department for Librar ies and Archives, 40% to the Department

of Kentucky State Police, 40% among the offices of Commonwealth’s attorneys, and 10% into the trust and agency account for deputy circuit clerks. 19 THE FEDERAL EXPUNGE MENT FRAMEWORK Unlike Kentucky and most state juris dictions, the federal system lacks a comprehensive statutory framework gov erning expungement. Congress has never enacted a general federal expungement statute applicable to adult criminal proceed ings. As a result, individuals seeking relief from federal criminal records must rely on limited and uncertain judicial doctrines, producing inconsistent outcomes across federal courts and circuits. In 2014, the Sixth Circuit noted that there are limited circumstances in which federal statutes expressly permit federal courts to expunge a criminal record. 20 The court noted three narrow federal statutes that are spread across three different titles of the U.S. Code. First, 10 U.S.C § 1565(e), which requires expungement of DNA records when a court overturns a military convic tion. Second, 18 U.S.C. § 3607(c), which permits expungement of criminal records in certain cases involving drug possession of those under the age of 21. Third, 42 U.S.C. § 14132(d), which has since been transferred to 34 U.S.C. § 12592(d), permits expunge ment of FBI DNA records in certain cases when a conviction is overturned. In addition to this, 18 U.S.C. § 5038(a) requires juvenile delinquency records to be sealed unless the crime is superseded by the requirements of the Sex Offender Registration and Notifi cation Act. 21 For defendants outside these narrow categories, federal statutes are silent. There is no general federal expungement statute, and federal courts have no inherent authority to expunge the records of a valid conviction. 22 In the absence of statutory guidance, federal courts have grappled with whether they possess the authority to expunge criminal records. The prevailing view among most federal circuits is that such authority, if it exists at all, is extremely limited. There are several circuits—including the First, 23 Third, 24 Fifth, 25 Sixth, 26 Eighth, 27 and

Ninth 28 —that have held that federal courts possess ancillary jurisdiction to expunge criminal records involving an unlawful arrest or conviction, or to correct a clerical error. Their rationale is based on the hold ing in Kokkonen , which asserted ancillary jurisdiction in federal courts to enable them to manage their proceedings, vindicate their authority, and effectuate their decrees. 29 However, in those circuits, the consensus is that federal courts lack jurisdiction over motions for expungement that are grounded on purely equitable considerations. 30 Other district courts have acknowledged that federal courts may, through the exercise of their inherent equitable powers, order the expungement of criminal records. 31 In those districts a court must balance “the equities between the right of privacy of the individual and the right of law enforcement officials to perform their necessary duties.” 32 Altogether, the result is a fragmented legal landscape in which similarly situated indi viduals receive vastly different outcomes depending on geographic jurisdiction. In Kentucky—particularly those practicing in the Eastern and Western Districts—this inconsistency creates uncertainty and limits meaningful advocacy on behalf of clients Congress possesses clear constitutional authority to enact a general federal expungement statute. This authority arises from multiple sources and would not infringe upon judicial independence or executive enforcement powers. The Necessary and Proper Clause provides Congress with broad authority to enact legislation that is “necessary and proper for carrying into Execution” its enumerated powers. 33 The Supreme Court has consis tently interpreted this clause expansively, holding that Congress may adopt any means that are “convenient, or useful” or “con ducive” to the exercise of its enumerated powers, so long as the means are rationally related to a legitimate constitutional end. 34 Modern precedent reaffirms that Congress may regulate matters that are not themselves seeking post-conviction relief. CONGRESSIONAL AUTHORITY

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