Bench & Bar March/April 2026

2. Petition-based expungement for well-delineated eligible convictions following completion of sentence, waiting periods, and court costs. 3. Eligibility certification administered by a federal law enforcement agency before court proceedings. 4. Judicial discretion guided by statutory factors, including public safety, time elapsed, and the interests of justice. 5. A federal expungement fund housed in the U.S. Department of the Treasury. 6. Defined exceptions for national securi ty purposes. 7. Clear legal effect, allowing lawful deni al of expunged records. CONCLUSION Kentucky’s expungement framework reflects a recognition that justice does not end at acquittal, dismissal, or sentence com pletion. The Commonwealth, by providing clear and accessible mechanisms for relief, has aligned its criminal justice system with principles of proportionality, rehabilitation, and reintegration. The federal system has not kept pace. In the absence of statutory guidance, federal courts operate in uncertainty, practitioners face avoidable obstacles, and individuals remain burdened by records long after justice has been served. A federal expungement statute would represent coherence. It would align federal practice with widely adopted state reforms and ensure that criminal records reflect justice rather than perpetuate unnec essary punishment. Signed, sealed, and delivered—the case for a federal expungement statute is ready for consideration.

enumerated powers, so long as they are part of a broader statutory scheme implement ing federal authority. 35 In Comstock , the Court upheld a federal civil commitment statute as a valid exercise of the Necessary and Proper Clause because it was rationally related to Congress’s authority over the fed eral criminal justice system—even though civil commitment itself is not an enumer ated power. 36 A federal expungement statute would be a rational means of managing the long-term effects of federal criminal proceedings, including arrests, dismissals, acquittals, and convictions. Regulating when federal records may be sealed or erased is directly related to Congress’s administration of fed eral prosecutions and the consequences that flow from them. A properly drafted federal expungement statute would not encroach upon judicial discretion. Congress would not be reopening final judgments or dictating outcomes in indi vidual cases; rather, it would establish prospective standards under which federal courts may grant relief. The Supreme Court has made clear that Congress may prescribe rules governing judicial procedure and rem edies without infringing on Article III, so long as it does not require courts to reopen final judgments or exercise nonjudicial functions. 37 Expungement statutes—like sentencing stat utes—operate after adjudication and leave the ultimate decision to judicial discretion. Kentucky’s expungement framework, for example, illustrates how legislatures may guide judicial decision-making without undermining judicial independence. A fed eral statute modeled on similar principles would be constitutionally sound. Drawing from Kentucky’s framework, Con gress could enact a statutory framework incorporating the following principles: 1. Automatic expungement for acquittals, dismissals with prejudice, and failures to indict, prospectively; also allowing petitioners to retroactively petition for expungement of the same.

ENDNOTES 1 KRS § 431.078(6) (emphasis added). 2 F.S.A § 943.045(19) (emphasis added). 3 KRS § 431.076(1)(a) (emphasis added). 4 KRS § 431.076(1)(b) & KRS § 431.076(1)(c). 5 KRS § 431.079(1). 6 For Violations, Traffic Infraction Records, and Mis demeanor Convictions ( see KRS § 431.078) & For Felony Convictions ( see KRS § 431.073). 7 KRS § 431.073(1). 8 KRS § 431.073(1) & KRS § 431.078(1). 9 As noted on the Kentucky Court of Justice web site, there is a 30-day expiration on the Eligibility Certification. See FAQs on https://www.kycourts. gov/AOC/Information-and-Technology/Pages/Ex pungement.aspx. 10 KRS § 431.078(7). 11 KRS § 431.073(10). 12 KRS § 431.073(11)(a). 13 Jones v. Commonwealth , 636 S.W.3d 503, 508 (Ky. 2021). 14 KRS § 431.078(3). 15 KRS § 431.073(3). 16 KRS § 431.078(6). 17 KRS § 431.073(7). 18 KRS § 431.0795. 19 Jones , 636 S.W.3d at 506. 20 U.S. v. Field , 756 F.3d 911, 915 (6th Cir. 2014). 21 U.S. v. Juvenile Male , 670 F.3d 999, 1008 (9th Cir. 2012). 22 Doe v. U.S. , 833 F.3d 192, 199 (2d Cir. 2016). 23 U.S. v. Coloian , 480 F.3d 47, 50 (1st Cir. 2007). 24 U.S. v. Rowlands , 451 F.3d 173, 178 (3d Cir. 2006). 25 U.S. v. McLeod , 385 F. 2d 734, 747-50 (5th Cir. 1967). 26 Field , 756 F.3d at 915. 27 U.S. v. Meyer , 439 F.3d 855, 861-62 (8th Cir. 2006). 28 U.S. v. Sumner , 226 F.3d 1005, 1014 (9th Cir. 2000). 29 Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 379-80 (1994). 30 Field at 915. 31 U.S. v. Rabadi , 889 F.Supp. 757, 759 (S.D.N.Y 1995). 32 Id . (quoting U.S. v. Rosen , 343 F.Supp. 804, 806 (S.D.N.Y. 1972). 33 U.S. Const. art. I, § 8, cl. 18. 34 McCulloch v. Maryland , 17 U.S. 316, 413-21 (1819). 35 U.S. v. Comstock , 560 U.S. 126, 133–34 (2010). 36 Id . at 148. 37 Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211, 218–19 (1995).

ABOUT THE AUTHOR PROFESSOR CHRISTOPHER J. NUNLEY is currently an assistant professor of Legal Studies and Deputy Title IX Coor dinator at Morehead State University. He previously served as a staff attorney with Legal Aid of the Bluegrass, where he provided legal representation to indigent clients in domestic relations, economic

stability, and post-conviction relief matters. Professor Nunley earned his bachelor's degree from Morehead State University and his Juris Doctor from Northern Kentucky University's Salmon P. Chase College of Law. He is licensed to practice law in the State of Ohio and the Commonwealth of Kentucky. He currently resides in Lexington with his partner, Erinn, along with their dog, Friday, and cat, Lucille.

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