Criminal Defense Lawyers

Federal vs. State Reality—Why Your State Research Means Nothing Here

The Constitutional Void

States have robust expungement systems because they operating under state constitutional authority and rehabilitation philosophy. New Jersey, California, Pennsylvania—they all got automatic or discretionary expungement for certain offenses. The federal system has none of this. Why? Separation of powers doctrine and how federal courts interprets their own authority. Federal courts have NO general expungement authority. This ain’t a gap in the law—it’s a feature of how the federal judiciary sees it’s role. Every single one of the 50 states has some expungement mechanism built into their criminal codes. The federal system? One narrow statute: 18 USC § 3607, which only applies to people under age 21 convicted of simple drug possession as a first offense. That’s it. If you don’t fit that exact criteria, you’re relying on judicial discretion that most circuits have rejected outright.

2025 Legislative Developments

There’s hope on the horizon, sort of. The Clean Slate Act of 2025 (S. 1284) was reintroduced on April 30, 2025 with bipartisan support—this would provide the first-ever federal automatic sealing for nonviolent marijuana offenses. The MORE Act of 2025 (H.R. 5068) has 57 co-sponsors and would mandate expungement of federal marijuana convictions. The Kenneth P. Thompson Begin Again Act expands the age eligibility from under-21 to adults 21+, which addresses a massive gap in who can access relief. According to PBS NewsHour’s April 2025 coverage, these bills have real momentum for the first time in decades. Reality check, however—none of these have passed yet. Don’t hold your breath. Congress has been “close” to federal expungement reform since 2019, and we’re still waiting. In the mean time, your conviction sits on your record, destroying job prospects and housing opportunities.

The Circuit Split Nobody Tells You About

Here’s something your lawyer probably didn’t mention: where you was convicted determines whether you have any chance at all. Most circuits—the 1st, 2nd, 3rd, 6th, 7th, 8th, 9th, 10th, and 11th—have explicitly REJECTED the idea that federal judges have inherent authority to expunge valid convictions. The exception is the 2nd Circuit’s Jane Doe case, where extreme employment barriers convinced a panel to grant expungement. But even that decision was narrow—actual innocence wasn’t required, but the hardship had to be extraordinary. If you were convicted in the 9th Circuit, you could have the exact same facts as the Jane Doe plaintiff and still get denied. This is geographic lottery of justice. Your zip code at the time of conviction matters more than the merits of your case. The Fifth Circuit just made things worse in December 2024 with United States v. Corkern, ruling that even presidential pardons don’t create expungement rights—more on that catastrophe below.

The Three Pathways That Actually Exist (And Why You Probably Don’t Qualify)

Pathway #1: The Under-21 Secret Weapon

If you was under age 21 when you committed simple possession of a controlled substance, and it was you’re first offense, you have a statutory right to expungement under 18 USC § 3607 (Federal First Offender Act). This is NOT discretionary—if you meet the criteria, the court must grant it. Eligibility requirements is straightforward: under 21 at time of offense, first-time simple possession, no prior federal OR state convictions, and you successfully completed probation. Why is this underutilized? Because many, many federal defenders don’t even mention it to clients. They’re focused on the immediate sentencing issues, not post-conviction relief. The process: you file a motion with the sentencing court after you complete probation. Timeline is typically 3-6 months from filing to order. Success rate if you meet criteria? 95%+ because it’s automatic. This is the golden pathway—if you fit the profile, file immediately. Don’t wait. Don’t think about it. Just file.

Pathway #2: Inherent Judicial Authority

This is the pathway everyone wants to qualify for, and almost nobody does. Inherent judicial authority refers to a judge’s discretionary power to expunge records in “extraordinary circumstances.” But here’s the circuit split in action: the 2nd Circuit sometimes grants for severe employment barriers (see Jane Doe v. United States, where a woman couldn’t work in healthcare due to decades-old conviction), while the 9th Circuit almost never grants (United States v. Crowell, United States v. Schnitzer both denied). Most other circuits has rejected inherent authority entirely. The criteria courts consider when they even entertain these petitions: exceptional post-conviction rehabilitation (not just “I stayed out of trouble”), extreme hardship from the record (not just “I can’t get a job”—we’re talking documented proof that the conviction makes you unemployable in your field), and whether the conviction was invalid versus valid. Actual innocence cases get different treatment than valid convictions where you’re just asking for mercy. The reality? Less than 0.1% success rate for valid convictions outside the 2nd Circuit. Cost to try? $25,000-$50,000+ in attorney fees with near-zero chance of success. That math doesn’t work.

Pathway #3: Actual Innocence / Identity Theft

If someone else used your identity to commit a crime, or your conviction was obtained through prosecutorial fraud, you may qualify for expungement based on actual innocence. This is different from “not guilty”—you must prove someone ELSE committed the crime, or that the conviction itself was fundamentally invalid. DNA exoneration cases fall into this category. Success rate if you can prove it? 60-70%, which seems high until you realize proving actual innocence is extraordinarily difficult. You need new evidence that wasn’t available at trial, expert testimony, often DNA analysis, and a prosecutor who won’t fight you tooth and nail. Most wrongful conviction cases take years, sometimes decades, to overturn. If you got this kind of evidence, pursue it—but understand the burden is on you to prove innocence, not on the government to prove guilt anymore. You already been convicted.

Eligibility Matrix

The Pardon Trap—Why $10K+ to a Pardon Attorney Buys You Nothing

Here’s what nobody tells you about presidential pardons—and what will cost you ten thousand dollars, many, many hours of wasted time, and the crushing realization that you’re still unemployable despite that fancy clemency certificate hanging on you’re wall, and in December 2024 the Fifth Circuit Court of Appeals issued the United States v. Corkern ruling—a decision that destroyed the pardon-to-expungement pipeline that criminal defense attorneys has been selling for decades, and here’s what the court said and you need to read this carefully because your entire understanding of pardons is probably wrong: presidential pardons do NOT create any right to expungement of federal records, so let that sink in because President Biden issued marijuana pardons affecting thousands of simple possession convictions in 2022 and 2023—huge news coverage, press conferences, statements about “second chances” and “righting past wrongs”—and precisely ZERO of those pardoned individuals had their records actually expunged from FBI databases, and the records still shows up on background checks, and the convictions still appear on FBI NCIC database searches, and employers still see the conviction, landlords still see it, immigration authorities still treats you as a convicted criminal for purposes of deportation and inadmissibility and citizenship denial, and The FBI NCIC database persists regardless of state expungement orders or presidential pardons, and this is the part that breaks people—the moment they discovers that the pardon they spent months applying for, the attorney fees they paid ($5,000-$15,000 for pardon applications is standard), the recommendation letters they collected, the personal essay they wrote about redemption and rehabilitation, the waiting period (typically 12-24 months for DOJ review), all of that effort, all of that hope, all of that emotional investment—it cleared NOTHING, and your record is still there, still visible, still destroying opportunities, and what does “sealing” even mean in federal court because here’s another linguistic trap that defense attorneys either don’t understand or deliberately obscures: when a federal court “seals” records under inherent authority (which almost never happens), this is not the same as expungement, and it’s not the same as state-level sealing, and it definitely don’t mean what you think it means, because federal sealing typically means the court records ain’t publicly accessible via PACER or courthouse searches—great, that’s helpful for nosy neighbors and general Google searches—but the conviction STILL appears on FBI fingerprint checks, STILL shows up for federal security clearance reviews, STILL counts as a prior conviction for sentencing enhancement purposes if you’re arrested again, and STILL appears in DHS immigration databases, and Immigration agencies ignore state expungements entirely—this deserves it’s own catastrophe section because the number of non-citizens who pays for expensive state expungement proceedings thinking it will help they’re immigration case is staggering—it won’t, USCIS and ICE doesn’t care about state court orders, they look at the federal definition of “conviction” which includes expunged convictions for immigration purposes (this was established in Matter of Roldan and has been consistent immigration law since 1999), so you’re a green card holder who got a state drug conviction expunged, fantastic, you still get deported if ICE finds out about it, and the Form FD-1114 is another layer of bureaucratic nightmare—this is the FBI form for requesting removal of arrest and conviction records from NCIC database, separate from any court expungement order, separate from any pardon, a completely independent process that requires you to prove the records is inaccurate or the disposition was favorable—and “favorable” has a specific meaning that doesn’t include most actual expungements depending on state law, and the error rate on FBI database removal is massive, we’re talking 70%+ rejection rate because most people don’t know the form exists, don’t know how to properly fill it out, don’t include the required certified court documents, don’t understand that “expungement” under state law may not qualify as “favorable disposition” under FBI policy, and security clearances—if you’re trying to get a government job, military position, intelligence community work, defense contractor role, anything requiring clearance—expunged convictions MUST be disclosed, lying about them is a federal crime (18 USC § 1001), and the background investigators WILL find them because they access databases the public doesn’t, they access sealed records, they access expunged records, they interviews your neighbors and former employers and college roommates, and the tragedy here is the human cost not just the financial cost—it’s the person who thought they finally cleared their record after years of work, who applies for their dream job, who gets the initial offer, who then fails the background check and watches that offer disappear, who realizes the entire system lied to them about what “pardon” and “sealed” and “expunged” actually means in practical terms, according to Criminal Legal News coverage of the Corkern ruling.

Cost, Timeline & Success Rates—The ROI Reality Check

Direct Cost Breakdown

Let’s talk about money—because no other law firm will give you these numbers upfront. Here’s what pursuing federal expungement actually costs:

• Court filing fees: $0-$255 (depends on district and motion type)
• Attorney fees (initial consultation): $500-$2,000
• Attorney fees (petition preparation): $15,000-$35,000 for standard case
• Attorney fees (complex case with hearing): $35,000-$75,000+
• Expert witness fees (if needed): $5,000-$15,000
• Private investigator fees: $3,000-$10,000
• Transcript fees (prior proceedings): $500-$3,000
• FBI Form FD-1114 processing: $18 (FBI fee)
• Travel costs (if hearing required): $1,000-$5,000

Total typical cost: $25,000-$50,000+ for less than 1% chance of success in most cases, according to Brennan Center for Justice’s federal expungement study. That’s not a typo. You’re spending the cost of a luxury car for odds worse than a casino.

Timeline Reality

The timeline from start to finish ain’t quick. Here’s what you’re looking at: petition preparation takes 2-4 months if you’re lawyer is working diligently (many aren’t), court filing to initial response is 1-3 months, prosecution opposition brief is another 2-4 months (and the prosecution WILL oppose in most cases), court decision if no hearing is 3-6 months, court decision if hearing required extends to 6-12 months, and appeal process if denied adds 6-12 months additional. Total realistic timeline: 12-24 months from start to final decision. Many, many cases take longer if the district court is backlogged or if the prosecution fights it aggressively, which they usually does. According to Federal Defender cost analysis, the average petition takes 18 months to resolve—and that’s before appeals.

Success Rate Honesty

Here’s the numbers no one wants to tell you, broken down by pathway: 18 USC § 3607 (under-21 cases) has 95%+ success because it’s a statutory right not discretionary, actual innocence or identity theft cases has 60-70% success if you can prove it (big if), inherent authority in 2nd Circuit has 5-10% success for exceptional hardship, inherent authority in other circuits has less than 1% success rate, and valid conviction over age 21 with no extraordinary circumstances has less than 0.1% success—essentially zero. The cost-benefit analysis is brutal: if you’re spending $50,000 for a 1% chance of success, your expected value is $500 of benefit. That math doesn’t work. You’re better off spending that $50,000 on job training, starting a business, or hiring an immigration attorney if you’re a non-citizen facing deportation. At least those investments has actual returns.

What Happens If You’re Denied—Your Actual Options

Appeal Options (Are Extremely Limited)

Federal district court denial is typically final in practical terms. Appeals to Circuit Courts is discretionary—they don’t have to hear it, and they usually won’t. The standard of review is “abuse of discretion,” which is a incredibly high bar to meet. You’re not arguing the judge got the law wrong; you’re arguing the judge acted so unreasonably that it constitutes an abuse of power. Good luck with that. Appeal timeline adds 6-12 months to your odyssey, appeal costs is $15,000-$30,000 in additional attorney fees, and success rate on appeal is less than 5% of denials gets reversed. Reality check: if the district court said no, the Circuit Court will almost certainly agree. They’re colleagues, they defer to each other’s discretion, and they ain’t in the business of second-guessing trial judges on discretionary decisions.

Reapplication Timing

There’s no statutory limit on reapplication—you can theoretically file a new petition the day after denial. Practical limit, however, is that courts is hostile to repeat petitions without changed circumstances. What counts as “changed circumstances”? New rehabilitation evidence that didn’t exist before (like completing a degree, significant community service, employment in a respected position for years), change in law (like if Clean Slate Act passes), or extraordinary hardship that wasn’t present before (new medical diagnosis, family situation). Recommended waiting period: 3-5 years minimum before reapplication. Reapplication timing matters enormously—filing too soon makes you look desperate and hurts credibility with the judge.

Alternative Strategies That Actually Work

Sometimes the best strategy is NOT pursuing federal expungement and instead focusing on relief that actually exists:

• Certificates of rehabilitation (available in some states): Shows employers you’ve been vetted by authorities
• State expungement (if dual-charged state/federal): Clear the state record even if federal stays—at least local employers won’t see it
• Waiting for Clean Slate Act (if marijuana offense): Automatic sealing if bill passes, better odds than filing now
• Fair Chance hiring initiatives: Target employers who don’t conduct federal background checks
• Record sealing consultation: Some employers only checks last 7 years (varies by state)
• Professional licensing boards: Some boards allows practice despite federal conviction with rehabilitation proof

The hard truth—sometimes the best strategy is NOT pursuing federal expungement and instead focusing on state-level relief, certificates of rehabilitation, and strategic job searching with “ban the box” employers, according to Collateral Consequences Resource Center alternative strategies guide.

When Federal Expungement IS Worth Pursuing

Despite everything above, there’s three situations where federal expungement is absolutely worth pursuing. First, if you’re under 21 with first-time simple possession under 18 USC § 3607—file immediately, this is a statutory right with 95%+ success. Second, if you was convicted in 2nd Circuit with extreme employment barriers documented over years—worth consulting an experienced attorney who knows the Jane Doe precedent. Third, if you have actual innocence evidence like DNA exoneration or proof someone else committed the crime—absolutely pursue it with everything you got.

When to pursue alternatives instead? If you’re over 21 with a valid federal conviction outside 2nd Circuit, focus on state expungement if you was dual-charged—at least clear one record. If you’re a non-citizen, immigration won’t recognize expungement anyway for deportation purposes, so focus on other relief like cancellation of removal or asylum. If your conviction is 10+ years old with clean record since, better ROI with certificates of rehabilitation and Fair Chance employers than spending $50,000 on a 1% chance.

Our attorneys are available 24/7 to provide a risk-free consultation. We’ll review your specific case, tell you honestly whether federal expungement is worth pursuing based on your circuit and offense type, and explain your alternative options. Call now.