Unstitching Scarlet Letters?: Prosecutorial Discretion and Expungement

By Brian M. Murray


Criminal record history information pejoratively brands those who contact the criminal justice system, whether they were guilty or not. In theory, the remedy of expungement is designed to mitigate the unanticipated, negative effects of a criminal record. But the reality is that prosecutors—driven by a set of incentives that are fundamentally antithetical to expungement—control many of the levers that determine expungement eligibility. The disjunction between the prosecutorial mindset and the “minister of justice” ideal could not be starker, nor its consequences more significant. Prosecutors, as agents of the state, can advocate forcefully for either the retention or deletion of such information, which, given the pervasive web of collateral consequences associated with a criminal record, can have a dramatic effect on the situation of an arrestee or ex-offender. This discretion, as it relates to theories of punishment, prosecutorial discretion overall, the ethical responsibilities of prosecutors to do justice, and public policy interests, has been grossly underanalyzed despite the serious implications it has for both the prosecutorial role within the criminal justice system and for reentry efforts.

While many scholars have paid attention to how prosecutorial incentives conflict with the theoretical responsibilities of prosecutors in charging, plea bargaining, and postconviction situations involving innocence, none have provided a theoretical framework focused on the role of the prosecutor during expungement. Many of the complicated incentives that undermine holistic prosecution during those earlier phases exist during the expungement process as well. But scholarly responses to those incentives are not adequate given the range of considerations during the expungement phase. As such, this Article argues that scholarly discussions about prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pretrial or questions of factual and legal guilt. Given that the primary role of the prosecutor is to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of nonconviction and conviction information. It offers a framework for exercising such discretion and, in doing so, hopes to initiate additional conversation about the role of prosecutors during the phases that follow arrest and prosecution.