Sealing and Destruction of Criminal Records for the Factually Innocent: A 'Second Chance' for California Penal Code Section 851.8

Posted: 20 Jul 2016

See all articles by Irina Fox

Irina Fox

Creighton University School of Law; U.S. Federal Courts; Latham & Watkins LLP

Date Written: July 19, 2015


In 1975, the California legislature enacted Penal Code section 851, an expungement remedy, which today allows courts to seal and destroy a criminal record of a person who can prove his or her factual innocence. Expungement has been a hot topic throughout the United States, especially following the recent financial crisis that caused unemployment levels to spike drastically. In addition to excluding many individuals from the workforce, criminal records present multiple other problems, not only for those individuals, but society at large. Any criminal history can haunt a person for the rest of his or her life, creating a social stigma that prevents a person from reintegrating into society. Yet, criminal records serve valid and important public purposes, such as promoting more efficient law enforcement and protection of the public from recidivist offenders.

By enacting section 851.8 the California legislature sought to balance the interests of record preservation against the burden of a haunting criminal record. Unfortunately, the modern version of the statute falls short of accomplishing that balance, by imposing an onerous burden on individuals seeking a “second chance” but failing to provide the necessary tools to enable them to prove factual innocence. This article provides a comprehensive review of section 851.8 and proposes amendments to fairly balance societal interests in preserving criminal records with interests of factually innocent individuals in clearing their names. This article recommends a remedy for the current flaws of the statute by allowing factual innocence petitioners rights to some discovery, permitting anonymous filings for those arrested but never charged, and correcting the timing restriction inconsistency.

Keywords: Expungement, Factual Innocence, Arrest Records, Criminal Records, Section 851.8, Cal. Penal Code 851.8

Suggested Citation

Fox, Irina and Fox, Irina, Sealing and Destruction of Criminal Records for the Factually Innocent: A 'Second Chance' for California Penal Code Section 851.8 (July 19, 2015). Available at SSRN:

Irina Fox (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178

U.S. Federal Courts ( email )

500 Poydras Street, Room C-151
New Orleans, LA 70130
United States

Latham & Watkins LLP ( email )

505 Montgomery Streest
Suite 2000
San Francisco, CA 941116
United States

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