Living with a criminal record

The following information was discussed by Attorney Whitney Hughes on the March 12, 2008 edition of Legal Briefs on KDKA's Pittsburgh Today Live.

Living with a criminal record

Common Questions

I have criminal charges on my record from several years ago. I have served my time, paid the fines, completed my probation, and fulfilled all the requirements. I've turned my life around and am trying to get a new job. Whenever an employer runs a background check the charges come up, and I am denied employment. Can the employers do this, and am I better off just not being honest when they ask about my background?

An employer is able to consider criminal convictions when filling a job opening. Keep in mind though that it is able to ask about convictions, not arrests. If an employer has a reason to believe that there is a relationship between the nature of the crime and your ability to perform the job, it is able to deny employment. This usually comes up with jobs in the security, health care, child care, education, or nursing home industry—situations where there are vulnerable people you would come in contact with.

While you may be tempted to not disclose your background to an employer, keep in mind that if you are dishonest about your background, you get the job, and then the employer later finds out it can legally fire you for your dishonesty.

I have charges on my record for which I was found not guilty, but they keep showing up when a background check is done. Can they be erased?

They can't be erased, but they can be expunged. A person is entitled to an expungement (a clearing of his/her criminal record) when he/she has been found not guilty or the charges have been withdrawn or nolle prossed. An expungement is also available to those persons who have completed an ARD (Accelerated Rehabilitative Disposition) program or received Probation Without Verdict. If your charges fall within any of these categories, you should speak with a criminal defense attorney to obtain an expungement of your record.

I pleaded guilty to a lesser charge so that I could avoid serving any jail time. It seemed the right thing to do at the time, but now it seems that I can't even get an expungement. Do I have any other option to clear my record?

To clear a criminal record, the only option other than an expungement is to obtain a governor's pardon. To do so, you will need to contact the Board of Pardons and request an application. There are no laws which state what factors are to be considered when the Board evaluates applications. Some criteria that they have looked at in the past are the amount of time that has elapsed since the crime, compliance with all court requirements, any positive changes to the applicant's life, a specific reason why the clemency application should be granted, and the effect on any victims of the crime. Keep in mind that there are very few circumstances under which an application for a pardon is granted—the vast majority of them are denied.

If I do not qualify for an expungement and cannot get a pardon, what do I need to know about living with a criminal record?

First keep in mind that in the event you are arrested and charged with another crime at any point in the future, your sentence will be different because you have a record. This may mean that you may face increased fines and/or extended jail time and not qualify for certain sentencing alternatives which would have otherwise been available to you.

Second, your ability to obtain employment will likely be affected. In addition, your ability to obtain a professional license will be affected as well. Many fields such as nursing and education will strictly review an applicant’s background when deciding whether or not to grant a license and may suspend an existing license for a criminal conviction.

Finally, certain offenses require you to register once you have been released from incarceration. Pennsylvania has specific requirements for sex offenders which relate to registering their residence and place of employment. These requirements also apply to out-of-state sex offenders who come into Pennsylvania as well. If you believe that you have been convicted of such an offense, speak with either your probation officer or a criminal defense attorney to ensure that you are in compliance.

As always, for a referral to an attorney who practices in the field of criminal law, call the Allegheny County Bar Association Lawyer Referral Service at 412-261-5555.