Expunging Records vs Pardons in Guardians in the Galaxy

Guardians of the Galaxy ends with the Nova Corps expunging the records of Star-Lord, Gamora, Drax the Destroyer, Rocket Raccoon, and Groot.

What does the mean for our felons-turned-heroes?

Guardians_Expunge_PardonAn “expungement of records” means the “extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.” N.J. Stat. § 2C:52-1(a).

Expunging someone’s record is very broad, as it can include “complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, ‘rap sheets’ and judicial docket records.” N.J. Stat. § 2C:52-1(b).

Some states allow a record to be expunged if someone was arrested without probable cause, or if no charges were filed, or other specific circumstances. § 610.122 R.S.Mo.

In determining whether to expunge records, Courts balance the harm caused to a person by the existence of a criminal record against the “utility of the Government” for keeping the record. Walker v. United States, 116 F.R.D. 149, 151 (S.D.N.Y. 1987).

In specific cases, the FBI has a responsibility to expunge an incident from its criminal identification files after learning a person who was arrested has been exonerated or released without charge or a change of record to “detention only.” Menard v. Saxbe, 498 F.2d 1017, 1028 (D.C. Cir. 1974).

It is worth noting that the Guardians of the Galaxy had an expungement of past crimes, not a general pardon. A “pardon” does not absolve someone of guilt, but forgives them for the offense. People v. Chiappa, 53 Ill. App. 3d 639, 641 (Ill. App. Ct. 2d Dist. 1977). Moreover, a pardon is usually given to someone who might be subject to prosecution, but has not been convicted. Brown v. Walker, 161 U.S. 591, 601-602 (U.S. 1896)

As Justice William Guild of the Appellate Court of Illinois, Second District, (who in the 1970s had red t-shirts made that said The Mighty Second), said:  In the vernacular, such a pardon is an act of forgiveness, not forgetfulness. People v. Chiappa, 53 Ill. App. 3d 639, 641 (Ill. App. Ct. 2d Dist. 1977).

As the Nova Corps had decided to “forget” about the Guardians’ past crimes upon which they had been convicted, an expungement is the proper legal remedy. However, the Guardians might have needed a pardon for breaking out of prison.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.