Golden Gate University Law Review


The statutory remedy for removing an arrest from a person’s record places an undue burden upon a person who has never been found guilty of a crime. California Penal Code section 851.8 mandates that an arrested person prove her factual innocence before the arrest record may be sealed and destroyed.

This Comment examines the injustice of this section 851.8 requirement that an arrested person prove her innocence before the arrest record will be destroyed. Part I considers the probative value of an arrest record measured against its impact on the arrested person’s life, focusing on the disparate impact of arrests on marginalized communities of color. Part II examines the provisions of section 851.8 and the cases interpreting the factual innocence standard. Part III challenges section 851.8 under the Due Process Clause of the California Constitution and the procedural due process analysis provided by the State’s high court in People v. Ramirez. Finally, Part IV proposes a statutory revision in light of the recent shift in California criminal justice away from the “tough on crime” mentality, toward a more enlightened approach.