Sealing and Expungement of Criminal Records--The Big

Journal of Criminal Law and Criminology

Volume 61 | Issue 3 Article 4

1971 Sealing and Expungement of Criminal Records-- The iB g Lie Bernard Kogon

Donald L. Jr. Loughery

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Recommended Citation Bernard Kogon, Donald L. Jr. Loughery, Sealing and Expungement of Criminal Records--The iB g Lie, 61 J. Crim. L. Criminology & Police Sci. 378 (1970)

This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. "TaE Jou=&L ro'CammAL L&w, Cn13o11 ooY AND POLICE SCINCE Vol. 61, No. 3 Copyright 0 1970 by Northwestern University School of Law Printed in U.S.A.

CRIMINOLOGY

SEALING AND EXPUNGEMENT OF CRIMINAL RECORDS-THE BIG LIE

BERNARD KOGON AND DONALD L. LOUGHERY, JR.

Bernard Kogon, employed by the Los Angeles County Probation Department since 1951, is Direc- tor of the Staff Training Office. He received his LL.B. (1935) and M.S.W. (1942) degrees from Brook- lyn Law School and Columbia University School of Social Work, respectively. He is a member of the New York Bar. From 1953 to 1968 he was an Associate Professor at California State College, Los Angeles, where he taught correctional and social welfare courses in the Sociology Department. Donald L. Loughery, Jr., is Chief of Field Services, Western Division, Los Angeles County Proba- tion Department. He received his A.B. degree in Sociology at UCLA in 1948 and his M.S. in public administration at USC in 1959. His twenty-two years of experience in probation includes assignments in adult and juvenile field work, juvenile forestry camps, personnel and training, and various levels of supervision and management. According to the authors, the sealing and expungement of criminal records is not as humanitarian as it looks. Ostensibly a boon to the offender, it actually works against him and helps society to evade its obligation to change its views toward former offenders. Instead of accepting ex-law breakers and giving them a fair chance, the community requires them to lie, and the community lies to itself when it conceals their records in order to make them employable. This violates every principle of honest rehabilitation work. The authors find, moreover, that aside from the issue of principle, it is a practical impossibility to deny reality. While certain records are destroyed, others are not. It is impossible to account for the blank time in a man's employment history during which he was in jail or prison. The order to seal a record constitutes a record in itself. The denial of reality is both unethical and inefficient. It is time society grew up.

The wide-spread practice of sealing or expunging handling of the record should be among the first criminal and delinquency records is a failure. aspects of practice to be challenged. Despite the good intentions of its proponents, Record sealing and expungement have been it does not provide the relief intended and ac- accepted casually and extended uncritically over tually does harm, frequently, by the hoax it plays the years, prospering in a rosy glow of good upon ex-offenders and the general public. The intentions and expediency, with little attention to whole approach requires re-examination. Basic evaluation of results.2 There are few court decisions social values are involved; this is a matter of and attorney-general opinions dealing with the conscience, not merely convenience. It includes subject. Definitive law is absent because the more than simply the concealment of offender subject matter has rarely been litigated upward. records.i Extant litigation is scanty and inconclusive; Review is timely, because there is a growing appeal decisions are rare. concern about the way "a record" handicaps an 2 Mirjan R. Damaska, in his exhaustive, two-part offender. Furthermore, correctional practice, in article, Adverse Legal Consequences of Conviction and general, is being closely questioned and re-eval- their Removal: A Comparative Study, 59 J. CRM. L., C. & P.S. 347, 542 (1968), indicates that: "collateral uated today. Certainly the traditional mis- consequences flowing from criminal judgments are 1 We prefer to use the terms "conceal" or "conceal- legion.... Views regarding removal of these conse- ment" throughout this article, with respect to records, quences widely differ.... there is little conscious policy because: (a) these words reflect, in a generic sense, the behind legal provisions dealing with this problem.... societal intent to remove criminal records from scru- some of these provisions are not in harmony with tiny, whether permanently, temporarily, or for certain modern correctional thinking .... " purposes only; and (b) because, although the terms Damaska refers to the general subject as a "rather "seal" and "expunge" are used in the statutes, in court neglected area", but does indicate that there is some decisions, and in legal parlance, we have no confidence evidence of growing improvement with respect to that they mean what they say. disqualifications resulting from conviction of crime. 1970] EXPUNGEMENT OF CRIMINAL RECORDS

There is a variety of statutes on record con- interchangeably, but they are not the same. All of cealment, but they are not universal by any means, this adds to the hoax played upon the former although increasing legislative interest is being offender population, a recurrent theme of this demonstrated. Current law tends to be unclear and paper. ambiguous. There is little literature to dispel the Gough, in his authoritative article on the general murkiness surrounding the subject. A subject, refers to the "extreme lack of uniform search revealed none espousing the position of this terminology, even within a single jurisdiction", article. and comments on how difficult it is to study the Briefly, it is believed that: 1) disabilities flowing system under the circumstances. In his survey from conviction of crime, or the juvenile delin- he found that the process of concealing or de- quency equivalent, should be completely lifted stroying the record is variously designated as upon discharge of criminal liability (or termination expungement, record sealing, record destruction, of juvenile court wardship), as part of society's obliteration, setting aside of the conviction, recognition that "payment of the debt" has been annulment of the conviction, amnesty, nullification accomplished; 2) the record should be left alone, of the conviction, purging, and pardon.4 Simply i.e.,neither sealed nor expunged; and, 3) rein- in the interests of basic communication we must tegration of the offender into the society should define at least three terms which must not continue be supported through changes in societal attitudes to be used interchangeably: "sealing"; "expunge- toward ex-offenders (with the assistance of appro- ment"; and "removal of disabilities." priate legislation) and not through efforts to legislate untruths. History, reality, "the record" Sealing cannot be changed, as Omar reminds us, by law Essentially, "sealing" means that a record or or anything else. proceeding is "merely" sealed-not destroyed. This article proposes to accomplish the follow- There is an obvious and intended implication ing objectives: define terms, examine current that the sealed item or event may, under certain practice throughout the country, explain why the circumstances, be unsealed. system of sealing and expungement is ineffective According to Corpus Juris, "the word 'seal' is and cannot be made effective, and finally, present defined as meaning to fasten with a seal, or a a more viable and rational method of reintegrating fastening impressed with a seal to guarantee offenders who have presumably been rehabilitated. security; so to fasten, that the seal, or the band In connection with this article, and in an effort or wrapper fastened by the seal, must be torn or to survey current practice, letters of inquiry were broken in order to remove the inclosed article". 5 sent in August of 1968 to correctional agencies in all the states, to a number of city and county Expungement jurisdictions, and to federal authorities. Addi- "Expungement," regarded by some as "a tional letters were sent to several agencies and concept of fairly recent origin", 6 literally means individuals that had evinced prior connection that the record or proceeding *is erased-as if it with or interest in the subject matter. About 70 had never happened in the first place. The memory letters were sent; there were over 50 responses. of the event is blotted out permanently, with no As further preparation, the literature, including 3Gough, The Expungement of Adjudication Records correctional journals, law review articles, court of Juvenile and Adult Offenders: A Problem of Status, decisions, and attorney-general opinions, was (1966) WAsHiNGTON UNivEsITY LAW QUARTELY, 149. reviewed. 4Ibid. 149-150. '79 Co~pus Jums SEcuNDTJm 475. The 1968 pocket part adds, at page 42: "The word 'seal' is also defined DErmITION OF TExms to mean any instrumentality that keeps something close, secret, or unknown." It may appear idle or unnecessary to spend any 6 Petter & Hilmen, Criminal Records of Arrest and time defining terms. However, the survey clearly Conviction: Expungement from the Public Access, 3 what had been suspected-tremendous CALIF. WEST. LAW R:Ev. 124 (1967). The authors of confirmed this article indicate that expungement was brought up confusion about their meaning. Analysis of the for the first time formally at the 1956 National Con- ways in which the words "seal" and "expunge" ference on Parole, with the objective of lessening or abolishing the 'penalties which public opinion, as are used reveals neither precision in definition nor opposed to law, imposes upon one convicted of an consensus as to meaning. Often the terms are used offense against society". BERNARD KOGON AND DONALD L. LOUGHERY, JR. [Vol. 61

possibility of refreshment or revival under any cir- Gough states in this connection: cumstancesi "By an expungement statute is meant a legislative Corpus Juris describes expungement as "a term provision for the eradication of a record of convic- expressive of cancellation or deletion, implying tion or adjudication upon fulfillment of prescribed not a legal act, but a physical annihilation". In conditions, usually the successful discharge of the its elaboration, the words "rub out", "destroy", 8 offender from probation, and the passage of a and "obliterate" are used. period of time without further offense. It is not It may be seen therefore, that sealing does not simply a lifting of disabilities attendant upon con- purport to destroy the record, while expungement viction and a restoration of civil rights, although does. With respect to popular usage, however, the this is a significant part of its effect. It is rather a words are often used interchangeably. To cite redefinition of status, a process of erasing the legal event of conviction or adjudication, and thereby re- an example, the Juvenile Court Act of Utah storing to the regenerate offender his status quo specifically provides for the "Expungement of 12 ante." Juvenile Court Record".9 The code section, however, goes on to indicate that, under certain Removal of Disabilities conditions, the court "shall order sealed all rec- "Removal of disabilities" actually includes any ords..." (Emphasis added). The section fur- legal effort made to nullify the bad effects of a ther provides for "inspection of such records", record, whether or not concealment or secrecy are clearly indicating that the literal meaning of involved. expungement was not intended. A further example: California's laws dealing with vacation of Pettier and Hilmen discuss several California conviction, restoration of certain civil rights, and statutes which actually deal with the sealing of removal of some other disabilities are notoriously records, but state: "Here records may be truly referred to as expungement laws, when in fact expunged by a petition to seal them" (Emphasis they seek only to remove certain disabilities and added) .' not to erase the record at all. As a result of the A law review article, devoted to California's primal error, we see many efforts to make such ".unusual expungement statutes", reflects the laws more effective as expungement laws, in the same basic error. Discussing Penal Code Section face of the fact that they were not intended as 1203A, and related sections, none of which such. These efforts unfortunately only tend to actually provides for expungement, it "suggests compound the initial fallacy. statutory amendments to make expungement a Booth demonstrates the confusion clearly. He more meaningful reward for and aid to rehabil- comments on California's Section 1203.4, a well- itation". The authors conclude by declaring that known provision dealing with dismissal of a case the difficulties demand that "the expungement re- and removal of disabilities flowing from the con- quirements be sharpened to increase the credibility viction, after successful completion of a probation of the expungement as reflective of rehabilita- term? He notes that a motion under this section tion".n is commonly referred to as a motion for "expunge- 7Gough emphasizes that not only is the record ment" and states: "Notwithstanding the fact eradicated but, more significantly, the offender receives that the remedy is commonly referred to as 'ex- a "redefinition of status". Op. cit. supra note 3, at p. 149. Stein, discussing Section 1203.4 of the California pungement', it is far from it". Elsewhere in his Penal Code, often and erroneously referred to as an article, he uses the term "sealing" in the same expungement statute, states: "While there is no statu- context, without differentiation. tory definition of expungement, in both legislative and legal circles in California it is generally understood to In response to a survey question about local mean that, as far as the law is concerned, the record sealing and expungement laws, a number of does not exist, while in fact, physically, it does exist". See Stein, Gut by Record, 1 CALm. WEST. LAW Rxv. on a Criminal Convition: 40 So. CA=. LAw REv. 127 (1967). 126 (1965). 12 ough, op. cit. supranote 3, at p. 149. 835 CoRPus JuRxs SEcuNDuar 343; see also West Publishing Company's WoRDs AN PRAsEs, Vol. 3Booth, The Expungement Myth, 38 Los ANGELES 15A, 1968 pocket part, p. 72. BAR Bu= m.xI,March 1963,161-166. 9 Section 55-10-117 Utah Code annotated 1953, as It must be observed that Section 1203.4 does not enacted by Laws of Utah, 1965. even use the word "expunge", and that none of the 103 CALIF. WEST. LAW REv., op. cit. supra note 6, at many court decisions dealing with it and related sec- p. 126. tions declares the record expunged, or indicates that 1 Notes and Comments-The Effect of Expungement such was intended by the legislature. 19701 EXPUNGEMENT OF CRIMINAL RECORDS

respondents indicated that their laws provide flecting a singular lack of clarity as to philosophy for the "setting aside" of youthful-offender, mis- and goals, or else non-existent. demeanor, or felony convictions and the removal It is no exaggeration to declare that confusion is of disabilities flowing from such convictions. monumental. As has been said previously, there Although such legislation is rather common, is no common currency with respect to the meaning with evidence of a legislative trend in its favor, of terms, but rather a tendency to use the words the vacation of convictions and the removal of "seal and "expunge" interchangeably. disabilities do not constitute concealment of the Beyond the semantic problem-which amounts record, any more than the declarations of con- to far more than that in the lives of offenders-it fidentiality of juvenile court records are the was found that the vast majority of respondents equivalents of their concealment from scrutiny. 4 to the aforementioned survey of correctional The setting aside of convictions generally has a administrators regarded sealing and expungement, much more limited effect. While certain dis- and particularly the former, as a desideratum. abilities are dearly removed, and while there In different ways they championed the proposition sometimes purports to be a concealment of the that when an offender has paid his debt to society, record, the fact is that it remains. In some few he should not be hounded forever. A number of instances, however, similar to the juvenile court them indicated that bills pertaining to sealing situation described above, the relief granted by were either currently before their legislatures, or vacation-of-conviction statutes may include a were being advocated." concealment of the record. Frequently, strong convictions were expressed Booth's position is that current "expungement" about the desirability of such concealment prac- does not work, that "our sense of fair play" should tices, on the theory that we defeat our goals of re- require us to give an offender "a second chance to habilitation if we permit the typical social bias start off with a clean record", and that the thing against offenders to persist by perpetuating a to do is to revise the statutes so as to make them record of their offenses. In the same vein, many more effective as real expungement laws." Current respondents urged that rehabilitation was really "removal of disabilities" provisions might be said enhanced by concealment of the record. to be even less effective, although they point to- Partisans of concealment statutes ranged ward a sounder direction. widely in their views. Some offered considerable

CURRENT PPRACTICES reason and logic for their position, while others tended toward a more sentimental view about An examination of the practices throughout the humanitarian service we could render offenders the country revealed that laws pertaining to the when, at the point of death, they desperately subject of inquiry are either conflicting, thereby re- wished to have the record cleared before they met 14Baum states that "This type of relief-actually the "Maker". Admittedly, this is an extreme, but wiping out the legal event, sealing the records thereof, and authorizing denial of the occurrence of such event- it serves to make a point about the variety and has been a good deal more controversial than remedies confusion of motivation and inyth surrounding only affording relief from disabilities resulting from this conviction." Baum, Wiping out a Criminal or Juvenile subject. Record, 40 CALmoRNuA STATE BAR JouRwAL 824 (1965). The common thread among all these responses While there is lack of clarity about the force and involved the belief that the way to protect an effect of the California so-called expungement statutes, the best of evidence indicates that they do not expunge ex-offender from continuing harassment and conviction. An article, referred to earlier, studies six suspicion is 'through record concealment; that California statutes dealing with the concealment of records, and concludes as follows: "Expungement the trend must be toward tightening up conceal- inaccurately describes the effect of the six California ment laws and practices to make them more statutes, none of which literally expunges the convic- effective. tion." The sentence or judgment is vacated, but not the conviction. Supranote 11, at p. 132. Despite the overwhelming thrust in favor of The California Attorney General has ruled that the concealment statutes, however, a search reveals records of conviction are not destroyed upon the entry of an order of dismissal pursuant to Section 1203.4 (36 16In California a large number of such bills were Ops. California Attorney General 1, 3-1960). submitted to the 1968 Legislature. Governor Reagan Gough emphasizes that provisions which set aside vetoed these bills because the Senate Judiciary Com- the crime do not reach the status of an offender. Op. cit. mittee is currently studying the matter of record seal- supranote 3, at p. 168. ing. The Governor felt that such legislation should be 15Booth, op. cit. supra note 13, at p. 166. deferred until the study was completed. BERNARD KOGON AND DONALD L. LOUGHERY, JR. [Vol. 61 that most states do not actually have such laws. concerned with the annulment of a conviction of Many laws purport to provide for sealing or crime, authored by the National Council on Crime expungement, but do not, in fact, do so. Such and Delinquency in 196219 This act essentially misleading laws fall into two broad categories: 1) provides for judicial power to annul a conviction. those affording the "protection" provided by It is by no means unequivocal. -Annulment is a "privileged" (generally juvenile) court records, matter of discretion, not of right. It, therefore, and 2) those furnishing no such 'presumptive depends on the circumstances whether an offender protection initially, but rather providing for the gets one or not. Further, not all rights are un- removal of disabilities resulting from conviction equivocally and absolutely restored; again, it (or the juvenile delinquency equivalent) after a "depends on the circumstances". "good adjustment". NCCD adds to the doubts about the efficacy of In response to a survey question about the such equivocal, remedial legislation, by confusing existence of sealing and expungement laws, many the removal of disabilities with the blotting out responded by citing juvenile court law provisions of the record. For example, the article states: for the privacy of hearings and the confidentiality "The kind of authority given to the court in the of records. While juvenile court proceedings are Model Act should produce wider and more uniform generally private throughout the country, ex- use of the power to expunge the record while allowing perience has shown that there is much unwarranted for sound discretion to take individual circum- confidence in the inviolability of this 'privilege" stances into account." 2 (Emphasis added.) when it is challenged. use the word Realistically, one must address the question of The Model Act itself does not "expunge". It does refer to "annulling, canceling, confidentiality with respect to whom and under conviction and what circumstances, rather than in abstract terms. and rescinding the record of . .. " 21 While it thus may appear that It is emphasized, however, that the confidentiality disposition is intended, such an inference is of records is not the same thing as sealing or expungement dispelled by language in the Act which indicates expungement, and that to use all these words that in a subsequent crime, the prior conviction interchangeably is to compound the confusion. may be considered by the court in determining The Alabama Statute, for example, provides what sentence to impose. The record is, therefore, against "indiscriminate public inspection," which of the word. It is is hardly equivalent to a sealing, let alone ex- not expunged in the real sense 7 against the offender. pungement of the record.' very much there, to be used National Conference on Parole urged While most states have provisions for the The 1956 protection or confidentiality of delinquency that: records, such provisions customarily do not extend "Expunging of a criminal record should be author- to the sealing of the records."8 ized on a discretionary basis. The court, of disposition should be empowered to expunge the record of Efforts to Extend Current Trends conviction and disposition through an order by which the individual shall be deemed not to have There are leading organizations which support been convicted. Such action may be taken at the current concealment laws and press for their point of discharge from suspended sentence, proba- improvement. An example of this is the model act tion, or the institution upon expiration of a term of 17Title 13, Sec. 353, Code of Alabama, 1940, recom- commitment." 2 piled 1958. 18Several states indicated that their juvenile court The Model Annulment Act emphasizes that laws specifically provide for record concealment, in "Annulment of the record serves a rehabilitative addition to the requirement of confidentiality (e.g., Arkansas, Illinois, Minnesota, South Dakota, purpose".2N A better approach, however, would Vermont). be to annul attitudes rather than the record. The Minnesota law indicates that: "... the Court of A Convticion of Crime-a Model Act, may expunge the adjudication of delinquency at any 19Annulment time that it deems necessary". However, neither phys- 8 CRE0 AwD DELINQUENCY l2, April 1962. of records is required. (M.S. : Ibid. p. 100 ical destruction nor sealing 21Ibid. pp. 97-102 Sec. 260.185, subdiv. 2, Juvenile Code, 1959, as amended). 22National Conference on Parole: Parole in Prin- In Nevada, protection of records does not include ciple and Practice, National Probation and Parole sealing, at least in some counties. (Chapter 62, N.R.S., Association, N.Y. 1957, p. 136. Procedure in Juvenile Cases). Model Act, NCCD, op. cit. supra note 19, at p. 98. 19701 EXPUNGEMENT OF CRIMINAL RECORDS

Submitted to the 1969 Delegate Assembly of are invariably introduced. Such laws, proponents the National Association of Social Workers were urge, need to be consistent with public safety a number of recommended changes with respect and, further, exceptions need to be made as to to goals of public social policy. Among these was what kinds of records are concealed, for what kinds a proposed policy statement on juvenile delin- of offenders, and for what kinds of offenses. They quency and crime. The specific recommendation, offer ways of tightening up concealment laws and which "incorporates the more recent thinking and putting more teeth therein, but invariably wind recommendations of social workers in the cor- up with caveatsP The result is not a dear, rectional field," provides that: viable, and unequivocal philosophic position but, instead, the familiar posture which, in effect, says: "A police or court record on a juvenile or an adult "It all depends"-a position which exasperates presents a continuing handicap to the individual as and frustrates offenders, and the general public an obstacle to employment, enlistment in the too, who seek a "straight answer" to the question armed services, or participation in other public or or not a record is expunged upon service programs.... The statutes should provide as to whether for the expungement of police and court records good adjustment and discharge from the cor- when certain conditions relating to individual ad- rectional system. justment have been met. To eliminate obstacles TnE INE PEcTrvENEss OF THE PRESENT SYSTEM resulting from a record of criminal conviction, federal and state legislation should provide for va- Despite the good intentions and the evidently cation of conviction after the offender has success- laudable goals of record concealment proponents, fully complied with the obligations imposed." 24 it is apparent that the system cannot and does not work.28 Record concealment is unworkable; it The American Civil Liberties Union in Cali- fails to lift other penalties attendant to the fornia inveighed against Senate Bill 990, as an record; it sanctions deceit; its half-secrecy leads to example of "restrictive or regressive criminal speculative exaggerations; it frustrates con- law bills" 2-a bill which was introduced in the structive research; and it is not equally available Senate in the fall of 1968 for the purpose of (a) to all. More particularly: repealing the existing statutes that provide for the 1. The process is impractical, unworkable, and sealing of criminal and juvenile records of minors, unenforceable. The record is still retrievable and (b) opening of presently sealed files. through secondary sources. It is simply not While one can appreciate the motives of ACLU possible, physically or literally, either to seal and others pressing for suppression of the record, or expunge a record. Baum refers to the "poet's Senate Bill 990 should have been supported, if claim that what the Moving Finger writes cannot we are ever to escape the intellectual dishonesty be cancelled out," and elsewhere in his article he of the present system. states: "It seems that when the Moving Finger What is universally suggested in these state- writes these days, a dozen Xerox copies likely are ments and by some correctional authorities is, made." 29 essentially, that society should go as far as the sanctioning activities of the democratic body politic possible--all out-in enacting, and improving with the ultimate value-human dignity. Op. cit. supra existing concealment laws.28 However, caveats note 3, at p. 149. 2 Note the following typical position: "The breadth 2 NASW News Nov. 1968, p. 21-Delegate Assem- of expungement of records must, of course, be deter- bly (1969) Materials, Recom. #4, TheLegal Code. mined by a careful weighing of the public interest in 25The Bill File-A report on the 1968 Legislative knowing of the record against the public policy of doing Sessions, by Coleman Blease, ACLU Legislative Advo- everything possible to aid the former offender's return cate. The bill was vetoed only because the Senate Judi- to society." Pettier & Hilmen, op. cit. supra note 6, at ciary Committee is currently studying the sealing of p. 128. The authors cite examples of the more para- records. The Governor is reported to have stated: mount societal need, and then state: "The very exist- "Further legislation in this area should be deferred until ence of these areas makes expungement in the sense of the Committee has had an opportunity to complete its an erasure or destruction impractical as well as inad- inquiry." (Supra note 16) visable. id. p. 129. 26 The article by Pettier and Hilmen, op. cit. supra 2 Professor Fred Cohen in his perceptive writing on note 6, closes with six suggested reforms for restricting the "rehabilitative ideal", refers to the "oft-repeated or preventing public access to records of offenders who error of confusing benevolent purpose with actual or have satisfied the penalties imposed on them. Gough potential arbitrary outcome... a benevolent purpose urges the same view. He states: qt is the writer's view is no guarantor of success or fairness". 47 Tx. L. REv. 1 that providing institutional means of restoring status (1968). after reformation is an appropriate way to harmonize 29Baum, op. cit. supranote 14, at pp. 816,824. BERNARD KOGON AND DONALD L. LOUGHERY, JR. [Vol. 61

Petter and Hilmen also point up the problem: Loopholes in law and practice provide additional leads to record disclosure, leads which any "... In the absence of any penal sanctions against reasonably skilled investigator can pursue. It is disclosure, the accessibility of such records is gener- not unusual, for example, that the written order ally a matter of whom one knows in the department for records to be sealed or destroyed is itself not in which they are kept. Disclosure is further pyra- mided by the many places to which such records are concealed; this, of course, creates a "track" to distributed, and thus additional sources from which be followed. Entries in state criminal identification they may be procured." 30 bureaus customarily indicate that certain records are sealed, in accordance with a given code section; Elsewhere, the authors emphasize that statutes this constitutes another example of a lead to dealing with sealing and expungement commonly information and record disclosure. provide nothing more than a notation of the Evasion of legislative intent by prospective record concealment. They state: employers abounds. As an example, an applicant "There are not any controls, at least penal sanc- may be asked whether he had ever requested tions, against disbursing information contained in relief under various sealing or expungement laws, expunged records, nor are there any provisions re- or whether he had ever had a criminal or delin- quiring destruction of copies held by various public quency record sealed. 4 agencies and private individuals. In short, expunge- Because records which are concealed, pre- ment statutes as they presently stand neither ex- sumably even destroyed, may be brought to punge nor aid a former offender-They are arbi- light without too much difficulty, the conclusion trary in nature and uncertain in the practical 3 is inescapable that such practices do not and remedy they provide." ' cannot work. All records are not and cannot be sealed. That 2. Other disabilities and restrictions remain even which is sealed may readily become unsealed, where the record is concealed. Ours is a penalty- formally and procedurally, on the basis of limita- oriented system of justice. Ex-offenders continue tions and exceptions customarily written into the to suffer from statutory and extra-legal penalties law." Informal "leaks" in the seal are common- long after their offender status has been term- place. inated. A state with a concealment statute cannot Even where statutes providing for vacation of require the FBI to seal or return records to it, so conviction and removal of disabilities also include that an ex-offender may receive protection only some form of record concealment, it is common in his own jurisdiction. Furthermore, concealment knowledge that this does not lift other limitations statutes do not help an ex-offender in relation to and lingering penalties. security checks. In many jurisdictions, the ex-offender must 5 Police records, which are hardly ever sealed or register with police for life. Increased punish- destroyed, provide information which is damaging ment for later offenses is commonplace where to the ex-offender and which includes clues leading "priors" can be established. Testimony of ex- to ultimate record disclosure. Although many offenders, even those whose records have been "expunged," can often be states, in a variety of patterns, restrict or pro- impeached with such 6 hibit the use of criminal and delinquency records, information. it does not generally follow, where such restrictions cit. supra note 7, at p. 130, where the author discusses or prohibitions obtain, police records. that police records are U According to Gough, probation officers claim that affected. They remain, with very few exceptions, agencies often ask: "Have you ever had an offense even where sealing and expungement laws exist." record expunged?" or 'Have you ever appeared as a moving party in any court?" Op. cit. supra note 3, pp. MOp. cit. supra note 6, at p. 132. "midb., p. 128. "5Until recently, an ex-felon in California had to "'Expungement statutes are so riddled with legisla- register with police "forever" under Penal Code, Sec. tive and case law exceptions that they are almost wholly 290, or Health and Safety Code, Sec. 11853, even ineffectual." Op. cit. supra note 6, at p. 125. "... the though disabilities were removed under Section 1203A exceptions to the 'no disabilities whatsoever' have be- of the Penal Code. come the rule." Op. cit. supra note 11, at p. 129. 31 Under California Law, if an ex-felon testifies in the ", Section 1203.4, California Penal Code, the often- case of another, he may deny a former conviction, under quoted "expungement" statute, applies to convictions, Sec. 1203.4, Penal Code. However, if he testifies in his not arrests. Op. cit. supra note 13, at p. 161. Also see op. own defense in any subsequent prosecution, he will be 19701 EXPUNGEMENT OF CRIMINAL RECORDS

Opportunities to obtain or renew licenses or The members complacently concluded, never- permits to practice certain trades or professions, theless: or to get them restored after suspension or cancellation following conviction, are sharply cur- "We think, however, that it is unlikely that the procedure will be deceptive.. .""3 tailed throughout the United StatesP "Expunge- ment" of the record often does not help restore The ex-offender, usually not knowing where he the ex-offender's status since innumerable court stands at the time his case is closed, oftentimes decisions have held that the matter is entirely unwittingly finds himself in a false situation. An within the discretion of the licensing body. all-too-familiar example concerns the offender who, The use or possession of firearms is oftentimes in response to a query about his record, denies it limited u As noted earlier, in another context, because he believes it has been wiped out. He then record suppression does not provide an ex-offender gets fired, not because he has an offense history, with any relief in security checks by employers, or but because of falsification; that is, he lied."0 in relation to federal usage of records-by the Further, a man who conceals his record is military or FBI, as an example. Excepted also forced into more elaborate falsehoods in order to from expungement legislation are certain Motor account for the time lapse in his past during which Vehicle Code violations. he was actually in jail or prison. 3. The system sanctions deceit--it institution- There is some evidence that where record con- alizes a lie. In trying to conceal a record we seek to cealment statutes are invoked employers react falsify history-to legislate an untruth. Such negatively. Gough, in citing studies of employer suppression of truth ill befits a democratic society. attitudes with respect to the hire of ex-offenders, Good intentions are no defense. To enable an states: offender to deny that he has a criminal record when in fact he has one is to help him deny a part "Several [employers] expressed distrust of an ex- of his identity. In encouraging him to lie, the pungement procedure, and indicated that they society communicates to him that his former would not look favorably on someone who had in- offender status is too degrading to acknowledge, voked it. As one man put it: 'We probably wouldn't fire the guy outright (i.e., in the event of subse- and that it is best forgotton or repressed, as if quent discovery of the offense) but I think we'd be it had never existed at all. Such self-delusion and rather hurt that he didn't feel he could come and hypocrisy is the very model of mental ill health- tell us about it'." 41 the reverse of everything correctional philosophy stands for. 4. The system encourages harmful speculation Members of the American Law Institute, when and distorts the record with half-truths. When por- working on the Model Penal Code, were concerned tions of the record are revealed, as inevitably about this point. One of the drafts indicated that: happens despite the concealment statutes, the actual and total record is usually inaccessible, so "A provision for vacation [of criminal records] that only a part of the "truth" is revealed. The troubled some members of the Council in the view consequence oftentimes is that the information that it attempts to rewrite history, and may lead in is distorted, exaggerated, or misinterpreted, its consequences to legitimate denial of the fact of usually to the ex-offender's disadvantage, Business conviction in communications where this fact is men, civil service agencies, army recruiters and relevant and should be stated." others usually assume the worst, filling in the impeached, regardless of the "expungement" of the blanks with imaginations far more lurid perhaps prior conviction. than the facts themselves. 'Of approximately 60 licensed occupations in California, the disciplinary provisions of 39 occupations 3"See American Law Institute, Model Penal Code, permit license denial, revocation, or suspension for Tentative Draft S 7, Philadelphia, Pa., May 3, 1957, conviction of a felony, or any offense involving moral Section 6.05, p. 30. Baum states: "What to proponents turpitude, while others specifically provide that the seems a commendable cleaning of the slate necessary to offense must be connected with the licensee's occupa- effective rehabilitation or to assure a second chance to tion." Op. cit. supra note 11, at p. 137. one already rehabilitated, seems to opponents a sort of IsSection 12021, California Penal Code, does not official 'new think', and a license to tell falsehoods." permit an ex-felon to have a firearm capable of conceal- Op. cit. supra note 14, at p. 824. ment on the person, even though disabilities were 401 Op. cit. supra note 11, at fn. 57, p. 133. removed under Section 1203.4, Penal Code. 4 Op. it. supranote 3, at p. 154. BERNARD KOGON AND DONALD L. LOUGHERY, JR. [Vol 61

An editorial which appeared in the Los Angeles In "Answer Line," a regular column in the Times of August 26, 1968, reacted negatively to Los Angeles Examiner, the following question a bill introduced in the California Legislature in appeared in the issue of December 30, 1968: the fall of 1968 providing for the sealing of police records in cases of mistaken identity. Calling "Several years ago I was convicted of a felony, and attention to a number of drawbacks, while ac- have managed to stay 'clean' ever since. My problem is that now I can't find a job, as no one wants to knowledging that sealing and destruction of hire a convicted felon. Is there any way I can have records "may sound appealing on the surface ... my record sealed" ? the editorial concluded: "Furthermore, we feel that the very concept of "Answer Line" responded as follows: selective destruction of police records is dangerous. "Under some circumstances, depending on the state In the long run, the innocent party is better pro- it was committed in, a criminal record can be tected by having the record of his arrest--and re- sealed, says a local attorney. It is a complicated lease-clearly documented." 42 procedure, however, and would best be handled by 5. Records should not be tampered with because a reputable attorney." they have value for research purposes. The adminis- What is communicated to the ex-offender, who tration of criminal justice can hardly be com- is "dean" and has presumably paid the debt, is placent regarding its current effectiveness. It is that "it all depends"; "it's complicated"; and frequently under scrutiny, as well as attack. "you'd better get a lawyer". Those who are Under the circumstances, we should maximize ignorant of such legal provisions or who have no the availability of all records and data for study funds to hire attorneys anyway, do not have by social scientists. The correctional system is equal access to this "remedy". notorious for its paucity of complete and reliable information, so that we can ill afford to deny DISSENT AGAINST THE SySTE students of the system access to criminal and 43 While, as indicated earlier, most survey re- delinquency records. spondents supported concealment statutes, there 6. Concealment procedures are not equally avail- were a few who expressed reservations in support able to all, anyway. If sealing and expungement of the writers' viewpoints. Some of these were as procedures were readily available for all ex- follows: offenders desiring to conceal or erase the records, Paul Keve, Commissioner of the Minnesota they would nevertheless merit opposition. The Department of Corrections, wrote, in part: fact remains, however, that these procedures are not readily available to all. "I tend to be very unimpressed with the value of No jurisdictions are known which provide for sealing or expunging records, and I am more in- automatic sealing or expunging. Ordinarily a clined to argue for maintaining records that are petition is required, and the grant is within the highly responsible in their quality and then to make court's discretion. The result is that the system is them actually more available than they had been in functional only for a very small number of of- the past. My own experience is that recruiting offi- fenders who have resources and can negotiate the cers and civilian employers are often more willing to consider the qualitative aspects of a person's record system. For the vast number of ex-offenders, than to categorically rule against him on the mere largely members of lower-class and minority fact of the records existence. I would argue that groups, sealing and expungement are meaningless 44 once a thing has happened there is no way in this terms. world to say that it did not happen, not even by ex- 4 The bill was vetoed because the sealing of records punging a record of what happened. We may seal, is currently the subject of study by the Senate Judiciary hide or bum our records, but there is no way of Committee. Supra note 16. guaranteeing that some record card does not still 'any of the psychiatrists and psychologists wish exist in a police file, and we cannot prevent the to retain the records for research purposes...."--ex- tract from letter, dated August 28, 1968, from Daniel record from existing in the minds of the people who W. Johnson, Director of the Ohio Youth Commission. knew about the record. When a young man is asked "It is common knowledge, easily verified by statis- by a recruiting officer if he was ever in Juvenile tics, that where pardon procedures exist, the same Court, he usually says yes. Right then and there the condition obtains, viz., they are out of the reach or knowledge of the vast majority of ex-offenders, who main part of the damage is done and after that our therefore never apply for them. record has a chance to be helpful to him by reveal- 19701 .EXPUNGEMAENT OF CRIMINAL RECORDS

ing the positive things about how he progressed on destroyed not only what might be held against a probation, etc. But if the record has in any way person but also what can be said that is construc- been removed from scrutiny there is no way to tive or at least more complete about a person. This avoid the bad effects of the recruiting officer know- would be particularly important where it was al- ing the fact of the delinquency but not the quality ready known that he had been in difficulty but no of it." 45 record can be found. An aura of suspicion and confusion from lack of anything tangible can be more Jack Wiseman, Director, Board of Parole and negative than the record ... " 18 Probation, Salem, Oregon, stated: Howard L. Snowden, Technical Consultant, ".... I personally do not feel that the procedures are Illinois Youth Commission, takes the position as functional and socially purposeful as intended. I that on the whole the sealing of juvenile court say this with respect to the adult offender who is records serves the intended purposes. In his inclined to feel that an expunged record eliminates letter he added: the possibility of someone else gaining knowledge of this record at a date in the future. As you well "However, in those many instances where the know, knowledge of an expunged record is available offense is repeated, or where the offense is so grave if the prints have been forwarded to the FBI. In that the youth must be incarcerated... some facts other words, the person develops a false sense of of the statutory violation become known to the security and anonymity regarding the record that public, and it is my opinion that very little can be certainly does not maintain in practice. In my esti- accomplished by sealing the records. In fact, the mation, it is quite possible that he could find him- rumored stories are often more damaging to the self in all sorts of difficulties on job applications youth's reputation than the actual facts of the inci- because of this." "I dent." 41

Commenting on the effectiveness of laws which Paul Murchek, Director of the Florida Pro- permit an offender whose record has been con- bation and Parole Commission, wrote: cealed to say that he has none, Judge Margaret E. "I personally believe that expungement and sealing Driscoll of the Juvenile Court in Bridgeport, of criminal and delinquency records would encour- Connecticut, pointed out that people who ask the age many individuals to conceal the truth about question, such as District Attorneys, can get this and subsequently many other important con- around it by other questions. She said: siderations, secure in the knowledge that such laws will create and protect his right to lie..." 50 "Of course experience in other areas has indicated that somehow the questions could change to get Apart from specific survey responses ...in a around whatever law is passed." 7 letter regarding the sealing of juvenile records Barton Anson, Director of Court Services, which was written to the Los Angeles County Ramsey County Probation Department, Minne- Delinquency and Crime Commission on No- sota, while generally endorsing "some system of vember 15, 1967, Judge Alfred J. McCourtney, expunging records", expresses reservations about then Presiding Judge of the juvenile Court of complete expungement. In his response he stated: Los Angeles County stated:

".... My own personal views on the subject are that "... Young people are not profiting by the law this system does not accomplish what some may which was intended to help them, and those who hope that it does-namely, that the state com- take advantage of it are qualified quite inappropri- pletely forgives the person his transgression by ately to claim a falsehood, namely, that they did saying in effect that the record does not exist. The not commit the acts which in all truth they did problem is that it does and if anyone wanted to commit..." really find out about the record undoubtedly he Mr. Harold could..." R. Muntz, Assistant Chief Pro- "The ultimate expungement would mean the bation Officer of the Los Angeles County Pro- physical destruction of any and all records... The bation Department, stated in a departmental drawback to destruction of records is that you have administrative bulletin issued January 28, 1968: 4"Quoted from letter dated August 22, 1968. 4Quoted from letter dated August 29, 1968. 46Quoted from letter dated August 16, 1968. 49Quoted from letter dated August 28, 1968. 47Quoted from letter dated August 30, 1968. 50Quoted from letter dated October 7, 1968. BERNARD KOGON AND DONALD L. LOUGHERY, JR. [Vol 61

"We have on several occasions taken the position Actually, the real issue is not the record, but that the process of sealing a juvenile court record the social attitude toward it. The record, as has only led to injurious surmise, rather than the history, must be retained. Keeping records avail- removal of the disability of such a record... When able should result in their improvement generally, records pertaining to a period of wardship are or- by virtue of the fact that more availability should dered sealed, reports of a minor's achievement are make for more scrutiny of the product-the record, made inaccessible, thus acting to the disadvantage so that authors of a record would be more prone to of the minor. For example, school records acquired during a stay in a forestry camp must be sealed consider quality and accuracy in its preparation. when such an order is made. Records cannot there- Sol Rubin makes a pithy comment related to after be furnished to other schools or colleges to this matter, but in another context-access by a which a minor transfers, without breaching the defendant to a presentence investigation report. order..." He states: THE REMEDY "Because probation staffs are inadequate in most One suspects that at the root of the problem is departments in numbers and quality, it cannot be the fact that our correctional philosophy and assumed that reports are complete and accurate. practice are incongruent in respect to record Disclosure to the defendant would militate against concealment--as in many other aspects of criminal laxity in the investigation, carelessness in the writ- justice administration."' We are not dear about ing of the report; and rubber-stamping of the report 62 this business of records; we are in conflict about by the judge." it. We are, therefore, endlessly fussing with the Rubin cites a court case and includes the removal of selected records from view--only to following relevant line from the court decision: discover that they crop up again somewhere else. We can continue to refine the removal-of- "Anonymity also encourages misinformation and disabilities, annulment of conviction, and record removes an incentive for accuracy and thorough- concealment statutes; we can continue to de- ness by those obtaining the information." r clare that the criminal conviction is no more, We need to pass laws outlawing discrimination and that the record can no longer plague the against people with records. Rubin observes in offender because it is either sealed or expunged; this connection: nevertheless, it will remain-an iceberg somewhere below the surface, and an unacknowledged barrier "We know of no statute protecting against discrim- to full social reintegration. ination against persons with criminal records... 5 Perhaps the closest analogous statutes are those 1 The Dedaration of Prindples of the American Cor- protecting individuals from discrimination in em- rectlional Association, first uttered in 1870, proclaims that "no law, procedure or system of correction should ployment because of race or religion."u deprive any offender of the hope and the possibility of his ultimate return to full, responsible membership in Our often-stated objective of helping an offender society" (Principle 19); and concludes with the declara- to make a new start in life can thus be achieved by tion that "The correctional process has as its aim the reincorporation of the offender into the society as a leaving the slate as is, and helping him by the means normal citizen" (Principle 33). See Am. J. oF CoRnec- suggested above-leaving the record alone, and TiON, September-October 1960, for complete statement developing programs designed to change attitudes of principles, adopted in 1960 by the American Congress of Corrections. about offenders, via education and supporting One does not need to be a sociological savant to legislation. 5 understand that there is a wide disparity between what we profess and the way we actually behave. Although 2RuBiN, Tn LAW op CRximAL CoRRECON (1963) practically a hundred years have gone by since the first 92. statement of principles, correctional practice, in many SIbid., p. 92. 5" respects, is still not consonant with the lofty principles 55 ib., p. 639. expressed in the Declaration. David Matza, in his Gough, in his excellent article, states: "... if the provocative book DLmQUENcy AND DR= (1964), disabilities of conviction are to be removed effectively expresses a notion that even if one reforms, one is not and the reformed offender restored to society, the rem- forgiven, and makes some very insightful comments edy chosen must reach the genesis of the status." Op. about this disparity between what we say and what we cit. supra note 3, at p. 150. Our position, of course, is to do. He states: "Whatever our philosophical preferences get at this matter of offender status by means of a new in the assignment of fault, the question of consistency- acceptance of offenders, and not concealing records. the avoidance of hypocrisy-is paramount.... Hypoc- Gough also notes: "Public good demands the reas- risy--saying one thing and doing another-is funda- similation into full social status of all who have offended mentally corrosive of trust." (page 97). against it." IbW., p. 155. 19701 EXPUNGEMENT OF CRIMINAL RECORDS

Sooner or later we must acknowledge that it is Of course this is true only in relative terms. the society, not the record, which must be changed. Certainly it is not suggested that offenders have Our relentless and permanent rejection of devi- an easy time of it in their reintegration. There is ants will destroy them, and everyone else with indisputable evidence of significant changes in the them, if it persists. This is one of the basic issues society's attitude, nevertheless. These changes at the heart of current urban ghetto problems. show that we can do it; we are already doing it. As long as the ghetto breeds crime and the society We are focusing attention not on the record but, blocks the employment and rehabilitation -of instead, on the primary task of reintegration." former criminals, no relief is in sight. The cycle of Why does this solution seem so difficult? We riot and reaction spirals unchecked toward must examine the root causes and reasons for our revolution. This has been recognized equally problem, and then move resolutely to eliminate by governmental investigative commissions and barriers to the remedy. private industry.56 It is proposed that there is a latent, pervasive How real and practical is the remedy pro- attitude in our society which stresses the generic posed? It is neither visionary nor utopian, as unworthiness of the criminal-his permanent opponents may claim. Former offenders with unfitness to live in "decent society". He is seen as records are, more and more, being hired on reg- an unredeemable, permanently flawed, ever- ular jobs. Moreover, they are being used as threatening deviant. Proper citizens are felt to be change-agents, as partners with professionals in menaced or degraded by consorting with him the rehabilitative functions. As a matter of fact, whether or not he has "paid his debt".5s ex-offenders are increasingly being sought as such, It is significant that proponents of record con- so that the record becomes a passport to a job, in cealment prefer sealing practices and are generally many cases, and no longer the stigma it once was. reluctant to go as far as expungement, in the real 58The National Advisory Commission on Civil Dis- sense of the term. This reflects their underlying orders states as fifth among its basic strategies for the reservations. They are just not sure, and therefore use of employment to ameliorate civil disorder: "Arti- prefer to have the record around, albeit sealed, ficial barriers to employment and promotion must be removed by both public agencies and private to be used "as needed". This persisting suspicion employers"... "Government and business must con- subtly mocks the reformed offender. sider, for each type of job, whether a criminal record The Lex Talionis motif permeates many aspects should be a bar, or whether a high school diploma is an inflexible requirement." REPORT or mEm NATIONAL of the correctional system, despite our pro- ADvisoRY CosIssION ON CIvIL DIsoDERs, Sup't. of testations to the contrary. It is plainly evident in Documents, U.S. Government Printing Office Wash- ington D.C. (1968) Catalogue #Pr 36.8:C491R29, p. our penal codes which specify "punishments" for 232. crimes. There are many societal cues which are Additionally, the Governor's Commission on the Los communicated to the former offender in such Angeles Riots asserts: "While security considerations sometimes preclude hiring a defendant with an arrest terms that he readily perceives that the society record, blanket rejection of such persons without regard intends to punish him; in some respects, forever. 9 for the nature of the arrest or whether there has been a The conflict of trust and distrust can be seen in conviction should be discouraged. We urge employers ...to increase employment opportunities for persons the balance of rights restored and rights denied. with arrest records." VIoLENcE INTHE Ciry-AN END The correctional "graduate" may marry, vote, OR A BEGINNiNG?, a report to the Governor of California participate by the Governor's Commission on the Los Angeles in contractual relationships and deny Riots, published in Los Angeles on December 2, 1965. his record. He may have to register with the (See p. 47.) police for the rest of his life though, and, if he Finally, in emphasizing the need for a new frame of reference if employment is to be found for the hard-core 57Paul Keve states in this connection: "I think we unemployed, the National Association of Manufac- are making great strides in the direction of getting the turerspoints out: 'Torexample, in the past, police records general public to be far more accepting of the previous have automatically screened out applicants in most offender, and I strongly feel that this is the way we companies. Yet in the culture of poverty, police records should go to solve the problem rather than strengthen- tendto be the norm.... By now, companies have had ing the stigmatic nature of the record by hiding it." sufficient experience employing people with records to Op. cit. supra note 45. know that there is very little correlation between having 0 Judge Warren E. Burger, writing on "Paradoxesin a police record and not being a productive worker." 1ttAdminstration of Criminal Justice", 58 J. CMnn. L., ErzxcrvELY EmLOYING Tm HARD-CoRE, National C. & P.S. 428 (1967), refers to our tendency to "regard Association of Manufacturers, New York, (1968), p. 5; all criminals as human rubbish." available through the reprint service of "Notes and 59Goldstein and Katz refer to the unconscious moti- Quotes," Connecticut General Life Insurance Co., vations which are operative in our treatment of law Hartford, Conn. violators. 72 YA=n LAw J.854,856 (1963). BERNARD KOGON AND DONALD L. LOUGHERY, JR. [Vol. 61 transgresses again, the record can be "resurrected" pocrisy, is hindered rather than helped in his and used against him once more. Clearly, he is readjustment. never truly restored to equal citizenship as long as How could it be otherwise! The community is he cannot ever again become a "first offender"."0 so prejudiced against former offenders that any What we do with offenders at the end of the celebration of successful rehabilitation inevitably correctional system is very instructive, as we con- would be condemnatory by its acknowledgement trast it with what we do with them at the begin- of the graduate's earlier "criminal" status. "To ning. In the "intake process", the offender is know him is to despise him." Until this bias can "mugged", finger-printed and booked. Even- be uprooted, real correctional rehabilitation will tually he gets a trial, after several preliminary remain effectively crippled. Contradictory at- court experiences. Counsel goes through various tempts to conceal the record conditionally may adversary procedures. After conviction, there is help the society evade this fundamental issue an appeal system. Even this sequence does not but they certainly do not really help the former exhaust the possible steps and ramifications. The offender to return. succession is highly institutionalized and complex. Sutherland and Cressey, commenting on the We solemnize the offender's induction into the social ostracization of offenders, state that: system. When he successfully concludes the program, "Our actual practice is to permit almost all crim- though, we fail to institutionalize his departure inals to return to society, in a physical sense, but to correspondingly. It's fun to catch the fish but hard hold them off, make them keep their distance, segregate them in the midst of the ordinary com- to let him go. munity. Thus they are kept isolated from law- It is tragic that we "accentuate the negative" abiding groups. If they are to be turned into law- and "eliminate the positive"; that we mark the abiding citizens, they must be assimilated into entry with ceremony, and the exit with nothing society and treated as persons with the potential to which symbolizes the offender's "return to full, be law-abiding citizens." 6 responsible membership in society"-his reincorporation "into the society as a normal citizen". 61 Gough comments well in this context. He states: Instead of celebrating the negotiation---or sur- vival-of the perilous correctional experience (no "It is clear that any program for reform must mean accomplishment), we remove disabilities create the institutions necessary for its realization, grudgingly. At the same time we interject so many and that the sanctions it imposes must be function- "if's" and "but's" as to render the benefit nu- ally apposite to the end it seeks. There has been sur- prisingly little recognition of the fact that our sys- gatory, while tampering with the records as if we tem of penal law is largely flawed in one of its most could rewrite history. The net result is that the basic aspects; it fails to provide accessible or effec- ex-offender, puzzled and frustrated by our hy- tive means of fully restoring the social status of the 60 It is meaningful to note that while courts often reformed offender. We sentence, we coerce, we in- broadly and liberally construe so-called expungement carcerate, we counsel, we grant probation and laws, legislatures invariably go the other way, raising parole, and we treat-not infrequently with success serious doubts about societal intent with respect to offenders. In an article, referred to earlier, the author -but we never forgive. The late Paul Tappan has refers to the judicial trend and then states: ".... legisla- observed that when the juvenile or adult offender tures respond by amending the statute to nullify the has paid his debt to society, he 'neither receives a effect of the court's interpretation". Op. cit. supra note receipt nor is free of his account'."" 11, at p. 133. In the same vein, it is also significant that the legislatures, and courts too, have generally narrowed the effects of removal-of-disabilities laws, so that ex- Gough further emphasizes that "there is con- offenders are really released from very few penalties and siderable evidence to indicate that the failure of disabilities-even though the statute may refer to the removal of "all" disabilities. Ibid. p. 143. the criminal law to clarify the status of the re- Section 1203.4, California Penal Code, states.... formed offender impedes the objectives of re- "who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which integrating him with the society from which he he has been convicted". This all-inclusive declaration has become estranged." 64 is a monstrous lie, as we witness the many legal and extra-legal penalties and disabilities the ex-offender 62 SUTFRLAND AND C.ESSEY, PRMnCIPLES OF CR._ continues to experience, the language to the contrary INoLoGY (5th Ed., 1955) 318. notwithstanding. "Op. cit. supra note 3, at p. 148. 61 Declaration of Principles, op. cit. supra note 51. " Id. 1970] EXPUNGEMENT OF CRIMINAL RECORDS

In his well-written article (which, incidentally, assure the former offender that the debt has been supports concealment laws and concludes with paid and that resumption of full citizenship is eight requisites of an effective expungement achievable. N4evertheless, whether removal-of- statute), Gough plaintively asks whether offenders disabilities laws exist or not, records should not shou'd "... be forced to bear forever the stain of be tampered with. There should be no need to their immature and impulsive conduct", and delude ourselves about a man's past in order- to states that "without the aid of an expungement give him a fair chance in the present. statute, [he] would be compelled to bear the It is a profound mistake to mix in with redemp- 6 mark of his past mistake".1 The writers contend tive legislation any provision for concealing the that Gough correctly assesses the problem but records. To help the ex-offender by restoring incorrectly solves it. The way to remove the mark rights and removing disabilities is an absolute is to accept the person; not conceal the record. necessity. Alteration or destruction of the record, Because in some ways we have become an however, only protects the body politic from con- enlightened society--at least as we contrast frontation regarding its own aberrant attitudes correctional work today with what it was like a and the necessity to change. It basically corrupts century ago-the punishment motif alone no the fundamental correctional objective of re- longer suffices. We feel guilty about our treatment habilitating offenders. of offenders because we see that unrelieved con- demnation and rejection will inevitably consign SUMMARY anyone to hopeless defeat. To some extent we expiate our guilt by pro- In summary and as a conclusion, we reaffirm viding some means to restore, partially, the our conviction that sealing and expungement former transgressor's status in society. Many practices should be abandoned and not merely laws demonstrate this effort-laws which provide altered. They have no utility in the administration that a declaration of wardship in juvenile delin- of criminal justice. quency cases does not constitute a criminal con- Criminal and delinquency records can be neither viction; provisions for confidentiality of records sealed nor destroyed altogether, physically or and proceedings in juvenile court cases; provisions practically. The record comes out inevitably, with for the removal of some disabilities resulting from the result that efforts to conceal it work invariably the offense; provisions for the annulment of the to the offender's detriment. conviction itself; and provisions for the sealing or Record manipulation does not address itself to expunging of the very records of the transgressions. the real problem. The pursuit of record manipula- All can be cited as evidence. We seem to under- tion practices results in our deluding ourselves, stand that an offender ought to be able, at some and, worse, in deluding offenders who have made a point, to stop "paying the debt". We understand, good adjustment. too, that if we surround him with all sorts of The only way to breach the barriers standing in disabilities flowing from the crime or delinquency, the way of an offender's reintegtation into the so- he cannot succeed. Therefore, we endeavor to ciety is to assault them frontally. The remedy lies leaven the harsher aspects of criminal law with in a radically different approach-leaving the rec- benign, though frequently ineffective, redemptive ord alone while constantly striving to improve its provisions. quality, and mounting an educational program, There is no longer time for ambivalence and with statutory supports, designed to liberalize pub- irresolution. Redemptive provisions must be made lic attitudes toward offenders. thoroughly effective. Any sound policy of dealing All of the above is predicated upon our belief with ex-offenders should include legislation which that we must destroy the myth that if we can only removes disabilities flowing from the delinquency find a way to wipe out a "sin" somehow, so that it or crime. There should be an end to retribution. was really never committed, then and only then Rights and privileges should be completely restored can we relate to the offender as a fellow human be- and such restoration should be automatic. Then ing. Such a pathway, we are convinced, is illusory, we can indeed convince the population and re- doomed to failure, and only serves to perpetrate a 51bid., at pp. 186, 157. cruel hoax on the offender. BERNARD KOGON AND DONALD L. LOUGHERY, JR. [Vol. 61

Schimel, writing on the "Role of Rationality in which social scientists have pinpointed and which Crime and Corrections: An Epilogue," states: alienate man from himself must be eliminated. If the task is recognized as worthy, the appropriate "There is a hierarchy of tasks if we are to work to- resources must be allocated to it." as ward a brighter future .... The fourth (perhaps it should be first) task lies in the minds of men, pro- 68An article by Dr. John L. Schimel, psychoanalyst, fessional and lay both. If the task is genuinely a in CmuE, LAW, AND CoRRECTIoNs (1966), edited by rehabilitative one, all those aspects of corrections Ralph Slovenko.