Sealing and Expungement of Criminal Records. The Big Lie Author(s): Bernard Kogon and Donald L. Loughery, Jr.

Source: The Journal of Criminal Law, Criminology, and Police Science, Vol. 61, No. 3 (Sep., 1970), pp. 378-392 Published by: Northwestern University Stable URL: http://www.jstor.org/stable/1141965 . Accessed: 27/02/2014 06:48
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SCIENCE AND POI.ICE OF CRIMINAL LAW, CBXINOI.OGE THE JOUBNAI. School ofLaw by Northwestern University CopJrright t 1970

3 VO1. B1, NO. P"nted in U.S.A.

CRI

Ml

NOLOGY

RECORDS THE BIG LIE OF CRIMINAL SEALINGAND EXPUNGEMENT

BERNARD KOGON

ANDDONALD

L. LOUGHERY,

JR.

Bernard Kogon, employed by the Los Angeles County Probation Department since 1951, is Director of the Staff Training Office. He received his LL.B. (1935) and M.S.W. (1942) degrees from Brooklyn 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, tos 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 Probation 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 workn juvenile forestry camps, personnel and trainingn 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 oSender, 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 emploSrable. 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.

handlingof the recordshouldbe among the first aspectsof practiceto be challenged. Record sealing and expungementhave been acceptedcasuallyand extendeduncriticallyover the years, prosperingin a rosy glow of good with little attentionto intentionsand expediency, Therearefew courtdecisions evaluation of results.2 opinions dealing with the and attorney-general subject. Definitive law is absent because the subject matter has rarely been litigated upward. records.l E2rtant litigation is scanty and inconclusive; Review is timely, because there is a growing appealdecisions are rare. concernabout the way "a record"handicapsan 2Mirjan R. Damaska, in his exhaustive, two-part oSender. Furthermore,correctionalpractice, in article, Ad7verseLegal Consequences of Con7victson and general,is being closely questionedand re-eval- thesr Remo7val: A Comparatsl)e Study, 59 J. CR. L., C. uated today. Certainly the traditional mis- & P.S. 347, 542 (1968), indicates that: "collateral
1We preferto use the terms "conceal"or '-concealment" throughoutthis article,with respectto records, because:(a) these wordsreflect,in a genericsense, the societal intent to removecriminalrecordsfrom scruor for certain temporarily, tiny, whetherpermanently, purposesonly; and (b) because, although the terms are usedin the statutes,in court "seal"and "expunge" decisions,and in legal parlance,we have no confidence that they meanwhat they say. consequencesflowing from criminal judgments are legion.... Views regarding removal of these consequenceswidelydiSer.... thereis little consciouspolicy behindlegal provisionsdealingwith this problem.... some of these provisions are not in harmony with thinking...." modern correctional Damaskarefersto the generalsubject as a "rather neglectedarea",but does indicate that there is some evidence of growing improvementwith respect to of crime. resulting fromconviction disqualifications

practiceof sealingor expunging The wide-spread criminal and delinquencyrecords is a failure. Despite the good intentions of its proponents, it does not provide the relief intendedand acby the hoax it plays tually doesharm,frequently, and the general public. The upon ex-offenders Basic whole approach requires re-examination. social values are involved; this is a matter of conscience,not merely convenience.It includes more than simply the concealmentof offender

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There is a variety of statutes on recordconcealment, but they arenot universal by any means, although increasinglegislative interest is being demonstrated. Current law tendsto be unclear and ambiguous. There is little literatureto dispel the general murkiness surroundingthe subject. A searchrevealednoneespousing the positionof this article. Briefly,it is believedthat: 1) disabilities flowing from convictionof crime, or the juvenile delinquency equivalent, should be completely lifted upondischarge of criminal liability(or termination of juvenile court wardship),as part of society's recognition that "paymentof the debt" has been accomplished; 2) the recordshouldbe left alone, i.e., neither sealed nor expunged;and, 3) reintegrationof the offenderinto the society should besupported throughchangesin societalattitudes toward ex-offenders (with the assistanceof appropriate legislation) and not through efforts to legislateuntruths.History, reality, "the record" cannotbe changed,as Omarremindsus, by law oranythingelse. This articleproposesto accomplish the following objectives: define terms, examine current practice throughout the country,explainwhy the system of sealingand expungement is ineffective and cannotbe madeeffective,and finally,present a moreviableand rationalmethodof reintegrating offenders whohavepresumably beenrehabilitated. In connection with this article,and in an effort tosurveycurrentpractice,letters of inquirywere sentin August of 1968 to correctional agencies in all the states, to a numberof city and county jurisdictions, and to federal authorities. Additional letters were sent to several agenciesand individuals that had evinced prior connection with or interest in the subject matter. About 70 letters were sent; there were over 50 responses. As further preparation,the literature,including correctional journals, law review articles, court decisions, and attorney-generalopinions, was reviewed. DEFINITION OFTERMS It may appearidle or unnecessary to spendany time definingterms. However,the survey clearly confirmed what had been suspected-tremendous confusion about their meaning. Analysis of the ways in which the words "seal" and "expunge" are used revealsneitherprecision in definition nor consensus as to meaning.Oftenthe termsareused

interchangeably, but they are not the same.All of this adds to the hoa2r played upon the former oSender population,a recurrenttheme of this paper. Gough, in his authoritative article on the subject, refers to the "extremelack of uniform terminology,even within a single jurisdiction", and commentson how difficultit is to study the system under the circumstances.3 In his survey he found that the process of concealingor destroying the record is variously designated as expungement, recordsealing, recorddestruction, obliteration, setting aside of the conviction, annulment of the conviction, amnesty,nullification of the conviction,purging,and pardon.4 Simply in the interestsof basic communication we must defixle at least threetermswhichmustnot continue to be used interchangeably: "sealing";"expungement"; and "removal of disabilities." Sea1,ing Essentially, "sealing"means that a record or proceeding is "merely" sealed-not destroyed. Thereis an obvious and intended implication thatthe sealeditem or event may, undercertain circumstances, be unsealed. Accordingto CorpgsJuris, "the word 'seal' is deiined as meaning to fasten with a seal, or a fasteningimpressed with a seal to guarantee security; so to fasten, that the seal, or the band or wrapperfastenedby the seal, must be torn or broken in orderto removethe inclosedarticle".6 Expgngement "Expungement,"regarded by some as "a concept of fairly recent origin",6 literally means that the recordor proceedingis erased- as if it had neverhappened in thefirstplace. The memory of the event is blotted out permanently, with no 3 Gough, The Expungement of Adjudicatson Records
of Juvenileand AduZt 05enders:A Problemof Status (1966) WASEINGTON UNIVERSITY LAW QUARTERLY, 149. 4 Ibid. 149-150. 5 79 CORPUS JURIS SECUNDUM 475. The 1968pocket part adds, at page 42: "The word 'seal' is also defined to mean any instrumentality that keeps something close, secret,or unknown." 6 Pettler & Hilmen, Criminal Records of Arrestand Conviction: Expungement from the Public Access, 3 CALIF. WEST. LAWREV. 124 (1967). The authors of this articleindicatethat expungement was broughtup for the first time formallyat the 1956 National Conference on Parole, with the objective of lesseningor abolishing the "penalties which public opinion, as opposed to law, imposes upon one convicted of an offense againstsociety".

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possibility of refreshment or revivalunderany circumstances.7 Corpus Juris describes expungement as "a term expressiveof cancellationor deletion, implying not a legal act, but a physicalannihilation". In its elaboration, the words "rub out", "destroy", and "obliterate" are used.8 It may be seen therefore, that sealingdoes not purportto destroythe record,whileexpungement does. With respectto popular usage,however,the words are often used interchangeably. To cite an example, the Juvenile Court Act of Utah specificallyprovides for the "Expungementof Juvenile CourtRecord".9 The code section,however, goes on to indicate that, under certain conditions,the court "shall orderseaZed all records..." (Emphasis added). The section further provides for "inspectionof such records", clearly indicating that the literal meaning of expungement wasnot intended. A further example: Pettler and Hilmen discuss several California statutes which actually deal with the sealing of records,but state: "Here recordsmay be truly expunged by a petition to seal them" (F,mphasis
added).l

Goughstates in this connection:

"By an expungement statute is meanta legislative provision for the eradication of a recordof conviction or adjudication upon fulfillmentof prescnbed conditions,usually the successfuldischarge of the offenderfrom probation, and the passage of a period of time without further offense.It is not simplya lifting of disabilities attendantupon conviction and a restorationof civil rights, although this is a significant part of its effect.It is rathera redefinition of status, a processof erasingthe legal event of convictionoradjudication, and therebyrestoring to the regenerateoffenderhis status quo
ante."l2

RemovaZoJ Disabilities

A law review article, devoted to California's 6'unusualexpungement statutes", reflects the same basic error.DiscussingPenal Code Section 1203.4, and related sections, none of which actually providesfor expungement, it "suggests statutory amendmentsto make expungeinent a more meaningful rewardfor and aid to rehabilitation". The authorscon.clude by declaringthat the difficulties demandthat "the expungement requirements be sharpened to increase the credibility of the expungementas refiectiveof rehabilitation"11
7 Gough emphasizes that not only is the record eradicated but, moresigriificantly, the offender receives a "redefinition of status".Op. cit.supra note 3, at p. 149. Stein, discussingSection 1203.4 of the California Penal Code, often and erroneouslyreferredto as an expungement statute, states: "Whilethere is no statutory defiXiition of expungement, in both legislativeand legal circlesin California it is generallyunderstoodto mean that, as far as the law is concerned,the record doesnot exist,whilein fact, physically,it doesexist". See Stein,Guittby Record, 1 CALIF. WEST. LAW REV. 126 (1965). 8 35 CORPUS JURIS SECUNDUM 343- see also West Publishing Company s WORDS ANDPHRASES, Vol. 15A,1968pocketpart,p. 72. 9 Section 55-10-117Utah Code annotated 1953, as enactedby Lawsof l itah, 1965. 103CALIF. WEST. IJAW REV., op. cit. supra note 6, at p. 126. 11 Notes and ConlmentsThe Effect of Expungement

"Removal of disabilities" actually includesany legal effort made to nullify the bad effects of a record,whetheror not collcealment or secrecyare involved. California'slaws dealing with vacation of conviction,restoration of certaincivil rights,and removalof some other disabilities are notoriously referredto as expungement laws, when in fact they seek only to removecertaindisabilities and not to erase the recordat all. As a result of the primal error,we see many eSorts to make such laws more effectiveas expungement laws, in the face of the fact that they were not intendedas such. These eSorts unfortunatelyonly tend to compound the initialfallacy. Booth demonstrates the confusionclearly. He commentson California's Section 1203.4,a wellknownprovisiondealingwith dismissalof a case and removalof disabilitiesflowingfrom the conviction,after successful completion of a probation term.l3 He notes that a motionunderthis section is commonly referred to as a motionfor "expungement" and states: "Notwithstandingthe fact that the remedyis commonlyreferredto as 'expungement',it is far from it". Elsewherein his article, he uses the term "sealing"in the same context,withoutdiSerentiation. In responseto a survey question about local sealing and expungementlaws, a number of
(1967). 12 Gough, op. (;it.supra note 3, at p. 149. 13 Booth, The Expungement Myth, 38 LOSANGELES BAR BULLETIN, March1963,161-166. It must be observed that Section 1203.4 does not even use the word "expunge",and that none of the many court decisionsdealingwith it and related sections declaresthe recordapunged, or indicates that suchwas intended by the legislature.
on a Criminal Conv?ction: 40 So. CALIF. LAW REV.127

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respondentsindicated that their laws provide flectinga singular lack of clarityas to philosophy 381 for the "setting aside"of youthful-oSender, mis- and goals, or else non-existent. demeanor, or felony convictionsand the removal It is no exaggeration to declarethat confusion is of disabilities flowingfromsuchconvictions. monumental. As has been said previously,there Although such legislation is rather common, is no common currency withrespectto the meaning with evidenceof a legislativetrend in its favor, of terms,but rathera tendencyto use the words the vacation of convictionsand the removal of "sealand "expunge" interchangeably. disabilitiesdo not constitute concealment of the Beyond the semanticproblemwhich amounts record, any more than the declarationsof con- to far morethan that in the lives of offenders--it fidentiality of juvenile court records are the was found that the vast majorityof respondents equivalentsof their concealment from scrutiny.14 to the aforementionedsurvey of correctional The cetting aside of convictionsgenerallyhas a administrators regarded sealingand expungement, much more limited effect. While certain dis- and particularlythe former, as a desideratum. abilities are clearly removed, and while there In different ways they championed the proposition sometimespurportsto be a concealmentof the that whenan oSender has paid his debt to society, record,the fact is that it remains.In some few he should not be houndedforever.A numberof instances,however,similarto the juvenilecourt them indicated that bills pertaining to sealing situation describedabove, the relief granted by were either currentlybeforetheir legislatures, or vacation-of-conviction statutes may include a werebeingadvocated.l6 concealment of the record. Frequently,strong convictionswere expressed Booth'spositionis that current"expungement" about the desirabilityof such concealmentpracdoesnot work,that "oursenseof fairplay"should tices, on the eory that we defeatour goalsof rerequire us to give an offender "a secondchanceto habilitationif we permit the typical social bias start off with a clean record",and that the thing against offendersto persist by perpetuatinga to do is to revise the statutes so as to make them recordof their offenses.In the same vein, many moreeffectiveas realexpungement laws.15 Current respondents urged that rehabilitation was really "removal of disabilities" provisionsmight be said enhanced by concealment of the record. to be even less effective,althoughthey point toPartisans of concealment statutes ranged warda sounder direction. widely in their views. Some offeredconsiderable reasonand logic for their position, while others CURRENT PRACTICES An examinationof the practices throughout tended toward a more sentimentalview about servicewe couldrender offenders the countryrevealedthat laws pertainingto the thehumanitarian when, at the point of death, they desperately subject of inquiry areeitherconflicting, therebyrewishedto have the recordclearedbeforethey met l4Baum states that "This type of relief actually the "Maker". Admittedly,this is an extreme,but wiping out the legal event, sealingthe recordsthereof it serves to make a point about the variety and andauthorizing denialof the occurrence of sucheventhasbeen a good deal more controversial than remedies confusionof motivation and myth surrounding only affordingrelief from disabilities resulting from this subject. conviction." Baum, Wipingout a Criminalor Juvenile The commonthreadamongall these responses Record, 40 CALBORNIA STATE BAR JOURNAL 824 (1965). While there is lack of clarity about the force and involvedthe belief that the way to protect an effect of the California so-calledexpungement statutes, thebest of evidenceindicatesthat they do not expunge ex-oSender from continuing harassment and conviction. An article, referredto earlier, studies six suspicionis through record concealment;that California statutes dealing with the concealmentof the trend must be toward tighteningup concealrecords,and concludes as follows: {Expungement inaccurately describesthe effect of the six California ment laws and practices to make them more statutes,none of which literally expungesthe convic- effective. tion."The sentenceor judgmentis vacated, but not Despite the overwhelming thrust in favor of the conviction. Sxpranote 11, at p. 132. The California Attorney Generalhas ruled that the concealment statutes, however,a search reveals records
of convictionare not destroyedupon the entry ofan orderof dismissalpursuantto Section1203.4(36 Ops. California AttorneyGeneral 1, 3-1960). Gough emphasizesthat provisionswhich set aside the crimedo not reachthe status of an offender. Op.cit. slfpra note 3, at p. 168. 15 Booth,op.cit.supranote 13,at p. 166.
16 In Californiaa large number of such bills were submittedto the 1968 Legislature.GovernorReagan vetoedthese bills because the Senate JudiciaryCommitteeis currentlystudyingthe matter of recordsealing.The Governor felt that such legislationshouldbe deferred until the studyw as completed.

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that most states do not actuallyhave such laws. concerned with the annulmentof a convictionof Many laws purport to provide for sealing or crime,authored by the NationalCouncil on Crime expungement, but do not, in fact, do so. Such and Delinquencyin 1962.l9 This act essentially misleading laws fall into two broadcategories: 1) providesfor judicialpowerto annula conviction. those aSording the "protection"provided by It is by no means unequivocal.Annulmentis a "privileged"(generally juvenile) court records, matter of discretion,not of right. It, therefore, and 2) those furnishingno such presumptive dependson the circumstances whetheran oSender protectioninitially, but ratherprovidingfor the gets one or not. Further,not all rights are unremoval of disabilitiesresultingfrom conviction equivocally and absolutely restored; again, it (or the juvenile delinquencyequivalent)after a "depends on the circumstances". "goodadjustment". NCCD adds to the doubtsabout the efficacyof In response to a survey question about the such equivocal,remediallegislation,by confusing existenceof sealingand expungement laws, many the removalof disabilitieswith the blotting out responded by citing juvenilecourt law provisions of the record. For example, the article states: for the privacyof hearings and the confidentiality "The kind of authoritygiven to the court in the of records.While juvenile court proceedings are ModelAct shouldproducewiderand moreuniform generally private throughout the country, exuse of the powerto expunge therecord whileallowing perience has shownthat thereis muchunwarranted for sound discretion to take individual circumconfidence in the inviolabilityof this "privilege" stancesinto account."20(Emphasis added.) whenit is challenged. The Model Act itself does not use the word Realistically,one must addressthe questionof "expunge". It does referto "annulling, canceling, confidentiality with respect to whom and under and rescinding the record of conviction and what circumstances, ratherthanin abstractterms. . . .x 21 While it thus may appearthat It is emphasized, however,that the confidentiality disposition of records is not the same thing as sealing or expungementis intended, such an inferenceis expungement,and that to use all these words dispelledby languagein the Act which indicates interchangeably is to compoundthe confusion. that in a subsequentcrime, the prior conviction The Alabama Statute, for example, provides may be consideredby the court in determining against "indiscriminate public inspection," which what sentenceto impose.The recordis, therefore, is hardly equivalent to a sealing, let alone ex- not expungedin the real sense of the word.It is very much there, to be used againstthe oSender. pungement of the record.l7 Tlle 1956National Conference on Paroleurged While most states have provisions for the that: protection or confidentiality of delinquency records, suchprovisions customarily do not extend "Expunging of a criminalrecordshouldbe authorto the sealingof the records.l8 ized on a discretionary basis. The court of disposiEfforts to ExtendCurrent Trends There are leading organizations which support current concealmentlaws and press for their improvement. All exampleof this is the modelact
17 Title 13, Sec. 353, Codeof Alabama,1940,recompiled 1958. 18 Several states indicated that their juvenile court laws specificallyprovide for record concealment,in addition to the requirementof confidentiality (e.g. Arkansas, Illinois, Minnesota, South Dakota, Vermont). The Minnesotalaw indicates that: ". . . the Court may expungethe adjudicationof delinquencyat any time that it deemsnecessary". However,neitherphysical destruction nor sealingof records is required.(M.S. Sec. 260.185, subdiv. 2, Juvenile Code, 1959, as amended). In Nevada, protectionof recordsdoes not include sealing,at least in some counties.(Chapter62, N.R.S. Procedure in JuvenileCases). tion shouldbe empowered to expungethe recordof conviction and dispositionthrough an order by which the individualshall be deemednot to have been convicted.Such action may be taken at the point of discharge fromsuspended sentence,probation, or the institutionuponexpiration of a termof commitment. XX 22

The Model AnnulmentAct emphasizesthat "Annulment of the recordserves a rehabilitative purpose".23 A better approach,however, would be to annul attitudes rather than the record.
8 CRIME AND DELINQUENCY N 2, April1962.
2OIbid.P.lOO 21 22

19 Annulment of 21Consiction of Crime a ModelAct,

Ibid. pp. 97-102 National Conferenceon Parole: Parole in Principle and Practice, National Probation and Parole Association, N.Y. 1957,p. 136. 23 ModelAct, NCCD, op.cit.supranote 19, at p. 98.

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Submitted to the 1969 Delegate Assemblyof are invariably introduced. Such laws, proponents the National Associationof SocialWorkerswere urge, need to be consistent with public safety a numberof recommended changes with respect and, further, exceptionsneed to be made as to to goals of public socialpolicy. Amongthese was whatkindsof records areconcealed, forwhatkinds a proposedpolicy statement on juvenile delin- of offenders, and for what kinds of oSenses.They quency and crime.The specificrecommendation, offerways of tighteningup concealment laws and which"incorporates the morerecentthinkingand putting more teeth therein,but invariablywind recommendations of social urorkers in the cor- up with caveats.27 The result is not a clear, rectional Seld,"providesthat: viable, and unequivocal philosophic pOSitiOll but, instead,the familiar posturewhich,in effect,says: "A policeor court recordon a juvenileor an adult "It all depends" a position which exasperates presentsa continuing handicapto the individual as and frustratesoSenders,and the generalpublic an obstacle to employment, enlistment in the too, who seek a "straightanswer"to the question armedservices,or participation in otherpublic or as to whetheror not a recordis expungedupon serviceprograms.... The statutes shouldprovide good adjustment and dischargefrom the corfor the expungementof police and court records rectionalsystem. when certainconditionsrelatingto individualadjustment have been met. To eliminate obstacles resulting from-a record of criminal conviction, federaland state legislationshouldprovidefor vacation of convictionafter the offender has successfully complied with the obligations imposed." 24

The AmericanCivil LibertiesUnion in California inveighedagainst Senate Bill 990, as an example of "restrictive or regressive criminal law bills"25-a bill which was introducedin the Senate in the fall of 1968 for the purposeof (a) repealing the existingstatutesthat providefor the sealingof criminal and juvenilerecordsof minors, and (b) openingof presentlysealedfiles. Whileone can appreciate the motivesof ACLU and otherspressingfor suppression of the record, Senate Bill 990 should have been supported,if we are ever to escape the intellectualdishonesty of the presentsystem. What is universallysuggestedin these statements and by some correctionalauthoritiesis, essentially, that society should go as far as the sanctioning activitiesof the democratic bodypolitic possiblall out-in enacting, and improving with the ultimatevalue humandignity.Op.cit. supra existing concealmentlaws.25However, caveats note 3, at p. 149.
24 NASW News Nov. 1968,p. 21-Delegate Assembly (1969)Materials, Recom. N 4, The LegalCode. 251'heBill File-A report on the 1968 Legislative Sessions,by ColemanBlease,ACLULegislativeAdvocate. The bill was vetoedonly becausethe SenateJudiciary Committeeis currentlystudying the sealing of records. The Governoris reported to have stated: "Further legislation in this areashouldbe deferred until the Committee has had an opportunityto compIete its inquiry."(Supranote 16) 26 The article by Pettler and Hilmen, op. cit. supra note 6, closeswith sis suggestedreformsfor restricting or preventing public accessto recordsof offenders who have satisfiedthe penalties imposedon them. Gough urgesthe same view. He states: "it is the writer'sview that providinginstitutionalmeans of restoringstatus after reformation is an appropriate way to harmonize

THEINEFFECTIVENESS OFTHE PRESENT SYSTEM Despite the good intentionsand the evidently laudablegoals of recordconcealment proponents, it is apparentthat the systemcannotand doesnot work.28Record concealment is unworkable;it fails to lift other penalties attendant to the record; it sanctions deceit;its half-secrecy leads to speculative exaggerations; it frustrates constructiveresearch; and it is not equallyavailable to all. Moreparticularly: 1. The processis impractical, workable, and unenforceable. The record is still retrievable through secondary sources. It is simply not possible, physically or literally, either to seal or expungea record.Baum refersto the "poet's claim that what the MovingFingerwritescannot be cancelledout," and elsewhere in his article he states: "It seems that when the Moving Finger writesthese days, a dozenXerox copieslikely are made."29

27 Note the followingtypical position:"The breadth of expungement of recordsmust, of course, be determined by a carefulweighingof the public interest in knowingof the recordagainstthe publicpolicyof doing everythingpossibleto aid the formeroffender's return to society." Pettler & Hilmen,op. cit. supranote 6, at p. 128. The authors cite examplesof the more paramountsocietalneed, and then state: "The very existence of these areasmakesexpungement in the senseof an erasureor destructionimpracticalas well as inadvisable.Ibid. p. 129. 28 Professor Fred Cohenin his perceptivewritingon the "rehabilitative ideal", refers to the "oft-repeated errorof confusingbenevolentpurposewith actual or potential arbitraryoutcome. . . a benevolentpurpose is noguarantor of successorfairness". 47 TEX. L. REV. 1 (1968). 29 Baum,op.cit.supra note 14,at pp. 816,824.

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Pettlerand Hilmenalso point up the problem:

". . . In the absenceof any penal sanctionsagainst disclosure, the accessibility of suchrecords is generally a matterof whomoneknowsin the department in whichthey are kept. Disclosure is furtherpyramidedby the manyplacesto whichsuchrecords are distributed, and thus additional sources fromwhich they may be procured." 30

Elsewhere, the authorsemphasize that statutes dealingwith sealingand expungement commonly provide nothing more than a notation of the recordconcealment. They state:
"Thereare not any controls,at least penal sanctions, against disbursing information containedin expungedrecords, nor are thereany provisionsrequiringdestruction of copiesheldby variouspublic agenciesandprivateindividuals. In short,expungement statutes as they presentlystand neitherexpunge nor aid a formeroffender They are arbitrary in nature and uncertain in the practical remedythey provide." 31

All recordsare not and cannotbe sealed.That which is sealed may readily become unsealed, formallyand procedurally, on the basis of limitations and exceptions customarily writteninto the law.32 Informal"leaks"in the seal are commonplace. A state with a concealmentstatute cannot requirethe FBI to seal or returnrecordsto it, so that an es-oSendermay receive protectiononly in his own jurisdiction. Furthermore, concealment statutes do not help an ex-offender in relationto securitychecks. Police records,whichare hardlyever sealedor destroyed, provideinformation whichis damaging to the ex-oSender and whichincludes cluesleading to ultimate record disclosure.Although many states, in a variety of patterns, restrict or prohibit the use of criminal and delinquency records, it doesnot generally follow,wheresuchrestrictions or prohibitionsobtain, that police records are affected.They remain,with very few exceptions, even wheresealingand expungement laws exist.33 30 Op. cit. supra note 6, at p. 132.
31 32

Loopholesin law and practice provide additional leads to recorddisclosure, leads whichany reasonablyskilled investigatorcan pursue. It rs not unusual,for example,that the writtenorder for recordsto be sealedor destroyedis itself not concealed;this, of course, creates a "track" to be followed. Entriesin state criminal identification bureauscustomarily indicatethat certainrecords aresealed,in accordance with a givencodesection; this constitutes another example of a lead to information and recorddisclosure. Evasion of legislative intent by prospective employers abounds.As an example,an applicant may be asked whether he had ever requested reliefundervarioussealingor expungement laws, or whetherhe had ever had a criminalor delinquencyrecordsealed.34 Because records which are concealed, presumably even destroyed, may be brought to light without too much difficulty,the conclusion is inescapablethat such practices do not and cannotwork. 2. Other disabilities axd restrictions remair esen wherethe recordis concealed. Ours is a penaltyorientedsystem of justice. Ex-oSenders continue to suSer from statutoryand extra-legal penalties long after their offenderstatus has been terminated. Even where statutes providingfor vacationof convictionand removalof disabilities also include some form of recordconcealment, it is common knowledge that this does not lift otherlimitations and lingering penalties. In many jurisdictions,the ex-oSendermust registerwith police for life.35Increasedpunishment for later offenses is commonplacewhere "priors"can be established.Testimony of exoffenders,even those whose records have been "expunged," can often be impeachedwith such
information.36

cit. supra note 7, at p. 130,where the authordiscusses policerecords. 34 Accordingto Gough,probationoflicersclaim that agencies often ask: "Have you ever had an offense recordexpunged? " or "Have you ever appearedas a movingparty in any court?" Op. cit. supra note 3, pp.

"Expungement statutesare so riddledwith legislative andcaselaw exceptions that they arealmostwholly ineSectual."Op.cit. supra note 6, at p. 125. ". . . the exceptionsto the 'no disabilitieswhatsoever'have becomethe rule."Op. cit.supra note 11,at p. 129. 33 Section 1203.4, CaliforniaPenal Code, the oftenquoted "expungement" statute, appliesto convictions not arrests. Op.cit.s?spra note 13, at p. 161.Also see op.

Ibid., p. 128.

35Until recently, an ex-felon in Californiahad to registerwith police "forever" under Penal Code, Sec. 290, or Health and Safety Code, Sec. 11853, even though disabilities were removedunderSection 1203.4 of the Penal Code. 36 UnderCalifornia Law, if an ex-felontestifiesin the caseof another, he may denya formerconviction, under Sec. 1203.4,Penal Code.However,if he testifiesin his own defensein any subsequent prosecution, he will be

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Opportunities to obtain or renew licenses or permits to practicecertain trades or professions, or to get them restoredafter suspensionor cancellation following conviction, are sharply curtailed throughout the United States.a7 "Expungement" of ffie recordoften does not help restore the ex-offender's status since innumerable court decisionshave held that the matter is entirely ithin the discretion of the licensing body. The use or possessionof firearms is oftentimes limited.38 As noted earlier, in another context, recordsuppression doesnot providean ex-offender with any reliefin securitychecksby employers, or in relation to federal usage of records--by the military or FBI, as an example. Excepted also from expungement legislationare certain Motor X;ehicle Codeviolations. 3. The system sanctions deceitit instit?tionalizesa lie. In tryingto conceala record we seekto falsify history-to legislate an untruth. Such suppression of truthill befitsa democratic society. Good intentions are no defense. To enable an offenderto deny that he has a criminalrecord ss hen in fact he has one is to help him deny a part of his ldentity. In encouraging him to lle, the society communicatesto him that his former offenderstatus is too degradingto acknowledge, and that it is best forgottonor repressed,as if it had never existedat all. Such self-delusion and hypocrisyis the very modelof mentalill health-the reverseof everythingcorrectional philosophv standsfor. Membersof the American Law Institute, when sxorking on the ModelPenalCode,wereconcerned about this point. Oneof the draftsindicatedthat:
"A provision for vacation [of criminal records] troubledsome members of the Councilin the view that it attemptsto rewrite history,and may lead in its consequences to legitimatedenial of the fact of conviction in communications where this fact is relevantand shouldbe stated." impeached? regardlessof the "expungement" of the
prior 37 convlction.

The memberscomplacentlyconcluded,nevertheless:
"We think, however,that it is unlikely that the procedure will be deceptive. . ." 39

The ex-offender, usuallynot knowingwherehe stands at the time his case is closed, oftentimes unwittinglyfinds himselfin a false situation.An all-too-familiar example concerns the offender who, in responseto a queryabout his record,deniesit becausehe believesit has beenwipedout. He then gets fired,not becausehe has an offensehistory, but because of falsification;that is, he lied.40 Further, a man who conceals his record is forcedinto more elaboratefalsehoodsin orderto accountfor the timelapsein his past duringwhich he was actuallyin jail or prison. There is some evidencethat whererecordconcealment statutes are invoked employersreact negatively. Gough, in citing studies of employer attitudes with respectto the hire of ex-offenders, states:
"Several[employers] expresseddistrust of an expungement procedure,and indicated that they would not look favorablyon someonewho had invokedit. As one manput it: 'Weprobably wouldn't fire the guy outright (i.e., in the event of subsequent discoveryof the offense)but I thinkwe'dbe ratherhurt that he didn't feel he could come and tell us about it'." 41

"Of approximately60 licensed occupations in California, the disciplinary provisions of 39 occupations permit license denial, revocation, or suspensionfor convictionof a felony, or any offenseinvolvingmoral turpitude, while others specificallyprovide that the oSense must be connectedwith the licensee'soccupation."Op. cit. supra note 11, at p. 137. 38Section12021, CaliforniaPenal Code, does not permitan ex-felonto have a firearm capableof concealment on the person, even though disabilities were removed underSection1203.4,PenalCode.

4. The system encogragesharmful speculatio and distorts the record with half-truths. When portions of the record are revealed, as inevitably happens despite the concealmentstatutes, the actual and total recordis usually inaccessible, so that only a part of the "truth"is revealed.The consequenceoftentimes is that the information is distorted, exaggerated, or misinterpreted, usuallyto the ex-offender's disadvantageF Business men, civil service agencies,army recruitersand others usually assume the worst, filling in the blanks with imaginations far more lurid perhaps than the facts themselves.
39 See AmericanLaw Institute, Model Penal Code, Tentative Draft N 7, Philadelphia,Pa., May 3, 1957, Section6.05, p. 30. Baum states: "Whatto proponents seemsa commendable cleaningof the slate necessary to effectiverehabilitation or to assurea secondchanceto one alreadyrehabilitated, seemsto opponentsa sort of official 'new think', and a license to tell falsehoods." Op. cit. supra note 14, at p. 824. 40 Op, cit. supra note 11, at fn. 57, p. 133. 41 Op. cit. supra note 3, at p. 154.

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in the Los Angeles whichappeared editorial An negativelyto reacted 1968, of August 26 Times in Legislature in the California introduced bill a police of sealing the for of 1968providing fall the identity. Calling mistaken of cases in records while acdrawbacks, of to a number attention of destruction that sealing and knowledging .", . . surface the on "maysoundappealing records concluded: editorial the
of we feel that the very concept "Furthermore, dangerous. is of policerecords destruction selective innocentparty is better prothe run, long the In recordof his arrest and rethe by having tected 4a clearlydocumented." lease

in the regular column In "AnswerLine," a question Examiner, the following Angeles Los 1968: 30, December in the issue of appeared
a felony,and yearsago I was convictedof "Several My probsince. ever managedto stay 'clean' have wantsto one no as job, a find can't isthat nowI lem have can I way any a convictedfelon.Is there hire ? sealed" record my

as follows: Line"responded "Answer

on the state depending somecircumstances, 'sUnder record can be criminal a in, committed itwas a complicated says a local attorney. It is sealed, be handiedby best would and however, procedure, attorney." areputable

with because shogldnot be tampered Records 5. adminisThe purposes. for research havevalue they be comhardly can justice of criminal tration It is eSectiveness. regardingits current placent attack. as well as under scrutiny, frequently we shouldmasimize the circumstances, Under and data for study records all of availability the system is social scientists. The correctional by reliable and complete of for its paucity notorious deny to afford ;11 can we so that information, and criminal of the system access to students records.43 delinquency are no! eqgallyavailprocedures 6. ConcealrBent and expungement to all, anyway.If sealing able available for all exreadily were procedures the records, desiringto concealor erase offenders The opposition. merit would nevertheless they are procedures remains,however,that these fact readilyavailableto all. not for are known which provide No jurisdictions a Ordinarily expungillg. sealing or automatic the within is is required,and the grant petition the systemis that is result The discretion. courts of ofnumber small only for a very functional and can negotiatethe who have resources fenders of ex-offenders, system.For the vast number and minority largely members of lower-class are meaningless sealingand expungement groups, terms.44

who to the ex-offender, is communicated What is debt, paid the and has presumably "clean" is and "it all depends";"it's complicated'2; that who are better get a lawyer2'.Those have no "you'd who or of such legal provisions ignorant do not have to hire attorneys anyway, funds accessto this "remedy". equal SYSTEM THE AGAINST DISSENT most survey reWhile,as indicated earlier, statutes, there supportedconcealment spondents in support reservations a few who expressed were wereas these of the writers'viewpoints.Some of follows: of the Minnesota Paul Keve, Commissioner in part: wrote, of Corrections, Department

with the value of "I tend to be very unimpressed I am more inand sealing or expungingrecords, recordsthat are maintaining for argue to clined make in theirqualityandthen to highlyresponsible in been had they than themactuallymoreavailable ofiiis that recruiting the past. My ownexperience areoftenmorewilling to employers civilian and cers record person's the qualitativeaspectsof a consider mere the on him against rule than to categorically argue that would I existence. fact of the record's thereis no way in this oncea thing has happened happen,not even by exworldto say that it didnot We may seal, happened. punginga recordof what but there is no way of of records hide or burn our records, vetoed becausethe sealing 42 The bill was Judiciary card does not still Senate record the by that some the subjectof study guaranteeing iscurrently prevent the cannot we note 16. Sgpra wish exist in a police file, and Committee. and psychologists peoplewho the of psychiatrists minds the of the in 43 "Many fromexisting purposes...."-exrecord research for is asked man records the young a When to retain August 28, 1968, from Daniel knewaboutthe record. Juvenile in ever tract from letter, dated was Commission. he if Youth of the Ohio Director by a recruitingoicer W.Johnson, by statisRightthenandtherethe knowledge,easily verifiedthe saJne 44 It is common Court,he usuallysaysyes. exist, procedures pardon doneand after that our is where or damage that tics, mainpart of the are out of the reach they v., to him by revealobtains, who helpful condition majority of ex-offenders, recordhas a chanceto be lmowledgeof the vast neverapplyforthem. therefore

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on ing the positivethingsabout how he progressed probation,etc. But if the recordhas in any way been removedfrom scrutiny there is no way to knourofficer avoid the bad effectsof the recruiting but not the quality ing the fact of the delinquency of it." 46

destroyednot only what might be held against a personbut also what can be said that is constructive or at least morecompleteabouta person.This importantwhereit was alwould be particularly readyknownthat he had been in difficultybut no and conrecordcan be found.An auraof suspicion fusionfromlack of anythingtangiblecan be more

Jack Wiseman,Director,Board of Parole and stated: Salem,Oregon, Probation,

are do not feel that the procedures ". . . I personally as intended.I and sociallypurposeful as functional say this with respectto the adult offenderwho is inclinedto feel that an expungedrecordeliminates of elsegainingknowledge the possibilityof someone this recordat a date in the future. As you well is available record of an expunged knolv,knowledge to the FBI. In if the prints have been forwarded other words, the person developsa false sense of the recordthat securityand anonymityregarding certainlydoesnot maintainin practice.In my estimation,it is quite possiblethat he could findhimself in all sorts of difficultieson job applications becauseof this."46

Howard L. Snowden, Technical Consultant, Illinois Youth Commission,takes the position that on the whole the sealing of juvenile court records serves the intended purposes. In his letter he added:
"However, in those many instances where the offenseis repeated,or wherethe offenseis so grave . . . somefacts that the youth must be incarcerated of the statutory violation become known to the public,and it is my opinionthat very little can be by sealing the records.In fact, the accomplished rumoredstories are often more damagingto the than the actualfacts of the inciyouth'sreputation dent."49

Director of the Florida ProPaul WIurchek, of laws which on the effectiveness Commenting wrote: Commission, Parole and bation permit an oSender whose recordhas been conE. cealedto say that he has none,JudgeMargaret and sealing believethat expungement "I personally Driscoll of the Juvenile Court in Bridgeport, of criminaland delinquency wouldencourrecords pointedout that peoplewho ask the Connecticut, age many individualsto conceal the truth about question, such as District Attorneys, can get many otherimportantconthis and subsequently that such laurs securein the knowledge siderations, aroundit by otherquestions.She said:
in otherareas has indicated "Of courseexperience the questionscould change to get that someho+7v law is passed."47 aroundwhate^7er will createandprotecthis rightto lie . . ." 50

Barton Anson, Director of Collrt Services, Ramsey County ProbationDepartment,Minnesota, while generallyendorsing"some system of about expungingrecords",expressesreservations he stated: In his response completee2mpungement.
viewson the subjectare that ". . . My ownpersonal this system does not accomplishwhat some may hope that it does namely, that the state completely forgives the person his transgressionby sayingin eidectthat the recorddoes not exist. The problemis that it does and if anyone wanted to really find out about the recordundoubtedlyhe could. . ." "The ultimate expungementwould mean the of any and all records. . . The physicaldestruction is that you have of records to destruction drawback fromletterdatedAugust22, 1968. Quoted QuotedfromletterdatedAugust16, 1968. fromletterdatedAugust30, 1968. 47 Quoted
45 46

. . . in a Apart from specific survey responses letter regardingthe sealing of juvenile records which was written to the Los Angeles County Delinquency and Crime Commission on November 15, 1967, Judge Alfred J. McCourtney, then PresidingJudge of the Juvenile Court of Los AngelesCountystated:
". . . Young people are not profitingby the law which was intendedto help them, and those who quite inappropritake advantageof it are qualified ately to claim a falsehood,namely, that they did not committhe acts which in all truth they did commit. . ."

Mr. Harold R. Muntz, Assistant Chief Proof the Los Angeles County Probation Olhicer bation Department, stated in a departmental bulletinissuedJanuary28, 1968: administrative
48 49

fromletterdatedAugust29, 1968. Quoted QuotedfromletterdatedAugust28, 1968. fromletterdatedOctober7, 1968. 60 Quoted

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"We have on severaloccasionstaken the position that the processof sealinga juvenilecourt record has only led to injurioussurmise,ratherthan the removalof the disabilityof sucha record. . . When recordspertainingto a periodof wardshipare orare deredsealed,reportsof a minor'sachievement disadvantage the to acting thus madeinaccessible, acquired of the minor.For example,schoolrecords duringa stay in a forestrycamp must be sealed whensuchan orderis made.Recordscannotthereafter be furnishedto other schools or colleges to which a minor transfers,without breachingthe order. . ."
THE REMEVY

Actually,the real issue is not the record,but social attitude toward it. The record, as the must be retained.Keepingrecordsavailhistory, generally, shouldresultin theirimprovement able should availability more that fact virtueof the by record, -the product the of scrutiny more for make wouldbe moreproneto that authorsof a record so in its preparation. accuracy quality and consider related to comment pithy a makes Sol Rubin by a access context another in but matter, this report. to a presentenceinvestigation defendant states: He
"Becauseprobationstaffs are inadequatein most in numbersand quality,it cannot be departments reportsare completeand accurate. that assumed wouldmilitateagainst to the defendant Disclosure in the writcarelessness investigation, the in laxity of the report andrubber-stamping ing of the report; by the judge."62

One suspects that at the root of the problem is the fact that our correctional philosophy and practice are incongruent in respect to record concealment-as in many other aspects of criminal justiceadministration.5l We are not clear about thisbusiness of records; we are in conflict about it. We are, therefore, endlessly fussing with the to removalof selected records from view-only else. somewhere again up crop discoverthat they We can continue to refine the removal-ofdisabilities, annulment of conviction, and record concealment statutes; we can continue to declare that the criminal conviction is no more, and that the record can no longer plague the because it is either sealed or eppunged; ofTender nevertheless,it will remain-an iceberg somewhere below the surface, and an unacknowledged barrier to full social reintegration. Corof Principlesof theAmerican 51 The Declaration Association first uttered in 1870, proclaims rectional should or systemof correction that "no law, procedure of the hope and the possibilityof depriveany offender in membership his ultimate returnto full, responsible with the declara19)- and concludes society"(Principle processhas as its aim the tion that "The correctional of the offenderinto the society as a reincorporation 33). See AM. J. OECORREC_ normalcitizen"(Principle 1960,for completestatement September-October TION, Congress in 1960by the American adopted of principles, of Corrections. savant to One does not need to be a sociological betweenwhat that thereis a wide disparity understand Although we professand the way we actuallybehave. yearshave goneby sincethe first a hundred practically practice,in many statementof principles,correctional with the lofty principles respects,is still not consonant in his expressedin the Declaration.David Matza, ANDDR2T (1964) provocative book DELINQUENCY a notion that even if one reforms,one is not expresses comments forgiven, and makes some very insightful what we about this disparitybetweenwhat we say and preferences our philosophical do. He states: "Whatever of fault, the questionof consistencyin the assignment Hypocthe avoidanceof hypocrisy is paramount.... risy-saying one thing and doing another is fundaof trust."(page97). mentallycorrosive

Rubin cites a court case and includes the relevant line from the court decision: following
and "Anonymityalso encouragesmisinformation removesan incentive for accuracyand thorough63 the information." nessby thoseobtaining

We need to pass laws outlawingdiscrimination againstpeople with records.Rubin observes in thisconnection:

againstdiscrim"Weknowof no statuteprotecting records... criminal with ination against persons Perhaps the closest analogousstatutes are those in emprotectingindividualsfrom discrimination 54 ploymentbecauseof raceorreligion."

objectiveof helpingan offender Ouroften-stated by in life can thus be achieved start new a to make himby themealls the slateas is, andhelping leaving suggestedabovc leaving the record alone, alad designedto changeattitudes programs developing education and supporting via offenders, about legislation.55
52

(1963) CORRECTION CRTINAL OE LAW THE RUBIN,

92.

Ibid., p. 92. Ibid., p. 639. states: ". . . if the 55 Gough,in his excellentarticle, disabilitiesof convictionare to be removedeffectively restoredto society, the remoffender and the reformed Op. edy chosenmust reach the genesisof the status." of course,is to cit. sgpranote 3, at p. 150.Ourposition, status by meansof a new get at this matterof offender records. andnot concealing of offenders, acceptance the reasGough also notes: "Publicgood demands into full socialstatusof all whohaveoffended similation againstit." Ibid.,p. 155.
53 54

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Of course this is true only in relative terms. Certainlyit is not suggestedthat offenders have an easy time of it in their reintegration. There is indisputable evidenceof significant changesin the society's attitude, nevertheless.These changes show that we can do it; we are already doing it. We are focusingattentionnot on the recordbut, instead, on the primary task of reintegration.57 Why does this solution seem so difficult?We must examinethe root causesand reasonsfor our problem,and then move resolutelyto eliminate barriers to the remedy. It is proposedthat there is a latent, pervasive attitude in our society which stressesthe generic unworthiness of the criminal his permanent unfitnessto live in "decentsociety".He is seenas an unredeemable,permanently flawed, everthreatening deviant.Propercitizensare felt to be menaced or degradedby consortingwith him whetheror not he has "paidhis debt".58 It is significant that proponents of recordconS cealmentprefersealingpractices and are generally reluctantto go as far as expungement, in the real 66 The National AdvisoryCommission on Civil Dis- sense of the term. This reflectstheir underlying ordersstates as fifth amongits basic strategiesfor the reservations. They are just not sure,and therefore use of employmentto amelioratecivil disorder:"Arti- prefer to have the recordaround,albeit sealed, ficial barriersto employmentand promotionmust be removed by both public agencies and private to be used "as needed".This persistingsuspicion employers" . . . "Government and business must con- subtlymocksthe reformed offender. sider,for each type of job, whether a criminalrecord The Lex Talionis motif permeates manyaspects shouldbe a bar, or whethera high schooldiplomais aD inflexible requirement."REPORT OF THENATIONALof the correctionalsystem, despite our proADVISORY COMMISSION ONCIVIL DISORDERS, Sup't. of testationsto the contrary. It is plainlyevidentin Documents,U.S. GovernmentPrinting Office Washour penal codes which specify "punishments" for ington D.C. (1968) Catalogue NPr 36.8:C49jR29,p. 232. crimes.There are many societal cues which are Additionally, the Governor's Commission on the Los communicated to the former offender in such AngelesRiots asserts: "Whilesecurity considerations sometimes precludehiring a defendantwith an arrest terms that he readily perceivesthat the society record, blanketrejection of suchpersonswithoutregard intendsto punishhim; in somerespects,forever.59 forthe natureof the arrestor whethertherehas been a The conflictof trust and distrustcan be seen in convictionshould be discouraged. We urge employers . . . to increaseemploymentopportunities for persons the balanceof rights restoredand rights denied. witharrestrecords." VIOLENCE IN THE CITY AN END The correctional "graduate" may marry,vote, OR ABEGINNING?R a reportto the Governor of California participate in contractual relationships and deny by the Governor'sCommissionon the Los Angeles Riots,publishedin Los Angeleson December2, 1965. his record. He may have to register with the (Seep. 47.) policefor 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 foundfor the hard-core unemployed,the National Association of Manufacturerspoints out:"Forexample, in thepast,policerecords have automaticallyscreenedout applicantsin most companies. Yet in the cultureof poverty,policerecords tendto be the norm.... By now, companies have had sufficient experience employingpeople with recordsto know that thereis very little correlation betweenhaving a police record and not being a productiveworker." EFFECTIVELY E1KPLOYING THEHARD-CORE, National Association of Manufacturers, New York, (1968),p. 5availablethrough the reprint service of "Notes and Quotes,"Connecticut General Life Insurance Co. Hartford, Conn.
67 Paul Keve states in this connection:"I think we aremakinggreat stridesin the directionof getting the general publicto be far more acceptingof the previous offender, and I strongly feel that this is the way we should go to solve the problemratherthan strengthening the stigmatic nature of the recordby hiding it." Op.cit. supra note 45. 68 JudgeWarren E. Burger,writingon "Paradoxes in

Sooneror later we must acknowledge that it is the society,not the record, whichmustbe changed. Our relentlessand permanentrejectionof deviants will destroy them, and everyoneelse with them, if it persists.This is one of the basicissues at the heart of currenturban ghetto problems. As long as the ghetto breedscrimeand the society blocks the employment and rehabilitationof formercriminals, no reliefis in sight. The cycle of riot and reaction spirals unchecked toward revolution. This has been recognized equally by governmentalinvestigativecommissionsand privateindustry.56 How real and practical is the remedy proposed? It is neither visionary nor utopian, as opponents may claim. Former offenders with recordsare, more and more, being hired on regular jobs. Moreover, they are being used as change-agents, as partnerswith professionals in the rehabilitative functions.As a matter of fact, ex-offenders are increasingly beingsoughtas such, so that the recordbecomesa passportto a job, in many cases,and no longerthe stigmait oncewas.

tAze Administration of Criminal Justice", 58 J. CRX. L.,

C. & P.S. 428 (1967),refersto our tendencyto "regard allcriminals as humanrubbish." 69 Goldstein and Katz referto the unconscious motivationswhich are operativein our treatment of law violators. 72 YALE LAWJ. 854, 856 (1963).

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transgresses again,the record can be "resurrected" pocrisy, is hinderedrather than helped in his and used against him once more. Clearly,he is readjustment. nevertrulyrestoredto equalcitizenship as long as How could it be otherwise! The communityis he cannot ever again becomea "firstoffender".60 so prejudicedagainst formeroffendersthat any What we do with offenders at the end of the celebration of successfulrehabilitation inevitably correctional systemis 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'searlier "criminal" status. "To ning. In the "intake process", the offenderis know him is to despisehim." Until this bias can "mugged", finger-printedand booked. Even- be uprooted,real correctional rehabilitation will tually he gets a trial, after several preliminary remain effectively crippled. Contradictoryatcourt experiences. Counselgoes throughvarious tempts to conceal the recordconditionallymay adversaryprocedures.After conviction,there is help the society evade this fundamentalissue an appeal system. Even this sequencedoes not but they certainlydo not really help the former exhaustthe possiblesteps and ramifications. The offender to return. succession is highly institutionalized and complex. Sutherlandand Cressey, commentingon the We solemnizethe offender'sinduction into the socialostracization of offenders, state that: system. NVhen he successfullyconcludesthe program, "Ouractual practiceis to permitalmost all crimthough, we fail to institutionalize his departure inals to returnto society,in a physicalsense,but to hold them off, make them keep their distance, correspondingly. It's fun to catchthe fishbut hard segregatethem in the midst of the ordinarycomto let him go. munity. Thus they are kept isolated from lawIt is tragic that we "accentuatethe negative" abidinggroups.If they are to be turnedinto laNand "eliminatethe positive"; that we mark the abiding citizens, they must be assimilated into entry with ceremony,and the exit with nothing societyand treatedas personswith the potentialto ssrhich symbolizesthe offender's"returnto full, be law-abiding citizens."62 responsible membership in society"- his reincorporation"into the society as a normalcitizen''. Goughcomments well in this context.He states: Instead of celebratingthe negotiation-or sur"It is clear that any programfor reform must vival-of the perilouscorrectional experience (no mean accompllshment), we remove disabilities createthe institutionsnecessaryfor its realization, and that the sanctionsit imposesmustbe functiongrudgingly. At the sametimewe interjectso many ally appositeto the endit seeks.Therehas beensur"if's" and "but's" as to render the benefit nuprisinglylittle recognition of the fact that our sysgatory,while tampering writh the recordsas if we tem of penallaw is largelyflawedin one of its most could rewritehistory. The net result is that the basic aspects;it fails to provideaccessibleor effecex-oSender,puzzled and frustratedby our hytive meansof fully restoring the socialstatus of the
60It is meaningfulto note that while courts often broadlyand liberallyconstrue so-called expungement laws, legislaturesinvariablygo the other way, raising serious doubts about societal intent with respect to offenders. In an article,referredto earlier,the author refersto the judicialtrendand then states: ". . . legislatures respondby amendingthe statute to nullify the effectof the court'sinterpretation". Op. cit. supranote 11, at p. 133.In the samevein, it is also significant that the legislatures, andcourtstoo, havegenerally narrowed the effects of removal-of-disabilities laws, so that exoffenders arereallyreleased fromveryfew penaltiesand disabilities-even though the statute may referto the removalof "all"disabilities. Ibid.p. 143. Section 1203.4, CaliforniaPenal Code, states.... "whoshall thereafter be releasedfromall penaltiesand disabilitiesresulting from the offenseor crimeof which he has been convicted".This all-inclusivedeclaration is a monstrouslie, as we witness the many legal and extra-legal penalties and disabilities the ex-offender continuesto experience, the languageto the contrary notwithstanding . 61 Declaration of Principles, op.cit.supranote 51. reformed offender. We sentence,we coerce,we incarcerate, we counsel, we grant probation and parole,and we treat not infrequently with success - but we neverforgive.The late Paul Tappanhas observedthat when the juvenileor adult offender has paid his debt to society, he 'neitherreceivesa receiptnoris freeof his account'."63

Goughfurther emphasizes that "there is considerableevidenceto indicate that the failureof the criminallaw to clarify the status of the reformed offender impedes the objectives of reintegratinghim with the society from which he has becomeestranged." 64
62SUTEIERLAND ANDCRESSEY, PRINCIPLES OF CRIM INOLOGY (5thEd.,1955) 318. 63 Op. Git. supra note3, at p. 148. 64 Id.

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that the debt has been In his well-written article (which,incidentally, assurethe formeroffender supports concealmentlaws and concludeswith paid and that resumptionof full citizenshipis eight requisites of an effective expungement achievable. Nevertheless, whether removal-ofstatute), Goughplaintivelyaskswhetheroffenders disabilitieslaws exist or not, recordsshould not shoud ". . . be forcedto bear foreverthe stain of be tamperedwith. There should be no need to their immature and impulsive conduct", and delude ourselvesabout a man's past in order to states that "withoutthe aid of an expungement give him a fair chancein the present. It is a profound mistaketo mix in with redempstatute, [he] would be compelled to bear the markof his past mistake".65 The writerscontend tive legislationany provisionfor concealingthe that Gough correctly assesses the problem but records. To help the ex-oSender by restoring incorrectly solvesit. The way to removethe mark rights and removing disabilitiesis an absolute of the record, is to accept the person;not conceal the record. necessity.Alterationor destruction Because in some ways we have become an however,only protectsthe body politic fromconenlightened society- at least as we contrast frontationregardingits own aberrantattitudes correctional work today with what it was like a and the necessityto change.It basicallycorrupts century ago-the punishment motif alone no the fundamental correctionalobjective of reoSenders. longersuffices. We feel guilty aboutour treatment habilitating of oSendersbecausewe see that unrelievedcondemnationand rejectionwill inevitably consign SETMMARY anyoneto hopelessdefeat. In summaryand as a conclusion,we reaflirm To some extent we expiate our guilt by proour conviction that sealing and expungernent viding some means to restore, partially, the former transgressor's status in society. Many practices should be abandonedand not merely laws demonstrate this efort -lawswhichprovide altered.They haveno utility in the administration justice. that a declaration of wardshipin juveniledelin- of criminal Criminal and delinquency records can be neither quencycases does not constitutea criminalconviction; provisionsfor confidentiality of records sealed nor destroyed altogether, physically or The recordcomesout inevitably,with and proceedings in juvenilecourtcases;provisions practically. for the removalof some disabilities resultingfrom the resultthat effortsto concealit workinvariably detrimellt. the oSense; provisionsfor the annulmentof the to the oSender's Recordmanipulation does not addressitself to convictionitself; and provisions for the sealingor The pursuitof recordmanipulaexpunging of the veryrecords of thetransgressions. the real problem. All can be cited as evidence.We seem to under- tion practicesresults in our deludingourselves, offenders whohave madea stand that an offender ought to be able, at some and,worse,in deluding point, to stop "payingthe debt".We understand, goodadjustment. too, that if we surroundhim with all sorts of The only way to breachthe barriers standingin disabilities ilowingfromthe crimeor delinquency, the way of an oSender's reintegration into the sohe cannot succeed. Therefore,we endeavor to ciety is to assaultthem frontally.The remedylies leaven the harsheraspects of criminallaw with in a radicallydiSerentapproach-leavingthe recbenign,thoughfrequentlyineSective,redemptive ord alonewhileconstantlystrivingto improveits provlslons. quality, and mountingan educationalprogram, There is no longer time for ambivalenceand with statutorysupports, designed to liberalize pubirresolution. Redemptive provisions must be made lic attitudestowardoSenders. thoroughly effective.Any soundpolicy of dealing All of the above is predicatedupon our belief with ex-offenders shouldincludelegislationwhich that we mustdestroythe myth that if we can only removesdisabilities flowingfrom the delinquency finda way to wipeout a "sin"somehow, so that it or crime.Thereshouldbe an end to retribution. was really never committed,then and only then Rightsandprivileges shouldbe completely restored can we relateto the oSender as a fellowhumanbeand such restorationshould be automatic.Then ing. Sucha pathway,we are convinced, is illusory, we can indeed convince the populationand re- doomedto failure,and only servesto perpetrate a cruel hoax on the oSender. 66 Ibid., atpp. 186,157.
. .

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392

BERNARD KOGONAND DONALD L. LOUGHERY, JR.

[Vol.61

Schimel, writing on the "Role of Rationality in Crime and Corrections:An Epilogue," states: "Thereis a hierarchy of tasks if we are to worktowarda brighterfuture.... The fourth (perhaps it shouldbe first) task lies in the mindsof men, professionaland lay both. If the task is genuinelya rehabilitative one, all those aspects of corrections

which social scientistshave pinpointedand which alienate man from himselfmust be eliminated.If the task is recognized as worthy, the appropriate resources mustbe allocatedto it." 66
66 An articleby Dr. John L. Schimel, psychoanalyst, in CRDEE, LAW,ANDCORRECTIONS (1966), edited by Ralph Slovenko.

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