Journal of Criminal Law and Criminology

Volume 61 | Issue 3 Article 4

1971

Sealing and Expungement of Criminal Records--The Big LieBernard Kogon

Donald L. Jr. Loughery

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

"TaE Jou=&L ro' CammAL L&w, Cn13o11 ooY AND POLICE SCINCECopyright 0 1970 by Northwestern University School of Law

Vol. 61, No. 3Printed in U.S.A.

CRIMINOLOGYSEALING 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 theNew York Bar. From 1953 to 1968 he was an Associate Professor at California State College, LosAngeles, 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 publicadministration at USC in 1959. His twenty-two years of experience in probation includes assignmentsin adult and juvenile field work, juvenile forestry camps, personnel and training, and various levels ofsupervision and management.

According to the authors, the sealing and expungement of criminal records is not as humanitarianas it looks. Ostensibly a boon to the offender, it actually works against him and helps society to evadeits obligation to change its views toward former offenders. Instead of accepting ex-law breakers andgiving them a fair chance, the community requires them to lie, and the community lies to itself whenit conceals their records in order to make them employable. This violates every principle of honest re-habilitation work.

The authors find, moreover, that aside from the issue of principle, it is a practical impossibility todeny reality. While certain records are destroyed, others are not. It is impossible to account for theblank time in a man's employment history during which he was in jail or prison. The order to seal arecord constitutes a record in itself. The denial of reality is both unethical and inefficient. It is timesociety grew up.

The wide-spread practice of sealing or expungingcriminal and delinquency records is a failure.Despite the good intentions of its proponents,it does not provide the relief intended and ac-tually does harm, frequently, by the hoax it playsupon ex-offenders and the general public. Thewhole approach requires re-examination. Basicsocial values are involved; this is a matter ofconscience, not merely convenience. It includesmore than simply the concealment of offenderrecords.i

Review is timely, because there is a growingconcern about the way "a record" handicaps anoffender. Furthermore, correctional practice, ingeneral, is being closely questioned and re-eval-uated today. Certainly the traditional mis-

1 We prefer to use the terms "conceal" or "conceal-ment" throughout this article, with respect to records,because: (a) these words reflect, in a generic sense, thesocietal intent to remove criminal records from scru-tiny, whether permanently, temporarily, or for certainpurposes only; and (b) because, although the terms"seal" and "expunge" are used in the statutes, in courtdecisions, and in legal parlance, we have no confidencethat they mean what they say.

handling of the record should be among the firstaspects of practice to be challenged.

Record sealing and expungement have beenaccepted casually and extended uncritically overthe years, prospering in a rosy glow of goodintentions and expediency, with little attention toevaluation of results.2 There are few court decisionsand attorney-general opinions dealing with thesubject. Definitive law is absent because thesubject matter has rarely been litigated upward.Extant litigation is scanty and inconclusive;appeal decisions are rare.

2 Mirjan R. Damaska, in his exhaustive, two-partarticle, Adverse Legal Consequences of Conviction andtheir Removal: A Comparative Study, 59 J. CRM. L., C.& P.S. 347, 542 (1968), indicates that: "collateralconsequences flowing from criminal judgments arelegion.... Views regarding removal of these conse-quences widely differ.... there is little conscious policybehind legal provisions dealing with this problem....some of these provisions are not in harmony withmodern correctional thinking .... "

Damaska refers to the general subject as a "ratherneglected area", but does indicate that there is someevidence of growing improvement with respect todisqualifications resulting from conviction of crime.

EXPUNGEMENT OF CRIMINAL RECORDS

There is a variety of statutes on record con-cealment, but they are not universal by any means,although increasing legislative interest is beingdemonstrated. Current law tends to be unclear andambiguous. There is little literature to dispel thegeneral murkiness surrounding the subject. Asearch revealed none espousing the position of thisarticle.

Briefly, it is believed that: 1) disabilities flowingfrom conviction of crime, or the juvenile delin-quency equivalent, should be completely liftedupon discharge of criminal liability (or terminationof juvenile court wardship), as part of society'srecognition that "payment of the debt" has beenaccomplished; 2) the record should be left alone,i.e., neither sealed nor expunged; and, 3) rein-tegration of the offender into the society shouldbe supported through changes in societal attitudestoward ex-offenders (with the assistance of appro-priate legislation) and not through efforts tolegislate untruths. History, reality, "the record"cannot be changed, as Omar reminds us, by lawor anything else.

This article proposes to accomplish the follow-ing objectives: define terms, examine currentpractice throughout the country, explain why thesystem of sealing and expungement is ineffectiveand cannot be made effective, and finally, presenta more viable and rational method of reintegratingoffenders who have presumably been rehabilitated.

In connection with this article, and in an effortto survey current practice, letters of inquiry weresent in August of 1968 to correctional agenciesin all the states, to a number of city and countyjurisdictions, and to federal authorities. Addi-tional letters were sent to several agencies andindividuals that had evinced prior connectionwith or interest in the subject matter. About 70letters were sent; there were over 50 responses.As further preparation, the literature, includingcorrectional journals, law review articles, courtdecisions, and attorney-general opinions, wasreviewed.

DErmITION OF TExms

It may appear idle or unnecessary to spend anytime defining terms. However, the survey clearlyconfirmed what had been suspected-tremendousconfusion about their meaning. Analysis of theways in which the words "seal" and "expunge"are used reveals neither precision in definition norconsensus as to meaning. Often the terms are used

interchangeably, but they are not the same. All ofthis adds to the hoax played upon the formeroffender population, a recurrent theme of thispaper.

Gough, in his authoritative article on thesubject, refers to the "extreme lack of uniformterminology, even within a single jurisdiction",and comments on how difficult it is to study thesystem under the circumstances. In his surveyhe found that the process of concealing or de-stroying the record is variously designated asexpungement, record sealing, record destruction,obliteration, setting aside of the conviction,annulment of the conviction, amnesty, nullificationof the conviction, purging, and pardon.4 Simplyin the interests of basic communication we mustdefine at least three terms which must not continueto be used interchangeably: "sealing"; "expunge-ment"; and "removal of disabilities."

Sealing

Essentially, "sealing" means that a record orproceeding is "merely" sealed-not destroyed.There is an obvious and intended implicationthat the sealed item or event may, under certaincircumstances, be unsealed.

According to Corpus Juris, "the word 'seal' isdefined as meaning to fasten with a seal, or afastening impressed with a seal to guaranteesecurity; so to fasten, that the seal, or the bandor wrapper fastened by the seal, must be torn orbroken in order to remove the inclosed article". 5

Expungement

"Expungement," regarded by some as "aconcept of fairly recent origin", 6 literally meansthat the record or proceeding *is erased-as if ithad never happened in the first place. The memoryof the event is blotted out permanently, with no

3 Gough, The Expungement of Adjudication Recordsof Juvenile and Adult Offenders: A Problem of Status,(1966) WAsHiNGTON UNivEsITY LAW QUARTELY, 149.4 Ibid. 149-150.'79 Co~pus Jums SEcuNDTJm 475. The 1968 pocket

part adds, at page 42: "The word 'seal' is also definedto mean any instrumentality that keeps somethingclose, secret, or unknown."

6 Petter & Hilmen, Criminal Records of Arrest andConviction: Expungement from the Public Access, 3CALIF. WEST. LAW R:Ev. 124 (1967). The authors ofthis article indicate that expungement was brought upfor the first time formally at the 1956 National Con-ference on Parole, with the objective of lessening orabolishing the 'penalties which public opinion, asopposed to law, imposes upon one convicted of anoffense against society".

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possibility of refreshment or revival under any cir-cumstancesi

Corpus Juris describes expungement as "a termexpressive of cancellation or deletion, implyingnot a legal act, but a physical annihilation". Inits elaboration, the words "rub out", "destroy",and "obliterate" are used.8

It may be seen therefore, that sealing does notpurport to destroy the record, while expungementdoes. With respect to popular usage, however, thewords are often used interchangeably. To citean example, the Juvenile Court Act of Utahspecifically provides for the "Expungement ofJuvenile Court Record".9 The code section, how-ever, goes on to indicate that, under certainconditions, the court "shall order sealed all rec-ords..." (Emphasis added). The section fur-ther provides for "inspection of such records",clearly indicating that the literal meaning ofexpungement was not intended. A further example:Pettier and Hilmen discuss several Californiastatutes which actually deal with the sealing ofrecords, but state: "Here records may be trulyexpunged by a petition to seal them" (Emphasisadded) .'

A law review article, devoted to California's".unusual expungement statutes", reflects thesame basic error. Discussing Penal Code Section1203A, and related sections, none of whichactually provides for expungement, it "suggestsstatutory amendments to make expungement amore meaningful reward for and aid to rehabil-itation". The authors conclude by declaring thatthe difficulties demand that "the expungement re-quirements be sharpened to increase the credibilityof the expungement as reflective of rehabilita-tion".n

7Gough emphasizes that not only is the recorderadicated but, more significantly, the offender receivesa "redefinition of status". Op. cit. supra note 3, at p. 149.

Stein, discussing Section 1203.4 of the CaliforniaPenal Code, often and erroneously referred to as anexpungement statute, states: "While there is no statu-tory definition of expungement, in both legislative andlegal circles in California it is generally understood tomean that, as far as the law is concerned, the recorddoes not exist, while in fact, physically, it does exist".

See Stein, Gut by Record, 1 CALm. WEST. LAW Rxv.126 (1965).

835 CoRPus JuRxs SEcuNDuar 343; see also WestPublishing Company's WoRDs AN PRAsEs, Vol.15A, 1968 pocket part, p. 72.

9 Section 55-10-117 Utah Code annotated 1953, asenacted by Laws of Utah, 1965.

103 CALIF. WEST. LAW REv., op. cit. supra note 6, atp. 126.

1 Notes and Comments-The Effect of Expungement

Gough states in this connection:

"By an expungement statute is meant a legislativeprovision for the eradication of a record of convic-tion or adjudication upon fulfillment of prescribedconditions, usually the successful discharge of theoffender from probation, and the passage of aperiod of time without further offense. It is notsimply a lifting of disabilities attendant upon con-viction and a restoration of civil rights, althoughthis is a significant part of its effect. It is rather aredefinition of status, a process of erasing the legalevent of conviction or adjudication, and thereby re-storing to the regenerate offender his status quoante."

12

Removal of Disabilities

"Removal of disabilities" actually includes anylegal effort made to nullify the bad effects of arecord, whether or not concealment or secrecy areinvolved.

California's laws dealing with vacation ofconviction, restoration of certain civil rights, andremoval of some other disabilities are notoriouslyreferred to as expungement laws, when in factthey seek only to remove certain disabilities andnot to erase the record at all. As a result of theprimal error, we see many efforts to make suchlaws more effective as expungement laws, in theface of the fact that they were not intended assuch. These efforts unfortunately only tend tocompound the initial fallacy.

Booth demonstrates the confusion clearly. Hecomments on California's Section 1203.4, a well-known provision dealing with dismissal of a caseand removal of disabilities flowing from the con-viction, after successful completion of a probationterm? He notes that a motion under this sectionis commonly referred to as a motion for "expunge-ment" and states: "Notwithstanding the factthat the remedy is commonly referred to as 'ex-pungement', it is far from it". Elsewhere in hisarticle, he uses the term "sealing" in the samecontext, without differentiation.

In response to a survey question about localsealing and expungement laws, a number of

on a Criminal Convition: 40 So. CA=. LAw REv. 127(1967).

12 ough, op. cit. supra note 3, at p. 149.3 Booth, The Expungement Myth, 38 Los ANGELES

BAR Bu= m.xI, March 1963,161-166.It must be observed that Section 1203.4 does not

even use the word "expunge", and that none of themany court decisions dealing with it and related sec-tions declares the record expunged, or indicates thatsuch was intended by the legislature.

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respondents indicated that their laws providefor the "setting aside" of youthful-offender, mis-demeanor, or felony convictions and the removalof disabilities flowing from such convictions.

Although such legislation is rather common,with evidence of a legislative trend in its favor,the vacation of convictions and the removal ofdisabilities do not constitute concealment of therecord, any more than the declarations of con-fidentiality of juvenile court records are theequivalents of their concealment from scrutiny. 4

The setting aside of convictions generally has amuch more limited effect. While certain dis-abilities are dearly removed, and while theresometimes purports to be a concealment of therecord, the fact is that it remains. In some fewinstances, however, similar to the juvenile courtsituation described above, the relief granted byvacation-of-conviction statutes may include aconcealment of the record.

Booth's position is that current "expungement"does not work, that "our sense of fair play" shouldrequire us to give an offender "a second chance tostart off with a clean record", and that the thingto do is to revise the statutes so as to make themmore effective as real expungement laws." Current"removal of disabilities" provisions might be saidto be even less effective, although they point to-ward a sounder direction.

CURRENT PPRACTICES

An examination of the practices throughoutthe country revealed that laws pertaining to thesubject of inquiry are either conflicting, thereby re-

14Baum states that "This type of relief-actuallywiping out the legal event, sealing the records thereof,and authorizing denial of the occurrence of such event-has been a good deal more controversial than remediesonly affording relief from disabilities resulting fromconviction." Baum, Wiping out a Criminal or JuvenileRecord, 40 CALmoRNuA STATE BAR JouRwAL 824 (1965).

While there is lack of clarity about the force andeffect of the California so-called expungement statutes,the best of evidence indicates that they do not expungeconviction. An article, referred to earlier, studies sixCalifornia statutes dealing with the concealment ofrecords, and concludes as follows: "Expungementinaccurately describes the effect of the six Californiastatutes, none of which literally expunges the convic-tion." The sentence or judgment is vacated, but notthe conviction. Supra note 11, at p. 132.

The California Attorney General has ruled that therecords of conviction are not destroyed upon the entryof an order of dismissal pursuant to Section 1203.4 (36Ops. California Attorney General 1, 3-1960).

Gough emphasizes that provisions which set asidethe crime do not reach the status of an offender. Op. cit.supra note 3, at p. 168.15 Booth, op. cit. supra note 13, at p. 166.

flecting a singular lack of clarity as to philosophyand goals, or else non-existent.

It is no exaggeration to declare that confusion ismonumental. As has been said previously, thereis no common currency with respect to the meaningof terms, but rather a tendency to use the words"seal and "expunge" interchangeably.

Beyond the semantic problem-which amountsto far more than that in the lives of offenders-itwas found that the vast majority of respondentsto the aforementioned survey of correctionaladministrators regarded sealing and expungement,and particularly the former, as a desideratum.In different ways they championed the propositionthat when an offender has paid his debt to society,he should not be hounded forever. A number ofthem indicated that bills pertaining to sealingwere either currently before their legislatures, orwere being advocated."

Frequently, strong convictions were expressedabout the desirability of such concealment prac-tices, on the theory that we defeat our goals of re-habilitation if we permit the typical social biasagainst offenders to persist by perpetuating arecord of their offenses. In the same vein, manyrespondents urged that rehabilitation was reallyenhanced by concealment of the record.

Partisans of concealment statutes rangedwidely in their views. Some offered considerablereason and logic for their position, while otherstended toward a more sentimental view aboutthe humanitarian service we could render offenderswhen, at the point of death, they desperatelywished to have the record cleared before they metthe "Maker". Admittedly, this is an extreme, butit serves to make a point about the variety andconfusion of motivation and inyth surroundingthis subject.

The common thread among all these responsesinvolved the belief that the way to protect anex-offender from continuing harassment andsuspicion is 'through record concealment; thatthe trend must be toward tightening up conceal-ment laws and practices to make them moreeffective.

Despite the overwhelming thrust in favor ofconcealment statutes, however, a search reveals

16 In California a large number of such bills weresubmitted to the 1968 Legislature. Governor Reaganvetoed these bills because the Senate Judiciary Com-mittee is currently studying the matter of record seal-ing. The Governor felt that such legislation should bedeferred until the study was completed.

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that most states do not actually have such laws.Many laws purport to provide for sealing orexpungement, but do not, in fact, do so. Suchmisleading laws fall into two broad categories: 1)those affording the "protection" provided by"privileged" (generally juvenile) court records,and 2) those furnishing no such 'presumptiveprotection initially, but rather providing for theremoval of disabilities resulting from conviction(or the juvenile delinquency equivalent) after a"good adjustment".

In response to a survey question about theexistence of sealing and expungement laws, manyresponded by citing juvenile court law provisionsfor the privacy of hearings and the confidentialityof records. While juvenile court proceedings aregenerally private throughout the country, ex-perience has shown that there is much unwarrantedconfidence in the inviolability of this 'privilege"when it is challenged.

Realistically, one must address the question ofconfidentiality with respect to whom and underwhat circumstances, rather than in abstract terms.It is emphasized, however, that the confidentialityof records is not the same thing as sealing orexpungement, and that to use all these wordsinterchangeably is to compound the confusion.The Alabama Statute, for example, providesagainst "indiscriminate public inspection," whichis hardly equivalent to a sealing, let alone ex-pungement of the record.' 7

While most states have provisions for theprotection or confidentiality of delinquencyrecords, such provisions customarily do not extendto the sealing of the records."8

Efforts to Extend Current Trends

There are leading organizations which supportcurrent concealment laws and press for theirimprovement. An example of this is the model act

17Title 13, Sec. 353, Code of Alabama, 1940, recom-piled 1958.

18 Several states indicated that their juvenile courtlaws specifically provide for record concealment, inaddition to the requirement of confidentiality (e.g.,Arkansas, Illinois, Minnesota, South Dakota,Vermont).

The Minnesota law indicates that: "... the Courtmay expunge the adjudication of delinquency at anytime that it deems necessary". However, neither phys-ical destruction nor sealing of records is required. (M.S.Sec. 260.185, subdiv. 2, Juvenile Code, 1959, asamended).

In Nevada, protection of records does not includesealing, at least in some counties. (Chapter 62, N.R.S.,Procedure in Juvenile Cases).

concerned with the annulment of a conviction ofcrime, authored by the National Council on Crimeand Delinquency in 196219 This act essentiallyprovides for judicial power to annul a conviction.It is by no means unequivocal. -Annulment is amatter of discretion, not of right. It, therefore,depends on the circumstances whether an offendergets one or not. Further, not all rights are un-equivocally and absolutely restored; again, it"depends on the circumstances".

NCCD adds to the doubts about the efficacy ofsuch equivocal, remedial legislation, by confusingthe removal of disabilities with the blotting outof the record. For example, the article states:

"The kind of authority given to the court in theModel Act should produce wider and more uniformuse of the power to expunge the record while allowingfor sound discretion to take individual circum-stances into account." 2 (Emphasis added.)

The Model Act itself does not use the word"expunge". It does refer to "annulling, canceling,and rescinding the record of conviction anddisposition . .. " 21 While it thus may appear thatexpungement is intended, such an inference isdispelled by language in the Act which indicatesthat in a subsequent crime, the prior convictionmay be considered by the court in determiningwhat sentence to impose. The record is, therefore,not expunged in the real sense of the word. It isvery much there, to be used against the offender.

The 1956 National Conference on Parole urgedthat:

"Expunging of a criminal record should be author-ized on a discretionary basis. The court, of disposi-tion should be empowered to expunge the record ofconviction and disposition through an order bywhich the individual shall be deemed not to havebeen convicted. Such action may be taken at thepoint of discharge from suspended sentence, proba-tion, or the institution upon expiration of a term ofcommitment." 2

The Model Annulment Act emphasizes that"Annulment of the record serves a rehabilitativepurpose".2N A better approach, however, wouldbe to annul attitudes rather than the record.

19 Annulment of A Convticion of Crime-a Model Act,8 CRE AwD DELINQUENCY l2, April 1962.

:0 Ibid. p. 10021Ibid. pp. 97-10222National Conference on Parole: Parole in Prin-

ciple and Practice, National Probation and ParoleAssociation, N.Y. 1957, p. 136.

Model Act, NCCD, op. cit. supra note 19, at p. 98.

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Submitted to the 1969 Delegate Assembly ofthe National Association of Social Workers werea number of recommended changes with respectto goals of public social policy. Among these wasa proposed policy statement on juvenile delin-quency and crime. The specific recommendation,which "incorporates the more recent thinking andrecommendations of social workers in the cor-rectional field," provides that:

"A police or court record on a juvenile or an adultpresents a continuing handicap to the individual asan obstacle to employment, enlistment in thearmed services, or participation in other public orservice programs.... The statutes should providefor the expungement of police and court recordswhen certain conditions relating to individual ad-justment have been met. To eliminate obstaclesresulting from a record of criminal conviction,federal and state legislation should provide for va-cation of conviction after the offender has success-fully complied with the obligations imposed." 24

The American Civil Liberties Union in Cali-fornia inveighed against Senate Bill 990, as anexample of "restrictive or regressive criminallaw bills" 2-a bill which was introduced in theSenate in the fall of 1968 for the purpose of (a)repealing the existing statutes that provide for thesealing of criminal and juvenile records of minors,and (b) opening of presently sealed files.

While one can appreciate the motives of ACLUand others pressing for suppression of the record,Senate Bill 990 should have been supported, ifwe are ever to escape the intellectual dishonestyof the present system.

What is universally suggested in these state-ments and by some correctional authorities is,essentially, that society should go as far aspossible--all out-in enacting, and improvingexisting concealment laws.28 However, caveats

2 NASW News Nov. 1968, p. 21-Delegate Assem-bly (1969) Materials, Recom. #4, TheLegal Code.

25The Bill File-A report on the 1968 LegislativeSessions, by Coleman Blease, ACLU Legislative Advo-cate. The bill was vetoed only because the Senate Judi-ciary Committee is currently studying the sealing ofrecords. The Governor is reported to have stated:"Further legislation in this area should be deferred untilthe Committee has had an opportunity to complete itsinquiry." (Supra note 16)

26 The article by Pettier and Hilmen, op. cit. supranote 6, closes with six suggested reforms for restrictingor preventing public access to records of offenders whohave satisfied the penalties imposed on them. Goughurges the same view. He states: qt is the writer's viewthat providing institutional means of restoring statusafter reformation is an appropriate way to harmonize

are invariably introduced. Such laws, proponentsurge, need to be consistent with public safetyand, further, exceptions need to be made as towhat kinds of records are concealed, for what kindsof offenders, and for what kinds of offenses. Theyoffer ways of tightening up concealment laws andputting more teeth therein, but invariably windup with caveatsP The result is not a dear,viable, and unequivocal philosophic position but,instead, the familiar posture which, in effect, says:"It all depends"-a position which exasperatesand frustrates offenders, and the general publictoo, who seek a "straight answer" to the questionas to whether or not a record is expunged upongood adjustment and discharge from the cor-rectional system.

TnE INE PEcTrvENEss OF THE PRESENT SYSTEM

Despite the good intentions and the evidentlylaudable goals of record concealment proponents,it is apparent that the system cannot and does notwork.28 Record concealment is unworkable; itfails to lift other penalties attendant to therecord; it sanctions deceit; its half-secrecy leads tospeculative exaggerations; it frustrates con-structive research; and it is not equally availableto all. More particularly:

1. The process is impractical, unworkable, andunenforceable. The record is still retrievablethrough secondary sources. It is simply notpossible, physically or literally, either to sealor expunge a record. Baum refers to the "poet'sclaim that what the Moving Finger writes cannotbe cancelled out," and elsewhere in his article hestates: "It seems that when the Moving Fingerwrites these days, a dozen Xerox copies likely aremade." 29

the sanctioning activities of the democratic body politicwith the ultimate value-human dignity. Op. cit. supranote 3, at p. 149.

2 Note the following typical position: "The breadthof expungement of records must, of course, be deter-mined by a careful weighing of the public interest inknowing of the record against the public policy of doingeverything possible to aid the former offender's returnto society." Pettier & Hilmen, op. cit. supra note 6, atp. 128. The authors cite examples of the more para-mount societal need, and then state: "The very exist-ence of these areas makes expungement in the sense ofan erasure or destruction impractical as well as inad-visable. id. p. 129.

2 Professor Fred Cohen in his perceptive writing onthe "rehabilitative ideal", refers to the "oft-repeatederror of confusing benevolent purpose with actual orpotential arbitrary outcome... a benevolent purposeis no guarantor of success or fairness". 47 Tx. L. REv. 1(1968).29Baum, op. cit. supra note 14, at pp. 816,824.

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Petter and Hilmen also point up the problem:

"... In the absence of any penal sanctions againstdisclosure, the accessibility of such records is gener-ally a matter of whom one knows in the departmentin which they are kept. Disclosure is further pyra-mided by the many places to which such records aredistributed, and thus additional sources from whichthey may be procured." 30

Elsewhere, the authors emphasize that statutesdealing with sealing and expungement commonlyprovide nothing more than a notation of therecord concealment. They state:

"There are not any controls, at least penal sanc-tions, against disbursing information contained inexpunged records, nor are there any provisions re-quiring destruction of copies held by various publicagencies and private individuals. In short, expunge-ment statutes as they presently stand neither ex-punge nor aid a former offender-They are arbi-trary in nature and uncertain in the practicalremedy they provide." 3'

All records are not and cannot be sealed. Thatwhich is sealed may readily become unsealed,formally and procedurally, on the basis of limita-tions and exceptions customarily written into thelaw." Informal "leaks" in the seal are common-place.

A state with a concealment statute cannotrequire the FBI to seal or return records to it, sothat an ex-offender may receive protection onlyin his own jurisdiction. Furthermore, concealmentstatutes do not help an ex-offender in relation tosecurity checks.

Police records, which are hardly ever sealed ordestroyed, provide information which is damagingto the ex-offender and which includes clues leadingto ultimate record disclosure. Although manystates, in a variety of patterns, restrict or pro-hibit the use of criminal and delinquency records,it does not generally follow, where such restrictionsor prohibitions obtain, that police records areaffected. They remain, with very few exceptions,even where sealing and expungement laws exist."

M Op. cit. supra note 6, at p. 132."midb., p. 128."'Expungement statutes are so riddled with legisla-

tive and case law exceptions that they are almost whollyineffectual." Op. cit. supra note 6, at p. 125. "... theexceptions to the 'no disabilities whatsoever' have be-come the rule." Op. cit. supra note 11, at p. 129.

", Section 1203.4, California Penal Code, the often-quoted "expungement" statute, applies to convictions,not arrests. Op. cit. supra note 13, at p. 161. Also see op.

Loopholes in law and practice provide addi-tional leads to record disclosure, leads which anyreasonably skilled investigator can pursue. It isnot unusual, for example, that the written orderfor records to be sealed or destroyed is itself notconcealed; this, of course, creates a "track" tobe followed. Entries in state criminal identificationbureaus customarily indicate that certain recordsare sealed, in accordance with a given code section;this constitutes another example of a lead toinformation and record disclosure.

Evasion of legislative intent by prospectiveemployers abounds. As an example, an applicantmay be asked whether he had ever requestedrelief under various sealing or expungement laws,or whether he had ever had a criminal or delin-quency record sealed. 4

Because records which are concealed, pre-sumably even destroyed, may be brought tolight without too much difficulty, the conclusionis inescapable that such practices do not andcannot work.

2. Other disabilities and restrictions remain evenwhere the record is concealed. Ours is a penalty-oriented system of justice. Ex-offenders continueto suffer from statutory and extra-legal penaltieslong after their offender status has been term-inated.

Even where statutes providing for vacation ofconviction and removal of disabilities also includesome form of record concealment, it is commonknowledge that this does not lift other limitationsand lingering penalties.

In many jurisdictions, the ex-offender mustregister with police for life. 5 Increased punish-ment for later offenses is commonplace where"priors" can be established. Testimony of ex-offenders, even those whose records have been"expunged," can often be impeached with suchinformation. 6

cit. supra note 7, at p. 130, where the author discussespolice records.

U According to Gough, probation officers claim thatagencies often ask: "Have you ever had an offenserecord expunged?" or 'Have you ever appeared as amoving party in any court?" Op. cit. supra note 3, pp.

"5Until recently, an ex-felon in California had toregister with police "forever" under Penal Code, Sec.290, or Health and Safety Code, Sec. 11853, eventhough disabilities were removed under Section 1203Aof the Penal Code.

31 Under California Law, if an ex-felon testifies in thecase of another, he may deny a former conviction, underSec. 1203.4, Penal Code. However, if he testifies in hisown defense in any subsequent prosecution, he will be

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Opportunities to obtain or renew licenses orpermits to practice certain trades or professions,or to get them restored after suspension or can-cellation following conviction, are sharply cur-tailed throughout the United StatesP "Expunge-ment" of the record often does not help restorethe ex-offender's status since innumerable courtdecisions have held that the matter is entirelywithin the discretion of the licensing body.

The use or possession of firearms is oftentimeslimited u As noted earlier, in another context,record suppression does not provide an ex-offenderwith any relief in security checks by employers, orin relation to federal usage of records-by themilitary or FBI, as an example. Excepted alsofrom expungement legislation are certain MotorVehicle Code violations.

3. The system sanctions deceit--it institution-alizes a lie. In trying to conceal a record we seek tofalsify history-to legislate an untruth. Suchsuppression of truth ill befits a democratic society.Good intentions are no defense. To enable anoffender to deny that he has a criminal recordwhen in fact he has one is to help him deny a partof his identity. In encouraging him to lie, thesociety communicates to him that his formeroffender status is too degrading to acknowledge,and that it is best forgotton or repressed, as ifit had never existed at all. Such self-delusion andhypocrisy is the very model of mental ill health-the reverse of everything correctional philosophystands for.

Members of the American Law Institute, whenworking on the Model Penal Code, were concernedabout this point. One of the drafts indicated that:

"A provision for vacation [of criminal records]troubled some members of the Council in the viewthat it attempts to rewrite history, and may lead inits consequences to legitimate denial of the fact ofconviction in communications where this fact isrelevant and should be stated."

impeached, regardless of the "expungement" of theprior conviction.

'Of approximately 60 licensed occupations inCalifornia, the disciplinary provisions of 39 occupationspermit license denial, revocation, or suspension forconviction of a felony, or any offense involving moralturpitude, while others specifically provide that theoffense must be connected with the licensee's occupa-tion." Op. cit. supra note 11, at p. 137.

Is Section 12021, California Penal Code, does notpermit an ex-felon to have a firearm capable of conceal-ment on the person, even though disabilities wereremoved under Section 1203.4, Penal Code.

The members complacently concluded, never-theless:

"We think, however, that it is unlikely that theprocedure will be deceptive.. ."" 3

The ex-offender, usually not knowing where hestands at the time his case is closed, oftentimesunwittingly finds himself in a false situation. Anall-too-familiar example concerns the offender who,in response to a query about his record, denies itbecause he believes it has been wiped out. He thengets fired, not because he has an offense history,but because of falsification; that is, he lied."0

Further, a man who conceals his record isforced into more elaborate falsehoods in order toaccount for the time lapse in his past during whichhe was actually in jail or prison.

There is some evidence that where record con-cealment statutes are invoked employers reactnegatively. Gough, in citing studies of employerattitudes with respect to the hire of ex-offenders,states:

"Several [employers] expressed distrust of an ex-pungement procedure, and indicated that theywould not look favorably on someone who had in-voked it. As one man put it: 'We probably wouldn'tfire the guy outright (i.e., in the event of subse-quent discovery of the offense) but I think we'd berather hurt that he didn't feel he could come andtell us about it'." 41

4. The system encourages harmful speculationand distorts the record with half-truths. When por-tions of the record are revealed, as inevitablyhappens despite the concealment statutes, theactual and total record is usually inaccessible, sothat only a part of the "truth" is revealed. Theconsequence oftentimes is that the informationis distorted, exaggerated, or misinterpreted,usually to the ex-offender's disadvantage, Businessmen, civil service agencies, army recruiters andothers usually assume the worst, filling in theblanks with imaginations far more lurid perhapsthan the facts themselves.

3" See American Law Institute, Model Penal Code,Tentative Draft S 7, Philadelphia, Pa., May 3, 1957,Section 6.05, p. 30. Baum states: "What to proponentsseems a commendable cleaning of the slate necessary toeffective rehabilitation or to assure a second chance toone already rehabilitated, seems to opponents a sort ofofficial '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. it. supra note 3, at p. 154.

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An editorial which appeared in the Los AngelesTimes of August 26, 1968, reacted negatively toa bill introduced in the California Legislature inthe fall of 1968 providing for the sealing of policerecords in cases of mistaken identity. Callingattention to a number of drawbacks, while ac-knowledging that sealing and destruction ofrecords "may sound appealing on the surface ...the editorial concluded:

"Furthermore, we feel that the very concept ofselective destruction of police records is dangerous.In the long run, the innocent party is better pro-tected by having the record of his arrest--and re-lease-clearly documented." 42

5. Records should not be tampered with becausethey have value for research purposes. The adminis-tration of criminal justice can hardly be com-placent regarding its current effectiveness. It isfrequently under scrutiny, as well as attack.

Under the circumstances, we should maximizethe availability of all records and data for studyby social scientists. The correctional system isnotorious for its paucity of complete and reliableinformation, so that we can ill afford to denystudents of the system access to criminal anddelinquency records.43

6. Concealment procedures are not equally avail-able to all, anyway. If sealing and expungementprocedures were readily available for all ex-offenders desiring to conceal or erase the records,they would nevertheless merit opposition. Thefact remains, however, that these procedures arenot readily available to all.

No jurisdictions are known which provide forautomatic sealing or expunging. Ordinarily apetition is required, and the grant is within thecourt's discretion. The result is that the system isfunctional only for a very small number of of-fenders who have resources and can negotiate thesystem. For the vast number of ex-offenders,largely members of lower-class and minoritygroups, sealing and expungement are meaninglessterms.

44

4 The bill was vetoed because the sealing of recordsis currently the subject of study by the Senate JudiciaryCommittee. Supra note 16.

'any of the psychiatrists and psychologists wishto retain the records for research purposes...."--ex-tract from letter, dated August 28, 1968, from DanielW. Johnson, Director of the Ohio Youth Commission.

"It is common knowledge, easily verified by statis-tics, that where pardon procedures exist, the samecondition obtains, viz., they are out of the reach orknowledge of the vast majority of ex-offenders, whotherefore never apply for them.

In "Answer Line," a regular column in theLos Angeles Examiner, the following questionappeared in the issue of December 30, 1968:

"Several years ago I was convicted of a felony, andhave managed to stay 'clean' ever since. My prob-lem is that now I can't find a job, as no one wants tohire a convicted felon. Is there any way I can havemy record sealed" ?

"Answer Line" responded as follows:

"Under some circumstances, depending on the stateit was committed in, a criminal record can besealed, says a local attorney. It is a complicatedprocedure, however, and would best be handled bya reputable attorney."

What is communicated to the ex-offender, whois "dean" and has presumably paid the debt, isthat "it all depends"; "it's complicated"; and"you'd better get a lawyer". Those who areignorant of such legal provisions or who have nofunds to hire attorneys anyway, do not haveequal access to this "remedy".

DISSENT AGAINST THE SySTE

While, as indicated earlier, most survey re-spondents supported concealment statutes, therewere a few who expressed reservations in supportof the writers' viewpoints. Some of these were asfollows:

Paul Keve, Commissioner of the MinnesotaDepartment of Corrections, wrote, in part:

"I tend to be very unimpressed with the value ofsealing or expunging records, and I am more in-clined to argue for maintaining records that arehighly responsible in their quality and then to makethem actually more available than they had been inthe past. My own experience is that recruiting offi-cers and civilian employers are often more willing toconsider the qualitative aspects of a person's recordthan to categorically rule against him on the merefact of the records existence. I would argue thatonce a thing has happened there is no way in thisworld to say that it did not happen, not even by ex-punging a record of what happened. We may seal,hide or bum our records, but there is no way ofguaranteeing that some record card does not stillexist in a police file, and we cannot prevent therecord from existing in the minds of the people whoknew about the record. When a young man is askedby a recruiting officer if he was ever in JuvenileCourt, he usually says yes. Right then and there themain part of the damage is done and after that ourrecord has a chance to be helpful to him by reveal-

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ing the positive things about how he progressed onprobation, etc. But if the record has in any waybeen removed from scrutiny there is no way toavoid the bad effects of the recruiting officer know-ing the fact of the delinquency but not the qualityof it." 45

Jack Wiseman, Director, Board of Parole andProbation, Salem, Oregon, stated:

".... I personally do not feel that the procedures areas functional and socially purposeful as intended. Isay this with respect to the adult offender who isinclined to feel that an expunged record eliminatesthe possibility of someone else gaining knowledge ofthis record at a date in the future. As you wellknow, knowledge of an expunged record is availableif the prints have been forwarded to the FBI. Inother words, the person develops a false sense ofsecurity and anonymity regarding the record thatcertainly does not maintain in practice. In my esti-mation, it is quite possible that he could find him-self in all sorts of difficulties on job applicationsbecause of this." "I

Commenting on the effectiveness of laws whichpermit an offender whose record has been con-cealed to say that he has none, Judge Margaret E.Driscoll of the Juvenile Court in Bridgeport,Connecticut, pointed out that people who ask thequestion, such as District Attorneys, can getaround it by other questions. She said:

"Of course experience in other areas has indicatedthat somehow the questions could change to getaround whatever law is passed." 7

Barton Anson, Director of Court Services,Ramsey County Probation Department, Minne-sota, while generally endorsing "some system ofexpunging records", expresses reservations aboutcomplete expungement. In his response he stated:

".... My own personal views on the subject are thatthis system does not accomplish what some mayhope that it does-namely, that the state com-pletely forgives the person his transgression bysaying in effect that the record does not exist. Theproblem is that it does and if anyone wanted toreally find out about the record undoubtedly hecould..."

"The ultimate expungement would mean thephysical destruction of any and all records... Thedrawback to destruction of records is that you have

4" Quoted from letter dated August 22, 1968.46 Quoted from letter dated August 16, 1968.47 Quoted from letter dated August 30, 1968.

destroyed not only what might be held against aperson but also what can be said that is construc-tive or at least more complete about a person. Thiswould be particularly important where it was al-ready known that he had been in difficulty but norecord can be found. An aura of suspicion and con-fusion from lack of anything tangible can be morenegative than the record ... " 18

Howard L. Snowden, Technical Consultant,Illinois Youth Commission, takes the positionthat on the whole the sealing of juvenile courtrecords serves the intended purposes. In hisletter he added:

"However, in those many instances where theoffense is repeated, or where the offense is so gravethat the youth must be incarcerated... some factsof the statutory violation become known to thepublic, and it is my opinion that very little can beaccomplished by sealing the records. In fact, therumored stories are often more damaging to theyouth's reputation than the actual facts of the inci-dent." 41

Paul Murchek, Director of the Florida Pro-bation and Parole Commission, wrote:

"I personally believe that expungement and sealingof criminal and delinquency records would encour-age many individuals to conceal the truth aboutthis and subsequently many other important con-siderations, secure in the knowledge that such lawswill create and protect his right to lie..." 50

Apart from specific survey responses ... in aletter regarding the sealing of juvenile recordswhich was written to the Los Angeles CountyDelinquency and Crime Commission on No-vember 15, 1967, Judge Alfred J. McCourtney,then Presiding Judge of the juvenile Court ofLos Angeles County stated:

"... Young people are not profiting by the lawwhich was intended to help them, and those whotake advantage of it are qualified quite inappropri-ately to claim a falsehood, namely, that they didnot commit the acts which in all truth they didcommit..."

Mr. Harold R. Muntz, Assistant Chief Pro-bation Officer of the Los Angeles County Pro-bation Department, stated in a departmentaladministrative bulletin issued January 28, 1968:

4Quoted from letter dated August 29, 1968.49 Quoted from letter dated August 28, 1968.50 Quoted from letter dated October 7, 1968.

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"We have on several occasions taken the positionthat the process of sealing a juvenile court recordhas only led to injurious surmise, rather than theremoval of the disability of such a record... Whenrecords pertaining to a period of wardship are or-dered sealed, reports of a minor's achievement aremade inaccessible, thus acting to the disadvantageof the minor. For example, school records acquiredduring a stay in a forestry camp must be sealedwhen such an order is made. Records cannot there-after be furnished to other schools or colleges towhich a minor transfers, without breaching theorder..."

THE REMEDY

One suspects that at the root of the problem isthe fact that our correctional philosophy andpractice are incongruent in respect to record

concealment--as in many other aspects of criminal

justice administration."' We are not dear about

this business of records; we are in conflict about

it. We are, therefore, endlessly fussing with theremoval of selected records from view--only todiscover that they crop up again somewhere else.

We can continue to refine the removal-of-disabilities, annulment of conviction, and record

concealment statutes; we can continue to de-clare that the criminal conviction is no more,

and that the record can no longer plague theoffender because it is either sealed or expunged;nevertheless, it will remain-an iceberg somewherebelow the surface, and an unacknowledged barrier

to full social reintegration.51 The Dedaration of Prindples of the American Cor-

rectlional Association, first uttered in 1870, proclaimsthat "no law, procedure or system of correction shoulddeprive any offender of the hope and the possibility ofhis ultimate return to full, responsible membership insociety" (Principle 19); and concludes with the declara-tion that "The correctional process has as its aim thereincorporation of the offender into the society as anormal citizen" (Principle 33). See Am. J. oF CoRnec-TiON, September-October 1960, for complete statementof principles, adopted in 1960 by the American Congressof Corrections.

One does not need to be a sociological savant tounderstand that there is a wide disparity between whatwe profess and the way we actually behave. Althoughpractically a hundred years have gone by since the firststatement of principles, correctional practice, in manyrespects, is still not consonant with the lofty principlesexpressed in the Declaration. David Matza, in hisprovocative book DLmQUENcy AND DR= (1964),expresses a notion that even if one reforms, one is notforgiven, and makes some very insightful commentsabout this disparity between what we say and what wedo. He states: "Whatever our philosophical preferencesin the assignment of fault, the question of consistency-the avoidance of hypocrisy-is paramount.... Hypoc-

risy--saying one thing and doing another-is funda-mentally corrosive of trust." (page 97).

Actually, the real issue is not the record, butthe social attitude toward it. The record, ashistory, must be retained. Keeping records avail-able should result in their improvement generally,by virtue of the fact that more availability shouldmake for more scrutiny of the product-the record,so that authors of a record would be more prone toconsider quality and accuracy in its preparation.

Sol Rubin makes a pithy comment related tothis matter, but in another context-access by adefendant to a presentence investigation report.He states:

"Because probation staffs are inadequate in mostdepartments in numbers and quality, it cannot beassumed that reports are complete and accurate.Disclosure to the defendant would militate againstlaxity in the investigation, carelessness in the writ-ing of the report; and rubber-stamping of the reportby the judge." 62

Rubin cites a court case and includes thefollowing relevant line from the court decision:

"Anonymity also encourages misinformation andremoves an incentive for accuracy and thorough-ness by those obtaining the information." r

We need to pass laws outlawing discriminationagainst people with records. Rubin observes inthis connection:

"We know of no statute protecting against discrim-ination against persons with criminal records...Perhaps the closest analogous statutes are thoseprotecting individuals from discrimination in em-ployment because of race or religion."u

Our often-stated objective of helping an offenderto make a new start in life can thus be achieved byleaving the slate as is, and helping him by the meanssuggested above-leaving the record alone, anddeveloping programs designed to change attitudesabout offenders, via education and supportinglegislation. 5

2RuBiN, Tn LAW op CRximAL CoRRECON (1963)92.

SIbid., p. 92.5" ib., p. 639.55 Gough, in his excellent article, states: "... if the

disabilities of conviction are to be removed effectivelyand the reformed offender restored to society, the rem-edy chosen must reach the genesis of the status." Op.cit. supra note 3, at p. 150. Our position, of course, is toget at this matter of offender status by means of a newacceptance of offenders, and not concealing records.

Gough also notes: "Public good demands the reas-similation into full social status of all who have offendedagainst it." IbW., p. 155.

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Sooner or later we must acknowledge that it isthe society, not the record, which must be changed.Our relentless and permanent rejection of devi-ants will destroy them, and everyone else withthem, if it persists. This is one of the basic issuesat the heart of current urban ghetto problems.As long as the ghetto breeds crime and the societyblocks the employment and rehabilitation -offormer criminals, no relief is in sight. The cycle ofriot and reaction spirals unchecked towardrevolution. This has been recognized equallyby governmental investigative commissions andprivate industry.56

How real and practical is the remedy pro-posed? It is neither visionary nor utopian, asopponents may claim. Former offenders withrecords are, more and more, being hired on reg-ular jobs. Moreover, they are being used aschange-agents, as partners with professionals inthe rehabilitative functions. As a matter of fact,ex-offenders are increasingly being sought as such,so that the record becomes a passport to a job, inmany cases, and no longer the stigma it once was.

58The National Advisory Commission on Civil Dis-orders states as fifth among its basic strategies for theuse of employment to ameliorate civil disorder: "Arti-ficial barriers to employment and promotion must beremoved by both public agencies and privateemployers"... "Government and business must con-sider, for each type of job, whether a criminal recordshould be a bar, or whether a high school diploma is aninflexible requirement." REPORT or mEm NATIONALADvisoRY Cos IssION ON CIvIL DIsoDERs, Sup't. ofDocuments, U.S. Government Printing Office Wash-ington D.C. (1968) Catalogue #Pr 36.8:C491R29, p.232.

Additionally, the Governor's Commission on the LosAngeles Riots asserts: "While security considerationssometimes preclude hiring a defendant with an arrestrecord, blanket rejection of such persons without regardfor the nature of the arrest or whether there has been aconviction should be discouraged. We urge employers... to increase employment opportunities for personswith arrest records." VIoLENcE IN THE Ciry-AN ENDOR A BEGINNiNG?, a report to the Governor of Californiaby the Governor's Commission on the Los AngelesRiots, published in Los Angeles on December 2, 1965.(See p. 47.)

Finally, in emphasizing the need for a new frame ofreference if employment is to be found for the hard-coreunemployed, the National Association of Manufac-turerspoints out: 'Torexample, in the past, police recordshave automatically screened out applicants in mostcompanies. Yet in the culture of poverty, police recordstendto be the norm.... By now, companies have hadsufficient experience employing people with records toknow that there is very little correlation between havinga police record and not being a productive worker."ErzxcrvELY EmLOYING Tm HARD-CoRE, NationalAssociation of Manufacturers, New York, (1968), p. 5;available through the reprint service of "Notes andQuotes," Connecticut General Life Insurance Co.,Hartford, Conn.

Of course this is true only in relative terms.Certainly it is not suggested that offenders havean easy time of it in their reintegration. There isindisputable evidence of significant changes in thesociety's attitude, nevertheless. These changesshow that we can do it; we are already doing it.We are focusing attention not on the record but,instead, on the primary task of reintegration."

Why does this solution seem so difficult? Wemust examine the root causes and reasons for ourproblem, and then move resolutely to eliminatebarriers to the remedy.

It is proposed that there is a latent, pervasiveattitude in our society which stresses the genericunworthiness of the criminal-his permanentunfitness to live in "decent society". He is seen asan unredeemable, permanently flawed, ever-threatening deviant. Proper citizens are felt to bemenaced or degraded by consorting with himwhether or not he has "paid his debt".5s

It is significant that proponents of record con-cealment prefer sealing practices and are generallyreluctant to go as far as expungement, in the realsense of the term. This reflects their underlyingreservations. They are just not sure, and thereforeprefer to have the record around, albeit sealed,to be used "as needed". This persisting suspicionsubtly mocks the reformed offender.

The Lex Talionis motif permeates many aspectsof the correctional system, despite our pro-testations to the contrary. It is plainly evident inour penal codes which specify "punishments" forcrimes. There are many societal cues which arecommunicated to the former offender in suchterms that he readily perceives that the societyintends to punish him; in some respects, forever. 9

The conflict of trust and distrust can be seen inthe balance of rights restored and rights denied.

The correctional "graduate" may marry, vote,participate in contractual relationships and denyhis record. He may have to register with thepolice for the rest of his life though, and, if he

57 Paul Keve states in this connection: "I think weare making great strides in the direction of getting thegeneral public to be far more accepting of the previousoffender, and I strongly feel that this is the way weshould go to solve the problem rather than strengthen-ing the stigmatic nature of the record by hiding it."Op. cit. supra note 45.

0 Judge Warren E. Burger, writing on "Paradoxes in1tt Adminstration of Criminal Justice", 58 J. CMnn. L.,C. & P.S. 428 (1967), refers to our tendency to "regardall criminals as human rubbish."

59 Goldstein and Katz refer to the unconscious moti-vations which are operative in our treatment of lawviolators. 72 YA=n LAw J. 854,856 (1963).

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transgresses again, the record can be "resurrected"and used against him once more. Clearly, he isnever truly restored to equal citizenship as long ashe cannot ever again become a "first offender"."0

What we do with offenders at the end of thecorrectional system is very instructive, as we con-trast it with what we do with them at the begin-ning. In the "intake process", the offender is"mugged", finger-printed and booked. Even-tually he gets a trial, after several preliminarycourt experiences. Counsel goes through variousadversary procedures. After conviction, there isan appeal system. Even this sequence does notexhaust the possible steps and ramifications. Thesuccession is highly institutionalized and complex.We solemnize the offender's induction into thesystem.

When he successfully concludes the program,though, we fail to institutionalize his departurecorrespondingly. It's fun to catch the fish but hardto let him go.

It is tragic that we "accentuate the negative"and "eliminate the positive"; that we mark theentry with ceremony, and the exit with nothingwhich symbolizes the offender's "return to full,responsible membership in society"-his reincor-poration "into the society as a normal citizen". 61

Instead of celebrating the negotiation---or sur-vival-of the perilous correctional experience (nomean accomplishment), we remove disabilitiesgrudgingly. At the same time we interject so many"if's" and "but's" as to render the benefit nu-gatory, while tampering with the records as if wecould rewrite history. The net result is that theex-offender, puzzled and frustrated by our hy-

60 It is meaningful to note that while courts oftenbroadly and liberally construe so-called expungementlaws, legislatures invariably go the other way, raisingserious doubts about societal intent with respect tooffenders. In an article, referred to earlier, the authorrefers to the judicial trend and then states: ".... legisla-tures respond by amending the statute to nullify theeffect of the court's interpretation". Op. cit. supra note11, at p. 133. In the same vein, it is also significant thatthe legislatures, and courts too, have generally narrowedthe effects of removal-of-disabilities laws, so that ex-offenders are really released from very few penalties anddisabilities-even though the statute may refer to theremoval of "all" disabilities. Ibid. p. 143.

Section 1203.4, California Penal Code, states...."who shall thereafter be released from all penalties anddisabilities resulting from the offense or crime of whichhe has been convicted". This all-inclusive declarationis a monstrous lie, as we witness the many legal andextra-legal penalties and disabilities the ex-offendercontinues to experience, the language to the contrarynotwithstanding.

61 Declaration of Principles, op. cit. supra note 51.

pocrisy, is hindered rather than helped in hisreadjustment.

How could it be otherwise! The community isso prejudiced against former offenders that anycelebration of successful rehabilitation inevitablywould be condemnatory by its acknowledgementof the graduate's earlier "criminal" status. "Toknow him is to despise him." Until this bias canbe uprooted, real correctional rehabilitation willremain effectively crippled. Contradictory at-tempts to conceal the record conditionally mayhelp the society evade this fundamental issuebut they certainly do not really help the formeroffender to return.

Sutherland and Cressey, commenting on thesocial ostracization of offenders, state that:

"Our actual practice is to permit almost all crim-inals to return to society, in a physical sense, but tohold them off, make them keep their distance,segregate them in the midst of the ordinary com-munity. Thus they are kept isolated from law-abiding groups. If they are to be turned into law-abiding citizens, they must be assimilated intosociety and treated as persons with the potential tobe law-abiding citizens." 6

Gough comments well in this context. He states:

"It is clear that any program for reform mustcreate the institutions necessary for its realization,and that the sanctions it imposes must be function-ally apposite to the end it seeks. There has been sur-prisingly little recognition of the fact that our sys-tem of penal law is largely flawed in one of its mostbasic aspects; it fails to provide accessible or effec-tive means of fully restoring the social status of thereformed offender. We sentence, we coerce, we in-carcerate, we counsel, we grant probation andparole, and we treat-not infrequently with success-but we never forgive. The late Paul Tappan hasobserved that when the juvenile or adult offenderhas paid his debt to society, he 'neither receives areceipt nor is free of his account'.""

Gough further emphasizes that "there is con-siderable evidence to indicate that the failure ofthe criminal law to clarify the status of the re-formed offender impedes the objectives of re-integrating him with the society from which hehas become estranged." 64

62 SUTFRLAND AND C.ESSEY, PRMnCIPLES OF CR._

INoLoGY (5th Ed., 1955) 318."Op. cit. supra note 3, at p. 148." Id.

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In his well-written article (which, incidentally,supports concealment laws and concludes witheight requisites of an effective expungementstatute), Gough plaintively asks whether offendersshou'd "... be forced to bear forever the stain oftheir immature and impulsive conduct", andstates that "without the aid of an expungementstatute, [he] would be compelled to bear themark of his past mistake".16 The writers contendthat Gough correctly assesses the problem butincorrectly solves it. The way to remove the markis to accept the person; not conceal the record.

Because in some ways we have become anenlightened society--at least as we contrastcorrectional work today with what it was like acentury ago-the punishment motif alone nolonger suffices. We feel guilty about our treatmentof offenders because we see that unrelieved con-demnation and rejection will inevitably consignanyone to hopeless defeat.

To some extent we expiate our guilt by pro-viding some means to restore, partially, theformer transgressor's status in society. Manylaws demonstrate this effort-laws which providethat a declaration of wardship in juvenile delin-quency cases does not constitute a criminal con-viction; provisions for confidentiality of recordsand proceedings in juvenile court cases; provisionsfor the removal of some disabilities resulting fromthe offense; provisions for the annulment of theconviction itself; and provisions for the sealing orexpunging of the very records of the transgressions.All can be cited as evidence. We seem to under-stand that an offender ought to be able, at somepoint, to stop "paying the debt". We understand,too, that if we surround him with all sorts ofdisabilities flowing from the crime or delinquency,he cannot succeed. Therefore, we endeavor toleaven the harsher aspects of criminal law withbenign, though frequently ineffective, redemptiveprovisions.

There is no longer time for ambivalence andirresolution. Redemptive provisions must be madethoroughly effective. Any sound policy of dealingwith ex-offenders should include legislation whichremoves disabilities flowing from the delinquencyor crime. There should be an end to retribution.Rights and privileges should be completely restoredand such restoration should be automatic. Thenwe can indeed convince the population and re-

5 1bid., at pp. 186, 157.

assure the former offender that the debt has beenpaid and that resumption of full citizenship isachievable. N4evertheless, whether removal-of-disabilities laws exist or not, records should notbe tampered with. There should be no need todelude ourselves about a man's past in order- togive him a fair chance in the present.

It is a profound mistake to mix in with redemp-tive legislation any provision for concealing therecords. To help the ex-offender by restoringrights and removing disabilities is an absolutenecessity. Alteration or destruction of the record,however, only protects the body politic from con-frontation regarding its own aberrant attitudesand the necessity to change. It basically corruptsthe fundamental correctional objective of re-habilitating offenders.

SUMMARY

In summary and as a conclusion, we reaffirmour conviction that sealing and expungementpractices should be abandoned and not merelyaltered. They have no utility in the administrationof criminal justice.

Criminal and delinquency records can be neithersealed nor destroyed altogether, physically orpractically. The record comes out inevitably, withthe result that efforts to conceal it work invariablyto the offender's detriment.

Record manipulation does not address itself tothe real problem. The pursuit of record manipula-tion practices results in our deluding ourselves,and, worse, in deluding offenders who have made agood adjustment.

The only way to breach the barriers standing inthe way of an offender's reintegtation into the so-ciety is to assault them frontally. The remedy liesin a radically different approach-leaving the rec-ord alone while constantly striving to improve itsquality, and mounting an educational program,with statutory supports, designed to liberalize pub-lic attitudes toward offenders.

All of the above is predicated upon our beliefthat we must destroy the myth that if we can onlyfind a way to wipe out a "sin" somehow, so that itwas really never committed, then and only thencan we relate to the offender as a fellow human be-ing. Such a pathway, we are convinced, is illusory,doomed to failure, and only serves to perpetrate acruel hoax on the offender.

1970]

BERNARD KOGON AND DONALD L. LOUGHERY, JR.

Schimel, writing on the "Role of Rationality inCrime and Corrections: An Epilogue," states:

"There is a hierarchy of tasks if we are to work to-ward a brighter future .... The fourth (perhaps itshould be first) task lies in the minds of men, pro-fessional and lay both. If the task is genuinely arehabilitative one, all those aspects of corrections

which social scientists have pinpointed and whichalienate man from himself must be eliminated. Ifthe task is recognized as worthy, the appropriateresources must be allocated to it." as

68 An article by Dr. John L. Schimel, psychoanalyst,in CmuE, LAW, AND CoRRECTIoNs (1966), edited byRalph Slovenko.

[Vol. 61