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61 J. Crim. L. Criminology & Police Sci. 378 (1970)
Sealing and Expungement of Criminal Records--The Big Lie

handle is hein.journals/jclc61 and id is 386 raw text is: TaE Jou=&L ro' CammAL L&w, Cn13o11 ooY AND POLICE SCINCE Copyright 0 1970 by Northwestern University School of Law Vol. 61, No. 3 Printed in U.S.A. CRIMINOLOGY SEALING AND EXPUNGEMENT OF CRIMINAL RECORDS-THE BIG LIE BERNARD KOGON AND DONALD L. LOUGHERY, JR. Bernard Kogon, employed by the Los Angeles County Probation Department since 1951, is Direc- tor of the Staff Training Office. He received his LL.B. (1935) and M.S.W. (1942) degrees from Brook- lyn Law School and Columbia University School of Social Work, respectively. He is a member of the New York Bar. From 1953 to 1968 he was an Associate Professor at California State College, Los Angeles, where he taught correctional and social welfare courses in the Sociology Department. Donald L. Loughery, Jr., is Chief of Field Services, Western Division, Los Angeles County Proba- tion Department. He received his A.B. degree in Sociology at UCLA in 1948 and his M.S. in public administration at USC in 1959. His twenty-two years of experience in probation includes assignments in adult and juvenile field work, juvenile forestry camps, personnel and training, and various levels of supervision and management. According to the authors, the sealing and expungement of criminal records is not as humanitarian as it looks. Ostensibly a boon to the offender, it actually works against him and helps society to evade its obligation to change its views toward former offenders. Instead of accepting ex-law breakers and giving them a fair chance, the community requires them to lie, and the community lies to itself when it conceals their records in order to make them employable. This violates every principle of honest re- habilitation work. The authors find, moreover, that aside from the issue of principle, it is a practical impossibility to deny reality. While certain records are destroyed, others are not. It is impossible to account for the blank time in a man's employment history during which he was in jail or prison. The order to seal a record constitutes a record in itself. The denial of reality is both unethical and inefficient. It is time society grew up. The wide-spread practice of sealing or expunging criminal 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 plays upon ex-offenders and the general public. The whole approach requires re-examination. Basic social values are involved; this is a matter of conscience, not merely convenience. It includes more than simply the concealment of offender records.i Review is timely, because there is a growing concern about the way a record handicaps an offender. Furthermore, correctional practice, in general, 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, the societal intent to remove criminal records from scru- tiny, whether permanently, temporarily, or for certain purposes only; and (b) because, although the terms seal and expunge are used in the statutes, in court decisions, and in legal parlance, we have no confidence that they mean what they say. handling of the record should be among the first aspects of practice to be challenged. Record sealing and expungement have been accepted casually and extended uncritically over the years, prospering in a rosy glow of good intentions and expediency, with little attention to evaluation of results.2 There are few court decisions and attorney-general opinions dealing with the subject. Definitive law is absent because the subject matter has rarely been litigated upward. Extant litigation is scanty and inconclusive; appeal decisions are rare. 2Mirjan R. Damaska, in his exhaustive, two-part article, Adverse Legal Consequences of Conviction and their Removal: A Comparative Study, 59 J. CRM. L., C. & P.S. 347, 542 (1968), indicates that: collateral consequences flowing from criminal judgments are legion.... Views regarding removal of these conse- quences widely differ.... there is little conscious policy behind legal provisions dealing with this problem.... some of these provisions are not in harmony with modern correctional thinking .... Damaska refers to the general subject as a rather neglected area, but does indicate that there is some evidence of growing improvement with respect to disqualifications resulting from conviction of crime.

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