About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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.

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
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.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most