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Wednesday, February 25, 2009
Criminal Records Could Go 'Poof'
By Jeff Jones
Journal Staff Writer
SANTA FE — If two criminal defense lawyers serving in the Legislature get their way, a lot of New Mexico ex-cons wouldn't have to worry about their rap sheets following them around the rest of their lives.
Senate Majority Leader Michael Sanchez, D-Belen, and Rep. Antonio "Moe" Maestas, D-Albuquerque, are pushing bills that would allow judges to wipe away court and police records of offenders who complete sentences for certain crimes and aren't charged with new crimes for a certain period of time.
The bills are not identical, but under one or the other offenses that could be expunged range from petty crimes like shoplifting, which could disappear after one year, to DWIs after ten years. Records of most violent felonies that don't involve death, sex crimes or weapons could also be expunged after ten years. Domestic violence arrests and convictions would be eligible for expungement.
New Mexico's law enforcement community, including district attorneys, is leaving no doubt about where it stands on the proposal.
"That's a crazy idea. ... It's absolutely horrible law," said Rep. Bill Rehm, R-Albuquerque, a retired sheriff's captain.
"We're just being bombarded by 'be kind to criminal' bills," said Jim Burleson, executive director of the New Mexico Sheriffs and Police Association.
Maestas, a former prosecutor turned defense lawyer, acknowledges the proposal "rubs people the wrong way."
But, he said, "It's better for society for these guys to be given a chance. If they don't take it, to heck with them."
The bills are broader than a 2007 expungement measure sponsored by Sanchez that was approved by the Legislature before being vetoed by Gov. Bill Richardson, who was then on the campaign trail for president.
Asked this week for Richardson's position on the new bills, governor's spokesman Gilbert Gallegos had this to say:
"The governor vetoed the legislation in 2007 because it had a technical flaw that made it unacceptable. The governor has had discussions with Senator Sanchez to determine which records could qualify for expungement."
When asked again whether Richardson supports or opposes the new bills, Gallegos added, "The governor is working with Sen. Sanchez to ensure that prosecutors and law enforcement have access to records necessary to enable them to do their jobs."
Terri Cole, president and CEO of the Greater Albuquerque Chamber of Commerce, said Tuesday that the measures would put New Mexico businesses at risk by taking away their ability to fully check the backgrounds of prospective hires.
"They would have no knowledge of a person's criminal record and be put in a position to give them the responsibility for the very crime they may have committed," Cole said.
Under current New Mexico law, police arrest records and criminal court files are public documents that remain on file for decades. Employers, including school districts, use such records to do background checks to ensure their new hires don't have criminal pasts.
"I tell my clients, 'You can't erase an arrest. You can't erase the fact that you're on the Internet forever,'" Maestas said Monday. "If you're 45 and you had a misdemeanor when you were 22, should that really haunt you? You paid your debt to society."
Under Maestas' bill, the waiting periods before an offender could apply for expungement are: 1 year for a petty misdemeanor conviction; 5 years for a nonviolent felony; 10 years for a drunken-driving conviction; and 10 years for "a violent felony conviction not resulting in death" that did not involve the use of a deadly weapon or a sex crime.
Maestas' bill also would provide for expunging the records of those who are wrongly charged; victims of identity theft; and those whose cases were referred to preprosecution diversion programs before a conviction.
Sanchez's bill is not identical, but also specifies waiting periods for various crimes. And both bills say: "Upon entry of an expungement order, the proceedings shall be treated as if they never occurred."
Clint Wellborn, president of New Mexico District Attorneys Association, said the bills would allow drunken drivers to avoid repeat-offender penalties — a contention Maestas disputes.
"It would allow them to basically wipe out their record," Wellborn said. "I've seen individuals go 10 years without a DWI — and get three or four in a row."
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