Editor’s note: this story has been updated to reflect that the New Mexico Criminal Defense Lawyers Association supports the bill.
Copyright © 2019 Albuquerque Journal
In New Mexico, a person’s criminal history can be accessed with just a few clicks of a mouse on a publicly available court website.
But this would change if the Criminal Record Expungement Act is passed by the Legislature this session and signed by the governor.
The proposed legislation, House Bill 370, would allow many people charged, indicted or even convicted of a crime to petition a judge to wipe their criminal records from public view.
Proponents of the bill, including the American Civil Liberties Union and the New Mexico Criminal Defense Lawyers Association, say it would allow people to move on from a past mistake and not be forever marked when undergoing a background check for a job or housing.
However, opponents, including the Greater Albuquerque Chamber of Commerce, say businesses have a right to know who they’re hiring.
And the New Mexico Foundation for Open Government argues that the bill “violates the most basic principle of the public’s right to know by erasing what is and has historically been a public record.”
“It would let the courts wipe away the public record of arrests and convictions as though they never have occurred,” said Melanie Majors, FOG’s executive director. “… This bill asks the courts to change our history. We believe passage of this bill would set a very dangerous precedent with potentially serious consequences to public safety.”
The act would allow people to petition the court for expungement if they have been wrongfully arrested as a result of identity theft; if they have been arrested, charged or indicted for a crime but not convicted – either as a result of a dismissal or an acquittal – as long as they don’t reoffend within a year; or if they have been convicted of a crime but have served their sentence and have not been convicted again for a certain period.
The option to expunge would not apply to those convicted of a crime against a child, an offense that caused great bodily harm or death, a sex crime, embezzlement, or driving under the influence of alcohol or drugs.
If a judge grants a petition to expunge, all arrest and court records for that individual would be shielded from the public. Law enforcement officials, prosecutors and judges would still have access to a person’s complete criminal history.
The Criminal Record Expungement Act – sponsored by Rep. Antonio “Moe” Maestas, D-Albuquerque, Rep. Andrea Romero, D-Santa Fe, and Sen. Bill O’Neill, D-Albuquerque – passed the House 52-17 last month and sailed through the Senate Public Affairs Committee on Tuesday.
This is not the first expungement bill to wind its way through the Legislature.
Four similar bills, dating back to 2007, have passed the House and the Senate, only to be vetoed by Govs. Bill Richardson, a Democrat, and Susana Martinez, a Republican. Other such bills have died before reaching a vote.
Proponents of the legislation say New Mexico is one of the last states not to allow people to expunge their records.
Rep. Maestas did not respond to requests for an interview, but at a midday news conference on criminal justice overhaul, he addressed the concern that the bill would allow too many people to expunge their criminal histories. He said it has adequate protections in place before a record is wiped from public view.
For example, he said, a suspect arrested on a rape charge would have to win court approval for expungement – a process that would involve notifying prosecutors and allowing them to object to the petition. Victims would also be given the chance to weigh in.
Regardless, Maestas said, a defendant released without conviction, even after being charged with a serious crime, deserves a chance to at least apply for expungement. The foundation of the legal system, he said, is that “you’re innocent until proven guilty.”
The ACLU has long championed transparency and the public’s right to know.
But in this case, its lawyers support expungement of criminal records.
Paul Haidle, senior policy strategist for the ACLU of New Mexico, worked with Maestas on the bill, and he said it aims to remove barriers from people seeking jobs and housing by allowing them to keep past mistakes off a background check.
He said the ACLU sees a person’s criminal record as an inherently different type of public record from those its lawyers usually fight for.
“It’s really an issue, as I’m sure you know, that criminal records then attach to a person for the rest of their life and cause all these collateral consequences that can impact their family, impede their ability to find safe housing and a good job,” Haidle said.
However, lawyer Greg Williams, a member of the New Mexico Foundation for Open Government’s executive committee, sees it differently.
He said that if records are allowed to be shielded from the public, the community and the media will be hampered in the ability to scrutinize police, prosecutors, judges and the rest of the criminal justice system.
“These are not just records that deal with the person arrested, these are records of law enforcement and records of the judicial system,” Williams said. “It’s important that we keep as thorough records of those entities as we can … To the extent that the media serves as a watchdog of court systems and law enforcement, its ability to do so is lessened.”
Chamber opposes bill
Representatives from the Greater Albuquerque Chamber of Commerce say that a business’s ability to run background checks on a potential hire is necessary to protect the enterprise and keep their employees, customers and clients safe.
“Can we agree that innocence isn’t the only reason that a person arrested for a crime might not be convicted?” wrote Christopher Narkun, in a Chamber newsletter. “In many of our judicial districts, for example, those arrested for serious crimes might have just a 50/50 chance (or lower) of being convicted.”
Karen Coates, president of the Rio Grande Chapter of the Society of Professional Journalists, said she worries that if records are shielded from the public, researchers can’t effectively study criminal justice.
“If we’re getting rid of that information (from the public) then social scientists don’t have the information to work from to accurately assess the lay of the land and what’s happening with law enforcement and the court systems,” Coates said.
However, Rikki-Lee Chavez, legislative coordinator with the New Mexico Criminal Defense Lawyers Association, said the group sees this as an important criminal justice reform that would help lower recidivism by giving people an incentive to not re-offend.
“I think it gives people an opportunity to realize that they made a mistake,” Chavez said. “It doesn’t have to follow them around for the rest of their life and change the course of their life.”
Journal staff writer Dan McKay contributed to this report.