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Erasing criminal history

Copyright © 2019 Albuquerque Journal

A total of 181 people sought to expunge their criminal records – almost exclusively misdemeanors – with the New Mexico Department of Public Safety in fiscal 2017-18.

Now, court officials and prosecutors are bracing for a possible flood of people seeking to expunge their criminal records beginning Jan. 1 under a new law passed by the Legislature and signed by Gov. Michelle Lujan Grisham.

New Mexico’s new expungement law will be “one of the broadest record-closing authorities in the nation,” says the Restoration of Rights Project, a national organization that tracks such laws by state.

Virtually all arrest and conviction records are now open to the public.

But under the new law, courts can limit public access, and DPS estimates some 600,000 of its records would be subject to requests for expungement.

For the first time, those arrested or convicted of certain felonies and misdemeanors will be allowed to wipe their public records clean after a waiting period and as long as no charges are pending.

Rep. Antonio Maestas

“This will literally change lives,” said Rep. Antonio “Moe” Maestas, D-Albuquerque, one of the bill’s sponsors. “This will boost the economies of thousands of households in New Mexico. Particularly if the person with a criminal history is the breadwinner in the family. It will allow people to get employment, seek housing. It will allow people to get a better job if they already have one.”

Once expungement is ordered by the court, the new law states, “The proceedings shall be treated as if they never occurred.”

Adding another layer of secrecy, the Administrative Office of the Courts is proposing that even the initial petition for expungement be filed with the court under seal.

In addition to secret filings, the AOC last month also told the Journal that expungement hearings would be automatically closed but has since pulled back.

It now says the hearings will be open, but some judges might opt to close them. Nevertheless, the public won’t know when or where the hearings will take place because that information won’t appear on court calendars.

Ready or not

No one knows for certain whether the judicial system is equipped to handle the potential surge in expungement requests, how the new law will impact the criminal justice system or how the courts will go about the process.

“There are a lot of unanswered questions that this statute doesn’t make clear,” said AOC attorney Celina Jones. She said the “estimates of the number of petitions that might be filed – no one really knows – could be quite high.”

The new law allows expungement of most arrest records in cases where there has been no conviction, along with records related to convictions for all but the most serious violent and sexual crimes after a number of years, which vary with the seriousness of the crime.

Judges appear to have little discretion on expunsing arrest records when no conviction has followed within a year and no new charges are pending. But when presented with a request to expunge a conviction, judges can consider a number of factors, including whether “justice will be served.”

Dianna Luce

Dianna Luce, president of the New Mexico District Attorney Association, said prosecutors and law enforcement will still keep the arrest and conviction records on file internally, but there are questions about the impact on criminal prosecutions.

“I always worry about how it’s going to affect what we do because the burden is high on the prosecution anyway to get a conviction and anytime they’re doing something that hinders access to information or release of information it always puts us in a difficult situation. And law enforcement, too.”

Luce, who is the 5th Judicial District attorney, in southeastern New Mexico, said she believes prosecutors will still be able to bring up an expunged criminal case at sentencing, where it can be used to increase a defendant’s sentence, and at hearings for pretrial detention, when a criminal history could be used to show that a person poses a danger.

The law has some “gray areas” so that’s not a given, Luce added. “But that’s what we fought for to protect (during the legislative session) and we’ll fight for that. And if a court rules differently, we’ll go from there.” It’s also not clear whether appeals will be public.

Public right to know?

Advocates say expungement opens doors for people who have served their time or were never convicted in the first place, which means there could be a huge surge of people looking to take advantage of the new law.

And considering that private attorneys around the state are advertising expungement services, the demand on the courts “could be huge,” Jones told the Journal.

After at least 11 failed attempts to enact such an expungement law since 2005, the Legislature, with some dissent, passed HB 370, which the governor signed in April.

Across the country, states have enacted new expungement laws. Advocates say New Mexico is one of the last to get on board.

Melanie Majors

Melanie Majors, executive director of the New Mexico Foundation for Open Government, said her organization lobbied against its passage.

“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.” Majors said the initial intent of the bill was to give victims of identity theft an avenue to expunge their records, “but this bill goes way beyond that.”

A legislative analysis of the bill says the challenge has been how to “balance the need for transparency in government actions versus the interest in rehabilitation and the effects of an arrest or conviction on an individual’s pursuit of work, housing or other activities.

Luce, of the District Attorney Association, said the law aims to “assist people who are trying to get their lives back on track that have had a criminal conviction to be able to move forward. Before they had to go to the governor for a pardon. The theory behind it, if someone can be gainfully employed and have housing, then hopefully we keep them out of the criminal justice system.”

Keeping what has traditionally been public from the public will be a different experience, Luce said.

Law enforcement and district attorneys in New Mexico are “used to people coming to us frequently for information or we’re putting out there. So it’s probably going to make our job more difficult, but obviously it’s the law,” Luce said recently.

If a member of the public asks for arrest or conviction information, “we would respond, ‘we have no record’ because it’s protected basically.”

“We’re just going to wait and see how it plays out, but my expectations are that probably Albuquerque will see it (any problems) first because with the volume of cases that’s where it will come up first,” she said.

There always could be “unintended consequences,” Luce added. “We’re going to have to work through it and find out if there’s a problem. If there is, we’ll be back at the Legislature asking it to be modified or seeking the Supreme Court’s clarification.”

The Department of Public Safety, which is the central repository for law enforcement records statewide, questioned during the last legislative session whether federal law enforcement entities, such as the Department of Justice, would still be able to access state records.

“Further this presents an officer safety issue for all law enforcement officers nationwide, who will be deprived of this information and thus at risk,” DPS sadi in the fiscal impact statement on the bill.

Background check issues

Before the new law took effect, relatively few arrest expungements occurred, and those were done administratively by DPS for misdemeanors and petty misdemeanors that had no final disposition and didn’t involve crimes of “moral turpitude.”

Courts were permitted to seal only juvenile cases, first drug offenses committed under age 18 and crimes committed by human trafficking victims, according to the Restoration of Rights project.

Jones, the AOC attorney, said the new law puts the burden on the petitioner, or his or her attorney, to provide their criminal background materials to show the judge they meet the criteria for expungement.

DPS recently issued rules so petitioners can obtain their “rap sheets” from the state or the FBI if a judge requires that information.

The person seeking to erase their criminal record can’t have other pending charges or proceedings, but Jones said there’s some concern that judges might want independent verification.

“What we are investigating now, but we don’t currently have resources for this, is maybe a legislative appropriation to provide that independent immediate background check,” Jones said. “The question is what options are there for us in addition to the background check information that a petitioner might provide? That is one of the big challenges.”

The law doesn’t oblige the press, social media or other outlets to expunge records of arrests or convictions.

Advocates point out that many of the most serious crimes – such as those involving crimes against children, offenses that cause great bodily harm or death, certain sex offenses, embezzlement or DWI – are ineligible for post-conviction expungement.

Notice to DA

District attorneys and law enforcement must be notified of expungement petitions in conviction cases and arrested but not convicted cases, and they are invited to raise objections.

In Bernalillo County, the DA’s Office has requested an additional attorney and paralegal in its budget request to work on expungement. They plan to notify victims, though as DA chief of policy and planning Adolfo Mendez points out, the most sensitive victims are protected by the exclusions written into the statute.

Mendez said that cases are sometimes dismissed by prosecutors after an arrest because additional investigation is needed, and although, he said, that often happens in less than a year – when a person would not yet be eligible to seek expungement – the office will raise concerns with the judge if prosecutors plan to proceed with the case at a later time.

Christopher Dodd, a New Mexico Criminal Defense Lawyers Association board member, said the new law is already affecting the way he negotiates plea deals for his clients. He expects the defense will push for conditional discharges and work to avoid convictions for crimes that won’t be subject to expungement, and he plans to tell clients to come back when they’re eligible so he can help them through expungement. He says he plans to file one or two petitions in coming weeks.

“This is, on a whole, going to be an enormous benefit for the citizens of New Mexico who at one point in their lives went through a difficult period and have gotten it together and proved that they’re good citizens and now can move on with their lives rather than being haunted,” Dodd said.

‘Opportunity to move on’

Advocates say the impact of expungement could be huge not only on a personal level but on a societal level.

Paul Haidle, attorney and senior policy strategist for the American Civil Liberties Union of New Mexico, said there are around 48,000 “collateral consequences” nationwide that people experience as a result of having a criminal record. Think job opportunities and housing options but also the ability to adopt a child, to run for public office or to seek certain types of professional licensure.

“I don’t think the legislature or people intended for arrests and convictions to be a scarlet letter on a person for the rest of their lives. We live with this sort of notion that people do their time and then they should have an opportunity to move on and become contributing members of society,” Haidle said.

In a state with one of the highest rates of children with incarcerated parents, Haidle says expungement may mean parents are able to find stable housing and work, both of which could improve a child’s outcome.

People have the option to represent themselves through the process, and Maestas said the courts are crafting forms that should help facilitate expungement for clients who can’t afford an attorney. But private lawyers are also gearing up to guide clients through expungement.

Laurence Donahue, of Law 4 Small Business, P.C., designed an online quiz that helps people determine whether they qualify, and close to 900 people have already taken it. For a $3,900 flat fee they can hire an attorney in his company to do the heavy lifting for them. That includes, if expungement is successful, a notice to several online mug shot companies asking that posts be removed from their website.

Although many people have expressed interest in expungement, some are hesitant to be the first to jump into the pool. As law firms and agencies grapple with precisely how to interpret the new law, some people who are eager to see their records erased are still opting to hold back until more questions are answered.

“We’re going to have the opportunity to really develop the law,” attorney David Richter of Business Law Southwest said. “And that’s exciting. You rarely get that opportunity.”

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