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Editorial: Don’t add another layer of secrecy to bad expungement law

New Mexico’s sweeping new law allowing expungement of criminal records in a plethora of cases has been described as “one of the broadest record-closing authorities in the nation.”

Indeed, the statute goes too far in the kinds of cases in which history can be erased. Records that have always been public. Records used by landlords, employers, parents, child-care center operators and many others who have a legitimate reason to do a background check.

And questions abound about exactly what happens in a range of cases from domestic abuse, to driving under the influence, to sex offenses where there is no conviction within a year and the case is “closed” for one reason or another.

Now it will be up to the state Supreme Court to decide by rule whether a curtain of secrecy will extend even to the initial filing of an expungement petition and the court proceedings that follow.

Allowing that to happen would be a serious mistake and a disservice to the public. Until a reversal earlier this week, court administrators initially had considered cutting off public online access to expungement petitions, sealing the documents and closing the proceedings. In the next permutation, court hearings would have been open but no information about where or when would have been included on court calendars. Sort of a judicial sleight of hand – officially declaring courtrooms are open when the public’s business is being conducted, but making it virtually impossible for the public to know about it.

For now petitions and hearings will likely be open unless a case is specifically made for sealing – until the Supreme Court formally adopts rules governing the issue. That will be done through its committee on the Rules of Civil Procedure in a process allowing the public, news media and others the opportunity to be heard.

The expungement law passed by the Democrat-controlled Legislature last year and signed into law by Gov. Michelle Lujan Grisham, also a Democrat as well as an attorney, has long been a goal of the criminal defense bar and organizations such as the American Civil Liberties Union who argue that when people “do their time they should have the opportunity to move on and become contributing members of society.”

The statute would allow convictions in many cases to be expunged – along with all police records in the case – when certain conditions are met. Convicted defendants have to pay court fines and fees, complete a sentence and stay out of trouble for varying periods of time depending on the severity of the crime. For municipal ordinances and most misdemeanor violations, that period is two years. For aggravated battery and most fourth-degree felonies it is six years, and up to 10 years for first-degree felonies and domestic violence crimes.

In those cases it would be up to a judge to decide whether to order expungement after hearing the evidence.

People convicted of offenses against children, offenses resulting in great bodily harm or death, sex crimes, DWI, and a few others are not eligible.

Perhaps more troubling is the section of the law dealing with cases that are closed without a conviction in one year. That can happen for many reasons: witnesses disappear or are intimidated, police officers are called to military service, a sex-crime victim isn’t willing to face trial, and so on. And it is concerning this section makes absolutely no mention of crimes not eligible for expungement, raising the specter of records involving DWI, sex, violence and embezzlement charges disappearing from public view forever.

Take the case of a first-time DWI defendant who typically is given a conditional sentence. Could that charge be eligible for non-discretionary expungement if the defendant stays out of trouble for a year? Perhaps, because conditional discharges and referral to court alternative programs are included in the statute for non-discretionary expungement.

Remember that next time you try to check a job applicant’s background. The law allows custodians of an expunged record to reply that it simply doesn’t exist.

And while official records can be expunged, accounts of past crimes will still exist on the internet and social media – likely with a slant not included in the official record and without any record of final disposition – so one could reasonably question the benefit to the person seeking expungement of official, unbiased and complete records.

As reported by Journal reporters Katy Barnitz and Colleen Heild, the district attorney must be notified in these cases, but the judge MUST grant the petition if there are no other charges pending. And of course there is no money allocated to do immediate background checks.

In both categories – convicted and not – law enforcement and the judiciary would still purportedly have access to past criminal history. It’s the public being shut out – in a state where judges are subject to retention election.

It’s fair to ask whether this really should be the public policy of this crime-ridden state, and worth noting that lawyers are already gearing up for a cottage industry of expungement cases at around $3,900 a pop.

While there is merit to second chances and allowing worthy defendants to move on in certain cases, this law has morphed from one intended to protect victims of identity theft – a good idea – to one of most sweeping history re-writes in America. And it is rife with unanswered questions.

Now the Supreme Court will have to deal with those and balance the competing interests of rehabilitation of reputation with the benefits of an open and answerable society and judiciary.

“There’s no accountability when even the process is sealed,” says Melanie Majors, executive director of the Foundation for Open Government. “Without an open process, how is the public to know what this law is designed to do and that it is not being abused?”

She’s right. The statute already goes far enough without completely shutting the public out of the process.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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