People keep asking me, “Why does the ACLU support expungement?” It’s a fair question. We have a well-deserved reputation as an organization that fights for public access to information related to functions of government. We make frequent use of Freedom of Information Act requests, or IPRA as it is known in New Mexico, to make the case for the better and more efficient use of government. So why did the ACLU of New Mexico work with Representative Antonio “Moe” Maestas this year to draft a bill that would remove certain criminal records from public view?
It boils down to this: A criminal record is a fundamentally different type of public record than other documents that allow individuals to assess the credibility and function of government.
This bill gets at some of the most important tools for fighting recidivism: access to good jobs, safe housing, and educational opportunities.
Criminal records in this day and age stick with you for life. Even a mere arrest without conviction can have consequences decades after the fact. A felony conviction can create permanent barriers that stand in the way of people’s ability to move on with their lives. These records are a kind of “scarlet letter” that people with convictions carry for life.
According to the National Employment Law Project,one third of all American adults have a prior arrest or conviction record . Prior to 9/11, certain industries were more accessible to people with criminal records; now the Society of Human Resource Members says 92 percent of its members conduct background checks on some or all of their employees.
It’s because of this stigma and the loss of opportunity for people with a criminal record that the ACLU not only supports expungement, but views this legislation as a critical tool for increasing public safety. This bill gets at some of the most important tools for fighting recidivism: access to good jobs, safe housing, and educational opportunities.
Open government advocates and some members of the press have opposed expungement legislation in New Mexico arguing that the public and the press have a right to know about a person’s criminal history. We agree with that position. Nothing in this legislation would limit the press’ ability to report on criminal cases and nothing in the bill requires them to erase stories they have run. Similarly, this bill does not expunge records for law enforcement purposes and sealed court records could be opened by a judge for good cause, like any other sealed record in New Mexico.New Mexico also has one of the highest rates of children with incarcerated parents, a known Adverse Childhood Experience (ACE) factor. By allowing a parent with a criminal record the opportunity to access safe housing and good jobs, this legislation will improve outcomes for many New Mexican children.
Nothing in this legislation would limit the press’ ability to report on criminal cases and nothing in the bill requires them to erase stories they have run.
What this bill actually does is allow a person to request to have a publicly available criminal record removed. Depending on the seriousness of the charges, a person will have to wait longer to be eligible to expunge. Certain crimes, such as sex crimes and crimes against children, are never eligible for expungement. A person must petition the court and give notice to the District Attorneys, the Department of Public Safety, and the arresting agency, each of whom are allowed to object to the expungement on public safety or other grounds. The District Attorneys are allowed to notify any victim in the case. Finally, the court must balance whether the expungement petition is “in the interests of justice” by considering the age of the offense, the nature of the offense, evidence of rehabilitation, and reasons why the public should still have access to the record.
We believe this bill strikes the right balance – it has significant public safety protections while also giving an individual and their family the chance to move forward with their lives.
