Fresh Start

A New Jersey statute lets ex-cons "expunge " their records

Among thousands of former New Jersey convicts, a new 18-page manual called Clearing the Record is must reading. Put together by two experts at a Camden legal clinic for the poor, it tells how a criminal slate can be wiped clean under a year-old state "expungement" law that is the most advanced of its kind in the nation. The statute offers no help to most repeat offenders and those guilty of serious crimes like robbery and rape; rather, it is aimed at people who have fallen afoul of the law once or twice but have otherwise "led a life of rectitude." Requests for this legal ablution are averaging 100 a month, and about 25% are being granted.

Expungement is in demand because a criminal record can prevent a person from getting a job, admission to a school or financial credit. A record can also be psychologically haunting. Stephan Haimowitz, one of the manual's authors, says interest in expungement is keen among older people, "who seem to have an emotional desire to leave this world with an unblemished record."

The New Jersey program does not offer instant record cleansing. Someone convicted for passing a bad check, for example, must let five years pass from the end of his sentence or probation before he can seek expungement; more serious offenders, like a grand larcenist, must wait ten years. Once the required interval has elapsed, the applicant submits a petition and a $30 filing fee to a judge, who must schedule a hearing within 60 days. If there are no objections from the police or other agencies, the request is usually granted. The ex-con's criminal record is then sealed, rather than destroyed. It may be consulted in the future by judges and certain other officials, but not by employers or other private persons. Anyone who illegally releases such files can be fined up to $200.

Many states, including New Jersey, provide for the sealing of arrest records when no conviction follows. What is new, and where New Jersey is in the lead, is the expungement of conviction records. Most states have long sealed the records of juvenile offenders. In the past decade many have extended this protection to grownups convicted of minor crimes; some 35 states now will erase convictions for small drug offenses, like possession of marijuana.

The Congress, which has been trying to produce a new federal criminal code since 1966, is divided over expungement. Under a 1950 law, the convictions of certain criminals up to age 26 can be "set aside," but courts have differed on whether that means the sealing of records. The Senate version of the new code would wipe out the 1950 law, while the House bill would water it down a bit. But both chambers want to permit expungement of minor drug offenses. Many critics are alarmed that records can be made to "lie" legally. "You can't change history and pretend it never happened," says Douglas Watts, staff counsel for the American Newspaper Publishers Association. Expungement may hinder police trying to develop leads. It also could be used to shield police conduct from public scrutiny. Asks Jack Landau, head of the Reporters Committee for Freedom of the Press: "How can you monitor the behavior of law enforcement if records are sealed?" Some businessmen, moreover, have legitimate grounds for digging into the past of prospective employees. Concedes University of Nebraska Law Professor Richard Harnsberger, a proponent of expungement: "If someone has been convicted of embezzlement, a bank has a reason to know before offering a job."

Landau prefers a different safeguard: a statute banning unreasonable discrimination based on old convictions. Eight states, including New Jersey, now have such a law.* But these strictures mean that an ex-con with a beef about discrimination might have to file a lawsuit, generally a lengthy and expensive undertaking. Expungement supporters argue that cleaning a record is only fair. Says Nebraska's Harnsberger: "If you serve the penalty provided by the judicial system, you shouldn't have to pay a lot of other penalties," such as being rejected for jobs. There is a practical reason as well. Says Georgetown University Law Professor Herbert Miller: "It's in society's best interest not to hold down ex-cons. You're inviting them to vent some pretty frustrated feelings."

* The other seven: Connecticut, Florida, Minnesota, New Mexico, Washington, Hawaii and New York

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