NCJ Number
52576
Journal
University of San Francisco Law Review Volume: 12 Issue: 1 Dated: (FALL 1977) Pages: 155-183
Date Published
1977
Length
30 pages
Annotation
THE LEGAL AND SOCIAL STIGMA WHICH BURDEN CONVICTED CALIFORNIA FELONS ARE NOT AMELIORATED BY THE PROVISIONS OF PENAL CODE SECTION 1203.4, AND THE SECTION SHOULD BE AMENDED APPROPRIATELY.
Abstract
ALTHOUGH CALIFORNIA PENAL CODE SECTION 1203.4 IS THE OLDEST EXPUNGEMENT STATUTE IN THE UNITED STATES, AND HAS SERVED AS THE PRECEDENT AND MODEL IN MANY OTHER JURISDICTIONS, THE STATUTE IS NOW AN ANACHRONISM AND A FAILURE. HAVING BEEN DRAFTED FOR THE PURPOSE OF RELIEVING THE LEGAL AND COLLATERAL DISABILITIES OF A FELONY CONVICTION, THE STATUTE HAS PROVED INEFFECTIVE IN ASSISTING FORMER OFFENDERS IN THEIR REHABILITATION. DESPITE CONSIDERABLE CRITICISM OF REMOVAL OF THE DISABILITIES WHICH CONFRONT PERSONS WITH RECORDS OF CONVICTION, THERE IS A NATIONAL TREND WHICH FAVORS RELIEF FOR EX-OFFENDERS. SUCH RELIEF, GRANTED THROUGH THE EXPUNGEMENT STATUTES, PROHIBITS EMPLOYERS FROM DISCRIMINATING AGAINST EX-OFFENDERS WHO SEEK JOBS AND LICENSES. EXPUNGEMENT MAY PREVENT ACCESS TO THE RECORDS OF EX-OFFENDERS AFTER THEIR PROBATION, OR IT MAY INCLUDE THE PHYSICAL DESTRUCTION OF THE RECORDS OF VARIOUS CLASSES OF OFFENDERS. THE POLICY OF EXPUNGEMENT RECOGNIZES SEVERAL VALID SOCIAL FACTORS INCLUDING THE PROTECTION OF SOCIETY, THE IMPORTANCE OF PRESERVING OFFICIAL RECORDS, AND THE PERSONAL RIGHTS OF THE INDIVIDUALS INVOLVED. RECENT LEGISLATION HAS ATTEMPTED TO FORMULATE AN EQUITABLE BALANCE BETWEEN THE VARIOUS INTERESTS; THE STATUTES IN CALIFORNIA, HOWEVER, HAVE NOT PROVIDED THE BROAD RELIEF THAT THE LEGISLATORS INTENDED. A SERIES OF COURT CASES HELD THAT SECTION 1203.4 IS INEFFECTIVE AGAINST DISCRIMINATION IN THE AREAS OF LICENSING AND PROFESSIONAL PRACTICE. SUBSEQUENT LEGISLATION ONLY COMPLICATED THE EXPUNGEMENT PROCEDURE AND REMOVED THE PRIVILEGE OF OF OBTAINING COMPREHENSIVE MITIGATION OF THE COLLATERAL EFFECTS OF CONVICTION. A MODEL ACT FOR IMPROVING EXPUNGEMENT STATUTES HAS BEEN PROPOSED BY THE NATIONAL COUNCIL ON CRIME AND DELINQUENCY. THE PROPOSAL PROVIDES FOR THE RESTORATION OF ALL CIVIL RIGHTS FOR PERSONS DISCHARGED ON PROBATION AND FOR THE ANNULMENT OF THEIR CONVICTIONS. LICENSING BOARDS WOULD BE LIMITED TO INQUIRY REGARDING CONVICTIONS THAT WERE NOT ANNULLED BY A COURT. THE CURRENT EXPUNGEMENT STATUTES OF SEVERAL STATES ARE EXAMINED AND COMPARED WITH ANTIDISCRIMINATION STATUTES AND WITH A RECOMMENDED RECODIFICATION OF SECTION 1203.4 THAT WOULD RETURN WORTHY EX-OFFENDERS TO THEIR STATUS QUO ANTE. AMENDING THE STATUTE WOULD NOT BE AS COMPREHENSIVE AN APPROACH AS ITS RECODIFICATION BUT WOULD BE AN EASIER METHOD OF LEGISLATIVE REFORM AND STILL WOULD MITIGATE THE WORST ASPECTS OF DISCRIMINATION. FOOTNOTES ARE PROVIDED.