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County official puts Indiana's expungement statute on trial

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Morgan County Prosecutor Steve Sonnega has heard the criticism that he’s on the wrong side of the law when he argues that Indiana’s expungement statute is unconstitutional. But he insists he’s right.

“My No. 1 driving force was victims’ rights,” Sonnega said, explaining why he recently urged a judge to strike down the law restricting access to criminal records.

“We apply the law, that’s our job,” Sonnega said. “If we’ve got a law that on its face gives victims zero say in the process? Sometimes we have to do what we think is right.”

expungement-apb-sonnega01-15col.jpg Morgan County Prosecutor Steve Sonnega said he’s challenging the constitutionality of Indiana’s expungement law because it gives victims of crimes no voice in certain cases. (IL Photo/Aaron P. Bernstein)

Indiana’s expungement law took effect in July, but not without complications. Even a sponsor, Rep. Jud McMillin, R-Brookville, said he plans to seek some changes in the upcoming legislative session.

Meanwhile, despite its complexity and shortcomings, the law has proven popular. At least 300 expungement petitions have been filed in Marion County alone.

Morgan Circuit Judge Matthew Hanson rejected Sonnega’s constitutional arguments Oct. 28 and granted an expungement to a person convicted of misdemeanor reckless driving years earlier. In such cases, I.C. 35-38-5 says courts “shall” grant expungements if requirements of the law have been met.

Hanson’s order denied most of Sonnega’s constitutional arguments but left an opening, and Sonnega said he aims to take it in an upcoming case. Because the state was the victim in the reckless driving case, Hanson ruled that constitutional claim regarding victims’ rights wasn’t ripe.

“Without the ability of a court to consider a victim’s statement … it would seem the statute is ineffectual when it comes to victim’s rights, and therefore violates the Indiana Constitution,” Hanson wrote. “… Since there is no real victim in this case, this issue of victim’s rights will have to be left for another day when a victim does make a statement that cannot be considered because of the inherent conflict with this statute.”

Sonnega said he’ll raise the argument again in a case set for January in which a petitioner seeks to expunge a misdemeanor battery conviction. He pleaded guilty after his child molestation trials in the 1990s ended in hung juries. Sonnega said the victim in this case objects to expungement. Requiring the court to grant an expungement without considering the victim’s voice in such a case “offends my prosecutor DNA more than someone saying, ‘You’re a prosecutor; you’re supposed to stick up for the law,’” Sonnega said.

It’s that “shall” language obligating judges to grant expungements without considering what victims have to say that concerns Sonnega and that, he believes, merits a constitutional test.

“Our argument is simply that the statute ties the court’s hands and slams the door on victims’ voices,” he said.

Attorney Glen E. Koch II of Boren Oliver & Coffey LLP in Martinsville represented the client who successfully sought expungement of the reckless driving charge. Koch said he was taken aback when Sonnega raised constitutionality arguments. “Normally the executive is enforcing the law, not challenging them,” he said.

Koch believes the law is constitutional, and the General Assembly was within its rights to craft the law as it did. Lawmakers wouldn’t have chosen to require courts to take action if that wasn’t its intent, he said. His client, a professional driver, wanted to get the conviction off his record for future employment and promotion opportunities.

Koch said the client had completed his sentence and had a clean record for the period of time required to qualify for expungement. “Now we have an opportunity through this second-chance statute to reward that behavior,” he said.

McMillin_Jud.jpg McMillin

Beech Grove attorney Dave Byers said lots of people are looking for second chances. His office has had a brisk response to Halloween-themed ads aimed at helping people “haunted” by their criminal pasts. “There really is a lot of public interest,” he said.

Byers said he knows and respects Sonnega, “but in this case I just respectfully disagree. Clearly, it’s something that’s within the power of the Legislature to pass a law like this.”

Still, he and Koch said there are parts of the law where changes are need. For instance, expungements are filed as “miscellaneous” cases that are open to review, so it’s easy to find out if someone has been granted an expungement. Byers said he’d like to see the filing fee repealed, and Koch said it might make more sense to file the petitions under seal or in the criminal cases where records ultimately would be sealed.

McMillin said he’s working with prosecutors, public defenders and courts to try to address some of those concerns. The courts might be able to create a new filing category so that expungement petitions can be filed under seal, for example.

“One of the steps we hope to take is to clarify time guidelines, when you’re eligible,” and what the exact requirements are to qualify, McMillin said.

“Our goal with this new language will simply be to say, if you meet the time requirements, if you’ve completed your sentence and you have paid all the court costs, fines, and fees, and you’ve been clean the required amount of time, you should be eligible for expungement,” he said.

The expungement statute also ties in with Indiana’s Criminal Code reform that passed the Legislature this year and is scheduled to take effect in 2014 with a goal of reducing prison and jail populations and reducing recidivism, McMillin said. “It’s a huge tool in that effort,” he said.

“Our goal should be through expungement to look at who they are now and not who they were five years ago,” he said.

“I get the concept that you’ve paid your debt to society,” Sonnega said. But requiring courts to clear those records might reward people who haven’t truly been rehabilitated, he said, because it limits the courts’ authority for inquiry.

Sonnega believes Indiana is an outlier among states with expungement statutes because of the requirement that judges restrict access to criminal records in certain cases, typically misdemeanor and Class D felony convictions.

“The court should decide each case using criteria on a factual basis,” he said. “Our victims don’t get a fair shake.”

McMillin doesn’t believe the constitutional arguments against the law have merit, and he noted the statute requires victim notification in many cases. Victims have an opportunity in serious felony cases to object or support the petition, as do prosecutors, he said.

Sonnega’s constitutional challenge stopped short of involving the Office of Indiana Attorney General Greg Zoeller. “We believe that the discussion concerning the expungement statute raised by the county prosecutor involving victims’ rights should be addressed with the Legislature,” spokesman Bryan Corbin said in a statement.

“The Morgan County court’s ruling on the constitutionality of the statute should be respected; and since the statute has been affirmed, no appeal is planned by the State,” he said.

Despite the legal and political machinations, Byers, the Beech Grove attorney, said it’s clear many Hoosiers are embracing the second-chance opportunity.

“I just sense that the public has a real hunger for this,” Byers said. “It’s kind of about forgiveness, isn’t it? I just think that’s a great thing.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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