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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. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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