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Giving felons a chance to wipe their records clean

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Two years after the Indiana General Assembly passed a measure setting the circumstances for certain criminal records to be sealed, legislators are poised to take the step to full expungement.

This is not an issue about being soft or tough on crime, proponents say. In fact, the bill does not address how Indiana treats convicts. Rather, it is focusing on how the state treats people who have followed the rules and made every effort to put their lives on the right track.
 

mcmillin_jud-mug.jpg McMillin

House Bill 1482 offers expungement for Class D and higher felonies, excluding sex and violent offenders. In addition, it allows a Class D felony to be converted to a Class A misdemeanor as a condition of sentencing. Authored by Rep. Jud McMillin, R-Brookville, the legislation passed the House by an 82-17 vote and is now before the Senate.

Opponents of the bill said the focus should be on reentry programs. A blanket expungement approach does not address the struggles ex-offenders face when they are released from prison.

Still, the bill has gained bipartisan support. Republicans and Democrats in the House joined as co-authors of the measure, and in the Senate, it is being sponsored by two Republicans and two Democrats.

“I think this is one of those issues that brings folks who are often at different ends of the political spectrum together,” said Andrew Cullen, legislative liaison at the Indiana Public Defender Council. “Legislators of a conservative nature believe in redemption while legislators of a more liberal nature believe in the concept of second chances.”

Exercising personal responsibility

HB 1482 allows courts to expunge an ex-offender’s record of nonviolent felony convictions if the individual has not committed a new offense or has no new charges pending within 10 years of the conviction or within five years after completing the sentence (which ever is later).

The bill also requires the sentencing court to clean the record of certain nonviolent Class D felony and misdemeanor convictions as well as certain delinquency adjudications. This does not apply to sex or violent offenders, and individuals convicted of perjury or official misconduct are not eligible.

It also grants the courts the option of wiping the record of all other felony convictions provided the individual is neither a sex nor violent offender, has not been convicted of perjury or official misconduct, or has not been convicted of a felony that resulted in a serious bodily injury.

McMillin said having the opportunity to expunge their convictions will give ex-offenders an incentive to stay out of trouble. The benefit of reducing repeat offenders will spread to taxpayers since the state will not need to spend money to incarcerate these individuals or to provide public assistance once they are released.

Criminal records, he continued, hinder individuals from getting a stable job and gaining access to rehabilitation programs. By wiping the slate clean, these individuals will be able to “exercise personal responsibility and take care of themselves” because they will have an easier time finding employment.

“All of us respond well to having goals,” he said. “If the end gain for you is what you want, you’re going to work hard to get it.”


young Young

Sen. Mike Young, R-Indianapolis, one of the sponsors of the bill in the Senate, agreed with McMillin.

“We want people to be productive in society and not only provide for themselves but pay taxes so we can take care of people who truly need help,” he said.

Concerns over the automatic expungement provision led Rep. Ryan Dvorak, D-South Bend, to vote against the legislation. Criminal records exist for a reason, he said, and not all low-level offenders deserve to have their convictions cleaned.

“I just don’t think it’s a really well-thought-out way to go at this issue,” he said.


dvorak Dvorak

Dvorak maintains reentry programs are the better solution for helping ex-offenders reintegrate into society and preventing recidivism. Expungement does not address issues such as low job skills, inadequate financial knowledge and limited education that hamper many individuals once they are released from jail.

In addition, the five- to 10-year waiting period in HB 1482 is when ex-offenders are most vulnerable, Dvorak said. Instead of offering the opportunity to eradicate their record, the focus should be on getting these individuals into productive employment.

Petitioning

Although this bill gives courts little leeway in denying expungements to Class D felony offenders, McMillin pointed out individuals wanting to clean their records will have to go through a process.

They will have to do a lot, namely hire an attorney and petition the court, he said. The process will weed out those who are not really serious about getting their lives together.

He does not expect the petitions to add much to the courts’ workload. The court which handled the conviction will review the expungement request, and there will be no jury trial or introduction of evidence to work through.

McMillin envisions adults who did “silly things” in their youth that are now holding them back will greatly benefit from expungement. He pointed to one man he met who was barred from coaching his son’s youth football team because of a theft conviction he had 20 years ago that arose from an argument over rent with a former college roommate.

The measure opens a whole new area of practice for criminal lawyers, Dvorak said. It also raises the possibility of inconsistent application. In particular, since the courts would have discretion in deciding whether or not to grant an expungement for the higher felonies, which petitions are approved and which are denied could vary widely from one jurisdiction to the next.

As more expungement applications are submitted, he believes there will be an outcry from victims, community members and business owners.

“I think employers really do have the right to know,” Dvorak said. “It’s not necessarily in the public’s interest to hide information from the public.”

Cullen sees a role for expungement.

Under the Indiana Criminal Code, people can be convicted of a felony for stealing a pack of gum. A conviction on their record, even for a small offense, will follow them around for the rest of their lives.

“The Legislature is wisely reconsidering that,” Cullen said.

Baby step

In 2011, the Indiana General Assembly passed HB 1211 which enabled individuals who had been charged with a crime to petition the court to restrict access to their arrest records. McMillin described this legislation as a “baby step” without which the Statehouse would likely not be considering full expungement today.

Young conceded the restriction bill had problems. Limiting access to the records was cumbersome and caused court clerks along with reporting agencies to worry they could be held liable if the restriction was not done correctly.

Expungement is better, the senator said.

McMillin’s bill would wipe computer databases clean of expunged convictions. The physical records would be put into one location where prosecutors could access them but only with the court’s permission.

However, Dvorak contends no record is ever completely expunged. Employers who have the resources will be able to dig up the arrest documents while small businesses that only have the ability to run a background check through the Indiana State Police will be at a disadvantage.

Even so, McMillin is hopeful ex-offenders will go through the process to have their records scrubbed. Echoing his previous points, he explained these individuals would lose the stigma that is keeping them from the workforce and the benefit would snowball to taxpayers.

“I really do think we need to rethink our approach to these things,” he said.• 
 

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  • wrongly accused
    My son was sent to prison now h has to register as a sex offender. He went to court the state threw it out, because there wasn't a kid involved. But the feds picked it up saying a kid could have gotten on the computer. He showed his private part. He was sen to prison to take a sex offender class. Now he has to register. Is there anything that can be done about that?
  • Ignorance is you
    First I would like to say you are a moron. I am studying law on my computer at 4 am and many other hours of the day and night. You are damned right I am saying possession of child porn is not a crime and it sure as hell isn't a sex crime! Anyone that thinks a sex crime can be committed with the absence of sex is an idiot! I personally do not view child porn, but doing so by others is their GOD given right and also their right under the first amendment. To begin with possession of child porn, no property is damage, no person is harmed and no one's rights are violated. There is no victim and this crap that child porn leads to harming children is just that CRAP!!!
  • Expungement
    Are you implying that possession of child pornography should not be a punishable crime?? I think many of us would be curious to know what you were looking at on your computer at 4am...
    • Expungement,
      What some people fail to understand is that some people are charged with crimes so trivial that it is ridiculous. Especially sex crimes, such as possession of child pornography, there is no victim, at least where the possessor is concerned. If there is a victim or if anyone was harmed, it was not by the possessor, it was by the person that created the picture. But the possessor is charged with a crime, while the producer is untouched! It is no wonder that the United States makes up only 5% of the world population, but has 25% of the world's prisoners!

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      1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

      2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

      3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

      4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

      5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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