ILNews

Giving felons a chance to wipe their records clean

Back to TopCommentsE-mailPrintBookmark and Share

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.• 
 

ADVERTISEMENT

  • 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!

      Post a comment to this story

      COMMENTS POLICY
      We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
       
      You are legally responsible for what you post and your anonymity is not guaranteed.
       
      Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
       
      No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
       
      We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
       

      Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

      Sponsored by
      ADVERTISEMENT
      Subscribe to Indiana Lawyer
      1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

      2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

      3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

      4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

      5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

      ADVERTISEMENT