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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

      2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

      3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

      4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

      5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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