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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

      2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

      3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

      4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

      5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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