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Bill ensures that expungement law extends to individuals most deserving

March 12, 2015

As the Senate Judiciary Committee approved a bill that tweaks Indiana’s 2013 expungement law, the author warned against nitpicking that might undo what he described as the “delicate balance” struck in the comprehensive measure.

House Bill 1302 was initially intended to clear some confusion over the language in the original bill. In particular, some courts have been taking a strict reading of the 2013 statute and not granting expungements to individuals who were never convicted.

Author Rep. Jud McMillin, who wrote the 2013 measure, presented the bill to the committee Wednesday. He emphasized these changes were not expanding the expungement law but only making sure that the individuals most entitled to expungements – people who were arrested and charged but never convicted – could have their records cleaned.

“I would hope that everybody can agree that those people who found themselves in the criminal justice system and their case was ultimately dismissed deserve expungement,” McMillin, R-Brookville, said after the committee hearing. “Those are the people who should always get it.”

In a lengthy discussion, the committee approved two amendments and finally passed the bill on a 7 to 2 vote with Sens. Sue Glick, R-LaGrange and Greg Taylor, D-Indianapolis voting no.

The bill also clarified that individuals who are given a summons instead of being arrested are eligible for expungement. Following the hearing, McMillin expressed exasperation that certain courts have not been approving expungement petitions for summons.

“I’ve got to say, I don’t understand why we’re having to have this discussion,” he said, explaining the language in the new expungement law draws upon the state’s former expungement statute. “I have never previously heard a court saying under the old
statute, someone can’t get their record expunged when it was a summons. So it’s strange to me that all of the sudden (with) this expungement statute, it becomes a problem.”

The version that McMillin discussed with the Senate committee also established a filing fee for expungement petitions. The courts have the option of waiving the fee.

When the bill was presented in the House of Representatives Courts and Criminal Code Committee, Monroe County Clerk Linda Robbins asked the legislators to include a filing fee to help meet the costs of processing the expungement petitions.

The committee passed by an 8 to 1 vote an amendment that would exclude expungements for people who are convicted of two or more felonies involving the unlawful use of a deadly weapon in separate incidents. This amendment was drawn from Senate Bill 164, authored by Sen. Patricia Miller, R-Indianapolis, and passed by the Senate.

McMillin said while he was willing to allow this provision into the bill, he would prefer rewriting the language to give prosecutors the discretion of approving expungements when deadly weapons are involved in the crime.    

He noted the prosecutor could consent to the expungement petition for such individuals but the judge would have to agree for the petition to be granted. Altering the provision to give discretion would enable prosecutors to handle unique situations that may arise.  

Taylor, who strenuously opposed SB 164 when it was passed by the Senate Correction and Criminal Law Committee, reiterated his arguments in the Judiciary Committee hearing. He pointed out that “deadly weapon” is a broad term that includes objects like baseball bats and crow bars.

McMillin interjected that some caselaw defines “deadly weapon” as a pair of hands.

Talking about the expungement law as a whole, McMillin told the committee a “delicate balance” had been struck between the prosecutors, judges and offenders. Nitpicking could upset that balance.

The inclusion of language from SB 164 puts the law close to the tipping point, he continued after the hearing had adjourned.

“I think there’s a middle ground that can be reached with that issue, as well, by instead of completely precluding expungement for this classification of people, moving them into an existing section that either requires prosecutorial consent (or) at least make sure that the judge has discretion in those types of cases,” McMillin said.

He indicated the exclusion language may still be altered either by an amendment offered on the Senate floor or in conference committee.

The amendment was passed by an 8 to 1 vote with Taylor opposed.

Sen. Lonnie Randolph, D-East Chicago, also offered an amendment that would have required prosecutors to state their reasons for objecting to an expungement petition. It would have given judges the option of convening a hearing on those objections. At present, Randolph said, prosecutors do not have to explain why they oppose any expungement petition.

David Powell, executive director of the Indiana Prosecuting Attorney Council, said his organization had no position on HB 1302 but was opposed to Randolph’s amendment. He characterized it as an expansion of the expungement act because the judge would then be able to determine if there is just cause for the objections. In addition, it placed more burden on prosecutors.

With Randolph’s approval, the committee removed the section from the amendment giving the court the ability to determine just cause. It then approved the amendment on consent.


 

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