June 7, 2017 – Young people who commit certain nonviolent crimes face a real judgment day at the time of sentencing: it is that person’s only opportunity to ask that his or her criminal record be expunged after successful completion of the sentence.

If the sentencing judge determines that the young offender will benefit and society will not be harmed, Wis. Stat. section 973.015(1m) allows judges to order criminal record expungement for those who commit minor crimes while under the age of 25.

“When a circuit court judge orders a case expunged, the public is no longer able to access the case through a Wisconsin Circuit Court Access (WCCA) website or in the clerk of circuit courts office,” said Tom Sheehan, the court system’s spokesperson.

But an expungement decision must be made “at the time of sentencing.” That is, the individual cannot come back later and show a judge that they turned their lives around, or that they made a mistake as a young person but learned from it and are now responsible adults.

For people who can prove rehabilitation after sentencing, the current expungement law is too harsh, according to Rep. David Steffen (R-Green Bay) and Rep. Evan Goyke (D-Milwaukee), who introduced 2017 AB 331 last month with bipartisan support. Without expungement, the collateral consequences of a conviction can haunt young offenders for the rest of their lives, lawmakers noted at a recent public hearing, long past the successful completion of the sentence.

At a hearing June 1, the Assembly’s Committee on Criminal Justice and Public Safety heard stories from individuals whose convictions have adversely impacted their ability to obtain employment and to provide for themselves or their families. Others who committed crimes while under age 25 have suffered from the reputational stigma associated with criminal records that are publicly available to anyone in the world with a click of a mouse.

Expungement Reform

Currently, expungement is available to individuals who commit crimes, while under the age of 25, which carry a maximum period of imprisonment of six years or less.

That includes Class H and Class I felonies if the person has no other felonies and it was not a violent crime. The bill does nothing to change these provisions of the expungement law, but adds an expungement option for certain traffic violations.

And the bill would still allow judges to order expungement at the time of sentencing. But it would also allow a person to petition for expungement after successful completion of the sentence if the court did not order expungement at the time of sentencing.

If the court denies the petition, the court can still revisit expungement every two years. The expungement petition must be heard in the county of conviction, and if possible, the sentencing judge must be the judge to review whether expungement should be granted.

“We are the only state in America that requires an expungement decision to be made at the time of sentencing,” said Rep. Goyke at the June 1 hearing.

Rep. Steffen, co-sponsor of the bill, added that under current law, “the sentencing judge has to pull out a crystal ball … and make a determination at that point, whether that individual should be eligible and receive that expungement option.” A deferral on the expungement issue would allow judges to make more informed decisions, he said.

Importantly, the bill applies retroactively. Goyke noted that prior offenders should have an equal opportunity to show they meet the criteria for expungement. Many, he said, possibly weren’t aware that it was even available or did not have a lawyer to help them.

Retroactive application would allow thousands of people to seek expungement for crimes they committed while under the age of 25, both prior to 2009 and for those who did not request expungement at the time of sentencing since then.

The bill also addresses another problem: Even for those who do obtain expungement orders at the time of sentencing, the criminal record is still publicly accessible in the Wisconsin Department of Justice’s Crime Information Bureau (CIB) database, which feeds the Federal Bureau of Investigation’s crime database for felonies and serious misdemeanors.

AB 331 – supported by judges, prosecutors, public defenders, the State Bar of Wisconsin, and other groups – requires the Department of Justice to redact an expunged record when responding to a public records request. Currently, those records indicate that the record was expunged, but the case details are still reviewable.

“Someone sees the notation that the case is expunged on the CIB record check, but they might not know what that means… Once viewed, you really can’t unring that bell,” says Milwaukee criminal defense lawyer Ray Dall’Osto.

“Sure, someone sees the notation that the case is expunged on the CIB record check, but they might not know what that means. Right now, they are still seeing the case details on both arrests and convictions. Once viewed, you really can’t unring that bell,” said Milwaukee criminal defense lawyer Ray Dall’Osto in a phone interview.

Collateral Consequences Extensive

Dall’Osto testified before the Legislature June 1 in support of the bill on behalf of the State Bar. Dall’Osto has argued for expungement on behalf of clients and has worked on expungement reform issues for two decades, including previous legislative attempts with a State Bar petition to the Wisconsin Supreme Court that was ultimately dismissed. The supreme court deferred the issue back to the Legislature.

“The bill provides a second chance to show rehabilitation,” Dall’Osto said. “But it also gives judges the option of deferring, to hold that carrot on the end of the stick, to say ‘if you follow through and do what you are supposed to do and prove yourself, the court will consider granting expungement.’”

The collateral consequences of a criminal conviction are extensive, says Dall’Osto. The American Bar Association’s Criminal Justice Section developed the National Inventory of the Collateral Consequences of Conviction, a database that identifies legal restrictions imposed upon individuals convicted of crimes that go beyond the sentence imposed. AB 331 would prevent the continuing ripple effect of a conviction.

Employment discrimination is also expressly prohibited under the bill. Employers cannot ask whether a person was convicted of a crime that was later expunged, and a conviction that is expunged is not considered a conviction for employment purposes.

Finally, the bill addresses victims’ rights by requiring the district attorney to make reasonable attempts to notify any victims when a petition for expungement is filed. The victim may appear at the hearing, submit written statements, or waive the hearing.

At the June 1 hearing, Rep. Jim Ott (R-Mequon) asked whether the co-sponsors would consider a small fee requirement for those filing an expungement petition.

Rep. Goyke said people seeking expungement should have their day in court without an added financial burden. “At its core, I don’t support the idea that the hearing would be available only if you pay for it,” said Goyke, noting the likelihood that petitioners would pay other costs in compiling records and documents to prove their rehabilitation.

Rep. Steffen noted the bill has a broad support from judges, prosecutors, and public defenders, and feared “pulling a thread that may lead to an unraveling.”

Judges Like the Bill

St. Croix County Circuit Court Judge Scott Needham, chief judge of Wisconsin’s 10th Judicial District, reiterated that trying to determine, at the time of sentencing, whether a young person meets the criteria for expungement is like looking into a crystal ball.

“The number of expungement requests has increased dramatically,” Judge Needham told the committee. “Part of that is due to the 24/7 information age, with access to the internet, access to court records, and people not understanding how to interpret them.”

Judge Needham noted that the Committee of Chief Judges pushed a bill in 2015 that was even more expansive. It would have allowed expungement of records if a person is acquitted or the case is dismissed, regardless of the person’s age.

And it would have allowed expungement for records of any civil violations of municipal ordinances with a forfeiture penalty, which is not available under current law. Judge Needham urged the committee to consider addressing those issues in AB 331.

Another Expungement Bill in the Works

2017 SB 53, which has already passed the Senate’s Judiciary and Public Safety Committee, would also allow persons to come back, no sooner than a year after successfully completing the sentence, and petition the court for expungement. SB 53 would impose a $100 filing fee for each expungement petition that is filed.