March 5, 2014 – The State Bar of Wisconsin supports a proposed bill – Assembly Bill 818 – which clarifies that sentencing courts can order the expunction of a young person’s criminal record at any time, not just at the time of sentencing.
Currently, persons who commit misdemeanors and some felonies (Class H, Class I) before the age of 25 may have their records expunged. Sentencing judges may order expunction upon successful completion of the sentence, under Wis. Stat. section 973.015, but the judge must order expuction “at the time of sentencing.”
AB 818 allows a sentencing court to revisit the expunction issue. The proposed bill says the sentencing court may, at the time of sentencing, “order that the record be expunged of the offense at the time the court receives the certificate of discharge” from the detaining or probationary authority, which must forward the certificate to the court upon completion.
But the proposed bill, which has been referred to the Assembly’s Judiciary Committee, also allows a defendant to petition for expunction after sentencing, whether or not a defendant has completed the sentence. That is, the bill allows judges to hold an expungement decision until a later date or revisit the expungement issue.
The court could then order that the record be expunged when a discharge certificate is received by the court, or order immediate expunction of a defendant’s record if the court determines the defendant has successfully completed the sentence.
The bill clarifies the law after two recent court decisions.
In State v. Hemp, 2013AP1163-CR (Feb. 4, 2014), a three-judge appeals court panel ruled that a defendant must petition for expungement, even if a sentencing court has already ordered the expunction upon successful completion of the sentence.
In State v. Matasek, 2013 WI App 63 (April 30, 2013), a three-judge appeals court panel ruled that expunction decisions must be made at the time of sentencing. That is, the court ruled that a defendant could not come back to court and request expungment. The Wisconsin Supreme Court is reviewing the Matasek decision this term.
The State Bar of Wisconsin has long supported the broad remedial purpose of expungement and the court’s power to expunge records. Recently, in January 2014, the State Bar’s Board of Governors voted to support legislative efforts to expand expungement remedies.
Another bill, AB 315 would require the Wisconsin Department of Justice to destroy DNA samples and purge related DNA records obtained from persons required to submit a DNA sample at arrest but not later adjudged guilty or delinquent on the charge.
AB 525 would require courts to expunge criminal records of minors when they turn 17 if the minor was a victim of human trafficking at the time of the offense.