Inside Track: Proposed Bill Expands Expungement Law, Clinic Helping People Now:

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  • Inside Track
    April
    03
    2019

    Proposed Bill Expands Expungement Law, Clinic Helping People Now

    Joe Forward

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    Volunteer lawyers are helping citizens remove inaccurate information from criminal background reports, removing one barrier to employment. A pending bill would expand opportunities to request expungement of certain criminal convictions on court records.
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    April 3, 2019 – It’s a good time to find a job. The national unemployment rate is 3.8 percent, a reported 50-year low, and Wisconsin’s unemployment rate has averaged about 3 percent the last 18 months. But many jobseekers still face obstacles.

    A criminal record is one of them. Employers routinely conduct background checks on applicants, and those with a rap sheet may be overlooked as a viable candidate, regardless of what the record actually says. In fact, it could include false information.

    “You would be surprised how often folks will find something on their own record, with no recollection of an actual arrest,” said Carlos Bailey, a staff attorney at Legal Action of Wisconsin in Madison. “A lot of the time, there are inaccuracies on those reports.”

    Through a grant from Dane County, Legal Action recently partnered with the Urban League of Greater Madison to hold legal clinics providing free reviews of Crime Information Bureau (CIB) reports and Department of Motor Vehicle (DMV) records.

    The CIB reports are maintained by the Wisconsin Department of Justice (DOJ) and are available to anyone, including employers and landlords, for $7 per request.

    But ensuring that CIB reports (and DMV records) don’t include inaccuracies that could derail an individual’s job-seeking efforts is just one piece of a larger puzzle.

    Many states, including Wisconsin, are changing legislative policy on expungement of criminal court convictions to ensure more people are not permanently scarred by previous mistakes when those individuals can show they deserve a second chance. 

    A Multipronged Approach

    Unlike Wisconsin Circuit Court Access (formerly CCAP), the online and public database for state court records, the CIB database is more expansive. Linked to the federal crime database, it shows arrest and other information, even if a criminal case is never filed.

    “The Criminal Information Bureau reports are the ones most employer’s request,” said Bailey, noting CIB reports can be very difficult to decipher. “We show people what they actually say, and discuss whether those incidents are accurate.”

    “If we can eliminate some of the information that shouldn’t be in there in the first place, that will have a positive effect on people going forward in their application process.”

    “A lot of the time, there are inaccuracies on those reports.”

    With the help of volunteer attorneys, including members of the Wisconsin Association of African-American Lawyers (WAAL), these CIB review clinics – or “expungement clinics” – help Wisconsin citizens identify inaccuracies that can be corrected or administratively removed by filing the proper documents with the state Department of Justice (DOJ).

    Information that can be removed from the CIB report includes dismissed charges or charges that were not prosecuted. Persons arrested without charges being filed can request removal of that information, or if charges were filed but acquitted by a court.

    “The reality is, when you have an employer who is confronted with a 20-page CIB report that has a bunch of different arrests, they might not be inclined to take a look at what the actual disposition of those cases were. That is a problem,” Bailey said.

    Bailey said Legal Action and other partners like WAAL have done CIB and DMV expungement clinics for years, but primarily in Milwaukee. The first Dane County clinic, a full-day event, was in February at the Urban League of Greater Madison. About 80 people obtained help from volunteer attorneys, and another clinic is set for May 4.

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    Attorneys – especially young lawyers – can make a positive impact in their communities by volunteering at an upcoming expungement clinic. Carlos Bailey, a staff attorney at Legal Action of Wisconsin in Madison, discusses the importance of helping people identify inaccuracies in their record and what can be done to correct or remove them by filing the proper documents with the state Department of Justice. Bailey spoke at the State Bar of Wisconsin's 2019 Young Lawyer Conference.

    Expungement of Court Records

    While volunteer legal groups are partnering to help people with CIB reports, lawmakers are considering changes to state law on expungement of criminal convictions.

    Felony and misdemeanor charges with full court dispositions of dismissed or acquitted are automatically removed from the Wisconsin Circuit Court Access (WCCA) online database after two years, under a plan that was implemented last year.

    But criminal convictions remain publicly accessible on the WCCA for 20 years or more. A bill with bipartisan support would amend state law and expand opportunities for people to request expunction of their criminal convictions for certain nonviolent crimes.

    A bill with bipartisan support would amend state law and expand opportunities for people to request expunction of their criminal convictions for certain nonviolent crimes.

    An expungement seals the court record so that it may not be accessed publicly on WCCA or by paper request to the court. Thus, anyone who is checking the WCCA – often potential landlords or employers – can no longer see the conviction listed.

    Under current law, Wis. Stat. section 973.015(1m), those convicted of crimes committed while under the age of 25 can ask for their criminal conviction to be expunged upon successful completion of the sentence. Crimes eligible for expunction are those nonviolent crimes that carry a maximum period of imprisonment of six years or less.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    However, under current law, the judge must make an expungement decision “at the time of sentencing.” Young offenders cannot return to court later and petition for expungement, even if the sentencing judge made no expungement decision.

    Numerous defendants have challenged the state expungement statute in recent years, as criminal court records are easily obtained online and even minor offenses can have collateral consequences well beyond the sentence. But the Wisconsin Supreme Court has ruled that the language of the statute, section 973.015(1m), prevents anyone from seeking an amended judgment to address expungement after the sentence is imposed.

    A recent report from the Wisconsin Policy Forum noted that “Wisconsin appears to have a stricter expungement law than all of its neighboring states except Iowa.”

    The report noted that more than 30,000 closed cases in Milwaukee County alone, from 2006 to 2017, could meet expunction eligibility if the atypical aspects of Wisconsin’s law were removed, particularly the age requirement, allowing more people to file petitions.

    Bill Expands Expungement

    A bipartisan expungement bill, co-sponsored by Rep. Evan Goyke (D-Milwaukee) and Rep. David Steffen (R-Green Bay), nearly passed the last legislative session (2015-17), but ultimately failed. Now, Steffen and Goyke are leading the charge again.

    Assembly Bill 33, as currently proposed, would allow nonviolent offenders convicted of Class H felonies and below to seek expungement later if the sentencing court, at the time of sentencing, did not order the record expunged upon the successful completion of the sentence. Additionally, the bill eliminates the age restriction for expungement.

    That is, an offender could petition for expunction after completing the sentence even if he or she committed the crime for which they were convicted at age 25 or older.

    If the court denies the petition, the defendant could petition again after two years. Under the bill, expungement eligibility is retroactive. Anyone who committed a Class H felony or below, even before the bill’s effective date, could petition for expungement.

    If an expungement bill passes, potentially tens of thousands of Wisconsinites could be eligible to obtain expungement and need legal assistance in order to request it from the courts.

    If the court orders expunction, the expunged conviction is not considered a crime for employment purposes and it would be considered employment discrimination to ask for information about expunged convictions on applications seeking employment.

    The State Bar of Wisconsin has long supported expanded expungement options and supports AB 33, noting the collateral consequence of a criminal record can be a life-long barrier to employment, housing, education, and removing significant financial debt.

    Both AB 33 and companion bill SB 39 have passed the committee stage, a necessary step before the bills move to floor votes in the Assembly and Senate. Neither bill has been scheduled for a floor vote yet.

    More Legal Help May Be Needed

    If an expungement bill passes, potentially tens of thousands of Wisconsinites could be eligible to obtain expungement and need legal assistance in order to request it from the courts. Because expungement is a civil matter, people are not entitled to an attorney.

    The funding necessary to assist the civil legal needs of a large population of low-income citizens who may benefit from expungement will be a challenge, Bailey said.

    Legal clinics like the one spearheaded by Legal Action, WAAL, and community partners, will be crucial for an effective expungement program. “We’ll have to think creatively about how we implement programs that can effectively serve a large percentage of the population, which is what we are doing with our clinic now,” he said.

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