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Sunday, June 26, 2011

Ind. Law - More on: Indiana's new expungement law

"Mercy for DWI driver overturned: Justices say Noble court lacks power"; Indiana's new expungement law" was the heading on an ILB entry from June 3, 2011, commenting on the case of State of Indiana v. Jeffrey Brunner and quoting from Niki Kelly's story in the Fort Wayne Journal Gazette.

In the second part of the June 3rd entry, I discuss the recently enacted HEA 1211, which will allow for expungement of arrest and conviction records in certain cases.

There is a follow-up in this June 7th ILB entry.

On June 18th Sarah Tompkins reported in the NWI Times in a story about Gary attorney Derrick Julkes' presentation at a forum on expungement, one of several being held in Lake County this summer. The story ends:

Julkes told the group that some might qualify to have their records expunged, or erased. To do so, he said they had to either have been arrested but never charged or have been a victim of mistaken identity.

"They all boil down to: You didn't do it," Julkes said.

But for those who did not qualify for expungement, he said there was still the possibility of getting a limited seal. The seal would prevent government agencies from giving out information to the public about a Class D felony or misdemeanor if neither resulted in someone being injured or was a crime against a child.

In the past, people had to be crime-free for 15 years before applying for a limited seal, he said, but after July 1 the waiting period drops to eight years.

And after the law kicks in, those offenders will not need to mark "yes" on job applications asking if they have been convicted of a crime.

But those records will not be hidden from databases used by private detectives and others whom employers can hire to do criminal background checks.

Julkes said if employers still can pull records through private venues, it might not be practical for offenders to claim they are conviction-free.

"I would say honesty is the best policy — with an explanation," he said.

[ILB: Re private detectives hired by employers to do background checks -- aren't they themselves licensed by the State? Page 4 of their private investigator firms application asks: "Have you ever been convicted of, pled guilty or nolo contendre to any offense, misdemeanor or felony in any state ..." What about other professions, such as the bar?]

On Indy6 News from June 24th, in a story headed "New Law Gives Hoosiers Hideout From Criminal Past: Ex-Offenders Could Hide Histories From Potential Employers," Jack Rinehart reports on the new law. A quote:

The intent of the legislation would limit background checks of an individual's criminal history to the past eight years. If the petition is granted, records would be available to law enforcement agencies, treatment agencies and service providers as required by a court.

Despite the new law, Joel Schumm, a professor at the Indiana University Law School, said that in this era of information technology, ex-offenders may find it increasingly difficult to insulate themselves from their past.

"The genie is already out of the bottle," Schumm said. "Private companies that do background checks are going to have access to the information already. I don't know if the law can keep prospective employers from getting information that's already out there."

Today reporter Kelly has a long FWJG story headed: "Shielding criminal past fires debate: Hoosiers enjoy new right to expunge certain records." Some quotes:
INDIANAPOLIS – Thousands of Hoosiers could shield their nonviolent criminal histories from public view – including from prospective employers – under a new law that goes into effect Friday.

Crimes such as theft, drunken driving, forgery and drug use would be unknown to everyone but police, and citizens could legally lie on job applications about their past. * * *

Under the provisions of House Bill 1211:

• Hoosiers who were acquitted, had a case dismissed or had a conviction vacated can petition to restrict disclosure of their arrest records.

• Those convicted of a misdemeanor or Class D felony that did not result in injury to another person can petition to restrict the records after finishing their sentence and remaining felony-free for eight years.

• In both these cases, judges are required to grant the petition if the small number of conditions is met. However, police would still be able to access the information.

• Those who have their records sealed are allowed to check “no” when asked on job applications or other documents whether they have been arrested for or convicted of a felony.

The bill does not, however, affect records in the public domain – for example, newspaper articles, blogs, television reports or other places that contain information on the court records.

“You can’t escape your past in terms of law enforcement and the Internet,” said Larry Landis, executive director of the Indiana Public Defender Council.

The new law came as a surprise to many people who have tried for years to loosen Indiana’s rules allowing for the expungement of old convictions. * * *

[Landis] noted that defense attorneys have pushed to ease the law for years, but even he was surprised by the breadth of the bill.

Some people are raising concerns while also acknowledging the bill could help thousands of families.

Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, said prosecutors around the state agree that everyone deserves a second chance – to an extent.

He pointed out that the two parts of the bill have very different procedures.

For instance, for a convict to have an arrest record sealed, the prosecutor must be given notice and can object to the factual components of the case during a hearing. Turner said this is important, for instance, if a prosecutor planned to re-file charges against a person.

But there are no notice or hearing requirements for sealing the conviction records – something Johnson disagrees with.

And Landis noted that to shield an old conviction, a convict must not have committed a felony since the original conviction. But there is no prohibition on misdemeanor convictions.

“That might have been an oversight,” he said. “They’ve taken five years to pass an expungement bill, so no, I would not say they rushed. Does it need some refinement? Yes.”

Noble Superior Court Judge Robert Kirsch said he would much prefer that the legislature give judges the authority to review a person’s record and modify felony convictions years later.

He tried to do so in a local drunken-driving case, but his ruling was recently reversed by the Indiana Supreme Court because no law existed to allow such action. [ILB: This was State v. Brunner (May 26, 2011), discussed earlier in this entry and summarized here.]

Kirsch especially dislikes the fact that the new law gives judges no discretion.

“It maybe goes too far – even basically giving a person the right to lie to an employer,” he said. “I don’t know if that’s the way we should be going.”

That legalization of perjury is what stopped several legislators from supporting the bill, including small-business owner Rep. Dan Leonard, R-Huntington.

“I’m entitled to know what that person’s background is. I don’t want to send someone with a theft conviction into someone’s home to deliver a sofa,” he said. “They chose to do wrong and they have to live with that. That may be coldhearted, but it’s how I feel.”

Comparison of pre-July 1, 2011 expungement law, and expansions made by HEA 1211, allowing certain arrest and conviction records to be "restricted." Prof. Schumm has prepared a useful comparison chart which he has permitted the ILB to post; access it here.

Posted by Marcia Oddi on June 26, 2011 11:20 AM
Posted to Ind. Sup.Ct. Decisions | Indiana Courts | Indiana Law