Expungement in Indiana – A radical experiment and how it is working so far

Note: This is the first of what we anticipate will be a series of reports on some of the more progressive restoration schemes enacted in the past several years.  

Marion County Deputy Prosecutor Andrew Fogle says the four years since Indiana enacted a broad “second chance” law have been like “the Wild West.”  Fogle, who oversees petitions for expungement for his office in Indiana’s most populous county, agreed to be interviewed about what may be the Nation’s most comprehensive and creative scheme to overcome the adverse effects of a criminal record.  We also spoke about the law to a number of criminal defense attorneys and legal service providers in the State.  

Indiana’s expungement law, first enacted in 2013 and amended several times since, extends to all but the most serious offenses, although the effect of relief as well as the process for obtaining it differs considerably depending on the offense involved.  Perhaps most important, the term “expungement” doesn’t have the same meaning in Indiana as it has in most states, because it doesn’t necessarily result in limiting access to the record.1

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New report: Roundup of 2017 expungement and restoration laws

A new report from the Collateral Consequences Resource Center shows that states across the country are continuing to expand opportunities to avoid or mitigate the adverse effects of a criminal record.  If anything, the trend first documented last winter in Four Years of Second Chance Reforms, 2013 – 2016 has accelerated in 2017. 

Second Chance Reforms in 2017 identifies 23 states, blue and red, that in the past year broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  Using research from the Restoration of Rights Project, the report describes specific changes to the law in each state during the past year along with relevant citations, analyzing and comparing approaches taken by different states.

The most frequent type of reform involves limiting public access to criminal records: new sealing or expungement laws were enacted in several states that previously had none, eligibility requirements were relaxed for many existing record-sealing authorities, and new limits were imposed on access to non-conviction and juvenile records – all making it easier for more individuals to get relief at an earlier date. However, there is remarkably little consistency among state record-closing schemes, and most states extend relief only to less serious offenses after lengthy eligibility waiting periods. Moreover, eligibility criteria are frequently so complex as to defeat the sharpest legal minds. Other recurring reforms limit employer inquiries into criminal history at the application stage, and a few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing.

The fast pace of reform in the states reflects a dawning realization that the problem of mass conviction is at least as significant in economic and social terms as the problem of mass incarceration.  At the same time, the dizzying variety and complexity of the new provisions indicates that there is still no consensus about the most effective way to avoid or mitigate the adverse effects of a criminal record. Because there has been very little empirical research into the relative effectiveness of different forms of relief, it is not surprising that experimentation seems to be the order of the day.

These new laws and significant reform proposals of the past several years – notably the collateral consequences provisions of the Model Penal Code: Sentencing – will be discussed at a Roundtable conference in Washington, D.C. on January 12, 2018, sponsored by the American Law Institute and the National Conference of State Legislatures.

Each new reform is more fully explained in the state-by-state profiles in the Restoration of Rights Project.  The Executive Summary follows, and the full report is available here.    

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New report: 50-state guide to expungement and restoration of rights

CCRC is pleased to announce the publication of its 50-state guide to expungement and restoration of rights: “Forgiving and Forgetting in American Justice.” This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative.  Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief.  Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country.  We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy.  It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

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Clean Slate Clearinghouse goes live

 

Earlier today the Council of  State Governments (CSG) launched the Clean Slate Clearinghouse, an impressive online resource that provides information on the availability of expungement and sealing in all 50 states and helps individuals with criminal records connect with pro bono legal service providers.  The project, which is jointly funded by the U.S. Departments of Justice and Labor, is the result of over a year’s work by CSG and its partner organizations.

The resource is focused squarely on record closure mechanisms and does not cover restoration authorities that leave the record intact, such as executive pardon, judicial certificates of relief, or nondiscrimination laws.  It also does not directly address the effect of closure in different jurisdictions.  It does, however, provide succinct information about the various record closure procedures available in each state, and does so in a way that non-lawyers can easily understand. In addition, it collects links to state application forms and guides as well as links to helpful third-party resources.  As such, it will be a useful tool for individuals seeking to leave their criminal records in the past.  It complements the more detailed legal analysis in the Restoration of Rights Project.

The Clearinghouse is available at https://cleanslateclearinghouse.org. We look forward to hearing about how it is being put to use and to watching its further development.  The official project description follows:

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Nevada’s good sealing law gets better

In just over a month, an amendment to Nevada’s adult conviction sealing law will take effect, drastically reducing the waiting periods for all conviction types, and reducing procedural burdens on applicants.  Nevada’s law is already one of the broadest in the country, permitting sealing of all adult conviction records except for those related to particularly serious offenses (including sex offenses and DUI homicides), and treating sealed convictions as if they never occurred for most purposes.  When the new changes go into effect, Nevadans will not only be able to obtain relief much earlier, they will also enjoy a new presumption in favor of sealing if they meet all the statutory eligibility requirements.

In the same legislative session, Nevada also enacted a broad law governing nondiscrimination in public employment that includes both standards for decision and an enforcement mechanism. That law, which will take effect early next year, is described in greater detail in the Nevada profile from the Restoration of Rights Project.

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A closer look at Indiana’s expungement law

More than four years ago, Indiana’s then-Governor Mike Pence signed into law what was at the time perhaps the Nation’s most comprehensive and elaborate scheme for restoring rights and status after conviction.  In the fall of 2014, as one of CCRC’s very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy.  Later posts on this site reported on judicial interpretation of the law.  Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois.

We have been impressed by the evident enthusiasm for Indiana’s “expungement” law within the state, from the courts, the bar, the advocacy community, and even from prosecutors.  So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce.  We also wanted to see what light this might shed on what has brought to the forefront of reform so many politically-conservative states.  Spoiler alert: the Chamber of Commerce was one of the strongest proponents of the law.

We expect to be able to post our account of the Indiana expungement law shortly after Labor Day.  In the meantime, we thought it might be useful to reprint our 2014 interview with former Rep. Jud McMillan, which has been among our most viewed posts.

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“Presidential pardons have lost their true purpose”

The op ed below by CCRC Executive Director Margaret Love appeared in the Washington Post this afternoon.  Love argues that focusing on the political message sent by the Arpaio pardon obscures a more fundamental problem with pardoning in today’s federal system: It has all but ceased to play the role the framers intended of advancing fairness and proportionality.  She urges a reconnection with the true redemptive purposes of pardoning: to mitigate collateral consequences, recognize rehabilitation, and encourage reintegration. The recent preview of CCRC’s forthcoming study of state relief mechanisms shows that in at least a dozen states pardon continues to serve those purposes.

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Illinois enacts boadest sealing law in Nation

On Fiday Illinois governor Bruce Rauner signed into law what appears to be the broadest sealing law in the United States, covering almost all felonies and requiring a relatively short eligibility waiting period of three years. We expect to provide a more in-depth discussion of the law next week from practitioners working on the ground in the state, and will soon update the Illinois Restoration of Rights Project profile to reflect these important changes.  In the meantime, we share the following from Cabrini Green Legal Aid, which was among the organizations that helped push the legislation through.

This afternoon, Governor Bruce Rauner signed into law six pieces of legislation that impact people with arrest and conviction records, including HB 2373 – the sealing expansion bill. This marks the LARGEST expansion of a sealing law in the United States and is a huge win in criminal justice reform. Effective immediately, this new law will provide thousands of people in Illinois the opportunity for criminal records relief by allowing them to petition the court to remove barriers in their lives as a result of their past criminal record. On behalf of our partners with the Restoring Rights and Opportunities Coalition of Illinois (RROCI),* Cabrini Green Legal Aid (CGLA) appreciates the support and involvement of so many of you who took action making phone calls, sending emails and traveling to Springfield.

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Preview of 50-state report on effective relief mechanisms

The Collateral Consequences Resource Center is currently finalizing a 50-state report on the availability of relief from the adverse civil effects of a criminal arrest or conviction. Using research from the Restoration of Rights Project (RRP), the report analyzes the data in several different categories, including executive pardon, judicial record-closing and certificates, and regulation of employment and licensing.  It showcases those states that have the most comprehensive and effective relief mechanisms, and at the same time provides a snapshot of the extraordinary recent interest in restoration of rights and status in state legislatures across the country.  It also looks at what states are doing to enable less serious offenders to avoid a criminal record altogether, through statutory deferred adjudication programs managed by the courts.

We preview here the report’s conclusions, illustrated by a series of color-coded maps that create a visual image of where people with a criminal record appear to have the best chance of regaining their rights and status through a variety of different relief mechanisms.  The full report will be published shortly after Labor Day.

Table  

1. Executive pardon

2. Judicial record-closing

3. Deferred adjudication

4. Regulation of employment and licensing

5. Loss and restoration of voting rights

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“More Justice and Less Harm: Reinventing Access to Criminal History Records”

This is the title of an important new article published by Alessandro Corda in the Howard Law Journal proposing a radical way of addressing the malign social impact of our current policies on public access to arrest and conviction records.  Corda traces the evolution of record dissemination policies and practices since the 1950s, contrasting the American and European experience where “informal collateral consequences” are concerned.  He critiques “partial remedial measures” like expungement and certificates of rehabilitation, and argues for making publication of a defendant’s record an “ancillary sanction” ordered (or not) by the court at sentencing.

While this solution may at first blush seem a bit ambitious, there are states (like Wisconsin) whose sentencing courts can offer the promise of set-aside and expungement upon successful completion of sentence, and that is indeed how the federal Youth Corrections Act operated before its repeal in 1984.

At the very least, Corda makes a convincing case that strong measures are necessary to mitigate the permanent stigma of a criminal record in the information age.  The historical and international material will be of particular value to those currently working on this problem in legislatures across the country.  Here is the abstract:

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