An earlier post highlighted the dilemma that some young Wisconsin defendants face because of the narrow scope of the law on sealing conviction records. The court can seal the record of certain convictions, but the record of dismissed charges remains accessible to the public in a searchable online database. Therefore, the dismissal can increase the potential for prospective employers to learn of an applicant’s legal troubles.
Now the Wisconsin Court of Appeals has held that the court may not seal the record of a non-criminal violation. Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014). The appellate court reviewed the statutory language and concluded that references to 1) the maximum term of imprisonment for sealable offenses; 2) “completion of the sentence”; and 3) “certificate of discharge” from the “detaining or probationary authority” showed that the procedure applies only to criminal convictions.
For a young woman cited in 2012 in Kenosha County for underage drinking, now a college student in New York, the decision means that the record of her conviction for the amended charge of littering remains publicly accessible. If she had been convicted of drug possession or fraud she might have been able to close the book on this episode.
Although the Frett case did not involve the reduction of criminal charges, the decision means that some defendants might prefer to have a sealed criminal conviction than to have a public record of a reduced, non-criminal charge (the public record of the reduced charge also shows the original charges).
The Frett decision may be appealed to the Wisconsin Supreme Court, and policymakers are considering statutory amendments to expand judicial authority to seal records. For now, however, non-criminal dispositions and dismissals are publicly accessible in situations in which some criminal convictions can be sealed.
This month the Juvenile Law Center released an impressive pair of reports evaluating national policy on public access to juvenile criminal records. The first report, Juvenile Records: A National Review of State Laws on Confidentiality, Sealing and Expungement, provides a national overview of state laws, and proposes standards to mitigate exposure to collateral consequences as a result of a juvenile record. The report also makes recommendations for policy-makers, courts, defense attorneys, and youth-serving agencies. Supplementing the national overview are fact sheets on the law in each state, including the availability and effect of expungement or sealing, and an overview of the process for obtaining such relief. (These fact sheets can be found by clicking on the relevant state on the map here).
A second complementary report, Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records, scores each state on the degree to which it meets the Center’s ideal standards for juvenile record protection. The Center based its evaluation of the states on its “core principles for record protection” including:
A couple of news items about an increase in clemency applications in Canada made me curious to learn more about how restoration of rights works in our Northern neighbor.
Canada has long had a policy of virtually automatic sealing of criminal records through what is known as a “record suspension” (before 2012, called a “pardon”). The Criminal Records Act (CRA) makes record suspension available from the Parole Board of Canada for any offense except sex crimes involving children, and to any individual except those convicted of multiple serious crimes, after waiting periods of five years from completion of sentence for “summary” offenses and 10 years for “indictable” offenses. (Prior to 2012 the waiting periods were three and five years.) Non-conviction records may be purged sooner.
Once a record has been suspended, all information pertaining to convictions is taken out of the Canadian Police Information Centre and may not be disclosed without permission from the Minister of Public Safety. The CRA states that no employment application form within the federal public service may ask any question that would require an applicant to disclose a conviction. It is unlawful under Section 3 of the Canadian Human Rights Act to discriminate in employment or housing or union membership against anyone based upon “an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”
In 2012-13 the PBC ordered more than 6600 pardons and records suspensions, 97% of all applications received. (According to the PBC website, since 1970 more than 460,000 Canadians have received pardons and record suspensions. “96 percent of these are still in force, indicating that the vast majority of pardon/record suspension recipients remain crime-free in the community.”)
The 2012 amendment of the CRA to extend the eligibility waiting periods has resulted in an increase in applications for the extraordinary remedy of “clemency,” which has higher standards but no eligibility waiting period. Clemency, formally known as the “Royal Prerogative of Mercy” (RPM), may be granted in federal cases by the Governor General or the Governor in Council (i.e. Federal Cabinet), and applications are staffed by the PBC. Clemency is intended “only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.” All other avenues of relief must have been exhausted, and there must be must be “clear and strong evidence of injustice or undue hardship.” In contrast to the thousands of ordinary records suspensions granted each year in Canada, there are only a handful of these extraordinary clemency grants. In 2012 there were 52 RPM applications and only 12 grants.
In the general election on November 4, 2014, California voters approved Proposition 47 with almost 60% of the vote. The Proposition will impact a wide range of sentences in California courts, and in the federal courts as well. A number of crimes that could be, and often were, charged in California as felonies, such as commercial burglary, forgery, grand theft, and certain drug crimes, will now be charged as misdemeanors, so that their effect on a person’s criminal history will be substantially diminished. A whole range of state felony drug offenses that could result in enhanced sentences in federal drug cases, even life imprisonment, or career offender status under the United States Sentencing Guidelines, have overnight become relatively harmless misdemeanors.
Significantly, Proposition 47 applies not only to persons who are currently “serving a sentence,” but also to those who have already fully served their sentences. This means that thousands of people with California felony convictions can under certain circumstances petition to have their case recalled, the crime re-designated a misdemeanor, and be resentenced. Once reduced to misdemeanors, qualifying crimes can be set aside under California Penal Code § 1203.4 (felony or misdemeanor cases sentenced to probation) or 1203.4a (misdemeanor cases sentenced to prison). These provisions allow a defendant to withdraw his plea of guilty, enter a not guilty plea, and have the judge dismiss the case. The record can then be expunged.
The importance of this retroactive effect of the new law cannot be over-estimated. While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community. For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions.
This New York Times editorial urges states to seal or expunge juvenile records “so that young offenders are not permanently impaired by their youthful transgressions.” It describes a new study from the Juvenile Law Center that concludes “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to [juvenile] records.”
The first juvenile courts were established more than a century ago on the principle that children deserve special care under the law because they are vulnerable, because their transgressions tend to be nonviolent and because they can be expected, on the whole, to outgrow their youthful misbehavior.
These presumptions are borne out by data showing that 95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood. But because some juvenile court records remain open to the public when they should have been sealed or expunged, these young people can be denied jobs, housing and even admission to college.
Oklahoma is the most recent state to expand its expungement laws to make more people eligible for record-clearing at an earlier date. While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records. Details of Oklahoma’s law are available here.
Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee.
Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records. Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive. The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.) The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement.
The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on Read more
We’ve just learned that the School of Government at the University of North Carolina has produced a detailed and well-organized online guide to obtaining relief from a North Carolina criminal conviction. You can view the guide here. The guide explains in one place the various mechanisms available in North Carolina for obtaining relief from collateral consequences, including expunctions, judicial certificates of relief, and other procedures.
The guide supplements the School’s Collateral Consequences Assessment Tool, C-CAT, an online tool enabling users to identify the potential consequences of a criminal conviction in North Carolina. C-CAT is user-friendly and has been kept up to date with new laws enacted since its launch two years ago.
The relief guide is organized by the type of relief being sought and includes tables breaking down the specific requirements for relief. It describes special relief provisions for sex offender registration and firearms dispossession, as well as for drug crimes and juvenile adjudications. Features of the online guide include keyword searching, live links to internal and external cross-references such as statutes and forms, cases and opinions, and periodic updates. The guide was prepared by John Rubin, Albert Coates Professor of Public Law and Government.
This guide is the most detailed and user-friendly one we have seen, and should be a model for other jurisdictions.