Wisconsin high court holds youthful offenders entitled to “a fresh start”

The Wisconsin statute that allows courts to expunge certain conviction records of youthful offenders, Wis. Stat. § 973.015, provides that the court must make its decision about whether to expunge at the time of sentencing, conditioned upon the defendant successfully completing his or her sentence.

Often, young defendants receive a probationary term for crimes that are eligible for expungement (all misdemeanors, as well as certain felonies in the lower levels of severity). Prior case law has established that, although expungement is conditional upon successful completion of probation in this situation, the court may not defer ruling on the expungement request.

In State v. Hemp, the Wisconsin Supreme Court clarified that expungement occurs automatically if the statutory conditions are met, and that a defendant is not required after completing probation to apply to the sentencing court for entry of the expungement order. Importantly, the court also provided some guidance regarding the legal effect of expungement that will be of interest to job applicants who have had a previous conviction expunged.

Criteria for expungement

Defendant Hemp had been granted expungement for a felony offense of possession of marijuana with intent to deliver, and had successfully completed his probation term.  However, local officials had not filed the necessary papers to enable the court to expunge his conviction record.  Hemp subsequently filed a petition for expungement (to require the court to act upon its earlier, condition order granting expungement).

However, between his completion of probation and his follow-up regarding expungement, Hemp had been charged with possession of marijuana, and the prosecutor charged this offense as a felony because of the previous marijuana conviction.  Hemp’s attorney on the new charge recognized that by effectuating the earlier expungement order, Hemp could get the new charge reduced to a misdemeanor for possession, first offense.

The lower court, its sympathy for the defendant likely diminished by his pending charge, ruled that the defendant had the responsibility for providing the sentencing court with proof that he had successfully completed probation and that his delay in doing so provided a basis to deny expungement.

The Wisconsin Supreme Court disagreed.  It interpreted the statute to require of the defendant only that he complete probation successfully (and that he not be convicted of another offense during the probation term), but not that he also complete the administrative tasks of either the Department of Corrections or court personnel.  Because Hemp had satisfied the statutory criteria, he was automatically entitled to have the previous expungement order effectuated.

Expungement erases conviction, not just court record

The Hemp opinion also supports a broad interpretation of the legal effect of expungement in Wisconsin: the court stated that the statute “offers young offenders a fresh start without the burden of a criminal record and a second chance at becoming law-abiding and productive members of the community.”

Expungement allows individual defendants a chance to move past the barriers that can be created by a criminal record by giving them “an incentive to rehabilitate,” which, in turn, “promotes the public’s safety” [citations omitted].  Indeed, expungement allows “offenders to . . . present themselves to the world—including future employers – unmarked by past wrongdoing.”

This “unmarked by past wrongdoing” statement helps resolve ambiguity regarding whether expungement means that the conviction no longer exists or simply that court records are no longer publicly accessible. The unanimous decision provides support for a job applicant answering “no” to a question about prior convictions if his or her only conviction has been expunged.  At the same time, a cautious applicant may decide to disclose the expunged conviction voluntarily to some employers, since expungement does not affect law enforcement records and certain employers may learn of the underlying legal history through a background check.  Nonetheless, the Hemp decision not only benefits the individual defendant, but also supports the policy of exempting young defendants from many of the consequences that accompany a criminal conviction.


Michael Tobin

Michael Tobin is Deputy Public Defender for the State of Wisconsin, where he has been engaged in law reform activities for more than 30 years. He understands how important collateral consequences are to a defense lawyer’s practice, and he has compiled comprehensive on-line practice materials linking consequences to triggering criminal offenses under state law.

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