Restoration of Rights Project – Indiana Profile

Guide to restoration of rights, pardon, sealing & expungement following an Indiana criminal conviction

I Did My Time: The Transformation of Indiana’s Expungement Law

Joseph C. Dugan, 90 Ind. L.J. 1321 (2015)

Indiana Collateral Consequences Following [Juvenile] Adjudication

2011 guide from the Wayne County Public Defender’s Office

* Be sure to check for changes in the relevant laws since this resource is fairly dated

>> Select another state <<

Related blog posts:

First fair chance licensing reforms of 2024 (3/27/2024) - Expanding employment opportunities in licensed occupations has been a priority for criminal record reformers in the past half dozen years. Happily, fair chance licensing reforms also appear less politically controversial than some others, with Midwestern states like Iowa and Indiana among the most progressive in the Nation in their treatment of justice-impacted license applicants and licensees. In the first three months of 2024, two more Midwestern states (South Dakota and Nebraska) enacted comprehensive changes to their licensing laws, while a third state (Pennsylvania) was poised to close a major loophole in its licensing scheme. These reforms continue a nationwide trend that since 2017 has seen 43 states and the District of Columbia enact 79 separate laws* to limit state power to deny opportunity to qualified individuals based on their criminal history. Significant legislation is under serious consideration in half a dozen additional states, so we expect this year to produce another bumper crop of fair chance licensing laws. The new laws are described briefly below, and additional details can be found in the relevant state profile from the Restoration of Rights Project. South Dakota In February, South Dakota became the most recent state to enact a uniform approach to licensing justice-impacted individuals. SB 57. As we noted in 2022 in The Many Roads from Reentry to Reintegration report, South Dakota was one of only 3 states that had “no general law or regulations setting limits on how licensing boards may consider an applicant’s criminal record.” But now, under SB 57, licensing boards may only disqualify applicants with a criminal history if they have been convicted of a crime that “directly relates” to the license at hand, in which case the agency must consider whether “the applicant or licensee has been rehabilitated to the extent that the person no longer poses the kind of risk to the profession or occupation associated with that type of conviction.” Boards are further prohibited from considering non-conviction records, or convictions that have been pardoned, sealed, or expunged. The new law also requires boards to provide applicants with an opportunity for a hearing before denial, and a right to appeal the board’s decision. Critically, SB 57 also establishes a preliminary determination process that allows potential applicants to petition a board to see if their record would be disqualifying before they invest in any costly training or coursework. Nebraska A few weeks after South Dakota adopted its first-time reforms, Nebraska produced an expansive overhaul of its licensing restrictions that resulted in some of the nation’s strongest protections for justice-impacted people seeking licensure. Nebraska’s LB 16 strengthens the protections offered by the new South Dakota law by authorizing denial only if a conviction “directly and specifically” relates to the occupation; if obtaining a license “would pose a direct and substantial risk to public safety because the individual has not been rehabilitated;” and, starting next year, only if a license applicant or licensee has been convicted of an offense on a list of 27 serious violent or fraud offenses. The new Nebraska law forbids consideration of non-conviction records or records that have been expunged, set aside, sealed, or pardoned. If more were required, the new law prohibits consideration of convictions older than 3 years if no prison sentence was imposed, and three years after release from prison if it was -- unless the conviction is one of the 27 potentially disqualifying convictions defined in the statute. Nebraska’s scheme builds on its 2018 Occupational Board Reform Act, which established the policy of the state to protect the "fundamental right of an individual with a criminal history to obtain an occupational license, government certification, or state recognition of the individual’s personal qualifications.” That law included a process for a preliminary determination to ascertain future eligibility The 2024 law excludes a number of licensing agencies from the reach of Nebraska's licensing reforms, including those previously enacted in 2018, an unfortunate limitation in an otherwise impressive reform. The 2018 law and its current extension are described in detail in the Nebraska profile from the Restoration of Rights Project. Pennsylvania A third significant licensing reform was put in place in Pennsylvania, where its State Bureau of Professional and Occupational Affairs released regulations to limit the ability of licensing boards to reject qualified applicants based on their criminal history. In 2020, the state required each board to develop a list of crimes considered “directly related” to the license sought. Conviction of one of these crimes would create a “rebuttable presumption” that licensure of that individual would pose a substantial risk to public safety, without regard to how long ago the conviction occurred. Perhaps predictably, and without general guidance from the State, individual boards stretched the limits of their authority, proposing long lists of crimes to be directly related to the licenses they issue. The potential damage done to thousands of individuals – particularly those with older criminal records -- was described in an extended piece posted last fall by Community Legal Services of Philadelphia. Responding to the concerns exoressed by advocates, the State Bureau eliminated hundreds of these proposed offenses on grounds that they bore only an attenuated relationship to the particular license. More significantly, convictions more than 5 years old are no longer to be considered “directly related.” “These regulations will allow people who do not present risk to move on to better jobs and provide better lives for their families. They will also help businesses fill job openings with fully qualified workers,” said Sharon Dietrich, Litigation Director for Community Legal Services, which spearheaded the coalition that backed the new regulations. “We thank the Shapiro Administration and the boards and occupations for issuing these win-win regulations.” Final approval of these regulations by the Pennsylvania Independent Regulatory Review Commission is expected at its public meeting on April 18. For further details, see our post from July 2020 as well as the Pennsylvania profile in the RRP. Previews: There are additional important fair licensing reforms being seriously considered in several states, including Alabama, Colorado, Georgia, Kentucky, Massachusetts, and New York. We hope our readers will alert us to others. ________________________________________________________________________ *Our count is based on the listing in footnote 237 of The Many Roads from Reentry to Reintegration, supplemented by our annual reports on new laws enacted since that report was published in March 2022.
Oklahoma and California win Reintegration Champion awards for 2022 laws (1/17/2023) - On January 10 we posted our annual report on new laws enacted in 2022 to restore rights and opportunities to people with a record of arrest or conviction. Like our earlier reports, it documents the steady progress of what we characterized two years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. This year’s criminal record reforms bring the total number of separate laws enacted in the past five years to more than 500. Posted below is our fourth annual legislative Report Card recognizing the most productive states in 2022. Reintegration Awards for 2022 While more than a handful of states enacted noteworthy laws in 2022, two states stand out for the quantity and quality of their legislation: California and Oklahoma share our 2022 Reintegration Champion award for their passage of at least two major pieces of record reform legislation. California – Enacted a whopping 11 new laws, including the broadest general record clearing law in the nation, a direction to courts to effectuate clearing of marijuana records, removal of restitution as a bar to clearing criminal records, easing access to judicial certificates of rehabilitation, and simplification of the process for certifying people with criminal records to work in community care. California’s governor also vetoed a bill that would have facilitated background screening by eliminating court-imposed restrictions on online access to personal identifying information. Oklahoma – Enacted a major automatic record clearing law and the most sweeping update to an occupational licensing scheme of any state in the country this year. Oklahoma also passed a significant law allowing young people who successfully complete the state’s youthful offender program to have their charges dismissed and expunged. Another eight states earned an Honorable Mention for their enactment of at least one significant new record reform law: Colorado – Expanded automatic sealing to include all offenses eligible for petition-based sealing, reduced the waiting period for low-level drug possession from three years to two, and enhanced procedural rights of those applying for occupational licenses. Connecticut – Made it easier for people with felony convictions to work in dozens of occupations under the state department of public health and authorized a binding preliminary determination. Delaware – Enacted the “Fair Chance Licensing Act,” establishing a binding preliminary application process, providing that many records may not be grounds for denial (convictions over 10 years old with no intervening convictions; pardoned, sealed, or expunged convictions; non-conviction records; and juvenile adjudications). Even “substantially related” crimes must be given an opportunity for a waiver via a board vote. Delaware also authorized automatic expungement of records of charges lacking a final disposition and prohibited higher education institutions from inquiring into an applicant's criminal history. Indiana – Eliminated the one-year waiting period for sealing non-conviction records, including uncharged arrests, and made this relief automatic. Louisiana – Strengthened and extended its occupational licensing law, by establishing a binding preliminary determination, providing for appeal, bringing many new boards under its general licensing limits, and adopting new factors to be considered in determining “direct relationship.” The state also provided unusually broad record relief for victims of human trafficking. Maryland – Legalized the personal use of up to 1.5 ounces of cannabis for adults 21 and older, authorized resentencing and expungement of marijuana conviction records and established a business assistance fund that prioritizes individuals with cannabis convictions. Maryland also enacted a law removing state authority over the delinquency of children aged 13 and under. Missouri – Missouri voters amended the state constitution to legalize personal use of marijuana, and at the same time authorized release from prison for those serving prison sentences for marijuana trafficking, provided for automatic expungement for numerous marijuana convictions upon completion of sentence, and extended preference in commercial licensure to sell legalized marijuana to those with convictions. In addition, Governor Mike Parson has become the most prolific pardoner in the state in more than 40 years, working efficiently to reduce a case backlog built up over many years. Rhode Island – Legalized adult possession of small amounts of marijuana, provided for automatic expungement of convictions for decriminalized marijuana offenses, and waived costs as a bar to expungement for anyone who has been incarcerated for a marijuana offense. Low marks go to two states that enacted no record reform laws at all in 2022. While there are many other states in this category this year, the legislatures of Alaska and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2021, 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. Wisconsin’s one saving grace is the extensive record of pardoning by Governor Tony Evers in the past 30 months, during which he has pardoned more than 600 individuals, 325 in 2022 alone. Looking ahead to 2023, we expect to see a continuing expansion of eligibility for record clearing, and reduction of access barriers like lengthy waiting periods, outstanding court debt and application-related costs. We also predict efforts to improve records management to accommodate automation of record clearance. We look for extension of state fair employment laws, and further facilitation of occupational licensing, both areas where bipartisan reforms have benefitted from helpful model laws. We are slightly less optimistic about additional progress toward dismantling the structure of felony disenfranchisement, which has become mired in faction looking toward the presidential race in 2024. Hopefully, 2023 will see some record reform action in Congress and federal agencies, including measures to extend access to government-guaranteed loans and contracting opportunities to small businesses owned or managed by people with a criminal history. We have come a long way just in the past five years, but there is still a long way to go.
Report card on licensing laws finds progress, but still a way to go (6/25/2020) - The Institute for Justice, a leader in advocacy for reforming occupational licensing laws, has just issued a major new report grading the states on the opportunities they give to people with a criminal record. The press release and links are below. We are not at all surprised that Indiana got the best grade—or that so many states “tied for dead last.” Coincidentally, the legislatures in Iowa, Missouri, and Pennsylvania have in recent days sent broad new occupational licensing reform measures to their governors' desks, so at least three states seem poised to climb out of IJ's basement. Stay tuned for an update of our own survey of employment and licensing laws nationwide, which will be part of the revised Forgiving and Forgetting report that we expect to issue in a few weeks. In the meantime, many congratulations to IJ for its pioneering law reform work on behalf of people with a record. IJ press release: Barred from Working: People with Criminal Records Are Unfairly Denied Licenses to Work New Nationwide Report Offers the Most Comprehensive Look at the Occupational Licensing Barriers Facing Ex-Offenders Arlington, Va.—Even as states debate opening the economy back up, millions of Americans with criminal records are still locked out of the job market. Today, nearly one in five workers needs a license to work, while one in three Americans has a criminal record of some kind. Providing the most in-depth and up-to-date look at this intersection between occupational licensing and the criminal-justice system, a new report from the Institute for Justice (IJ), Barred from Working, analyzes and grades the legal protections offered to ex-offenders who apply for licenses to work. Many state laws fail to make the grade: just nine states received a B- or better. Indiana ranked as the best state in the nation, earning the report’s only A grade. Meanwhile, six states—Alabama, Alaska, Nevada, Rhode Island, South Dakota, and Vermont—all tied for dead last due to their utter lack of protections for former felons seeking licenses. “An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Legislative Analyst Nick Sibilla, who authored the report. “Undoubtedly, some license restrictions make sense: No one wants child molesters working in daycare centers or school bus drivers with DUIs. But as this report shows, many licensing barriers have little basis in common sense or public safety and unfairly deny a fresh start to countless Americans.” Grading all 50 states and the District of Columbia across 10 different criteria, Barred from Working identifies numerous methods that states use to block licenses to otherwise qualified individuals: Nine states let boards disqualify applicants on the basis of any felony, even if it's completely unrelated to the job at hand. In 21 states, boards are free to deny licenses without ever considering whether an applicant has been rehabilitated. In more than 30 states, applicants with criminal convictions can be denied licenses based on their perceived “good moral character” or “moral turpitude,” vague terms that let boards act capriciously. For instance, IJ is currently challenging a Pennsylvania law that requires “good moral character” for licensed cosmetologists, but not for licensed barbers. Boards in 34 states can disqualify applicants for past arrests that didn't result in a conviction, a practice that subverts the presumption of innocence. Ex-offenders also face a staggering lack of due process during the application process. In 12 states, applicants have no guaranteed right to appeal a board’s decision, nor are boards required to issue their decisions in writing. And just two states—Indiana and Mississippi—expressly require licensing boards to bear the burden of proof when considering if an applicant’s criminal record is “directly related” to the license at hand. Barred from Working is the latest salvo in IJ’s fight for second chances. On Friday, IJ filed a lawsuit on behalf of Dario Gurrola, who first fought fires at a juvenile-detention fire camp in California, but can’t work as a full-time firefighter because of his criminal record. Last month, IJ submitted comments to the Small Business Administration, urging that it drop criteria that unfairly excluded many entrepreneurs with criminal records from Covid-19 loan relief; some of those rules have since been loosened. IJ has also developed model legislation to eliminate licensing barriers for people with a record and helped secure recent reforms in Arizona, Nebraska, New Hampshire, North Carolina, Idaho, and Utah. Nationwide, 30 states have enacted reforms since 2015, with further reforms pending in six states.
Prisoners fighting California fires denied licenses after release (8/20/2018) - Nick Sibilla, a legislative analyst at the Institute for Justice, has published this fine op ed piece in today's USA Today, describing how the 2,000 state prisoners currently engaged in fighting the largest fire in California history, are barred from obtaining the necessary EMT license that would enable them to continue this work after their release. It contains, inter alia, a description of the two bills currently pending in the California legislature that would end what Nick describes as a "bitterly ironic" situation, where prisoners gain valuable training in certain vocations that they cannot use after their release. The piece seems particularly relevant, in light of the amazing work being done on occupational licensing reform across the country, much of it inspired by the Institute for Justice's Model Collateral Consequences in Occupational Licensing Act. See, e.g. New Hampshire, Wisconsin, Kansas, Indiana, Arizona, and Tennessee. We hope California will soon join this group of enlightened jurisdictions, and that other states will follow in the coming year. Despite fighting California's largest fires, inmates are denied licenses they need to become firefighters after they get out. by Nick Sibilla, USA Today, August 20, 2018 As California struggles to contain the largest fire in state history, more than 2,000 inmates have volunteered to fight the flames. Offering just $1 an hour, the state has long encouraged low-level prisoners to risk their lives and serve alongside professional firefighters, who earn nearly $74,000 a year on average. Firefighting, along with less life-threatening trades like plumbing, welding, and cosmetology, is one of several vocational training programs offered to prisoners by the California Department of Corrections and Rehabilitation. But in a bitterly ironic twist, once inmates leave prison, they often can’t work as firefighters, despite their frontline experience. In California, nearly all counties require firefighters to become licensed emergency medical technician (EMTs) — a credential that can be denied to almost anyone with a criminal record. Many are denied jobs for their criminal record Nor are firefighters the only position off-limits. Under California law, the state’s licensing boards can deny a credential on the basis of an applicant’s criminal record or alleged misconduct. Thanks to the rise in occupational licensing, nearly 1,800 occupations now require a license, certification, or clearance in the Golden State, affecting one-fourth of California’s workforce. As a result, hundreds of different occupations are effectively barred to roughly 8 million Californians. California’s firefighting felons are a particularly stark illustration of a growing, national problem. According to the American Bar Association, the nation’s occupational and business licensing laws contain over 27,000 restrictions on ex-offenders, including bans on working as barbers or hosting bingo games. Those barriers impose significant costs. Research by the Center for Economic and Policy estimates that in 2014, employment barriers for the incarcerated and those with felony convictions cost the nation’s economy up to $87 billion in annual GDP, equal to “the loss of 1.7 to 1.9 million workers.” Not only do these policies slam the door on economic opportunity, they may also increase re-offending. A recent study from Arizona State University found that states with more burdensome licensing laws saw their average recidivism rates jump by nine percent. By comparison, states with fewer licensing restrictions and no moralizing provisions had recidivism rates decline by 2.5 percent, on average. In fact, licensing burdens were second only to the overall labor market climate when it came to influencing recidivism rates. California is trying to fix the problem Fortunately, new legislation would curb some of California’s licensing barriers against ex-offenders. As part of a public safety omnibus signed earlier this year, the California Department of Forestry and Fire Protection (CAL-FIRE) can certify former prison firefighters as “emergency medical responders,” a certification CAL-FIRE accepts in lieu of an EMT license for some state firefighter jobs. A separate bill would require agencies to report the number of applicants with a criminal conviction who have been denied or granted an EMT license, which would provide valuable data for further reforms. More broadly, another bill, AB 2138, would tighten the standard used to disqualify ex-offenders by the Department of Consumer Affairs, which governs 38 different boards, bureaus and commissions. Under the bill, boards could not use a conviction older than five years to reject a license (though that would not apply to violent felonies). Each board would also have to publish the criteria it uses to evaluate applicants, which must include any evidence of rehabilitation, the time elapsed since the offense as well as the nature and gravity of the offense. Critically, boards could only use convictions, not arrests or records from dismissed cases. AB 2138 has already passed the Assembly earlier this year and is currently under consideration in the Senate. California could soon join 16 states that have already eased or eliminated licensing barriers for Americans with criminal records since 2015. Many of these state reforms protect the ability of ex-offenders to get the permits they need, while also ensuring that boards only deny applicants who would truly threaten public safety. California needs fewer requirements to work These efforts are all welcome reforms to a system in desperate need of an overhaul. Yet even if former inmates aren’t automatically barred because of their past mistakes, burdensome licensing requirements can still keep them from working. According to a recent, nationwide study by the Institute for Justice (where I work), the average license for a lower-income occupation takes almost a year of education or experience. California ranked as the “worst licensing environment for workers in lower-income occupations,” with the average license requiring a staggering 827 days of training. Absurdly, becoming a professional tree trimmer, barber, or painting contractor in California takes vastly more experience than becoming an EMT, who literally holds the lives of others in their hands. A steady job is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work. The denial of so many fundamental civil rights and liberties has essentially turned many ex-offenders into second-class citizens. Restoring the right to earn an honest living is crucial for ex-offenders to regain a sense of hope and a new chance at redemption. Nick Sibilla is a legislative analyst at the Institute for Justice. You can follow him on Twitter: @nick_sibilla More: Louisiana is the only state that requires occupational licenses for florists. It's absurd. Ridiculous licensing rules are holding back people who want to work Prisoners who risk their lives during Calif. wildfires shouldn't be shut out of profession
Collateral Consequences in Occupational Licensing Act (6/29/2018) - We've noted in recent posts the numerous states that, just in the past three or four months, have enacted broad occupational licensing reforms affecting people with a criminal record. Many of these new laws have been influenced by a model developed by the Institute for Justice (IJ), a libertarian public interest law firm that has been litigating and lobbying to reduce barriers to work for more than two decades. In turn, states like Indiana, Kansas, Tennessee and Wisconsin have built upon IJ's model to enact even more progressive schemes intended to ensure that people with the requisite professional qualifications will not be unfairly excluded based on a record of arrest or conviction. Now IJ has incorporated many of these progressive refinements into its original model licensing law, the Occupational Licensing Review Act (OLRA), and broken out the provisions relating to criminal records into a free-standing model act specifically directed at managing collateral consequences in the occupational licensing context, the new Collateral Consequences in Occupational Licensing Act (CCOLA). The CCOLA has the same key features as the original OLRA: It provides individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; It allows the individual to seek this determination at any time, including before investing in the required training necessary to otherwise qualify for the license, requires a written decision within 90 days, and limits what the agency may charge for this determination to $100; It limits the types of records that an agency may consider in a licensing decision to convictions of serious or violent crimes; It shifts the burden of proof to the agency to establish that a petitioner’s conviction is substantially related to the state’s interest in protecting public safety; It requires agencies to provide written reasons justifying denial of a license based on conviction in terms of public safety; and It requires each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. In addition to these features, IJ has recently further clarified the types of criminal conduct that may be considered in licensing decisions, and specifically prohibited the use of vague criteria like "good moral character" as a basis for exclusion. As revised, IJ's model laws now provide that licensing agencies may not consider non-conviction records, juvenile adjudications, non-violent misdemeanors, and most felonies and violent misdemeanors that occurred more than three years prior to seeking licensure. See CCOLA, 100.02, Subd. 7. Agencies may consider violent felonies and sexual offenses at any time, although even these records must still be tested against the "public safety" standard: The board may deny the petition only if it establishes by clear and convincing evidence that: 1. The individual was convicted of a felony or violent misdemeanor, not excluded by subdivision 7, which is directly, substantially and adversely related to the state's interest in protecting public safety; and 2. The granting of state recognition will put the individual in a position where the individual is more likely than not to reoffend and cause harm. See CCOLA, 100.02, Subd 10(c). IJ's website points out that "[m]ore than 25 percent of workers need a government-issued license to work," so lowering barriers to licensure for people with a criminal record has important implications for efficiency and public safety. In introducing its stand-alone CCOLA model, IJ’s website states the following: An honest living is one of the best ways to prevent those with a criminal record from re-offending. But many occupational licensing laws block or burden ex-offenders from entering regulated fields. Numerous licensing laws have morality clauses that (1) bar automatically and permanently ex-offenders from working without any individualized review or (2) require the ex-offender to prove a negative—that the ex-offender’s past crimes will not cause him to harm customers in the future. Such provisions ironically may decrease public safety. States with prohibitions and high burdens on entry have higher criminal recidivism. Conversely, states that have no such bars and low burdens have seen declines in recidivism, according to Professor Stephen Slivinski’s landmark study Turning Shackles into Bootstraps. IJ’s website surveys some of the key provisions of many of the recently enacted state licensing reforms. It also very happily links to the relevant 50-state chart from the Restoration of Rights Project, which we very much appreciate! With an enrolled bill sitting on its governor's desk for action, New Hampshire is poised to become the 10th state to enact comprehensive licensing reform in 2018. In addition to Indiana, Kansas, Tennessee and Wisconsin, Arizona, Maryland, Massachusetts, Nebraska, and Wyoming have all just this year enacted new laws incorporating many of the features of IJ's model law. Illinois anticipated these states by six months when it significantly amended its licensing scheme to reflect IJ's approach in August 2017. We were pleased to be able to work with Lee McGrath of IJ’s office in Minneapolis in developing many of the amended features of the CCOLA, which have also been folded into IJ's broader model occupational licensing act. We look forward to continuing to work with Lee and his colleagues in months to come.
Wisconsin joins crowd of states regulating occupational licensure (4/30/2018) - On April 16, Wisconsin Governor Scott Walker signed into law Act 278, making his state the sixth in the past two months to establish new rules on consideration of criminal record in the context of occupational and professional licensure. Effective August 1, 2018, licensing boards in Wisconsin will be prohibited in most cases from denying or revoking a license based on arrests or pending charges, and required to justify in writing any adverse action based on conviction. Boards will also be required to give applicants a preliminary determination as to whether a particular conviction will be disqualifying. Indiana, Arizona, Massachusetts, Nebraska and Tennessee have all recently enacted laws regulating how licensing boards treat arrests and convictions, in some cases with strikingly similar features, as described in recent posts here and here. The conviction-related provisions of the model occupational licensing law proposed by the Institute for Justice are reflected in almost all of these new laws, though many of them go even farther to discourage unwarranted discrimination affecting as much as 25% of the U.S. workforce. Act 278 puts new teeth into the provisions of Wisconsin’s Fair Employment Act that relate to occupational and professional licensing through a new subsection titled "Discrimination in Licensing." See Wisc. Stat. § 111.335 (4). A licensing agency will be required, before denying or terminating a license based on a prior conviction, to state its reasons in writing, including "a statement of how the circumstances of the offense relate to the particular licensed activity." An agency must also provide individuals with an opportunity to show evidence of rehabilitation and fitness to engage in the licensed activity. Moreover, "[i]f the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity . . . . the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction." In addition to any evidence of rehabilitation adduced by the applicant, agencies are directed to take into account the nature and seriousness of the offense, any "mitigating circumstances or social conditions surrounding the commission of the offense," the age of the individual at the time the offense was committed and the time elapsed since, and letters of reference by persons who have been in contact with the individual since. Negligent hiring protections are included for any firm that hired a licensee approved pursuant to an agency determination of rehabilitation. See Wis. Stat. § 452.139. Act 278 tightens provisions of current law that permit denial of licensure based on a pending criminal charge, or based on a juvenile adjudication, if the offense conduct is "substantially related" to the licensed activity, by adding a proviso that the substantial relationship standard will be met in this context only if the charge or adjudication involved a “crime against life and bodily security” or a crime “against children.” Like most of the other recently enacted occupational licensing laws, Act 278 requires agencies to make it possible for individuals to obtain a preliminary determination as to whether they would be disqualified from obtaining a license due to a prior conviction, a determination that is binding on the agency in connection with a formal application. A fee may be charged to cover the cost of processing. This provision comes straight from the model occupational licensing law proposed by the Institute for Justice, discussed in our post of April 18. Finally, each licensing agency must also publish on its Internet site a document indicating the offenses or kinds of offenses that may result in denial or termination of a license. The provisions of Wisconsin's Fair Employment Act are further elaborated in the Wisconsin profile from the Restoration of Rights Project.
More states facilitating licensing for people with a criminal record (4/18/2018) - Last week we posted a description of a detailed new Indiana law regulating consideration of conviction in occupational and professional licensure throughout the state. It now appears that this may represent a trend, as eight additional states have either recently enacted or are poised to enact similarly progressive occupational licensing schemes. New general laws regulating licensure are in place in Arizona, Illinois, and Massachusetts. Similar bills have been enrolled and are on the governor's desk for signature in Kansas, Maryland, Nebraska, and Tennessee. Arizona's new 2018 licensing law follows on another law passed in that state in 2017 that authorized provisional licenses for individuals with a criminal record. Massachusett's new licensing law is part of a more general criminal justice reform bill. Delaware and Connecticut have also recently loosened restrictions on licensing for cosmetology and related professions. The licensing reforms in these states - and in several other states where licensing bills are less far along toward enactment -- seem to have been influenced by a model law proposed by the Institute for Justice, a libertarian public interest law firm. Key features of the Model Occupational Licensing Review Act as they affect individuals with criminal records are 1) to provide individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; 2) to require licensing agencies to disqualify only if an applicant has been convicted of a felony or violent misdemeanor, and if the agency determines that "the state has an important interest in protecting public safety that is superior to the individual's right to pursue a lawful occupation"; and 3) to require each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. Disqualification is justified under this model law only if the conviction is "substantially related to the state's interest in protecting public safety," and the individual will be "more likely to reoffend by having the license than by not having the license." The federal government is also encouraging licensing reform: the U.S. Department of Labor is supporting a three-year project to assist states improve their general policies and practices related to occupational licensing, including those that affect persons with a criminal record. The project brings together 11 states to participate in the Occupational Licensing Learning Consortium. The 11 states are Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin. We are monitoring this legislative trend and will revise the state profiles and other materials in the Restoration of Rights Project as new laws are enacted.
Expungement in Indiana – A radical experiment and how it is working so far (12/21/2017) - 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. Fogle recalls that after the law was passed, with nothing but the statutory text as a guide, law enforcement officials and the courts worked diligently to give practical effect to a complex and sometimes ambiguous set of mandates involving every branch of government and potentially transforming the criminal justice system. With the law’s challenges came opportunities, both for those with criminal histories and for those charged with administering the scheme. With so many questions about the new law unresolved, prosecutors like Fogle were given significant latitude to shape its operation to align with their own interests. Court personnel and the state police (who maintain the criminal records most directly affected by the law) were also afforded broad latitude to interpret the law at both the state and county levels. Fogle explained that in the period immediately after then-Governor Pence signed the measure into law, its intended beneficiaries and their representatives sometimes found it hard to keep up with new interpretations and procedural details. Although the law’s fluidity gave lawyers a chance to advocate for their clients in creative ways, they also had to be aware of how shifting policies and practices might affect the availability of relief, and shape their advocacy accordingly. And, once that relief was obtained, they had to find ways to maximize its effect. Even now, the relief the law offers is sometimes frustratingly unclear. For non-conviction records, and for most misdemeanors and Class D felonies, expungement is mandatory upon a determination of eligibility, and is automatically followed by sealing of the record. More serious felonies are also eligible for expungement, but in these cases relief is discretionary and is not accompanied by any limits on public access to the record (although the record is marked as “expunged”). Expungement restores civil rights (including firearms rights in all but domestic violence cases), limits employer and licensing board inquiries about criminal history, regulates background checking practices, prohibits licensing and employment “discrimination” based on an expunged conviction or arrest record, and protects employers from liability for negligent hiring based on an employee’s criminal record. In all cases, the law states that an expunged conviction shall be treated “as if the person had never been convicted of the offense.” Results after four years Four years after the law’s passage, the dust has begun to settle and some results can be reported. For one thing, more than 6,000 expungements have been granted in Marion County alone since the law took effect, a testament to the law’s efficient administration and to the accessibility of relief. More than half of these expungements involved convictions, and the number of denials is in the low double digits. (Statewide numbers are not available.) The number of expungements under the new law would be much lower if not for the efforts of pro bono lawyers and other advocates who have risen to meet the demand created by the law, and to educate the public about the advantages of expungement. Statewide legal service organizations, like Indiana Legal Services and Neighborhood Christian Legal Clinic, have worked to assist indigent individuals obtain relief. Advocacy programs, like the Second Chance Expungement Initiative run by the Volunteer Center in Fort Wayne, have vetted and referred clients to legal service providers who could represent them in court. The Indiana Office of Court Services has also done its part to introduce consistency and improve access. Its website provides standardized petition forms for all types of expungement, links to relevant laws and court rules, and contact information for pro bono service providers. But demand for expungement has also put a strain on legal service providers. The Indianapolis office of Indiana Legal Services has been compelled to periodically freeze its expungement client intake due to the volume of cases it has received. The Second Chance Expungement Initiative has been active for less than a year, and has already worked with over 1,200 individuals seeking relief, most of whom are attracted by the large-scale information sessions put on by the Volunteer Center. According to Jean Joley, the Center’s director, demand for expungement has “bordered on overwhelming.” She reports that over 400 people attended the Initiative’s first information session in the fall of 2016, and interest has continued to grow ever since. To meet the demand, the Center has recruited a cadre of 13 lawyers, and has trained 35 volunteers to support them by making initial eligibility determinations and accessing official criminal history records. Joley reported that 98% of eligible individuals are also income-eligible for pro bono representation from one of the three statewide organizations to which the Initiative makes referrals. Neighborhood Christian Legal Clinic was more creative, setting up an expungement “help desk” inside the Marion County courthouse, in space loaned by the DA’s office, to help pro se expungement clients research their own criminal histories and eligibility status. The help desk, staffed primarily by trained students three days a week, assists about 300 individuals each month. When it comes to expungement practices in Marion County, the landscape is “calm waters,” according to Brian Dunkel, Director of Legal Services for Neighborhood Christian Legal Clinic. The recent introduction of electronic filing in the county courts (a system that has been rolling out statewide) has streamlined the process, particularly in cases involving non-conviction records and misdemeanors, where no hearing is required. In those cases, the time between filing and relief is generally only a couple of months. That waters are calm in Marion County is largely due to Fogle himself, who was given complete control over expungements in the county by elected Prosecutor Terry Curry. To Fogle, an experienced attorney who served as a public defender and as legal counsel to the Department of Corrections before becoming a prosecutor, expungement is in everyone’s interest. “Our goal is to encourage success and make ex-offenders productive members of society,” he says. “When your conviction prevents you from working and you’re out of money and feel the world closing in around you, you’re going to find other ways of getting it.” To limit what he describes as a “cycle of criminal activity,” Fogle has gone to impressive lengths to ensure that those who are eligible for expungement get relief. One of his office’s guiding policies is to avoid petitions being denied for minor shortfalls in meeting eligibility requirements. (Although a petition for expungement of a low-level conviction can be amended and refiled without penalty if it is denied based on ineligibility, the cost of refiling -- $141 per petition filed in each county of conviction -- can be prohibitive for those of limited means.) Rather than formally objecting to a petition from an ineligible petitioner (which the law permits, and which would lead to almost certain denial), Fogle’s office makes a policy of supporting court-ordered continuances so that waiting periods and other eligibility requirements, such as payment of restitution, may be satisfied. His office also supports waiver of the filing fee in appropriate cases. Eligibility denials are discouraged through the courthouse “help desk” operated by Neighborhood Christian Legal Clinic, a program actively supported by Fogle and his team. Fogle also works to make expungement available sooner. The law permits expungement waiting periods to be waived with prosecutorial consent, and he has created a formal structure to make that a real possibility for petitioners. With waiting periods ranging from 5 to 10 years, waiver can be a significant aid to reentry. An “expungement panel” of five experienced prosecutors reviews all waiver requests, which must be accompanied by a statement from the petitioner explaining why he or she believes a waiver is justified. After reviewing criminal history and sentence compliance, the panel votes on whether to grant the request. In most instances those requests are granted. In addition, Marion County prosecutors are authorized to write waivers directly into plea agreements in cases they deem appropriate for early expungement, something they do with increasing frequency. Fogle doesn’t ask why someone wants an expungement for a low-level offense. To him, every reason is valid and contributes to reintegration. Petitioners seeking to improve employment opportunities are given equal standing with those looking to chaperone their children’s field-trips, improve their self-esteem, or even restore their firearms rights. (The U.S. Department of Justice recently acknowledged that Indiana expungement restores federal firearms rights lost due to a felony conviction, and many low-level felonies qualify for mandatory expungement under the state’s law.) Most petitions filed in Marion County are for low level offenses because waiting periods are shorter and sealing is available, and many pro bono service providers lack the resources to take on cases requiring a hearing. That circumstance, along with the provision for permanent unsealing of expunged records upon subsequent conviction, allows prosecutors to take a generally pro-petitioner stance without worrying about public safety or political risk. But Fogle’s office also acknowledges that those with more serious felony records need relief too. Even though these cases require hearings, Fogle’s policy is to intervene only where the victim (who the law requires be given notice of the petition) requests it. And Fogle specifically excludes non-human entities like businesses from his definition of what constitutes a “victim.” Fogle is quick to note that his office does not extend these benefits to serious career criminals, but he is happy to report that cases involving such individuals make up a small minority of his office’s expungement caseload. But it appears that Marion County may currently be an outlier where prosecutor approaches to the law are concerned. According to David Joley, a Fort Wayne attorney in private practice who was instrumental in founding the city’s Second Chance Expungement Initiative (and who is the son of Jean Joley, director of the Volunteer Center, who founded the Initiative at her son’s urging), “expungement is a different animal from county to county.” In Allen County, where Joley provides both paid and pro bono expungement representation, waiting period waivers are unheard of and requests for them are opposed by prosecutors as a matter of policy. In other counties, prosecutors may actively seek denial of ineligible petitions without a continuance, or request hearings for low-level offenses even where eligibility is clear. According to Joley, the culture in some prosecutor’s offices creates a sense of duty to challenge petitions to the extent permitted by law. Roderick Bohannon, an attorney with Indiana Legal Services, represents clients in a variety of counties and has also experienced push-back from prosecutors. While prosecutors in some counties will immediately waive their objection in low-level cases where eligibility is clear, others will object to felony expungements as a matter of policy, even in cases involving low-level offenses where expungement is mandatory if eligibility requirements are met. Some prosecutors will not respond to petitions despite having no intent to object, which can add at least a month to the process since objections are only deemed waived after 30 days without a response. The courts of each county operate differently as well, sometimes creating a separate set of challenges. Initially, different filing practices in each county meant there was little uniformity in how petitions were processed, presenting special hurdles for individuals seeking to expunge convictions from multiple counties. However, as each county has transitioned to a uniform e-filing system, these problems have become less prevalent. Now, for the most part, attorneys can track the progress of petitions in multiple courts through a unified online system, somewhat easing the inefficiencies caused by the requirement that each separate petition be filed in each convicting court. While, as noted, the Indiana Office of Court Services has been supportive, attitudes from the bench vary widely. In Marion County, where the Prosecutor’s Office has gone to great lengths to set an expungement-friendly tone, judges are generally happy follow the government’s lead. But in most other counties the tone of proceedings reportedly depends on the judge hearing the petition. Some judges will require hearings for low-level offenses even if there is no objection from prosecutors, while others will require that eligibility be shown by specific documentation that may not be readily available, even if it can be established by other means. In one instructive case, a judge in Jay County denied a petition for expungement of forgery and methamphetamine felony convictions despite the petitioner being eligible for relief, stating at the hearing that methamphetamine crimes are "a pain," and that "I’m not doing favors for people that are causing these problems in Jay County." In his order, the judge wrote that denial was “based largely on the nature of the convictions, the severity of the offenses, and the relatively short duration since release from probation/parole on the most recent convictions,” none of which are criteria identified in the statute. The Indiana Court of Appeals reversed, finding in Cline v. State that the evidence of the petitioner’s rehabilitation, her age at the time of commission, and her desire to find work in management all weighed in favor of expungement. The Court of Appeals concluded by stating: [O]ur Legislature has provided a second chance for individuals who have in the distant past committed drug-related crimes. Although the trial court is granted discretion, this does not extend to disregard of remedial measures enacted by our lawmakers. As previously observed, such statutes should be liberally construed to advance the remedy for which they were enacted. Several months after its Cline decision, the Court of Appeals reversed a trial court’s dismissal of a suit seeking to hold the Marion County Sheriff in contempt for refusing to consider for employment as a deputy sheriff an individual whose conviction had been expunged, finding that the sheriff was not exempt from the law’s provisions barring discrimination based on an expunged conviction. Not all trial judges are negative toward expungement petitioners. For example, according to Brian Dunkel of Neighborhood Christian Legal Clinic, some judges will grant relief in felony expungement cases with little or no scrutiny if the prosecutor fails to object. Roderick Bohannon of Indiana Legal Services believes the most serious problem is the reluctance of some judges to waive filing fees for indigent petitioners, as permitted but not required by law. In some courtrooms, judges will refuse such waivers as a matter of policy, which Bohannon considers legally impermissible, and insist that arguments in favor of waiver be taken up on appeal. While Bohannon’s organization has filed such appeals, the process can add six months to a year to the expungement process, pushing back the availability of relief and draining pro bono resources. Bohannon therefore reluctantly advises clients to do whatever they can to pull the filing fee together, which can be difficult when a criminal record presents a major obstacle to employment. Despite these problems, nearly all petitions for expungement of low-level offenses are eventually granted, as they must be if an individual meets the statutory eligibility requirements. Grant rates for more serious felonies, for which expungement is discretionary, are unavailable. However, grant rates are expected to increase in the wake of the Cline decision. Getting an expungement is only part of the process, though. Since the law took effect, those with records and their attorneys have found that effectuating an expungement order presents its own challenges. Records of low-level offenses that are expunged are sealed by the court and the State Police, while the statute requires only that records of higher-level offenses be “clearly marked” as having been expunged. (Other agencies must do the same, but their records are often not readily accessible by the public.) Court records have been swiftly sealed/marked since the law took effect, and that process is practically immediate now that e-filing has been implemented. The Indiana State Police, which provides records to employers, landlords, and others, seals/marks in a matter of weeks. (By comparison, in North Carolina the state has a significant backlog, and execution of an expungement order can take up to a year.) But early on, pro bono attorneys like Brian Dunkel and Roderick Bohannon noticed a problem with how the State Police were handling expungement orders. The agency took the position that it was only obligated to seal/mark the conviction record that was the subject of the order, not records of dismissed charges from the same criminal case. Dismissed charges may be expunged, but under a different authority from convictions, and the State Police has taken the position that expungement of dismissed charges must be separately sought before they are sealed. The State Police put that policy into practice without regard to the provision of the law that states that “[a] person whose record is expunged shall be treated as if the person had never been convicted of the offense.” To deal with the problem, attorneys now draft their proposed orders to direct the State Police to expunge all records from the same case. The solution gets the desired results, but requires attorneys to ensure that draft orders identify all relevant conviction and non-conviction records. Dunkel and Bohannon also reported that they cannot rely on the courts to ensure that all records that may be publicly available are actually sealed/marked after expungement. The courts in some counties take the position that they are not required to send notices to all agencies holding records, even though their expungement order must by law be directed to all agencies holding records. In some counties, the court will send notices to some but not all relevant agencies. So Dunkel and Bohannon take it upon themselves to notify relevant agencies of the expungements they secure, following up as necessary when clients report that expunged records are still showing up. The new law also raises significant questions about how an individual should represent their expunged record. On paper, expungement confers a number of rights. It is illegal for public and private employers and licensing boards to discriminate against individuals due to an expunged conviction, and the law requires that inquiries into criminal history be phrased in terms that exclude expunged convictions from the inquiry. But employers have been slow to change their hiring procedures, and the law does not specifically authorize applicants to deny the existence of an expunged conviction if they are asked about it, even where the inquiry is unlawful. Defense attorneys in the state acknowledge that this creates a real dilemma for expungement clients, and for their lawyers: Should clients be advised to deny the expunged conviction, which the employer may later find out about through a commercial criminal background check company that may not have updated its files to account for the expungement, and risk being viewed as dishonest? This is a particular problem where more serious felonies are expunged, since the record is not sealed but simply marked as “expunged.” Should they advise their clients to acknowledge and explain the conviction and the significant of the expungement? Attorneys we spoke to said they tend to advise clients to acknowledge that they have been convicted but their conviction was expunged, and to explain the legal effect of expungement. Situations like these demonstrate the need for holistic expungement representation like that provided by Indiana Legal Services and Neighborhood Christian Legal Clinic. A call or letter from an attorney to an employer that has unlawfully inquired about an expunged conviction can go a long way, especially since the law provides that unlawful discrimination based on an expunged conviction is punishable as a Class C infraction and may be the basis for contempt of court proceedings. And the threat of enforcement is very real. The Indiana Court of Appeals reversed a trial court’s dismissal of a contempt petition filed against the Marion County Sheriff by an individual whose application for employment as a deputy sheriff had been denied based on an expunged conviction, finding that the nondiscrimination law applied to the Sheriff even though he was authorized by law to obtain an applicant’ s expunged record. Notwithstanding these legal and practical issues, the big question is whether expungement is actually making life better for individuals with criminal records while protecting public safety. Unfortunately, outside of some anecdotal evidence, it is one with no solid answer. Andrew Fogle, the prosecutor in Marion County, says that he has seen few individuals with expunged records come back into the system, but that he unfortunately lacks the funding to conduct a full review that would be necessary to assess the link between expungement and recidivism in the county. And the already strained resources of pro bono providers make it difficult to follow up with clients to see whether they got the job, the license, or the apartment. Although a few clients will check in to share their success stories, most lose contact after receiving services. But David Joley thinks that might be a good sign. Clients who are not receiving the relief they expect are the ones most likely to return for help, especially when they have paid for it.
A closer look at Indiana’s expungement law (8/30/2017) - 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. Indiana's new expungement law the product of "many, many compromises" In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country. Under the new law, courts are empowered to "expunge" most criminal records, after waiting periods keyed to the seriousness of the offense. The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere. This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation. We recently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states. Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation. But in an age of bipartisan support for criminal justice reform, apparently anything can happen. Rep. McMillin told us how he was able to persuade his colleagues in the legislature by careful groundwork, and overcome opposition from prosecutors and courts by making what he described as "many, many compromises." One of the most important of those compromises was limiting use of criminal records rather than limiting public access to them, at least in the case of more serious offenses. Before letting Rep. McMillan describe in his own words how he secured passage of this relief scheme, here is a brief description of the law's most salient features. (A more detailed description can be found here.) All criminal records (except convictions involving serious violence, public corruption, and sexual offenses) are eligible for expungement from the court of conviction, after waiting periods ranging from one year (for non-conviction records) to ten years (for the most serious eligible felonies). After the court has issued an expungement order, records not resulting in conviction and records of misdemeanors and minor felonies are automatically sealed. After a record is sealed, even a prosecutor may not access it without a court order. Expunged records of more serious convictions "remain public," although they must be “clearly and visibly marked or identified as being expunged.” However, all expungement orders similarly limit the use to which a criminal record can be put, as described below. Expungement may be granted by the court without a hearing unless the prosecutor objects. Those filing for expungement of a conviction must pay the filing fees required for filing a civil action ($141), and this requirement may not be waived. Defendants are not permitted to waive the right to seek expungement as part of a plea agreement. A petitioner may seek to expunge more than one conviction at the same time, but may be granted expungement only once in his or her lifetime. If the first petition fails, there is a three-year waiting period before a person may reapply, and the only convictions expungeable are those in the original petition. It is unlawful discrimination for any person to refuse to employ or license a person because of a conviction or arrest record that has been expunged or sealed, and a person may not be questioned about a previous criminal record except in terms that exclude expunged convictions or arrests. Expunged convictions are not admissible as evidence of negligence in a civil action against a person who relied on the expungement order, and they may not be reported by credit reporting companies. The Attorney General may enforce the provisions relating to credit reporting companies through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. The Indiana courts have published a detailed explanation of the law and sample petitions for expungement that are tailored to the particular categories of eligible cases, to enable a person to seeking expungement without hiring a lawyer. * * * * * * * * * Here is our interview with Rep. McMillin: How did you get interested in the subject of criminal records? As a former prosecutor, and now someone who does some criminal defense work while serving in the legislature, I think I have seen the justice system from several sides. Also, as a fiscal conservative it just makes practical sense to me that when somebody has served their court-imposed sentence there has to be a pathway back into society for them. Without this, we can't expect them to become productive members of society. The Indiana Constitution requires our criminal justice system to be based upon the principles of reformation and not vindication. I firmly believe that our expungement law moves substantially in that direction. How did you build support for the concept of expungement among your colleagues in the legislature? This was a process that played out over several years. We proceeded in incremental steps, building on existing law and gaining supporters from various constituencies. We started by expanding an existing provision of the Indiana code that allowed courts to reduce a minor felony to a misdemeanor upon completion of the sentence, to allow people to come back after a waiting period to get the felony reduced, as long as they had no further charges. I thought if I could just start the conversation with a simple bill that did not involve more serious offenses I would be able to get people to see how detrimental having a felony conviction can be for someone who wants to get back into the work force. I took a practical approach, and was able to persuade some of my fiscally conservative colleagues that there can be economic benefits through the reduction of recidivism. After getting that initial language enacted I came back the next session to work on full expungement, and found that there was support on both sides of the aisle as many people were able to see the benefits. There were those who had general objections to the legislation, some for ideological reasons, some for practical reasons, but we were able to overcome all of them with solid logic when it came to debating this issue. We were even able to win over some of the prosecutors, enough that the opposition of the holdouts didn’t derail the legislation’s chances. One of the most effective supporters was the Indianapolis Chamber of Commerce, which helped me convince people that expungement could be beneficial to business owners and economy as a whole. Obviously there were a lot of compromises we had to make, and it's not hard to see what some of them were, like the lifetime limit to one expungement, the prohibition on seeking expungement of offenses committed after a petition has been denied, and the filing fee that is hefty for many. Certain violent and sexual offenses had to be excluded from coverage or it would have torpedoed the effort before we got it off the ground. It was sometimes difficult to give up some things just to get the bill passed, while still ending up with a law that actually made a difference. We were able to resist several offers to compromise that would have simply gutted the bill. We had to keep our eye on the core purposes of the legislation, which are to restore rights and give people a fair chance in the workplace and elsewhere. We will see how the law works. If some of the compromises we made need to be revisited, we can do that. In fact, in the 2014 session we made quite a number of reasonably minor adjustments in the law, notably to permit more government entities including licensing agencies access to sealed records. How were you able to defuse opposition from the prosecutors? Because I anticipated the prosecutors would be the main opponents, I reached out to them early in the process, and worked with the ones who were willing to consider the concept. Here again I took a practical view, asking if they really wanted people they had prosecuted to return to the system, or whether they wanted them to succeed. I had to persuade them that expunging a record did not reflect badly on the prosecution or create problems for law enforcement. While their ideas were substantially different than mine, I felt it was important to incorporate many of them, and so we were able to reach a middle ground. That is how we came to have a multi-tiered system, with limits on sealing for more serious offenses, a role for prosecutors in the expungement process, the possibility of unsealing in the event of a new crime, and a lifetime limit of one expungement. This is not to say that prosecutors across Indiana ended up supporting expungement. In fact many of them remain its most ardent opponents. However, asking for their input early and making them a part of the process instead of a constant and united opponent was instrumental in getting the job done. What about other sources of opposition or support? Many judges objected and some of the clerks were opposed to the additional work that the legislation would make for them. The credit reporting companies were also not happy but they did not mount any substantial resistance. As noted, the business community was surprisingly supportive. Many employers liked the protections afforded them in the bill -- including not being held responsible for information there were not permitted to have. Governor Pence was a supporter from the beginning. Early in his term he adopted a slogan that “Indiana should be the worst place to commit a crime, but the best place to get a second chance.” This slogan fit perfectly into the concept of this legislation. How has the law been working in its first year? Once the law was passed, the courts took a proactive role in carrying out their new responsibilities. They took it upon themselves to develop a variety of forms for different kinds of cases, and publish them on a website so that people could apply for expungement without the need to hire a lawyer. Legal services organizations have been spreading the word around the state, and are helping to clarify what appears to have been some initial confusion because of the law's complexity. There have been a few kinks, and as I said we have already passed several bills to make slight adjustments mostly of a procedural nature. I anticipate that there will more a few more tweaks this year. Thankfully the concept has been received wonderfully by the public so making the changes at this point is relatively easy and meets little resistance. Why is the relief called "expungement" if many records remain open to the public? I get this question frequently, and yes I agree it is a bit confusing to use a term that ordinarily implies some limits on access. The original concept was that an expungement order would seal all records except for law enforcement purposes. But that was not an approach that I could sell, in or out of the legislature, especially for more serious offenses. As the bill ended up with tiered approaches, there really was not a single term that fit the whole -- and as we studied what other states do, I am not even sure the term "expungement" has a single meaning. Also, even if a record is actually destroyed, it may be impossible to ever remove all evidence of it. In the end, I was convinced that "expungement" was the best term to use to ensure that people who need relief would take advantage of it. There's no doubt that most people believe that you only get a second chance if your record is clear in a literal sense. But even where a record is sealed, our law does not permit people to deny that they were arrested or convicted; rather, they cannot be asked about a record that has been expunged. In this way we were able to reconcile keeping the record open with the core concept of restoring rights. By limiting the use of a record we hope to clear away the cloud that these individuals have been living under. What advice do you have for legislators in other states and for advocates who want to try to develop a comprehensive scheme like Indiana's? To begin with, to pass a bill like this you have to have someone in a leadership role who really understands the inside and out of the criminal justice system, and who is willing to live and breathe this concept through the entire legislative process and see it all the way through to completion. You have to start the conversation very early, and learn patience. It takes a long time to convince people who may only have a passing interest (or no real interest at all) in something like this, and no personal experience with the justice system, to understand why it is a good idea and why they should take the perceived risk of supporting this concept. In the political world it is very easy for those who oppose this concept to get their hooks into legislators early by telling them that this is “soft on crime” and that it will damage them politically to support it. In order to combat this I think it is necessary for the legislator who is carrying the bill to spend one-on-one time sitting down with other legislators. While advocates are important and certainly should be recruited, I find that nothing is as persuasive as the legislators themselves discussing the concept. The other really important thing is to secure the support of the business community. You should also find examples of individuals who have been battling for years if not decades to be successful in society while carrying the weight of a criminal record. Their anecdotal testimony can be extremely powerful. I also recommend reaching out to those you anticipate will oppose the bill and asking them to help with the bill. If they are not on the inside helping they will be on the outside opposing. Even if the “help” they are giving is not always consistent with the concept you are trying to advance, you are still much better off having those people working with you on developing language than trying to kill any language that you come up with. It is helpful to defuse opposition if you couch the conversation in terms of the social and economic benefit to society rather than always talking about the benefit to the individuals who might seek expungement. It is very important to make people see that while our human compassion should want to give people a second chance, our duty is to be fiscally responsible to our constituents, and that for numerous reasons (recidivism, costs of incarceration, costs of providing welfare, public safety, etc.) this concept is the right one for all of our constituents. In the end, you really do have to be willing to compromise, recognizing that if you get the key concepts enacted you can always come back later and change the details.
New research report: Four Years of Second Chance Reforms, 2013-2016 (2/8/2017) - Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types. The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process. Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time. Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible. Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado's new "order of collateral relief" provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction. The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority. These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<