A local office of the Wisconsin State Public Defender recently assisted two former clients who encountered obstacles with their respective legal and medical careers (minor details have been changed to ensure client confidentiality). These examples show that old criminal cases, even for relatively minor charges, can cause employment difficulties and frustrate professional advancement many years later.
The first former client recently passed an out-of-state bar examination, and he disclosed on his license application a 20-year-old Wisconsin misdemeanor charge. When he called for assistance in interpreting the online court records, he learned (to his relief) that what he had always thought was a criminal conviction had actually been reduced to a non-criminal ordinance violation. Although the original criminal charge remains accessible in Wisconsin’s court records, he was able to amend his license application to report that he does not have any criminal conviction record. (It is not clear what effect a misdemeanor conviction would have had on his licensure, but now he won’t have to find out.) Read more
No, according to a recent study of efforts to enforce monetary judgments in a Milwaukee municipal court and to a national organization with expertise in traffic safety. The Justice Initiative Institute reviewed non-criminal, municipal cases from 2008-2013 in which the Milwaukee court had ordered the detention of defendants for not having paid fines.
Not surprisingly, the report shows that most people who fail to pay fines have little if any income (a majority of those detained were unemployed). Therefore, although the prospect of sanctions might encourage payment by a population with greater financial resources, the use of incarceration for non-payment ends up costing the City of Milwaukee more than any additional amount of fines collected.
Expulsion or suspension from school, not surprisingly, does not bode well for academic success. Students are much less likely to graduate when they miss significant time in school or have to change schools because they have been suspended or expelled.
Incidents at school can have other serious and lasting consequences. In Wisconsin, because 17-year-olds are considered adults when charged with criminal violations, high school students can face probation, jail, or prison, as well as all the adverse collateral consequences associated with a criminal record. One serious consequence unique to students is that alleged misconduct in school can also result in a suspension or expulsion from school.
A recent issue of Governing Magazine reports that pardoning is “making a comeback” after decades of neglect. It would be nice if it were true.
But the evidence of comeback is thin. Almost all of the jurisdictions where pardoning is thriving today are the same ones where it was thriving a decade ago. In a dozen states, including Connecticut, Delaware, Georgia, Nebraska, South Carolina and South Dakota, pardon has never been neglected, much less abandoned by responsible officials. In these jurisdictions and a handful of others, pardon has deep roots in the justice system and is supported by accountable institutions of government.
It is certainly true that Pat Quinn of Illinois and Jerry Brown of California have made generous use of the power of their office after years in which the pardon power in their states languished unused. Terry McAuliffe of Virginia is a newcomer to the small group of governors who evidently feel that pardoning is a responsibility of office. All three are to be commended for it. But three swallows do not make a summer.
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.
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.
The District Attorney of Oneida County (WI) has decided not to file criminal charges against forty teenagers implicated in a widespread sexting scandal in the Rhinelander school district. His decision was reportedly based on concerns raised by parents and others about the collateral consequences of a criminal record. In a joint press release, school officials and the local sheriff noted that felony charges could have limited students’ future employment prospects:
Although Wisconsin law does consider incidents such as this as felony offenses, and it does not have disciplinary alternatives for such offense, criminal charges were not filed against the students involved, which could be detrimental to the future of the students and, in turn, could be harmful to our community as these students will not be allowed to enter certain occupations
Under Wisconsin law, anyone convicted of a felony, no matter how minor, is permanently barred from obtaining over 100 professional licenses, and subject to many other adverse effects that may last a lifetime.
Instead of charging the students criminally, the school district is bringing in a Wisconsin Department of Justice special agent to give presentations to the students and parents about the seriousness of taking inappropriate photographs and distributing them on social media. Ten of the forty students who sexted on school grounds got one-day suspensions, and students who behavior violated the school athletic code were suspended for certain events.
The editor wonders whether such a resolution would be likely in an urban school setting.
Which is a better outcome for a defendant in a criminal case: a) dismissal of all charges; or b) finding of guilt with probation or fine? Although most defendants and their attorneys would without hesitation choose option a), the choice is not always clear cut for some young defendants in in at least one Midwestern state.
So why might a former client say that “I can’t get a job because the charges against me were dismissed“? Or ask “ Why didn’t my lawyer tell me to plead guilty?” How is there a potential advantage of a conviction compared to dismissal?
In Wisconsin, computerized court records make it easy for the public, including prospective employers, to see public records of court cases, including charges that have been dismissed. However, a statute (Wis. Stat. sec. 973.015) allows for certain records to be sealed, depending upon the defendant’s age and the classification of the crime. However, the statute does not allow for sealing records in cases that resulted in dismissal, so they remain accessible through computerized searches.
Therefore, if a defendant is greatly concerned about the potential effect of the record on future employment (or other effect on reputation), an expunged record may be preferable to a public record of a dismissed charge. The defense attorney should at least be aware of the options and explain them to the client, rather than assuming which option the client would prefer. This example also shows that it is critically important for defense lawyers to be aware of the relief that may be available to avoid or mitigate collateral consequences.