Catch up, part 2: Expungement

By Gretchen Schuldt

A bill to reform the state's restrictive expungement law is supported by a broad range of groups, from the conservative Americans for Prosperity to the progressive ACLU.

Versions of the bill, Senate Bill 38/Assembly Bill 37 have been introduced but died in past sessions. They all would allow more people to have their criminal records expunged.

"The expungement laws as currently written are outdated and actually increase likelihood of recidivism and family separation by unnecessarily complicating the opportunity of expungement for nonviolent offenders," AFP-Wisconsin Supervisor of Grassroots Operations Jamiroquan Kittler said in testimony to the Senate's Judiciary and Public Safety Committee.

"Criminal records live on well after a person has done their time, functioning as a penalty that follows people forever as they navigate a world in which meaningful opportunities for growth and self-improvement are closed off to them," the ACLU said.

Under current law, a record can be expunged if the maximum potential prison sentence is six years or less, the crime involved was not a violent felony, the person committing the crime was under 25 years old, and the person had never been previously convicted of any felony. 

In addition, expungement must be requested when a person is sentenced, meaning the judge is expected to decide whether the person is eligible for expunction before there is a track record of the person's post-conviction behavior. If the judge does not state at the time of sentencing that expungement will be allowed, the person cannot apply for it later.

Under the new bill, the age restriction would be lifted. Certain other restrictions would remain, including those related to past felonies, violent felonies, and the six-year maximum prison sentence. 

The law, if passed, would also make some offenses ineligible for expungement, including traffic crimes, violating a domestic abuse injunction or restraining order, criminal trespass, and criminal damage to a business. 

Eligibility for expungement still could be granted or denied by the judge at sentencing, but if the court does not grant eligibility, the person could petition for expungement after completing the imposed sentence.

If the petition is denied, the person would not be eligible to file another petition for two years and then must pay the county $100. A person would be limited to a maximum of two petitions per crime.

Only one expungement per person would be allowed.

The bill would be retroactive to include those convicted of crimes before its adoption.

"For those who say this bill is 'soft on crime,' I challenge that," State Sen. Rachael Cabral-Guevara (R-Appleton) said in testimony. Cabral-Guevara is the lead Senate sponsor of the bill. "This bill is about providing a second chance to those who have already paid their debt to society. These are people who now actively contribute to their communities. This is not a hand-out, it is a hand-up.​"

And State Rep. David Steffen (R-Green Bay), the Assembly author, said the "support for reforming Wisconsin’s outdated expungement law has only continued to grow as employers grapple with growing workforce needs."

The Badger Institute said the state's expungement law "forces judges to make poor decisions with limited information, encourages uneven and often nonsensical administration of justice, and does little to help employers, victims, or low-level, non-violent offenders we should all want in jobs rather than cells."

The bill includes procedures that are the product of input from a variety of stakeholders, said State Rep. Evan Goyke (D-Milwaukee).

​"The process balances pressures on caseloads with the individual rights of victims and defendants. The result is a process that ensures victim input through the district attorney’s office, while judges retain discretion to be the ultimate decision makers," he said.

Registering in favor of the bill were AFP, the ACLU, the Badger Institute, the Apartment Association of Southeastern Wisconsin, the Badger State Sheriffs' Association, the City of Milwaukee, Dane County, the League of Women Voters of Wisconsin, Milwaukee County, the Milwaukee Police Association, NAIOP Wisconsin (a commercial real estate group), National Association of Independent Business, the Outagamie County Board, the State Bar of Wisconsin, United Migrant Opportunity Services, the Waukesha County Business Alliance, the Wisconsin Catholic Conference, the Wisconsin Chiefs of Police Association, the Wisconsin Counties Association, the Wisconsin Democracy Campaign, the Wisconsin Economic Development Association, Wisconsin Independent Businesses, Wisconsin Professional Police Association, and the Wisconsin Restaurant Association.

No organization has registered in opposition to the bill, which is pending in both the Senate and Assembly.