By Gretchen Schuldt
Even the most minor violations of Department of Corrections' community supervision rules make people ineligible for expungement of their criminal records, the State Court of Appeals ruled Thursday.
Judges making expungement decisions have no discretion in the matter, the court said.
State law allows courts to expunge conviction records for misdemeanors and certain felonies committed by a person under the age of 25 if that person successfully completes his or her sentence.
Advocates have been pushing for years to make expungement available to more people. This ruling likely will do just the opposite.
"This decision demonstrates once again the need for reform of Wisconsin's expunction law to clarify the process and allow deserving people to avoid the crippling effect of a criminal conviction to follow them for the rest of their lives," Craig Johnson, WJI president, said Friday.
"The decision is one more step in the wrong direction and ought to be corrected by the Legislature as soon as we reconvene," said State Rep. Evan Goyke (D-Milwaukee), an expunction reform advocate in the Legislature. "It is one more example, of the many and growing, of why Wisconsin needs a thorough reform and modernization to our expungement law."
"The first rule of supervision, which applies to every person on probation, parole or extended supervision is, 'Avoid all conduct which is in violation of federal or state statute, municipal or county ordinances, tribal law or which is not in the best interest of the public welfare or your rehabilitation,'" said David Liners, state director of WISDOM and a justice reform advocate. "I do not know anyone who has not broken that rule. Rule 17, 'Report as directed for scheduled and unscheduled appointments,' would seem impossible to anyone who is not clairvoyant and knows to report for a meeting that has not been scheduled."
"The rules themselves remind me of Jim Crow 'literacy tests,' designed to be impossible to pass," he said. "By setting this standard, the court is doing to expungement what Jim Crow laws did to voting"
The Court of Appeals decision reversed a ruling by Green County Circuit Judge James R. Beer, who granted Jordan A. Lickes' request to expunge three of four convictions related to a sexual encounter he had with a 16-year-old girl in 2012, when he was 19.
"Lickes contends that a bright-line rule prohibiting expungement upon proof of a violation of even the most minor DOC rule would run contrary to the legislative purpose of the expungement statute, which is to provide a break to young offenders who demonstrate the ability to comply with the law,” District IV Court of Appeals Judge Jennifer E. Nashold wrote for the three-judge panel.
The panel rejected that interpretation.
"Because we interpret 'conditions of probation' in the expungement statute to include DOC rules, and because the record indisputably shows that Lickes violated DOC probation rules, the circuit court was without discretion to expunge Lickes’ criminal record," she wrote. "Said otherwise, the Legislature could have left this decision to the circuit court’s discretion but, instead, it has established clear objective standards that leave no room for the court’s exercise of discretion at that stage of the process."
The state's expungement law makes no specific reference to DOC rules, but the phrase "conditions of probation" has been interpreted in other cases to refer to court- and DOC-imposed conditions, so the same definition should apply for expungement, she wrote.
Nashold was joined in her ruling by Appeals Judges Brian W. Blanchard and Michael R. Fitzpatrick.
While the DOC rules infraction ruling will likely affect the most people, it was not the only issue in the case.
Lickes was charged with fourth-degree sexual assault, sexual intercourse with a child age 16 or older, disorderly conduct, and exposing his genitals or pubic area. The first three charges were misdemeanors; the fourth was a felony.
He pleaded guilty to the sex with a child charge and no contest to the others, according to the decision.
Beer sentenced him to probation and 90 days in jail with Huber privileges.
"By setting this standard, the court is doing to expungement what Jim Crow laws did to voting." – David Liners, state director of WISDOM
"The court then set a number of 'terms and conditions of probation,' including that Lickes 'enter into, participate [in] and successfully complete' sex offender treatment for two of the misdemeanors and the felony, Nashold said. If he did that, those counts could be expunged.
Lickes later admitted violating his conditions of probation, Nashold said. His probation agent said Lickes had unapproved sexual conduct, was terminated from a sex offender program, and provided false information to his probation agent.
Lickes agreed to spend 45 days in jail, with Huber privileges for work and treatment, as an alternative to revocation.
Lickes' probation on two of the misdemeanors ended in 2016 and he applied for expungement. His probation agent indicated in September that Lickes had successfully completed probation, but had not completed all the court's requirements. Lickes still was in sex offender treatment and was expected to finish in January 2017, the same month his felony probation was to end.
In July 2018, the probation agent filed another form, this time related to the felony, indicating Lickes had completed all his requirements.
The state opposed Lickes' request for expungement based on his probation violations, but Beer eventually granted it for the two misdemeanors and the felony.
The appeals panel, Besides finding that a probation violations made a person ineligible for expungement, found that Lickes did not meet his court-ordered probation requirements because he did not complete his sex offender treatment by the time his misdemeanor probation lapsed; he completed it after that, but before his felony probation lapsed.
"The circuit court’s probation condition requiring Lickes to 'complete' sex offender treatment for (the misdemeanor) counts...cannot reasonably be construed to mean that Lickes was permitted to complete the treatment after his probationary period ended for those counts," Nashold wrote. "Because Lickes did not complete sex offender treatment within the two-year probationary period for (those) counts...he did not satisfy a court-ordered condition of probation."
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