Hoosier lawmakers made a troubling law even worse this year, voting to prohibit companies from distributing factual information about criminal convictions. Such a ban raises constitutional questions regarding free speech and must be repealed.
The General Assembly created the problem when it adopted a well-intentioned but flawed law written to help people who had been convicted of a non-violent misdemeanor or low-level felony years earlier but have had no further convictions for at least eight years. The law allows such Hoosiers to ask the courts to seal the records of their conviction from the public – but not from the courts or law enforcement officers. Judges dont have an option; the law states they shall order the records sealed.
The law makes clear that in filling out an employment application, Hoosiers who have had their records sealed may state they have never been convicted of a crime. And the law makes it an infraction for a prospective employer to ask applicants whether they have a criminal record that is sealed.
While the bill was intended to give convicted criminals a second chance, it has the effect of sealing public records from the public, which is bad enough.
But legislators made the law even worse this year. While some employers might get information about convictions from the courts, others may use a private company that collects and distributes information about criminal convictions for a fee. Information about convictions would remain in their databases even if its hidden in the courts.
So the General Assembly voted to prohibit criminal history providers from distributing information about convictions that have been sealed in the courts.
Consider the ramifications of the government ordering a person or company not to distribute factual information. The law is almost certainly an unconstitutional limit on free speech.
The problem with both the original and updated laws is that lawmakers are trying to have it both ways. For prospective employers and the public, the records are secret. For police and the courts, the records still exist.
If lawmakers truly want to accomplish their goal of giving offenders a second chance, they should require the records to be expunged, essentially vacating or undoing a criminals conviction. If lawmakers think police and courts must be able to know about a suspects convictions, the records should be open to all.
Right or wrong, the law has potential to create much more work for both court personnel and the companies that compile information about criminal histories. Judges and police are already busier; Indiana State Police have received court orders to seal 1,700 criminal records under the law.
The portion of the law allowing the sealing of court records took effect last year. The portion of the law dealing with criminal history providers does not take effect until July 2013, meaning lawmakers can and should rescind the most noxious part before the law takes effect.
The legislature would best serve Hoosiers by deciding to have all affected records either expunged or open.