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Expungement – used judiciously – can have community benefits

Everybody deserves a second chance.

Even the Indiana Legislature.

Last session, it drastically expanded Indiana citizens’ options to expunge their own criminal records. Known as the Second Chance Law, the measure signed into law by Gov. Mike Pence took effect in July, so its full effects are not yet clear. Certain crimes cannot ever be expunged, including murder, rape, sexual molestation and human trafficking. Some other very serious felonies require consent of the prosecutor. But old, nonviolent, low-level felonies and misdemeanors can be taken off a person’s record automatically.

Those who pushed for the law argued that people who want and need to work but are never hired because of old criminal convictions are punished long after they have paid their debt to society. On the other hand, there are some uneasy rumblings from the legal community.

At last week’s special Fort Wayne City Council session on the number of killings, Jonathan Ray and Andre Patterson said the new expungement law is a valuable tool in their work to help unemployed black males seek jobs and build stable families. Patterson, chairman of the Fort Wayne Commission on the Social Status of African American Males, has had community meetings to advise people about how to use the new law to remove old convictions, which may always pose a new problem for job-seekers. “Felonies and misdemeanors are roadblocks,” Ray, director of the Fort Wayne Urban League, told the council Wednesday night. “Expungements take away an impairment for somebody who wants to work.”

But in some cases, the complex new law takes away the ability of victims, prosecutors and even judges to influence whether a particular case should be banished from official memory.

Marion County Prosecutor Steve Sonnega has filed a legal challenge to the constitutionality of the law, pointing out that conviction in a child-molestation case may be expunged without challenge because the charge was battery, a D-category felony that qualifies for automatic expungement as long as the petitioner meets certain criteria. “That basically makes the concerns and input of victims meaningless,” he told The Indianapolis Star.

St. Joseph County Prosecutor Michael Dvorak told the South Bend Tribune’s Madeline Buckley that he believes the expungement law should always allow for some discretion.

“It ought to be done on a case-by-case basis, not one size fits all,” Dvorak said. The problem, he said, “would simply be cured by changing the ‘shall’ provision to a ‘may’ provision.”

Allen County Prosecutor Karen Richards has some worries, too, but is going to wait and see.

“We have not seen that many expungement petitions yet,” she said Friday.

“There is,” she said, “a troubling side and a compassionate side.”

On the troubling side, Richards said, she is worried about the effect expungements may have on employers hiring people for jobs without knowing about convictions that might be highly relevant to their work: bank tellers who have past theft convictions, for instance, or truck drivers with substance-abuse problems. “Are you trying to get a commercial driver’s license and you’ve had alcohol and drug issues?”

The new law may make it harder for prosecutors to get defendants to agree to treatment. If a conviction can be easily expunged, she asked, “what’s the impetus to go into a drug program?”

The new state law says employers can’t be held negligent for hiring decisions based on criminal records that have been closed to them. But it’s not clear, Richards said, how well the law will mesh with federal regulations about who can work in some health care jobs, or whether it will clash with some insurance companies’ coverage requirements.

On the compassionate side of the ledger, Richards agrees there are cases in which expungement makes sense.

“For some people who made stupid mistakes when they were young, it’s a great thing,” she said.

Even serious felonies might deserve obliteration at some point, Richards said. “I could see a situation where someone is 48 years old and he had one burglary charge when he was 19 and hasn’t had anything since.”

Like so many Indiana legislative ventures, the Second Chance Law may need some retuning in the coming session.

Those who’ve paid their debt to society deserve a chance to get back into the game of life. But common sense needs a seat at the table, too.