By Bruce Vielmetti
Wisconsin’s quirky, limited law regarding when someone can get a criminal conviction erased from public records is keeping thousands of potential workers from employment, a new study finds.
“A Fresh Start: Wisconsin’s Atypical Expungement Law and Options for Reform” was released Wednesday by the Wisconsin Policy Forum, a nonpartisan think tank.
A felony or even a misdemeanor conviction can complicate or prevent many people from finding a job. In this economic boom time, that doesn’t just hurt them, it hurts employers, the study suggests.
Given the state’s lowest-since-2000 unemployment and increasing retirement among baby boomers, workforce development leaders are “looking for ways to reduce obstacles preventing unemployed job seekers from participating in the workforce. This report examines expungement as one strategy for doing so.”
The report doesn’t address the alternative solution in the employment context: Rather than getting the state to hide records, employers could just change their policies toward taking applications from people with records.
According to the Badger Institute report, major employers have already done so. “Koch Industries, with 60,000 workers in the United States, removed questions about prior criminal convictions from its job applications in 2015, joining other big companies such as Walmart, Target, Home Depot and Starbucks.”
Bill Lueders, president of the Wisconsin Freedom of Information Council, supports letting someone expunge a record and letting them legally say they have not been convicted, but says the record of the whole process should remain public.
But officials, he said, “don’t believe the public is smart or reasonable enough to make judgments about expungement,” and therefore the only way to prevent bias is to hide the entire record.
Expungement rules vary greatly from state to state. Some are far more liberal while nine states, including neighboring Iowa, do not allow any removal of adult criminal conviction records.
The report found that Wisconsin is the only state that limits expungement — the term used for sealing a criminal record from easy public access — to a live, current case and requires a judge to decide at sentencing if expungement should be granted later.
And if your charges were dismissed or you were acquitted? Expungement is not even an option in Wisconsin. Only two other states don’t allow expunging such records. In Milwaukee County over 10 years, nonconvictions accounted for 22.5% of all criminal cases, according to the report.
The report suggests it would make more sense to let people seek expungement later than at sentencing — after they have served a sentence and perhaps shown why they deserve to have the record erased.
Researchers found more than 30,000 closed cases in Milwaukee County alone between 2006 and 2017 that would meet the current criteria for expungement — the first conviction for certain low-level felonies, or any misdemeanors, by someone under 25. There is one exception for old cases — certain prostitution convictions if the person was also a victim of sex trafficking.
More than employment barrier
“A Fresh Start” points out that a criminal record doesn’t only affect job seekers.
“Policy restrictions limit the rights of ex-offenders to be licensed for many professions, to access small business loans and grants, and to obtain financial aid for higher education. In some cases, housing assistance also is restricted.”
The report analyzes five ways Wisconsin could increase the number of expungements.
- Decide after sentence completion.
- Consider closed cases.
- Allow nonconvictions to be expunged.
- Remove the under-25 age limit.
- Make more felonies eligible.
The Wisconsin Policy Forum said allowing E, F and G-level felonies (which are crimes subject to more than six years in prison or on supervision) to be expunged, in addition to the H and I lowest-level felonies currently eligible, would add about 390 more possible expungements in Milwaukee County next year.
Nonconvictions would add more than 1,500, and removing the age limit would make nearly 4,000 more cases eligible for expungement.
Those wouldn’t always have the desired impact for the defendants, though. The report tracked Milwaukee County convictions for 573 people born in 1988 and 1989 from 2006 to 2017. Only 26.4% had just one conviction. More than 52% had three or more, meaning the value of expunging one case might be negligible.
In Milwaukee County, 506 cases were expunged between 2010 and 2016, according toa Badger Institute study cited by “Fresh Start.” That’s not many, compared to some other places. Much smaller Outagamie, La Crosse and Kenosha counties each had more expungements than Milwaukee County over the same period.
The Badger study found other seeming anomalies. Two small, neighboring counties in northwestern Wisconsin, Washburn and Burnett, with nearly identical demographics had 124 and just five expungements, respectively.
Two counties with populations of about 35,000 had an even wider expungement gap — 231 in Oneida County to just 21 in Clark County.
The report recognizes that if the number of cases eligible for expungement expanded greatly, it could put pressure on judges and clerks of courts if, as expected, requests to expunge increased. It suggests that perhaps judges could decide without full hearings in many cases.
Wisconsin’s current expungement law includes ambiguities that result in the uneven application such as major racial and geographic disparities.
One is the definition of “successful completion of a sentence.” Judges have rejected expungement for some behaviors not clearly listed as violations even when the Department of Corrections has certified someone as successfully completing probation.
And many offenders who could seek expungement aren’t aware they can or can’t afford lawyers who know how and when to push for expungement.
Judges generally favor at least moving the decision on whether to expunge to sometime after sentencing. “Many judges feel they are put in a difficult position having to make ‘crystal ball’ decisions at sentencing hearings,” the report states.
Of course, the state might consider charging someone who seeks expungement a fee for the chance. Most states do, according to the report, and various bills put forth in recent years that would liberalize Wisconsin’s law — mostly failed — have included this idea. That makes it toughest for low-income offenders.