By: Attorney David E. Saperstein & Law Clerk Sarah E. Schuchardt
It is a well accepted fact that a criminal record will have a negative impact on many aspects of a person’s life — including employment opportunities, housing, educational opportunities, personal relationships and self esteem. For this reason, we as a society (through our elected representatives) have deemed it important to give certain non-violent first-time offenders a second chance by allowing them to “expunge” a conviction if they meet some fairly narrow criteria. In Wisconsin, those criteria are outlined in Wis. Stat. § 973.015. When a court grants a petition for expungement (also referred to as “expunction”) the practical result is that the record of the charge(s) and conviction(s) will be sealed or removed from public view. Wis. Stat. § 973.015.
Under § 973.015 and current Wisconsin case law interpreting the statute, first-time (one-time) offenders under the age of 25 who have been convicted of a criminal charge carrying imprisonment of 6 years or less must request expunction at the time of sentencing. Wis. Stat. § 973.015(1m)(a)1. (Note: Intoxicated driving offenses may not be expunged). Although this statute is helpful if the offender is aware that expunction is an option at the time of sentencing, it leaves out offenders who are otherwise eligible but are unaware of the necessity of addressing expunction at sentencing. A court is currently under no obligation to bring up the subject of expunction, but rather relies upon the defense attorney and prosecutor to address it. This is of little help to a pro se defendant, or to a defendant whose attorney has failed to advocate for expungement.
In State v. Arberry, the defendant appealed a postconviction order denying her motion to seek eligibility for expungement. State v. Arberry, 2017 WI App 26, ¶ 1, 375 Wis. 2d 179, 180, 895 N.W.2d 100, 101. Neither the court nor Arberry’s counsel raised expunction at the time of sentencing. Id. at ¶ 2. The Wisconsin Court of Appeals held that the determination of expungement must be made at sentencing, and so affirmed the order denying Arberry’s postconviction motion. Id. at ¶ 1. The Court of Appeals followed the Wisconsin Supreme Court’s holding in State v. Matasek, where it held that Wis. Stat. § 973.015 requires that “if a circuit court is going to exercise its discretion to expunge a record, the discretion must be exercised at the sentencing proceeding.” Id. at ¶ 3 (quoting State v. Matasek, 353 Wis. 2d 601, ¶ 45, 846 N.W.2d 811) (internal quotations omitted)). Arberry has since appealed the Court of Appeals’ decision and the Wisconsin Supreme Court granted her petition for review. State v. Arberry, 2017 WL 2968402, *1. As of now, however, the requirement that expunction be granted (if at all) at sentencing is still the law in Wisconsin.
There is a bill proposal circulating in the Wisconsin Assembly that would allow judges to go back and grant expunction for offenders who did not raise it at the time of sentencing. This proposal, 2017 Assembly Bill 331, to amend § 973.015 states:
973.015 (1m) (a) 1. Subject to subd. 2, if a person commits a crime when he or she is under the age of 25, the court may order that the record be expunged. A record may be expunged under this subdivision by one of the following methods:
a. Except as provided in subd. 3., the court may, on its own motion, order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.
b. When the person has successfully completed his or her sentence and if there are no criminal charges pending against the person, the person may file a petition in the county of conviction requesting that the record of the crime be expunged. Upon receipt of the petition, the court shall schedule a hearing to review the petition except that, if the district attorney informs the court under par. (c) that there is no objection to waiving the hearing requirement, the court may review the petition without a hearing. If a hearing is scheduled, then if possible, the sentencing judge shall be the judge to review the petition. The court may order that the record be expunged if subd. 3. or 4. does not apply and if the court determines the person will benefit and society will not be harmed by this disposition. If the court does not order the record be expunged under this subd. 1. b., the person may file a subsequent petition under this subd. 1. b. only if at least 2 years have passed since he or she filed the previous petition.
Assem. Bill 331, 2017-18 Reg. Sess. (Wis. 2017)
https://docs.legis.wisconsin.gov/2017/related/proposals/ab331. Under the proposal, the same crimes would be eligible for expungement as are currently. Id. (Analysis by the Legislative Reference Bureau). However, if expungement was not ordered at the time of sentencing, the person would be able to file a petition with the sentencing court after he or she completes his or her sentence. Id. The court must review the petition at a hearing or without a hearing if the victim waives the hearing. Id. If the court grants the petition, then the person’s record of conviction is expunged. Id. If the court denies the petition, then the person cannot file another petition for at least two years. Id. This amendment would also require the sentencing court to inform a person who is eligible for expunction of the process for filing a petition. Id. It would also allow the sentencing court to order that a person’s record is not eligible for expungement. Id.
Another important aspect of the proposed amendment is that if a person is granted expunction, then the Department of Justice must redact any record of the crime when complying with public records requests. Id. Furthermore, the expunged record cannot be considered a conviction for employment purposes. Id. Employment discrimination based on a conviction would include requesting a person to disclose information regarding a crime that has been expunged. Id.
In State v. Matasek, the Supreme Court of Wisconsin explicitly found the legislative purpose of Wis. Stat. § 973.015 to be “to provide a break to young offenders who demonstrate the ability to comply with the law and to provide a means by which the trial courts may, in appropriate cases, shield youthful offenders from some of the harsh consequences of criminal convictions.” State v. Matasek, 2014 WI 27, ¶ 42 (WI 2014) (internal quotations omitted). The proposed amendment to Wis. Stat. § 973.015 represents a promising step towards allowing young offenders to re-enter society as productive citizens. Furthermore, it offers an incentive for offenders to avoid committing crimes in the future lest it affect their eligibility for expunction.