Cleaning the Slate – Indiana’s New Expungement Law, Part Two

*If blog reading seems a little too 2007 and you prefer YouTube, then check out my recent video about Indiana’s expungement law. While you’re there, subscribe and comment!*

The previous entry detailed the mechanics of Indiana’s new expungement statute and what it means for those with criminal histories.  But what about the HR department that makes hiring decisions?  Employers need to know what they can and can’t do in hiring and promotion decisions.

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Can job applicants make criminal records disappear?

Every hack stage magician learns to bring drama and pomp to a trick with a cloud of smoke and some magic words.  The magic words brings drama and officialness to pulling a rabbit out of a hat.  The law has magic words, too.

“Do you swear or affirm that you will tell the truth, the whole truth and nothing but the truth?”  Alakazam!  “We find the defendant guilty beyond a reasonable doubt” Abracadabra!

Employers have had magic words on job applications for years.  Often, these words pose the question, “Have you ever been convicted of a crime?” That question will need to change.  The new expungement law requires that businesses consider only non-expunged records.  So, the magic words will need to limit the question a bit, to “Have you ever been convicted of a crime which has not been expunged?” Open Sesame.

Discrimination on the basis of an expunged record is illegal.  An employer that refuses to hire (or promote) someone based on the person’s expunged record not only violates the new law, but opens itself up to civil litigation as well.

The tension comes in the fact that the digital age offers a wealth of information.  Expunged record requests don’t remove records from newspaper website archives or
Google history searches or any other place on the web.  Employers would do well to adopt policies prohibiting unapproved searches in advance of employment decisions.

Bad things await employers who don’t adapt to the new expungement law: civil infractions, contempt of court, and possible discrimination lawsuits await unwary employers.  It might not be getting-sawed-in-half bad, but still.

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Cleaning the Slate – Indiana’s New Expungement Law, Part One

Records “expunged” under the new law are either sealed by court order or identified as expunged. Records are not destroyed.

So Indiana has a new expungement law.  It just might be a hot mess.  Not so much for you or me, but if you have a friend or relative working for a local clerk’s or sheriff’s office managing arrest or conviction records, be prepared.  Draw that person a hot bath and make sure you have some Excedrin in the house.  There are more than a few migraines in the on deck circle.

This is the first of two blog entries about the new law.  Next time I’ll examine the impact on courts and employers, but today I’ll describe the basic mechanics of the statute.

Here are 5 things you should know:

1. Expungement ≠ Destruction

Records “expunged” under the new law are either sealed by court order or identified as expunged.  Records are not destroyed.  Rest assured, once the government makes a record, it won’t give it up for good.  May your paranoia live on in all its grandeur.

2. Limit one expungement per customer (sort of).

Each individual gets one expungement request, that’s it.  One clean slate.  But the petition must be brought in the county where the conviction took place.  If the person has multiple convictions, he has to bring the request in a single petition.  If he has convictions in multiple counties, the petitions in each county must all be brought within one year, and that will be considered a single request.

stacksnew3. Discretion is limited.

For arrest records, misdemeanors, and D Felonies (the least severe rung on the felony ladder), the individual only needs to meet certain criteria called for in the statute. He doesn’t need to convince the judge that the expungement is a good idea.  If he meets the requirements, the law says the court “shall” grant enter an expungement order.  For more serious crimes, the court “may” enter such an order and for the most serious of eligible crimes, the prosecutor’s consent must be obtained, making expungements for many moderate and serious felonies a rarity.

4. Keep it clean.

It’s no surprise that an individual asking the court to expunge a record of a conviction has to have a clean record since the conviction, and must have successfully completed the entire sentence.  But it also requires that there be no active or pending driver’s license suspension–even if the suspension is not related to the conviction.  So  as Johnny Cash says, “Walk the Line.”

5. Watch for Arresting Developments

Indiana’s new expungement law also applies to arrests.  Essentially, any arrest which did not result in a conviction (or the conviction was overturned on appeal) may be expunged.  This means that it will no longer be accessible without a court order.

Frankly, even though this portion of the law is the simplest, requiring only a showing that the arrest is one year or more old and did not result in a conviction, it may be the hardest to enforce.  Law enforcement agencies make records of arrests and investigations that follow.  Except for records involving juveniles or those which are part of an ongoing investigation, these are public records.  I expect that law enforcement agencies will now have to segregate expunged records in a manner that has not previously existed, which may be painful and, in some cases, expensive.

Next time: What Expungement means for employers and the rest of us.