Expungement… Not Just for Youthful Offenders Anymore (Hopefully)

April 8, 2019

In February 2019, the Wisconsin legislature began another attempt to resurrect the post-conviction expungement legislation that failed last session.

The current Senate Bill (SB39) and Assembly Bill (AB33) would allow for individuals to petition even if expungement had not been agreed upon at the time of sentencing, as required under current case law.  The bill also removes the age requirement (the current statute requires the individual to be under the age of 25), the statutory maximum penalty restriction (the current statute requires the statute of conviction can only carry a penalty of six years or less), and creates a one-year waiting period to be eligible to petition.  The current bill also creates some additional requirements that are consistent with the intent of the current statute.

Wisconsin’s current expungement statute, section 973.015 of the Wisconsin Statutes, allows courts, at the time of sentencing, to order a defendant’s conviction to be expunged after “successful completion” of a sentence, if the defendant is under age twenty-five at the time of conviction and the offense has a maximum period of imprisonment of six years or less. This statute gives the court a chance to “shield youthful offenders from some of the harsh consequences of criminal convictions.” State v. Matasek, 2014 WI 27, ¶ 42.

While the purpose and scope of section 973.015 seem straightforward at first glance, the courts have interpreted parts of the statute to limit access to expungement. The Wisconsin courts have also narrowly interpreted what it means to “successfully complete” a sentence. The recent trend has been to answer these questions in favor of narrowing the availability and scope of expungement under Wisconsin law.

The committee notes to section 973.015 define “expunge” as “to strike or obliterate from the record all references to the defendant’s name and identity.” Comm. Note to Wis. Stat. § 973.015(3) (citing 67 Wis. Op. Atty. Gen. 301). However, in practice, the courts have limited the efficacy of expungement. Yes, the criminal record is “erased,” but the police and some other governmental entities can still view the arrest. The court records can still be accessed by some individuals, despite removal from CCAP. Additionally, the record is still accessible in the Wisconsin Department of Justice’s Crime Information Bureau (CIB) database and the Criminal Justice Information Services Division of the federal Department of Justice’s National Crime Information Center (NCIC) database.

Recently, the Supreme Court has expanded the scope of using of an “expunged conviction.” In State v. Allen, 2017 WI 7, the criminal background check contained in the Pre-Sentence Investigation Report detailed the incident behind the defendant’s “expunged” record: “This incident involved a fight with another boy at high school and he was charged because the other boy lost a tooth in the fight.” Id., ¶ 10. Although the report acknowledged that the record was “officially expunged,” the circuit court sentenced more harshly based on the facts of the prior offense, noting that Allen “had an opportunity to learn something from that [occasion].” Id., ¶ 12. The Supreme Court affirmed the circuit court, holding that, even where a record is expunged, many (if not all) of the incriminatory details are still available for a sentencing court’s review and can factor into the court’s subsequent sentencing decision.

While the courts have consistently limited expungement, the legislature continues to consider changes in the opposite direction. A series of failed legislative efforts would have expanded the expungement statute. Assembly Bill 1005 would have allowed defendants to petition for expungement of records related to a criminal prosecution after either acquittal or dismissal of charges. Assembly Bill 1004 would have required expungement of records related to a criminal prosecution where the defendant was found not guilty or the conviction was reversed on appeal. Assembly Bill 1008 would have allowed courts to consider expungement after a defendant served their sentence, rather than only at the sentencing hearing. And, Assembly Bill 331, maintained the age requirement and did not create a waiting period to petition.  Despite AB 331 being the first proposed bill with bipartisan authorship, it also failed.  It is unclear what the fate of the current legislation will be.