The Curious Nature of Expunged Offenses

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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Roughly six years ago the Wisconsin Legislature amended the expunction statute to permit certain felonies to be expunged. At the same time, the Legislature also permitted expunction for older offenders. Previously, defendants had to be under 21 to secure the benefits of expunction. Under the newly revised statute, defendants under 25 could now have certain crimes removed from their record.

Since the expunction statute was altered, Wisconsin law has been in disarray when it comes to analyzing the framework of expunction. For decades, judges had always “reserved” a defendant’s right to seek expunction. This was logical – judges naturally wanted to see how a defendant would do on probation before making the final decision. But the Court of Appeals, in an unfortunate ruling, found that the expunction statute barred such an approach. Now, judges have to do their best to analyze the proverbial “crystal ball,” making the decision to confer expunction at the time of sentencing, as opposed to making the decision after two or three years of probation.

To make matters worse, circuit court judges are not speaking with a uniform voice when it comes to the benefits of expunction. Some judges tell defendants that expunction has only limited utility – these judges advise defendants that the only benefit to expunction is to remove a case from public view (i.e. CCAP). Other judges advise defendants that an expunged offense restores that defendant to the position he occupied before conviction (i.e. a clean slate). Other judges say something in between. And yet others will simply confess ignorance, telling defendants they should ask their lawyer for an opinion.

This chaos can be easily rectified. The Attorney General’s Office ought to issue an opinion making clear that expunged offenses do not count as criminal convictions. That way, circuit court judges, defendants and attorneys will have guidance on what “expunction” truly means. Wisconsin law is clear that expunged offenses cannot be used at subsequent sentencing hearings, cannot be used for impeachment at trial under Wis. Stat. 906.09(1), and cannot be used for “repeater” enhancement purposes. And, under federal law, expunged felonies cannot be used as a predicate crime to prosecute a person for Felon in Possession of a Firearm.

As more and more behavior becomes criminal and as Wisconsin continues to become the outlier in prosecuting marijuana possession, it is imperative that guidance be provided. Governor Walker has made clear he does not grant pardons. Thus, the only route many defendants can pursue to clear their records (and reputation) is expunction. Attorney General Schimel is in the best position to take the lead on this important issue and to provide clarity to circuit court judges, so that they can answer one of the most frequent questions asked of them. He ought to do so, sooner rather than later.

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