The Curious Nature of Expunged Offenses
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.