Monday, January 5, 2015

Expunction junction, what’s your function?

There were two Wisconsin cases this past year – Hemp I and Hemp II – on expunction of criminal records for young people convicted of relatively minor crimes.  Aside from the substance of those cases, Hemp II may have put to bed a debate that my colleague Terry Rose and I were having against the director of state courts back in 2010.  In a nutshell, the director put out a pamphlet stating that, even after expunction, “If you are asked if you have ever been convicted of a crime, such as on a job application, you must answer ‘Yes.’ ”  We disagreed.

Terry Rose and I argued that this was absurd.  We stated: “The most common, if not sole, benefit of expunction involves employment opportunities. In fact, judges have granted our clients expunctions because we proved that they had been denied jobs due to their convictions. If a citizen would still have to inform employers — and others, for that matter — that he has been convicted of a crime, even after expunction, then the process of expunction would be stripped of most, and probably all, of its value.”

And now, in Hemp II, our state’s highest court was clear: “Expungement offers young offenders a fresh start without the burden of a criminal record . . . Indeed, expungement allows offenders to present themselves to the world – including future employers – unmarked by past wrongdoing.”  Further, expunction provides young people “a fresh start, free from the burden of a criminal conviction.” (Internal citations and quotations omitted.)   

This isn’t groundbreaking jurisprudence.  Rather, it states what was obvious to nearly everyone.  It is still true that only court records, and not police records or other public law-enforcement records, are expunged; however, letting those records dictate how a person answers a question on a job application – especially when the now-expunged court record no longer exists to corroborate those records – could be a bit like letting the tail wag the dog.

It is also true that a person could choose to disclose an expunged conviction to would-be employers by answering yes to an application question, and then “explain that your record was expunged and explain the circumstances of your case and why it was expunged.”  But in light of the Hemp cases, this approach would seem to defeat the very purpose of expunction.  At the very least, the Hemp cases seem to make disclosure a strategic choice for the applicant, rather than something the applicant “must” do. 

But even before the Hemp cases, we were baffled that the director took the the position he did.  What ever happened to consulting the dictionary?  “Expunge: to strike or blot out; erase; obliterate; efface; wipe out or destroy.”


  1. Michael, I get your point and have a tough time disagreeing. But to play devil's advocate in favor of "strategic choice," wouldn't the 'dog-wagging' facts, i.e., existing and unexpunged police arrest records, insidiously unfair but prolific online mugshot websites, etc., undercut the 'obliterated' truth of the asserted result?

  2. Mo, good points. The electronic era in which we live may have taken a big bite out of the expunction statute (despite the court's grand language about getting a clean slate with employers). However, the law enforcement records that I've seen are good for arrest data but are notoriously bad with regard to charges filed and their disposition; our state's on-line court record, on the other hand, is much more accurate with regard to those matters. And with the on-line court record showing no conviction or even a criminal case, a job applicant would have a leg to stand on in asserting that he or she has no criminal record (if he or she decides to take this position). As far as online mugshot websites, I don't know much about them -- though I do recall someone saying you can pay them an extortion fee to have your picture removed. C'est la vie, I suppose.