10/21/2014 STAGGERING STATISTICS LARGEST BARRIERS CREATED BY CRIMINAL HISTORIES

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1 STAGGERING STATISTICS According to the National Employment Law Project (NELP) there are an estimated 65 million adults which is about one (1) out of every four (4) adults in the U.S. who have criminal records. NELP suggests that 65 million is a conservative number because according to a 2008 survey of states, there were 92.3 million people with criminal records on file with states. As of December 31, 2012, there are an estimated 1.6 million Hoosiers with criminal records. Which means, close to a quarter of Indiana Residents have a criminal record. LARGEST BARRIERS CREATED BY CRIMINAL HISTORIES It is no secret that people with criminal histories face major difficulties with establishing a steady life for themselves once they re-enter society. Four of the biggest difficulties fall in the following areas. Employment Housing Education Social Stigma 1

2 ENACTMENT OF SECOND CHANCE LAW On July 1, 2013, House Enrolled Act 1482 the first version of the expungement law went into effect. On March 26, 2014, House Enrolled Act 1155 the remedy legislation for the expungement law went into effect. Some of the biggest changes in the new law included: Driving License: no longer requires petitioners to have valid driving privilege status. Filing Fee: $ fee was eliminated. Successful Completion of Sentience Requirement: this is no longer required. New law only requires that all court costs are paid in full. Confidentiality : all expungement filings are now confidential Waiting Period Shifts WHAT IS AN EXPUNGEMENT Expungement is the removal of criminal records from public inspection that would come up when one does a Criminal Background Check on you. The results of criminal background checks impact: Employment Loans Education Housing Public Benefits LIMITS ON INDIANA S EXPUNGEMENT LAW Some Organizations will still have access to the record though it will show that it has been Expunged Law Enforcement Agencies (The Police) The FBI State Board of Bar Examiners Others that Subpoena for Access and receive Court Approval 2

3 WHAT GENERALLY CANNOT BE EXPUNGED An elected official convicted of an offense while serving the official s term or as a candidate for public office. A sex or violent offender (as defined in I.C ) Sex Crimes: Most Sex crime offenses, in particular those that require registration on the Sex Offender Registry, crimes such as: Rape Child Molesting Human Trafficking Violent Offenses: Murder / Manslaughter type crimes. ONCE IN A LIFETIME RULE One Time Rule: According to I.C (h), a petitioner may only file one (1) expungement petition during the petitioner s lifetime. Separate Counties Rule: All expungement petitions filed in separate counties for offenses committed in those counties count as one petition if they are filed within one three hundred sixty-five (365) day period. Since petitioners only get one shot to have their convictions expunged, it is critical that petitioners file when ALL of their convictions are eligible and that ALL of their convictions are included in the first petition. 5 MAIN EXPUNGEMENT CATEGORIES The expungement law (I.C ) has 11 sections total, five of which address the classification of crimes that can be sealed. Section 1: applies to arrests that did not result in a conviction. Section 2: applies to misdemeanors and D-Felonies reduced to misdemeanors. Section 3: applies to D felonies that did not result in bodily injury. Section 4: applies to all other felonies that did not result in serious bodily injury. Section 5: applies to all serious bodily injury convictions that are not statutorily excluded. 3

4 IC ARRESTS THAT DO NOT LEAD TO CONVICTIONS Applies to persons who have been arrested if: The arrest did not result in a conviction or juvenile adjudication The arrest resulted in conviction or juvenile adjudication and was vacated on appeal The person is not currently participating in a pretrial diversion program IC REQUIREMENTS A Petition to Expunge and Seal cannot be filed earlier than: One (1) year after the date of arrest, if the person was not convicted or was not adjudicated a delinquent child One (1) year after the date the appellate opinion vacating the conviction or adjudication becomes final The prosecutor may agree in writing to an earlier time frame NOTE: The time frame is from the arrest or when an appeal becomes final and not the dismissal or acquittal. 4

5 IC FILING REQUIREMENTS The Petition must set forth: The date of the arrest The county in which the arrest occurred The law enforcement agency employing the arresting office-if known Any other known identifying information such as the name of the arresting officer, case number or court cause number Petitioner s date of birth Petitioner s Social Security number The Prosecuting Attorney must be served a copy of the petition. IC COURT ACTION-DENIALS The Court may: Summarily deny the petition if it does not meet the requirements of the section or if it indicates that the petitioner is not entitled to relief. IC COURT ACTION-GRANTING OF PETITION The Court SHALL grant the petition UNLESS: Conditions under IC (a) have not been met; or Criminal charges are pending against the Petitioner 5

6 IC EFFECT OF GRANTING THE PETITION Upon granting of the Petition: No information concerning the arrest may be placed or retained in any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional, or statewide law enforcement agency No change or alteration is required in any internal record made by law enforcement agency at the time of the arrest and not intended for release to the public; the record of any court in which the criminal charges were filed; or the records that relate to a diversion or deferral program IC USE OF EXPUNGED RECORDS If a person whose records are expunged brings an action that might be defended with the contents of the expunged records, the Defendant is presumed to have a complete defense to the action. The Plaintiff, in order to recover, plaintiff must show that the contents of the expunged records would not exonerate the Defendant. The Plaintiff may be required to state under oath whether the Plaintiff had records in the criminal justice system and whether those records were expunged. The Defendant may, if such records are denied by the Plaintiff, prove their existence in any manner compatible to the law of evidence. IC CONDITIONS FOR EXPUNGEMENT Eligibility for Relief for: Misdemeanor Convictions D felony convictions( before July 1, 2014) or a Level 6 felony conviction (for crimes committed after June 30, 2014) reduced to a Misdemeanor 1.Five (5) years must have elapsed since the conviction UNLESS the petition contains written consent from the Prosecutor to file the petition earlier 2.There are no charges pending against the Petitioner 3.The person has not been convicted of a crime within the previous five (5) years or within a shorter time period if agreed upon by the prosecuting attorney in writing 4.Petitioner has paid ALL restitution, fines, fees and court costs and satisfied any restitution obligation placed on the person as a result of the sentence Granting an IC petition is mandatory if all statutory conditions are met 6

7 IC CONDITIONS FOR EXPUNGEMENT Eligibility for D Felony Convictions before July 1, 2014 or Level 6 Felony Convictions after June 30, Conviction of a D felony or Level 6 felony not reduced to a Class A misdemeanor AND not involving bodily injury. 1.Eight (8) years must have elapsed since the conviction unless the Prosecutor gives written consent for earlier filing 2.The person has not been convicted of a crime within the previous eight (8) years or within a shorter time period if agreed upon by the prosecuting attorney in writing. 3.There are no charges pending against the Petitioner 4.Petitioner has paid ALL, fines, fees and court costs and satisfied any restitution obligation placed on the person by the court 5.Person was not convicted of a felony that resulted in bodily injury to another persons. Granting of this petition is mandatory if all statutory conditions are met. IC CONDITIONS FOR EXPUNGEMENT Felony Convictions: IC Felony offenses not described in IC , can not be expunged under IC and offenses that are not forbidden by statute 1.Available not earlier than the later of eight (8) years from the date of conviction or three (3) years from the completion of the person s sentence unless the Prosecutor gives written consent for earlier filing 2.The person has not been convicted of a crime within the previous eight (8) years or within a shorter time period if agreed upon by the prosecuting attorney in writing 3.There are no charges pending against the Petitioner 4.Petitioner has paid ALL fines, fees and court costs and any restitution obligations placed on the person as part of the sentence 5.Petitioner was not convicted of a crime that resulted in serious bodily injury to another person Granting of this petition is discretionary with the Court IC CONDITIONS FOR EXPUNGEMENT Sealing /Expungement of Specific Felony Convictions: IC The Petitioner must have the written consent and approval of the Prosecutor to file under this section Felony offense that resulted in serious bodily injury to another person Felony offense committed by an elected public official during the official s term or while a candidate for public office 1.Available not earlier than the later of ten (10) years from the date of conviction or five years from the completion of the person s sentence unless the Prosecutor gives written consent for earlier filing 2.The person has not been convicted of a crime within the previous ten (10) years or within a shorter time period if agreed upon by the prosecuting attorney in writing 3.There are no charges pending against the Petitioner 4.Petitioner has paid ALL fines, fees and court costs and any restitution obligations placed on the person as part of the sentence Granting of a petition under this section is discretionary with the Court 7

8 MANDATORY V. DISCRETIONARY Mandatory: Petitions filed under sections 1 through 3 shall be granted if the petitioner has meet all of the requirements. Prosecutor has not statutory basis to object. Fact based arguments will not sway judges decision if all requirements met. Discretionary: Petitions filed under sections 4 and 5 may be granted if the petition has meet all of the requirements. Even if all of the statutory requirements are met, the court does not have to grant the petition. Prosecutor can make fact based arguments for why the petition should not be granted. Some factors judges may consider include: 1. Length of time since petitioners last petition 2. The nature of the offense 3. Positive or negative activities petitioner has participated in since last conviction 4. Victim s testimony SEALING V. MARKING AS EXPUNGED This Second Chance Law does not treat all criminal records the same. I.C ( section 6 ) and I.C ( section 7 ) highlight the differences. Mainly, criminal records that have been ordered expunged are either sealed or marked as expunged. SEALING (Section 6) Applies to all convictions expunged under sections 2 and 3 Records will remain permanently sealed from public access Marked as Expunged (Section 7) Applies to all convictions expunged under sections 4 and 5 Records remain public, but must have a notation on the persons record that the conviction has been expunged IC SEALING OF THE RECORDS: SECTIONS 2 AND 3 Granting of Expungement in Sections 2 or 3 will result in having the records permanently sealed in: The sentencing court The juvenile court Indiana Court of Appeals and/or Supreme Court if the case had been appealed. The granting of the petition under sections 2 or 3 does not affect an existing or pending driver s license suspension. 8

9 IC AVAILABILITY OF EXPUNGED RECORDS UNDER IC AND 3 Records Sealed under IC and 3 may be disclosed only to: Prosecuting Attorney if authorized by Court and needed to carry out official duties Defense Attorney if authorized by Court and needed to carry out official duties Probation Department if authorized by the Court and needed to prepare a presentence report (PSI). Probation may provide an un-redacted version of a PSI to any person authorized by law to receive it FBI and Department of Homeland Security in compliance with sharing of criminal history agreements Indiana Supreme Court and the State Board of Law Examiners to determine necessary good moral character of an applicant for admission to the bar Person required to access expunged records to comply with the Secure and Fair Enforcement for Mortgage Licensing Act IC ACCESS TO SEALED/EXPUNGED RECORD FOR THE PROSECUTOR Petitions for Release of sealed/expunged Records Prosecutor may submit a written application to the court that granted the expungement petition to gain access to permanently sealed records if the records are relevant to a new prosecution of the petitioner If granted, the Court shall order the records to be unsealed and allow access to the records. If the records are admitted into evidence in a new prosecution that results in a new conviction or used to enhance a sentence imposed in the new conviction, the court is NOT required to reseal the records. Otherwise the records shall be ordered resealed at the earliest possible time after the reason for unsealing ceases to exist. IC EXPUNGEMENT ORDERED UNDER SECTIONS 4 AND 5 Court Records and other public records relating to the arrest, conviction or sentence remain public records. However, the court must order that the records be clearly and visibly marked or identified as being expunged. The granting of the petition under sections 4 or 5 does not affect an existing or pending driver s license suspension. State Police, BMV and other law enforcement agencies in possession of records ordered to be marked expunged must add an entry to the person s records that the arrest, conviction and/or sentence is expunged. 9

10 IC INFORMATION THAT MUST BE INCLUDED IN EXPUNGEMENT PETITION THE PLEADING MUST INCLUDE: 1. The petitioner's full name and all other legal names or aliases by which the petitioner is or has been known. 2. The petitioner's date of birth. 3. The petitioner's addresses from the date of the offense to the date of the petition. 4. A certified copy of petitioner s records from the bureau of motor vehicles. 5. The petitioner shall affirm that no criminal investigation or charges are pending against the petitioner. 6. The petitioner shall affirm that the petitioner has not committed another crime within the period required for expungement. 7. The petitioner shall list all convictions and the date of the conviction and any appeals from the conviction and the date any appellate opinion was handed down if applicable. 8. The petitioner shall affirm that the required period has elapsed or attach a copy of the prosecuting attorney's written consent to a shorter period. 9. The petitioner shall describe any other petitions that the petitioner has filed under this chapter. 10.The petitioner shall provide evidence that the paid all fines, fees, court costs and satisfied any restitution obligation imposed on the person as par of the sentence. 11.The petitioner may include any other information that the petitioner believes may assist the court For a petition filed under section 5 of this chapter, the petitioner shall attach a copy of the prosecuting attorney's written consent. IC SERVICE AND NOTIFICATION A copy of the Petition must be served upon the Prosecuting Attorney. The Prosecuting Attorney shall inform the victim of the victim s rights under IC by contacting the victim at the victim s last known address. Respond within 30 days of receipt of filing. IC COURT RULINGS Court may grant petitions if the Prosecutor does not object without having a hearing Court may summarily deny the petition if it does not meet the requirements of IC or if the statements in the petition demonstrate the petitioner is not entitled to relief If the Prosecutor objects, a hearing shall be set not sooner than 60 days after service to the Prosecutor A victim may submit a written or oral statement in support of or in opposition to the petition at the time of the hearing The petitioner must prove by a preponderance of the evidence that the facts alleged in the verified petition are true The granting or denial of a petition is an appealable final order. 10

11 IC (G) (H) FILINGS Petition for Expungement of convictions must be filed in the county of conviction. Petition for Expungement must consolidate all convictions from the same county into one petition. All Petitions for Expungement must be filed with in those counties within one (1) 365 day period. A petitioner may file a petition for expungement only one (1) time during the petitioner s lifetime per county. IC DENIAL OF RELIEF Sections 2-3: Petition for Expungement denied in whole or in part may file a subsequent petition for expungement with respect to one (1) or more convictions included in the initial petition that were not expunged. Sections 4-5: Petition denied due to court s exercise of discretion under sections 4 or 5 may file a subsequent petition after the elapse of three (3) years from the date on which the previous expungement conviction was denied. IC (I) BEST INTERESTS OF JUSTICE AND GOOD FAITH PETITIONS Petitioner may, if permitted by the Court, file a subsequent petition with respect to one (1) or more convictions not included in the initial petition only if the Court finds: 1.Permitting the filing is in the best interest of justice, and 2.The petitioner intended in good faith to comply with the provisions of 9 (g) and (h) and the failure to comply was due to: a) Excusable neglect or b) Circumstances beyond the petitioner s control 11

12 EFFECTS OF A GRANTED PETITION A granted petition under this law protects petitioners with criminal histories in several key ways including: 1.Unlawful Use of Expunged Information 2.Civil Rights Restoration 3.Change in Job Application Language 4.Unlawful Discrimination Clause 5.Confidentiality 6.No waiver of expungement in pleas 7.Treated As Never Convicted IC UNLAWFUL USE OF EXPUNGED INFORMATION It is unlawful discrimination because of a conviction or arrest record expunged or sealed for any person to: 1.Suspend 2.Expel 3.Refuse to employ 4.Refuse to admit 5.Refuse to grant or renew a license, permit or certificate necessary to engage in any activity, occupation or profession 6.Otherwise discriminate against; any person because of a conviction or arrest record expunged or sealed under the law. IC RIGHTS OF PETITIONER Civil Rights of a person who's conviction has been expunged shall be restored including: 1. the right to vote, 2.hold public office 3.and to serve as a juror. 12

13 JOB APPLICATION LANGUAGE Any application for employment, license or other right or privilege a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests. Statutory suggested language: Have you ever been arrested for or convicted of a crime that has not been expunged by a court? UNLAWFUL DISCRIMINATION Any person that discriminates against a person who has been granted expungement commits a Class C infraction and may be held in contempt of the court ordering the expungement. Any person may file a written motion of contempt to bring an alleged violation to the attention of the court and is entitled to injunctive relief. CONFIDENTIALITY A petition for expungement and an order for expungement are confidential. An expunged conviction is not admissible as evidence in an action for negligent hiring, admission or licensure against a person or entity who relied upon the order. 13

14 IC NO WAIVER OF EXPUNGEMENT IN PLEAS A person may not waive the right to expungement under this chapter as part of a plea agreement. An purported waiver of the right to expungement is invalid and unenforceable as against public policy. This does not prohibit the finding of a waiver of the right to expungement based on a failure to comply with the provisions of chapter. TREATED AS NEVER CONVICTED! I.C (d): A person whose record is expunged shall be treated as if the person had never been convicted of the offense. WHAT NOW? 14

15 LIST OF ITEMS TO BE OBTAINED BEFORE FILING FOR AN EXPUNGEMENT Indiana State Police Limited Criminal History report. Limited Criminal History report from each Indiana county where you have lived or might have been arrested. Certified copy of Indiana BMV Official Driver s Record. Chronological Case Summary (CCS) for each conviction (obtained from the county clerk). List of all addresses where you have lived since the date of commission of your first offense. (This may be compiled by you, but must be consistent with all addresses listed in your Indiana BMV Official Driver s Record). If you have resided outside of Indiana: A state police criminal history report from every state where you have lived since the commission of your first offense. A state driving record for every state where you have lived since the commission of you first offense. STEP 1. GET YOUR COMPLETE CRIMINAL CASE HISTORY Indiana State Police Limited Criminal History County Criminal History Report / Chronological Case Summary from the County Court house Need to show proof that court costs, fines, fees, and Restitution were paid STEP 2. GET YOUR OFFICIAL CERTIFIED DRIVING RECORD Can only be done online through Indiana BMV website and is required even if you have never been a licensed driver in Indiana MUST be the OFFICIAL CERTIFIED RECORD 15

16 STEP 3. GET OFFICIAL DOCUMENTS FROM PROBATION, COMMUNITY CORRECTIONS, AND OR INDIANA PAROLE IF NECCESSARY If you had to pay restitution in particular you may need a letter from probation / parole showing that you satisfied that obligation. You may also be able to get a print out showing that you have paid everything from the county clerk / courthouse. STEP 4. GET YOUR PERSONAL ITEMS Your full legal name including any other maiden names or aliases that you have gone by Your date of birth A list of all your home addresses, starting with the date of the earliest conviction you are seeking to expunge up to and including your current address A statement that there are no current criminal investigations or charges pending against you A statement that you have met the applicable waiting period for expungement or you are providing written consent from the county prosecutor agreeing to a shorter time. A list of ALL convictions on your criminal record A list of any other expungement petitions you have filed previously or concurrently including the county, case number, and filing date of the same. STEP 5. FILL OUT THE PETITION AND FILE IT WITH THE COURT Complete the appropriate form as directed for the specific type of conviction(s) you are trying to expunge. Attach to your completed form the appropriate supplemental information which should at least include your Indiana State Police Limited Criminal History Form and Your Certified Driving Record and any documents from probation / parole as appropriate. Carefully read over all your forms and attachments to make sure they are true, correct, and complete. Make at least Four (4) Copies of your completed papers (One for the Prosecutors Office, One for the County Clerk, One for the Judge, and One to keep for your own records). Take your forms to the Clerk s office and file them making sure to get back at least one copy for your records. Serve a copy of the petition on the County Prosecutor s Office for any expungement sought. Make sure to regularly check the mail for correspondence from the court including information on a possible potential court date. 16

17 STEP 7 POST EXPUNGEMENT Once your expungement is granted the Court will mail you a copy of the Expungement Order showing the same. IT IS YOUR RESPONSIBILITY to provide copies of this order to the court so that the court can send the granted orders to the applicable agencies. PARTIES TO SEND EXPUNGEMENT ORDERS TO The Indiana Department of Correction The Bureau of Motor Vehicles Indiana State Police Records Division Clerk of the Appellate Courts For the County in which your record was expunged send notice to the: 1. County Clerk s Office 2. County Probation Department 3. County Sherriff The Law Enforcement Agency that arrested the Petitioner Any provider that provided services or treatment to Petitioner as a result of the criminal sentence 17