INDIANAPOLIS – Thousands of Hoosiers could shield their nonviolent criminal histories from public view – including from prospective employers – under a new law that goes into effect Friday.
Crimes such as theft, drunken driving, forgery and drug use would be unknown to everyone but police, and citizens could legally lie on job applications about their past.
“For that person who made a mistake when they were 20 and now they are 38, we might as well put a tattoo on their forehead saying ‘felon.’ I’m not sure we want to penalize folks for the rest of their life,” said Rep. Eric Turner, R-Cicero. “I just think the good of this offsets maybe some risk.”
Under the provisions of House Bill 1211:
•Hoosiers who were acquitted, had a case dismissed or had a conviction vacated can petition to restrict disclosure of their arrest records.
•Those convicted of a misdemeanor or Class D felony that did not result in injury to another person can petition to restrict the records after finishing their sentence and remaining felony-free for eight years.
•In both these cases, judges are required to grant the petition if the small number of conditions is met. However, police would still be able to access the information.
•Those who have their records sealed are allowed to check “no” when asked on job applications or other documents whether they have been arrested for or convicted of a felony.
The bill does not, however, affect records in the public domain – for example, newspaper articles, blogs, television reports or other places that contain information on the court records.
“You can’t escape your past in terms of law enforcement and the Internet,” said Larry Landis, executive director of the Indiana Public Defender Council.
The new law came as a surprise to many people who have tried for years to loosen Indiana’s rules allowing for the expungement of old convictions.
Turner took over writing the bill from a Democrat this year in hopes of winning Republican support. In the end, he got even more than he hoped thanks to a Senate rewrite of the legislation during the last weeks of the session.
At some point during the General Assembly, the bill comprised only a study of the issue. That’s why Turner was uncertain when he took the final version back to his Republican caucus members, who are usually fearful of being labeled soft on crime.
“I didn’t know how they were going to respond,” he said. “But nobody objected. Then one by one, individual members mentioned a constituent or a family member who could be helped. I just couldn’t believe it.”
Neither could some advocates and others involved in the legal process.
“Oh my goodness, yes I was surprised. Are you kidding?” asked Jill Matheny, director of the Indiana Addictions Issues Coalition. “It’s a huge victory and unbelievable gift from some lawmakers who understand this is an employment issue.”
Many people have drug charges hanging on their record after decades of sobriety that still prevent them from getting jobs or going to school, she said.
“A lot of them find recovery, but if you can’t find a job, it’s hard to put your life back together,” Matheny said.
During discussion on the bill’s final vote, Rep. Kevin Mahan, R-Hartford City, said he spent most of his adult life putting people in jail as a law enforcement officer. But he said he understands youthful indiscretion and minor crimes.
“This is a jobs bill. We can put some people back to work,” he said. “I was hard on crime but very strong on forgiveness. This is the right thing.”
Fort Wayne resident Gerald Zern applauded the bill, saying it could help a family member that he declined to name.
“I think it’s wonderful because when somebody does something wrong and they realize that they did and they are making a point of changing their lives, they do deserve a second chance,” he said.
Zern does think the eight-year gap is too long, though.
“The way the economy is today and the lack of jobs – what can happen in eight years? You can spiral down,” he said. “I understand their thinking of the eight years, but on the other hand, it doesn’t give someone much hope.”
Several other northeast Indiana Hoosiers with felony convictions were contacted by The Journal Gazette to discuss the bill and how it could help their lives but declined to be interviewed.
“After you do the time, the consequences shouldn’t linger,” Landis said.
He noted that defense attorneys have pushed to ease the law for years, but even he was surprised by the breadth of the bill.
Some people are raising concerns while also acknowledging the bill could help thousands of families.
Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, said prosecutors around the state agree that everyone deserves a second chance – to an extent.
He pointed out that the two parts of the bill have very different procedures.
For instance, for a convict to have an arrest record sealed, the prosecutor must be given notice and can object to the factual components of the case during a hearing. Turner said this is important, for instance, if a prosecutor planned to re-file charges against a person.
But there are no notice or hearing requirements for sealing the conviction records – something Johnson disagrees with.
And Landis noted that to shield an old conviction, a convict must not have committed a felony since the original conviction. But there is no prohibition on misdemeanor convictions.
“That might have been an oversight,” he said. “They’ve taken five years to pass an expungement bill, so no, I would not say they rushed. Does it need some refinement? Yes.”
Noble Superior Court Judge Robert Kirsch said he would much prefer that the legislature give judges the authority to review a person’s record and modify felony convictions years later.
He tried to do so in a local drunken-driving case, but his ruling was recently reversed by the Indiana Supreme Court because no law existed to allow such action.
Kirsch especially dislikes the fact that the new law gives judges no discretion.
“It maybe goes too far – even basically giving a person the right to lie to an employer,” he said. “I don’t know if that’s the way we should be going.”
That legalization of perjury is what stopped several legislators from supporting the bill, including small-business owner Rep. Dan Leonard, R-Huntington.
“I’m entitled to know what that person’s background is. I don’t want to send someone with a theft conviction into someone’s home to deliver a sofa,” he said. “They chose to do wrong and they have to live with that. That may be coldhearted, but it’s how I feel.”
Matheny said a few other states have this provision, and in some states, people are pushing even further to ban companies from asking about criminal history.
“It’s a perplexing issue for sure,” she said. “I can see both sides.”
