INDIANAPOLIS – The only matter made clear during Thursday’s hearing regarding a law meant to shield old criminal convictions was that numerous problems exist with its implementation.
County clerks complained about being held liable for errors and not having enough staff to redact oodles of court documents.
Criminal history providers pointed to parts of the law that conflict with federal regulations and could be illegal.
Chris Lemens, executive vice president and general counsel for website backgroundchecks.com, told the Criminal Law and Sentencing Policy Study Committee that if the law stays as is, the industry would have no choice but to challenge its constitutionality.
After several hours, little was decided by the group. When Chairman Greg Steuerwald, R-Avon, pushed for committee suggestions for draft language, several members simply said “we need more information.”
Staff attorneys have now been directed to look into legal questions and how other states are handling similar issues.
Two years ago, the General Assembly adopted a law to help people who had been convicted of a non-violent misdemeanors or low-level felonies years earlier but have had no further felony convictions for at least eight years. The concept was to give those offenders who paid their debt a second chance.
The law allows such Hoosiers to ask the courts to seal the records of their conviction from the public, but not from the courts or law enforcement officers.
Judges don’t have an option; the law states they “shall” order the records sealed.
And these Hoosiers are then legally allowed to lie on job applications and other official documents regarding those arrests and convictions.
Indiana State Police, so far, have received 1,700 court orders to seal criminal records.
Then earlier this year, legislators followed up. While some employers might obtain information about convictions from the courts, others may use a private company that collects and distributes information about criminal convictions for a fee. This kind of background information is also compiled for credit checks, some volunteer organizations and professional licensing. Information about convictions would remain in their databases even if it’s hidden in the courts’.
So the legislators prohibited “criminal history providers” from distributing information about convictions that have been sealed in the courts.
That portion of the law isn’t effective until July 2013.
Several county clerks, on behalf of their statewide association, testified Thursday about how difficult it is to comply with changing all the records, especially ones on microfilm or paper. They will need to hire additional staff and restrict access to records until they can be reviewed.
The clerks are also concerned they could be sued for damages if they didn’t redact the information properly.
Committee members felt clerks were already protected from legal liability in the law, but agreed to clarify it. The group had no response to staffing and logistical concerns.
Next up came criminal history providers, including LexisNexis, who have banded together as a group of competitors to address issues in the law.
Lemens listed a number of problems:
He first said the law needs to apply to only current Indiana residents. As written, the law would cross state lines and affect employers in another state running background checks on a person who once lived in Indiana but now lives elsewhere. Providers would not be allowed to include certain convictions on that criminal history report.
Also, the law prohibits disclosure of a criminal case with no conviction, which commonly involves a dismissal. But he pointed to the federal Fair Credit Reporting Act that conflicts, saying arrests can be reported for a certain number of years.
Lemens then noted any attempt to regulate the truthful reporting of information could be unconstitutional under the First Amendment.
He said some states have full expungement laws – where convictions are literally erased – and those states send notices to criminal history provides from a central repository to remove the information from their databases.
Under Indiana’s law the convictions still exist – they are just shielded from public access. And it puts the responsibility on the providers to figure out whether an old record has changed. They also can be sued for damages.
Indiana doesn’t have a centralized court system, instead relying on 92 county clerks.
The committee has several more meetings scheduled.
