ON THE DEFENSIVE: Legislature should clarify expunction complexities

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Under Wisconsin law, certain young offenders are entitled to have their criminal conviction expunged from their record.

Until 2009, the expunction statute only applied to offenders who were under 21 when they committed a misdemeanor offense.

In June 2009, the Wisconsin Legislature amended the statute in two significant ways: the eligibility age was increased to 25 and certain felonies could now be expunged.

The intent of the Legislature was clear: more people, for more crimes, deserve the benefits of expunction.

Since 2009, however, the Court of Appeals has issued a series of decisions making it harder for individuals to secure this benefit.

The first question was one of fairness. Should certain defendants who had the misfortune of committing their crime before June 29, 2009, be denied a benefit that defendants who committed their offense after June are plainly eligible for? In 2012, in State v. Meinhardt, the Court of Appeals unanimously answered that question in the negative.

Consider the staggering impact of this decision. Picture two identically situated 21-year-old college students: one who sold a gram of marijuana before June 29, 2009, and one who sold it after. Separated by nothing more than an arbitrary date, one defendant could be a felon for life while the other could have his court file sealed and thus be able to present himself to employers as having no record.

Until recently, many judges handled expunction in a common-sense manner. Instead of ordering expunction at sentencing, judges would instead reserve the defendant’s right to seek expunction until the sentence was complete.

Judges did this because the future is unpredictable, and they wanted the opportunity to assess whether the defendant had been sufficiently rehabilitated.

In April, however, the Court of Appeals upended this practice. In State v. Matasek, the court held that 973.015 does not permit judges to defer the expunction decision. Consequently, every defendant who had his expunction right “reserved” was thrown into limbo.

The Court of Appeals offered no guidance to any of the judges who had been handling expunction differently.

As a result, different judges are handling post-Matasek expunction in different ways. Some still grant expunction because the right was reserved. Other judges are denying expunction, because Matasek holds that it needs to be specifically ordered at sentencing. Others are declining to rule until after the state Supreme Court weighs in.

The intent of the Legislature was abundantly clear: more people, even felons, deserve to have their offenses expunged. Since the Court of Appeals appears bent on restricting this right to as few defendants as possible, the

Legislature should step in and correct these rulings.

It is only fair to make this statute retroactive and permit judges to rule on expunction after the defendant has completed his or her sentence.