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After seven years, State Bar to revisit proposed changes to expunction

Criminal defense attorney John Birdsall stands outside his Milwaukee office on Thursday. Birdsall has seen many cases in which clients who are charged with crimes but never convicted are unable to remove the charges from their records on CCAP. The State Bar is revisiting its bid for the Wisconsin Supreme Court to make a change that would let people remove those charges from CCAP. (Staff photo by Kevin Harnack)

Criminal defense attorney John Birdsall stands outside his Milwaukee office on Thursday. Birdsall has seen many cases in which clients who are charged with crimes but never convicted are unable to remove the charges from their records on CCAP. The State Bar is revisiting its bid for the Wisconsin Supreme Court to make a change that would let people remove those charges from CCAP. (Staff photo by Kevin Harnack)

John Birdsall has seen it happen again and again in his 20-plus years of criminal-defense practice: A client is charged with a crime but never convicted.

Yet even with that favorable outcome, the client can’t escape the shadow of the original charges, which have been preserved throughout the foreseeable future by Wisconsin’s Circuit Court Access Program. That program, commonly referred to as CCAP, lets the public look up basic court records online.

Among the things that can be seen free of charge are a person’s name, age and address, as well as whatever crimes they were charged with in a particular case. Disclaimers call on users to remember that suspects are innocent until proven guilty and point out when cases have been dropped.

Still, Birdsall thinks the damaging information about a person is too often the one thing that gets the attention.

“It has huge consequences,” he said. “It’s a serious real-world problem.”

Big changes could be on the way.

State Bar officials are now making plans to put forward a new version of a proposed rule change that would eliminate online records of criminal charges that never led to convictions. The bar called for something similar seven years ago, only to the see the state Supreme Court set the matter to the side for the Legislature to deal with.

Lawmakers tried for several years to put additional protections in place but came up short every time. Now State Bar officials have come full-circle and find themselves once again before the Supreme Court.

Current rules and law allow expunction only in certain situations. Court clerks may expunge records, but only after being directed to by a circuit court or state statue.

Wisconsin statute does let courts order expunction in some cases for people who were 25 years old or younger at the time of their sentencing. Once again, though, there are qualifications. The person cannot get the records eliminated if the felony or misdemeanor he committed carries a maximum prison term of more than six years.

Expunction similarly no longer becomes possible if a person committed subsequent offenses or if his probation was revoked. And certain types of infractions — traffic violations, civil forfeitures and others — cannot be removed.

Worst of all in the eyes of many observers is the near-total absence of any recourse for people who were charged of crimes but never convicted. Those who find themselves in such a pickle often have no means of getting the resulting records removed from CCAP.

Birdsall said that of all crimes, those involving drugs are perhaps the most likely to lead to charges but no subsequent convictions. Court records that linger in cyberspace are one unfortunate result of deferred-prosecution agreements, which let a person get substance-abuse treatment in lieu of being charged or under going continued prosecution.

“(The charge) is still emblazoned on CCAP forever,” he said. “It happens all the time.”

For people with records preserved on CCAP, embarrassment is often the least of their worries. Employers and landlords can use the information to perform background checks, sometimes preventing the affected person from landing jobs, renting apartments or taking out loans.

Erik Guenther, a criminal-defense attorney, has learned over the years that he can achieve a good outcome for his clients in court and still be powerless to protect them from all the unfortunate consequences of their brush with the law.

“That should be a win, looks like a win,” he said. “But even after a criminal case ends in my clients’ favor, I had them coming back to me saying, ‘I am still having problems getting a job, getting an apartment or getting a loan.’”

State Bar officials approached the Wisconsin Supreme Court with a proposal to remove information concerning people who had never been convicted. The justices responded by saying they preferred to give the Legislature time to pass a law aimed at the same goal.

Lawmakers did end up approving changes that increased the age of eligibility for expunction and the offenses for which the remedy would be available. None of their actions, though, did anything for those who had been charged with crimes but never convicted.

The Republicans who control Wisconsin’s statehouse are now coming off a legislative session in which they took an extraordinary amount of criticism for various attempts to curtail access to public records. Having suffered such a beating once, many are now not eager to repeat the experience with a proposal calling for the removal of online information.

Guenther, one of the promoters of the original proposed changes, said lawmakers seemed to have hit an impasse with possible changes to CCAP long before a controversy arose over public records during debates on the state’s budget last year.

After seven years of waiting for action, the high court revived the matter at a rules conference on April 13. The 7-year-old petition survived a motion for dismissal put out by Chief Justice Roggensack, who encouraged the bar to come back with a revised proposal.

The vote was split 3-3. Justice Rebecca Bradley abstained because she was not present for the public hearings and discussions involving the petition. The split vote means the court took no action, but the matter remains open.

The State Bar is planning to submit a proposal that will take the court’s comments and incorporate them into something the court would be interested in adopting, said Guenther. He, other volunteers and bar employees will be charged with the task.

“What we hope to address is protection for those who have not been convicted of a crime but are harmed by not just availability of the record but the publicity of the record through (Wisconsin’s Circuit Court Access Program),” Guenther said. “The failure to address this does real harm to real people who have not been convicted of any crime.”


About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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