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Sunday, September 21, 2014 |  Madison, WI: 48.0° F  Fair
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Crimes of omission
Proposal to obliterate past offenses needs closer look

I believe in second chances. Good people sometimes do bad things, but they can learn from their mistakes. Young folks, especially, deserve forgiveness. It's the right thing to do.

For these reasons, I support an expansion of expungement - the wiping clean of criminal convictions for people who serve their sentences and meet conditions set by a judge. But the expungement provision that Gov. Jim Doyle and key Democrats sneaked into the state budget bill stinks to high heaven.

This measure has no fiscal impact, so putting it in the budget is an abuse of process. This is being done, one Democratic lawmaker told me, because if it were introduced as stand-alone legislation, it would never pass.

It shouldn't.

Under current state law, expungement is available only to persons convicted of misdemeanor offenses that occurred before they turn 21. The governor's provision would extend this to age 25 and include some felony offenses.

"The intent is to give people a chance to move past a mistake," a Doyle spokesperson told the Milwaukee Journal Sentinel. "We want to give them an opportunity to move forward with a clean slate."

That sounds reasonable. But it's not.

The main goal is to keep this information from showing up on WCCA, the state's online circuit court records system, commonly (and incorrectly) called CCAP. Doyle and the Dems want to make it impossible for the public to learn that an expunged offense ever happened.

Some of the downsides to this approach were identified by a Legislative Council committee on expungement in 2006. That committee included lawmakers, judges, prosecutors, defense attorneys and even me, as a representative of the media. And although nothing came of our work, the committee as a whole favored expanding expungement eligibility to all first-time misdemeanor offenses, regardless of age.

Expungement, like a dismissal in a deferred prosecution, means a person can honestly answer "No" when asked on a job application, "Have you ever been convicted of a crime?" Among other things, providing this option creates an incentive for good behavior.

Where we drew the line - and where the state should draw it still - is over the purging of records.

If a significant number of criminal convictions are expunged from WCCA and circuit court files, those records will be deemed incomplete and unreliable. This will be a boon for private providers that cull this information from WCCA before it's expunged, then offer it for a fee.

The problem is that the data compiled by these private providers cannot be readily corrected, as with the state's system. WCCA also takes pains to present information in a light favorable to those charged with crimes: stated presumptions of innocence for pending and dismissed charges; fields that most prominently display ultimate convictions, not initial charges; explanatory language when a deferred prosecution results in a dismissal.

The lawmaker I spoke with (who declined to be quoted) nonetheless favors reining in WCCA to curb abuse. He argued that the system is used mostly to satisfy idle curiosity, stressing that WCCA gets the most "hits" just after bar time, when people check up on folks they've met.

This is completely false, according to Jean Bousquet, the keeper of WCCA: "Our busiest times of use are during the day Monday through Friday." But it's the kind of misperception that thrives when legislation is not openly debated.

Other false assumptions are at work. The governor and others want this change to keep employers and others from discriminating against those who've committed youthful indiscretions. They think the only way to curb the misuse of information is to suppress the information.

In fact, the state of Wisconsin has perfectly good laws that bar employers from discriminating against applicants based on criminal convictions not substantially related to a given job. Maybe it should enforce those, not chip away at the public's right to know.

Of course, if Doyle's provision passes, there will be great pressure to remove other kinds of data. It's started already, with calls to blot out the names of all people charged with crimes that don't lead to convictions (see web story, "Making Responsible Use of Information," 4/12/09).

But worst of all, expanding these exemptions feeds into the notion that it is okay to discriminate against people whose information is not made to disappear from public databases.

State Rep. Robin Vos (R-Racine), chair of the Legislative Council committee on expungement, opposes the governor's plan.

He thinks it goes too far, in applying potentially to multiple offenses and even such felonies as identify theft. "A person can steal your identity, charge up your credit card and ruin your credit, and then get their record wiped clean?" he asks incredulously.

And Vos agrees expungement "is just kind of window dressing" that won't stop employers from learning who's been charged or convicted. He vows to fight this provision on the floor when the budget is finalized, likely in June.

Hooray for that.

Let's have an honest debate over the merits of expungement - who it should apply to and under what circumstances. Passing this change in current form is simply unforgivable.

Bill Lueders is news editor of Isthmus and president of the Wisconsin Freedom of Information Council.

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