inwin second chance project

1The Initiative for Northwest Indiana Expungement

INWIN Second Chance Project

The Initiative for Northwest Indianaa project of the Chicago Lawyers’ Committee for Civil Rights

Renee Hatcher, Staff Attorney

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"I believe in second chances, once you've done your time.“

–Governor Mike Pence

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Incarceration, Reentry and Recidivism

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Incarceration in the United States

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๏ In 2010, more than 2.3 million adults were incarcerated in the U.S.

๏ By age 23, approximately 1/3 of Americans have been arrested.

๏ In 2010, African- Americans were 14% of the population but constituted 28% of all arrests.


Reentry in the United States

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๏ Every year, nearly 650,000 people are released from prison, seeking a second chance to reintegrate into society without the stigma of a past criminal record.

๏ Although anyone can have a criminal record, it has a disparate impact on those from low-income, minority communities and individuals with a disability.

๏ On average, 1781 persons/day are reentering communities from prison. That number has increased by 350% over the last 20 years. An additional 7million people are released from jail.

Incarceration in the State of Indiana๏ Between FY 2000 and FY 2010, Indiana’s prison

population increased by 47%, from 19,309 to 28,389

๏ Between 2000-2010 the Indiana Department of Correction’s budget increased by 37% from $495 million, to $679 million.

๏ While the crime rates for Indiana in 2010 were lower than they had been at any point since 1969, Indiana had the highest growth rate for its prison population out of all 50 states.

๏ According to IDOC, the projected prison population will increase dramatically in the next 5 years.

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Incarceration in the State of Indiana

While African-Americans account for only 9% of the

State’s population, they constitute 35% of Indiana’s

prison population.

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Indiana Reentry and Recidivism

๏ According to IDOC a single prison inmate costs Hoosier taxpayers $53.96 a day, nearly $20,000 a year.

๏ Each year, almost 20,000 offenders are released from Indiana prisons back into the community in one of the state's 92 counties.

๏ The recidivism rate for Indiana offenders released in 2008, 39% for male offenders and 29.5% for their female counterparts.

๏ The average cost for the new period of incarceration for recidivating offender is $33,786.

๏ According, to a study conducted by CCJR, the estimated cost savings of a 1% reduction in recidivism for Marion County is well over $1.5 Million.

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Indiana Reentry and Recidivism

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๏ The number ONE predictor of recidivism is EMPLOYMENT; the SECOND being EDUCATION

๏ Roughly 90% of all employers perform criminal background checks on some or all job candidates.

๏ All records are public record, whether or not a person is found guilty. Many people who have a criminal record that shows up on a background check have never been convicted of a crime


What is the difference between sealing a criminal record and having criminal

records expunged?

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v.


Sealing Arrests Records

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Sealing Arrests Records - No Conviction

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๏ No filing fee

๏ Must wait until one year after date of arrest

๏ Petition any court exercising criminal jurisdiction in Indiana

๏ Standard: “Clear and convincing evidence” arrest did not result in a conviction AND no charges currently pending

๏ Criminal justice agency may access the records without court order

๏ Also, vacated judgments may be sealed under the same rules

13The Initiative for Northwest Indiana Expungement 13

Expungement


Are you eligible for Expungement?

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๏ Questions to ask:

• Has the period required by this section has elapsed?

• Are there currently no charges are pending against the

person?

• Are there no existing or pending driver’s license suspension?

• Has the person successfully completed their sentence,

including any term of supervised release and satisfied all

other obligations?

• Has the person has not been subsequently convicted of a

crime?

15The Initiative for Northwest Indiana Expungement CLE

Expungement: Burden of Proof

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๏ The sentencing court shall grant expungement if by “clear and convincing evidence”

• the period required by this section has elapsed

• no charges are pending against the person

• the person has no existing or pending driver’s license suspension

• the person has successfully completed their sentence, including any term of supervised release and satisfied all other obligations, and

• the person has not been convicted of a crime within the previous five years


Expungement of Misdemeanors

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๏ Misdemeanors may be expunged not sooner than five years after the date of conviction

๏ Such misdemeanors often include:• Battery• Criminal Mischief• Criminal Trespass• Disorderly Conduct• DUI• Possession of Marijuana• Providing Alcohol or Tobacco to a Minor• Public Indecency• Unlicensed Possession of a Handgun


Class D Felony Expungement

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๏ Class D Felonies may be expunged not sooner than eight years after the date of conviction

๏ Such Class D felonies often include:

• Confinement

• Counterfeiting

• Fraud

• Money Laundering

• Neglect

• Possession of a Controlled Substance

• Stalking

• Theft


Felony Expungement

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๏ Felonies may be expunged not sooner than eight years after the date of release from Indiana Department of Corrections supervision

๏ Such felonies often include:

• Arson

• Burglary

• Dealing a Controlled Substance

• Forgery

• Robbery


Other Felony Expungement

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๏ Certain felonies may be expunged not sooner than ten years after the date of release from Indiana Department of Corrections supervision

๏ Those felonies include:

• An elected official convicted of an offense while serving the official's term or as a candidate for public office; and

• A person convicted of a felony that resulted in serious bodily injury to another person

Convictions that are not eligible for expungement:

๏Murder

๏Voluntary Homicide

๏Involuntary Homicide

๏Reckless Homicide

๏ Human and Sexual Trafficking

๏Sex Crimes (as defined in IC 35-42-4)

๏Sex or violent offender (as defined in IC 11-8-8-5)

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The Initiative for Northwest Indiana Expungement

What a petition for Expungement looks like:

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๏ Name and Date of Birth

๏ Current and Previous Addresses

๏ List of all prior convictions with dates

๏ Affirmation of no pending charges

๏ Affirmation of no subsequent convictions

๏ Affirmation that the time period has elapsed

๏ Copies of any necessary written consents

๏ Affirmation and description of the completion of all requirements of the sentence


Expungement: Filing Fee and Records

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๏ Expunge the conviction records contained in:

• Court files

• Department of Correction’s files

• BMV

• Any service agency that provided treatment under court order

๏ Petition to expunge conviction records requires civil action filing fee of $130

๏ No fee waiver in filing for Expungement upon showing indigency


Expungement of Misdemeanors

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๏ The sentencing court shall grant expungement if by “clear and convincing evidence”

• the period required by this section has elapsed

• no charges are pending against the person

• the person has no existing or pending driver’s license suspension

• the person has successfully completed their sentence, including any term of supervised release and satisfied all other obligations, and

• the person has not been convicted of a crime within the previous five years


Expungement Petition: Notice

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๏ A copy of the petition is served to the prosecuting attorney.

๏ The prosecuting attorney then forwards a copy to the last known address of the victim and informs the victim of right to be present and address the court.

๏ The prosecuting attorney shall reply to the petition not later than 30 days after receipt.


Expungement Petition Procedure

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๏ If the prosecuting attorney does not object, the court may grant the petition for expungement without a hearing.

๏ If the prosecuting attorney objects, the court shall set a hearing within 60 days of service of the petition.

๏ The evidentiary standard is clear and convincing and denial is an appealable final order.

๏ A petitioner may seek to expunge more than one conviction at the same time by consolidating requests into one petition for each county.


Lifetime Limit

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๏ With certain exceptions, a petitioner may file only one petition for expungement during the petitioner's lifetime.

๏ All petitions for expungement filed in separate counties for offenses committed in those counties count as one petition if they are filed in one 365-day period.

๏ A subsequent petition for expungement may be filed three years after the denial of a previous expungement petition.

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Employment Law Implications



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๏ It is unlawful discrimination for any person to:

• suspend; expel; refuse to employ; refuse to admit;

• refuse to grant or renew a license, permit, or certificate necessary to engage in any activity, occupation, or profession; or

• otherwise discriminate against

๏ any person because of a conviction or arrest record expunged or sealed under this chapter.



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๏ The civil rights of a person whose conviction has been expunged shall be restored, including the right to vote, to hold public office, to serve as a juror, and, to the extent not prohibited by federal law, to own or possess a firearm.

๏ In any application for employment, a license, or other right or privilege, a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests, such as:

• "Have you ever been arrested for or convicted of a crime that has not been expunged by a court?"


The bottom line, take away…

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๏A person whose record is expunged shall be treated as if the person had never been convicted of the offense.

๏EXCEPT: if a person is convicted of a crime subsequent to expunging his or her record. Habitual offender enhancement.

Where do we go from here?...

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Contact Information

Renee HatcherStaff Attorney

The Initiative for Northwest Indianaa project of Chicago Lawyers Committee for Civil Rights Under Law

[email protected](219) 576-4041

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mailto:[email protected]

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