I Did My Time: the Transformation of Indiana's Expungement
Total Page：16
File Type：pdf, Size：1020Kb
I Did My Time: The Transformation of Indiana’s Expungement Law JOSEPH C. DUGAN* “Betrayed / I feel so enslaved / I really tried / I did my time / I did my time . .”1 INTRODUCTION In Parker v. Ellis, Chief Justice Earl Warren wrote that “[c]onviction of a felony imposes a status upon a person which not only makes him vulnerable to future sanctions . but which also seriously affects his reputation and economic opportunities.” 2 While criminal conviction inflicts a necessary disability on the offender, expungement law presents a fitting remedy for the ex-offender: expungement ensures that employers, licensing agencies, and communities view an individual in light of her character today rather than the mistakes she made in her distant past.3 Until recently, Indiana’s criminal records scheme was unforgiving. Hoosiers convicted of even minor offenses had few opportunities to wipe the proverbial slate clean.4 But in 2011, the General Assembly commenced a legislative project that culminated in a comprehensive expungement statute, enacted in July 20135 and substantially amended in March 2014.6 Under this new criminal records regime, * J.D. candidate, 2015, Indiana University Maurer School of Law. My gratitude to Matthew Hutchens and Nick Roberts for their helpful feedback on this project; thanks also to Jamie Davis and Joe Stephens for their careful edits. I dedicate this Note to Jamie Andree and her team at the Bloomington office of Indiana Legal Services, Inc., for exemplifying wholehearted client service—and to Heidi, for sharing this frenetic but richly rewarding law school journey with me. 1. KORN, Did My Time, on TAKE A LOOK IN THE MIRROR (Epic/Immortal 2003). 2. 362 U.S. 574, 593–94 (1960) (Warren, C.J., dissenting) (emphasis omitted), overruled in part by Carafas v. LaVallee, 391 U.S. 234 (1968). 3. “It is a legal principle that correctional law is forgiving. Forgiveness is part and parcel of rehabilitation, whether of criminals or anyone else who has erred, or who has, in fact, what all of us have—the defects of being human.” SOL RUBIN, LAW OF CRIMINAL CORRECTION 788 (2d ed. 1973), quoted in Luz A. Carrion, Comment, Rethinking Expungement of Juvenile Records in Massachusetts: The Case of Commonwealth v. Gavin G., 38 NEW ENG. L. REV. 331, 331 (2004). 4. Indiana’s former expungement scheme can be sharply contrasted with more generous schemes in other jurisdictions. Compare IND. CODE § 35-38-5-5 (2008) (providing that ex-convicts may petition the state police to limit access to their criminal histories if more than fifteen years have elapsed since they were last discharged from prison, probation, or parole), with D.C. CODE § 16-803(c) (LexisNexis Supp. 2014) (stipulating that courts will seal records of an “eligible” offense if eight years have elapsed since the completion of the sentence and the petitioner satisfies other criteria), and OR. REV. STAT. § 137.225 (2011) (specifying that courts must generally grant expungement for a lower-grade offense if the petitioner has completed her sentence and at least three years have passed since the date of her conviction). 5. Act of May 6, 2013, No. 159, 2013 Ind. Acts 1631 (codified as amended in scattered sections of IND. CODE tit. 35 (Supp. 2013)). 6. Act of Mar. 26, 2014, No. 181, 2014 Ind. Acts 2291 (codified as amended in scattered 1322 INDIANA LAW JOURNAL [Vol. 90:1321 ex-offenders may qualify for expungement of most misdemeanors and some felonies. Upon signing the statute into law, Governor Mike Pence declared, “Indiana should be the worst place in America to commit a serious crime and the best place, once you’ve done your time, to get a second chance.”7 Indiana’s new expungement law represents a laudable step toward augmenting the rights of reformed Hoosiers, and the 2014 amendments correct several deficiencies that inhered in the original statute. Nevertheless, the law remains a work in progress. Its procedures are convoluted. Its remedies are flimsy. It excludes certain classes of petitioners while setting an unreasonably high bar for others. Its “one-bite-at-the-apple” limitation and repayment prerequisites are unrealistic, particularly for low-income petitioners. This Note evaluates the transformation of Indiana’s expungement law. Part I addresses the socioeconomic impacts of a criminal record. Part II presents normative arguments both for and against expungement, concluding that the balance tips in favor of forgiveness. Parts III–IV discuss Indiana’s original expungement provisions, the 2013 statute, and the 2014 amendments. Part V explores the reaction to the new law. Finally, Part VI offers recommendations to improve the statute so that its second-chance promise is equitable, accessible, and robust. I. STIGMATIZATION AND THE RIGHTS OF THE REFORMED Sociologists have long decried the stigma associated with a criminal record.8 In a seminal 1963 exposition on stigma, Professor Erving Goffman described the Greek origins of the term: stigma referred to “signs designed to expose something unusual and bad about the moral status of the signifier . a blemished person, ritually polluted, to be avoided, especially in public places.”9 Goffman traced the elements of stigma through the interactions of three distinct groups: the own (persons who sections of IND. CODE tit. 35 (Supp. 2014)). 7. Lesley Weidenbener, Pence Signs Off on Rewrite of Expungement Procedure, EVANSVILLE COURIER & PRESS, May 7, 2013, at 5A. 8. Victor Hugo eloquently captured this “rap-sheet stigma” in Les Misérables, where ex-convict Jean Valjean recounted the parade of horribles that met him upon his reentry into society: I was liberated four days ago, and started for Pontarlier . I went to the inn, but was sent away in consequence of my yellow passport, which I had shown at the police office. [N]o one would have any dealings with me. I went to the prison, but the jailer would not take me in. I got into a dog’s kennel, but the dog bit me and drove me off, as if it had been a man. VICTOR HUGO, LES MISÉRABLES 72 (Lascelles Wraxall trans., Heritage Press 1938) (1862). The Indiana Supreme Court has also written about the deleterious effects of rap-sheet stigma: [W]hen an adult is convicted of a crime, the conviction is a stigma that follows him through life, creating many roadblocks to rehabilitation. In addition to the general stigma of being an “ex-con”, or a felon, the conviction subjects him to being found a habitual criminal if he later commits additional felonies, and affects his credibility as a witness in future trials. Jordan v. State, 512 N.E.2d 407, 409 (Ind. 1987). 9. ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 1 (Simon & Schuster Inc. 1986) (1963). 2015] TRANSFORMATION OF INDIANA’S EXPUNGEMENT LAW 1323 share the disfavored trait), the wise (persons sympathetic to the stigmatized group), and the normals (persons who reinforce the stigma).10 The wise might be of some comfort to the own, but these sympathizers themselves hover on the margins of society: far more common are the normals, who perceive that stigmatized persons are “not quite human” and who “exercise varieties of discrimination” to “effectively, if often unthinkingly, reduce [their] life chances.”11 Goffman’s theory applies with particular force to convicted criminals and ex-offenders. In a 2004 article, Professors Meares, Katyal, and Kahan wrote that interactions with the law-abiding world are problematic for persons convicted of crimes: the risk is high that normals will “define a criminal only in terms of his stigma” and avoid associating with him for fear of being contaminated.12 This disassociation, characterized in this Note as “rap-sheet stigma,” prompts the ex-offender to offend once more: he may perceive that “other options are closed” to him.13 A. Sentenced in Perpetuity? Economic Considerations Devah Pager, a sociologist from Northwestern University, explored the economics of rap-sheet stigma in a 2003 study.14 Pager found that “ex-offenders are only one-half to one-third as likely as nonoffenders to be considered by employers.”15 In a separate study cited by The Economist, sixty-five percent of employers in major cities admitted that they would not knowingly hire an ex-convict.16 These numbers comport with an earlier survey of employers in Atlanta, Boston, Detroit, and Los Angeles, which found that only thirty-eight percent would likely accept an application from an ex-convict.17 10. Rachel A. Smith, Segmenting an Audience into the Own, the Wise, and Normals: A Latent Class Analysis of Stigma-Related Categories, 29 COMM. RES. REP. 257, 258 (2012). 11. GOFFMAN, supra note 9, at 28; see also Amy Myrick, Facing Your Criminal Record: Expungement and the Collateral Problem of Wrongfully Represented Self, 47 LAW & SOC’Y REV. 73, 77–78 (2013) (linking Goffman’s theory of stigma and “spoiled identity” to the criminal records context). 12. Tracey L. Meares, Neal Katyal & Dan M. Kahan, Updating the Study of Punishment, 56 STAN. L. REV. 1171, 1184 (2004). 13. Id. As another author put it, the ex-offender may find that “the only way to live in society is as a deviant. He re-offends, and fulfills the very expectations placed upon him” by his community. Jennifer Leavitt, Comment, Walking a Tightrope: Balancing Competing Public Interests in the Employment of Criminal Offenders, 34 CONN. L. REV. 1281, 1282–83 (2002). 14. Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937 (2003). 15. Id. at 960. 16. Prison and Beyond: A Stigma That Never Fades, ECONOMIST, Aug. 10, 2002, at 25, 26. 17. Harry J. Holzer, Steven Raphael & Michael A. Stoll, Will Employers Hire Former Offenders?: Employer Preferences, Background Checks, and Their Determinants, in IMPRISONING AMERICA: THE SOCIAL EFFECTS OF MASS INCARCERATION 205, 209–10 (Mary Pattillo, David Weiman & Bruce Western eds., 2004).