I get a lot of calls from people wondering how to remove criminal convictions from their record. The reasons vary, but some of the most common include:
• A clean record in order to find a good job (in Wisconsin it’s legal for employers to discriminate against job applicants based solely on a criminal conviction).
• Removing a conviction in order to qualify for a professional licenses in fields like teaching, healthcare, or law enforcement.
• Removing a felony conviction to be allowed to gun hunt or possess a firearm again.
• Getting records off Wisconsin’s public access site, CCAP so that friends, family, and others don’t know about mistakes a client made in the past.
Option #1: Expungement
Otherwise known as “youthful offender treatment” or “expunction,” expungement is a statutory remedy that allows people convicted of certain crimes to have their record wiped clean, usually after a period of good behavior. The requirements for expungement are contained in Wisconsin statute § 973.015, but generally boil down to the following:
A. At the time of the offense, the client was under 25 years old;
B. The offense is either a misdemeanor or a nonviolent Class I or H felony;
C. The client does not have any prior felony convictions or subsequent misdemeanor convictions.
Violent felony offenses are also excluded from this list, meaning clients convicted of low-level felony offenses like substantial battery, false imprisonment, and certain weapons offenses are not eligible for expungement. Likewise, OWI and other impaired driving offenses cannot be expunged.
However, for those who qualify, expungement is often the best route to a clean record. Records of the criminal conviction are eliminated from public access, and for the purposes of a license, employment, renting, and the expunged conviction never existed. So how do you get an old conviction expunged? First, you must apply. Competent criminal defense attorneys will make sure their client is eligible during sentencing, allowing expungement to happen automatically if the client completes his or her sentence. However, nothing in the current statute prohibits a client who meets these conditions from applying for expungement after the fact. Second, some courts require a hearing where the client must show that he or she has been rehabilitated and would benefit from expungement. It is common to show proof of employment, education, positive standing in the community and lack of further record at this stage.
Option #2: Reopening an old conviction
For people who don’t qualify for expungement, reopening and dismissing or reopening and amending a criminal conviction to a less serious charge is an option to address old felony, domestic, or drug offenses. This option is more difficult than expungement and generally requires cooperation from a prosecutor. In a nutshell, the defense lawyer and prosecutor agree to reopen an old conviction and either dismiss the charge, or amend the charge to something that meets the goals of the client (for example, turning a felony marijuana charge into a misdemeanor charge so the client can get federal student aid).
Technically speaking, a client needs to have legal grounds to reopen an old conviction.
Once a client is past the point of appeal, it can be very difficult to establish these grounds, which is why this option requires a cooperative prosecutor and a judge willing to sign off on the modification. In order to get a prosecutor on board, a client should be ready to show the positive changes he or she has made in their life and demonstrate why it is necessary to reopen the old conviction. If there was a victim, it is oftentimes necessary to speak with that person and get their approval. But for many people over the age of 25, reopening and dismissing or modifying an old conviction is an excellent way of clearing an old record.
Option #3: Governor’s pardon
A pardon is total legal forgiveness of a prior offense. But it is also very difficult to obtain and at the sole discretion of the governor. A pardon wipes a client’s record clean and restores firearms, voting, and other legal rights. Any client still serving a sentence is immediately released without any restrictions. When Jim Doyle was governor, he pardoned between 4 and 177 people in a year (governors tend to pardon more applicants in their final terms). Scott Walker, however, has never pardoned anyone. Sadly, this is well-within his rights since the governor does not need to justify reasons for denying a pardon.
Pardon applications are forwarded to an advisory committee and screened for merit. Like expungement, the board is supposed to look for clients who have demonstrated rehabilitation, positive ties to the community, and a compelling reason to clear their names. In appropriate circumstances, clients can apply for a governor’s pardon, but while Scott Walker remains governor, the prospect of a pardon is very unlikely.