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New Report Explores Wisconsin's 'Atypical' Expungement Law

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Wisconsin's expungement laws vastly differ from those in other states.

Expungement is the ability to clear a criminal record or to seal it from public access without a court order. Simply put, it’s a way to be able to move on from a past conviction. 

“The conviction is sort of treated as if it never happened when it is expunged,” says Joe Peterangelo, a senior researcher at the Wisconsin Policy Forum. “The file still exists, but it is not allowed for public access.”

The forum recently released a study on Wisconsin's expungement practices, titled A Fresh Start: Wisconsin’s Atypical Expungement Law and Options for Reform. The study focuses on expungement from a workforce perspective.

Currently, 42% of individuals who participate in workforce programs around Milwaukee have a criminal record, Peterangelo explains, and even though Wisconsin has nondiscrimination laws in place, having a criminal record can still prevent individuals with past convictions from getting jobs.

A key part of the study compares Wisconsin expungement practices to those in other states. In Wisconsin, the decision is made by the judge at the sentencing hearing, and that is the only time the decision can be made. In all other states, the decision is made after a person completes their sentence.

Wisconsin is also the only state that enforces an age restriction on expungement cases. Crimes have to be committed when a person was under the age of 25 in order for the case to be expunged. Additionally, Wisconsin only permits low-level felonies or misdemeanors to be expunged; other states are more lenient in the types of cases they allow to be expunged. Past research has found that around 2,000 cases are expunged each year in Wisconsin, 100 of which are in Milwaukee. 

The study also explores potential changes that could make Wisconsin’s expungement law more beneficial to workforce members, including permitting expungement decisions to be made after an individual’s sentence.  

“Judges often feel that they can’t really make that decision at sentencing – it’s sort of like looking into a crystal ball,” Peterangelo says. “It’s hard to make that call before the person has gone through their sentence.”

Expungement cases, he says, are all about finding balance. “The public wants access to be able to see whether someone has committed a crime in the past, but then on the other hand, there is the privacy of the ex-offender and their ability to be able to move on at some point from that past conviction."

In Wisconsin, most expungement cases face a vast amount of judicial discretion, Peterangelo explains. In some cases, that discretion can be beneficial regarding flexibility. Unfortunately, he says, that same discretion often leads to disparities in how expungement cases are handled across the state.