Wisconsin lawmakers seeking to expunge marijuana convictions
MADISON, Wis. (AP) — When Madison barber and business owner Brian Britt, 42, stepped up to a folding table in the entryway of the Urban League of Greater Madison, he had a single goal in his mind: Wipe from his record the decades-old criminal convictions he says are holding him back.
In 2000, at age 22, Britt was convicted of marijuana possession with intent to deliver as a repeat offense and a gun charge. He served five years in prison.
Nineteen years later, he is hoping to make those convictions less public. It is the next step in an ongoing process, he said, which includes paying back child support.
″(I’m) cleaning my background up so I can get a better life,” he said, “so things don’t stagnate me like they used to.”
It is a goal shared by the roughly 20 people who attended the Urban League expungement clinic on May 4 to view their own criminal records, learn what they might be able to remove and get advice about how to talk with employers about what they cannot.
An estimated 1.4 million Wisconsinites have criminal records, according to a report by the Wisconsin Policy Forum. Studies show arrest and conviction records have lingering effects, making it harder for individuals to succeed as law-abiding citizens.
Gov. Tony Evers has proposed expungement of low-level marijuana convictions. And a bipartisan group of lawmakers has proposed expanding Wisconsin’s restrictive expungement law, which requires that expungement must be requested at sentencing and is only available for crimes committed before the age of 25. The law also allows only non-violent, low-level felonies or misdemeanors to be wiped from a person’s publicly available record.
The nonprofit news outlet Wisconsin Watch provided this article to The Associated Press through a collaboration with Institute for Nonprofit News.
In the past four years, at least 10 states have enacted legislation to make it easier or faster for residents to shield their past marijuana convictions from public view, according to the National Conference of State Legislatures.
The Wisconsin Policy Forum, a nonpartisan organization dedicated to researching and evaluating policy statewide, studied the numerous barriers people in Wisconsin face in removing old convictions from their records. Its 2018 report outlines possible changes to expand access to Wisconsin’s expungement law, which allows individuals to petition to have eligible convictions removed from the state’s free court records database, commonly referred to as CCAP.
Marijuana expungements could be especially important for those who were convicted decades ago, when first-time, even minor possession was often charged as a felony, said Kori Ashley, a staff attorney for Legal Action of Wisconsin’s Road to Opportunity Project. Arrests for marijuana are the No. 1 drug offense in Wisconsin, state Department of Justice figures show, affecting nearly 20,000 people in 2018 alone.
“So, if it’s retroactive,” Ashley said, “it could potentially relieve individuals of felony convictions.”
Data on the impact of record-sealing is hard to come by, but in March, two University of Michigan law professors released a first-of-its-kind empirical study, which found numerous advantages.
Michigan residents whose records were sealed “have extremely low subsequent crime rates, comparing favorably to the general population,” the authors wrote. They also found a “sharp upturn in their wage and employment trajectories,” which they attributed mostly to “unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.”
Britt, who now holds a cosmetology license, opened Inspire Barber and Beauty Salon in 2017 but struggled to find a location for the business. His rental applications for commercial spaces were routinely denied.
“I haven’t been in trouble for so long,” said Britt, whose last criminal conviction was in 2012, “but I’m still discriminated against.”
He found out perspective landlords had been looking up his criminal record.” It actually came out in the end like, ‘Well, because of your record, you know what I mean, we feel that ... there’s gonna be drugs being sold in our area,’ ” Britt said.
About an hour after Britt arrived at the expungement clinic, he emerged from the room disappointed. The crimes he wanted wiped from his record, he said, will stay.
One of the lawyers advising clients at the clinic, Sheila Sullivan of Legal Action of Wisconsin, said current Wisconsin law dictates that what can be expunged depends on the law at the time of the crime, the person’s age at the time of the crime and the type of conviction. “For the layperson to have to figure it out is tough in itself,” Sullivan said.
In February, Reps. David Steffen, R-Green Bay, and Evan Goyke, D-Milwaukee, introduced Assembly Bill 33 to clarify and broaden Wisconsin’s expungement law. The bill, which has passed the Assembly, would make more than 80,000 cases eligible for expungement, according to the Wisconsin Policy Forum report.
“I can’t really give you any numbers on exactly how many people have convictions for marijuana and nothing else,” said Joe Peterangelo, a senior researcher for the policy forum. “My educated guess based on all of the information I’ve seen is that it would be a relatively small pool of people.”
Helping people who have completed their sentences wipe certain crimes from their records and minimize barriers to jobs, housing and other opportunities has bipartisan support in the Wisconsin Legislature.
According to a report by the Badger Institute, a Milwaukee-based think tank, under the current law, around 2,000 Wisconsin cases were expunged each year between 2010 and 2017.
“Historically, it’s been very difficult,” said Dane County Sheriff Dave Mahoney, who recounted the story of a friend who has been trying unsuccessfully for years to clear his record of a crime for which he was acquitted. “The only way you can get the expungement is to go back to the judge that heard the case and they allow you to expunge the case, and it very rarely occurs. Very rarely.”
Wisconsin is one of only two states that generally do not permit expungements for cases in which the person is found not guilty or the charges are dismissed or reversed on appeal. In those cases, recent state law changes require those dismissed or overturned charges to be removed from the electronic court database after two years.
Marijuana crimes were among the most frequently expunged, the Badger Institute found. Of the nearly 21,000 counts expunged between 2010 and 2017, almost 13% were for marijuana — possession, manufacture or intent to sell. Possession of drug paraphernalia made up an additional 4.6% of expunged counts.
AB33 would expand expungement eligibility by removing the age limit for defendants, allowing expungement decisions to be made at times other than sentencing and clarify that employees need not disclose expunged arrests or convictions on job applications.
Ashley said removing the age requirement would have huge impacts. Many people who call her office seeking expungements are not eligible due to the current age limits. Goyke hopes the bill will bring Wisconsin more in line with other states.
“Our process is bad. Our expungement law — we’re an asterisk in America, and it’s not ever been replicated. Nobody’s calling to copy our expungement procedure,” Goyke said.
On the federal level, U.S. Reps. Lisa Blunt Rochester, D-Delaware, and Guy Reschenthaler, R-Pennsylvania, introduced legislation in late April that would automatically seal records of individuals federally convicted of simple marijuana possession. The bipartisan Clean Slate Act’s intention is to address the barriers to employment, education and housing.
In Wisconsin, expunged cases would, however, would still be viewable on the Online Record Check System, maintained by the Wisconsin Department of Justice. “They put a small notation on it. It essentially says, ‘After the conviction, this conviction was expunged on that date,’ but the record of that conviction remains on the report because it’s still a valid conviction,” Ashley said.
Advocates for government transparency argue that the public should have full access to criminal records.
“Ceding the right to know what our government is doing is a slippery slope that has no identifiable stopping point,” argued April Barker, an attorney and co-vice president of the Wisconsin Freedom of Information Council.
Goyke said he does not believe in hiding records, but he argues the value of transparency should be balanced against the value of opportunity. “And right now we have, in my estimation, the balance weighing in favor of expunging records for individuals to get a better life.”
Evidence from California shows just how few people seize the opportunity for expungement. One year after a voter-approved marijuana expungement law took effect, about 4,900 of the hundreds of thousands of eligible individuals had applied.
In response, then-San Francisco District Attorney George Gascón announced in January 2018 that his office would identify eligible marijuana convictions and review, recall and resentence felonies and expunge and dismiss misdemeanors.
“Instead of waiting for the community to take action, we’re taking action for the community,” Gascón said in a statement.
This February, he said a review had yielded 9,362 eligible convictions in his jurisdiction.
The plan has been criticized by some in law enforcement, including the California Narcotic Officers’ Association. But Mahoney, a former narcotics officer himself, said he would support such an approach in Wisconsin.
AB33 does not call for automatic expungement; it explicitly proposes a court process. Goyke said in a case with victims, expunging convictions could be controversial. But for victimless crimes such as marijuana possession, he said automatic expungements might be appropriate.
Even if AB33 passes, it is not yet clear whether Britt will be able to remove from his record both of the convictions he most wanted sealed. He has four felonies, and the proposed law states that a conviction is only eligible for expungement if the person has no prior felonies.
But one thing is clear — Britt plans to try. He has a lot of dreams — he hopes to create a barber academy for teens at risk of dropping out of school — but his criminal record keeps getting in the way.
“So I’m hoping,” he said as he prepared to walk out the door, “because I’ve gotta be a beacon. I’m trying to be the beacon of the community.”