Indiana Governor Mike Pence signed into law legislation last month that allows people arrested or convicted of certain crimes to have those records expunged.
The new law, House Enrolled Act 1482, went into effect July 1, and provides a second chance to those convicted of certain nonviolent felony or misdemeanor charges in the state.
Under the new law, which is a revision of the “Second Chance Law” enacted by the 2012 Legislative Session, individuals who are convicted of misdemeanors or class D felonies can request to have their criminal records expunged (not just sealed) after five years (or eight years in the case of a class D felony). Such a petition requires the individual to:
◆ Not have been charged with or committed other crimes
◆ Successfully complete their sentence
◆ Not have a pending or existing driver’s license suspension
◆ Pay a licensing fee
Those convicted of sexual and violent crimes, such as murder and manslaughter, are not eligible to have their records expunged. The release of expunged criminal records, other than law enforcement officials acting in their official capacity, is prohibited without a court order.
A violation of the statue’s anti-discrimination provision under HEA 1482 is defined as a Class C infraction. For this reason, Indiana employers are encouraged to review their non-discrimination policies and employment applications to determine whether revisions are necessary to ensure compliance with the new law. For this reason, companies are urged to consult an employment law attorney for the appropriate language to place on an employment application.
It is critically important for Indiana employers to execute this change as soon as possible since the law is already in effect. If your organization employs individuals in Indiana, as well as other states that do not require the new application language, you may want to create multiple external employment applications.
If the person meets the statutory requirements, the court shall grant the petition for misdemeanor and D felony convictions. The law also allows for a person who was convinced of a more serious felony to petition the court. The law also allows for a person who was convicted of a more serious felony to petition the court. However, the decision to expunge more serious felonies is at the discretion of the court.
While you can complete a petition and file it on your own, lawmakers encourage individuals to seek legal advice, if not hire legal counsel, before filing. The reason for this recommendation is the strict guidelines involved in properly filling out these petitions. Failure to fill out the petition properly can cause it to be tossed out of court. A petitioner may have to wait for at least three years before filing again. If the petitioner has multiple charges or arrests, not including each offense in the petition can cause it to be denied forever for expungement. Also important to note is that records can only be expunged once in a person’s lifetime.
Now while we at the Indiana Civil Rights Commission have no enforcement or direct oversight of this law, I did find it necessary to provide some clarification as it will likely affect a number of folks we work with.
This law provides ex-offenders a greater opportunity to find employment. Multiple studies have found, and countless individuals statewide can attest, that having a criminal record severely limits getting a job. If an individual has demonstrated they have learned from their mistakes and gone through the necessary process (and waiting period) this law can truly provide a “second chance”.
As always, we are here to help. If you feel you have been the victim of discrimination call us at the Indiana Civil Rights Commission at (317) 232-2600 or visit: www.in.gov. If you or your organization would like training on the state’s civil rights laws please also feel free to contact us.
Jamal L. Smith is the Executive Director for the Indiana Civil Rights Commission (ICRC).