Expunging old, low-level convictions is difficult in Wisconsin. A bipartisan reform could be on the way

MADISON – Olivia's alarm goes off at 6 a.m., jolting her awake after five hours of sleep on a hotel mattress. The 26-year-old mother of two gets her kids ready for school and drops them off before starting a busy day working as a server and an Instacart shopper.

It's a draining schedule, but Olivia still found time on a recent Thursday to visit the Urban League of Greater Madison's expungement clinic. She's tired of living in the shadow of her felony charge, and like the dozen or so other attendees, she hoped a visit could scrub her record clean of a blemish she moved past years ago.

But expungement in Wisconsin is complex, with rules both Democrats and Republicans say are outdated. And for now, people looking to eliminate old charges from their records must jump through narrow hoops to navigate the state's strict process.

Wisconsin is the only state in the nation where past and closed cases are not eligible for expungement, and one of just a handful that limits eligibility based on age, according to a 2018 Wisconsin Policy Forum report. Under current state law, anyone over the age of 25 at the time of their offense is ineligible for expungement.

The restrictive law means many of the 1.4 million people with criminal records in Wisconsin — including those convicted for a misdemeanor or a low-level, non-violent felony like theft or drug possession — must carry those charges on their criminal record forever, even if they've completed their sentence.

“It’s a very narrow law,” said Megan Sprecher, a supervising attorney with criminal justice nonprofit Legal Action Wisconsin. “I used to practice in Ohio, and when I came here, I was shocked.”

Criminal records limit employment, housing opportunities

Wisconsin employers cannot discriminate based on criminal history with the exception of some professional licenses, Sprecher said. Still, something as simple as a marijuana possession charge — or in Olivia's case, being party to a crime she didn't directly commit — can tank someone's chances of finding stable employment or housing.

“We've been in a hotel for three years now," Olivia said. "I can't find housing, so then I'm paying $700 a week in a hotel."

It's hard to prove discrimination, Sprecher said, especially in employment.

“You can't unring the bell, right?” Sprecher said. "The employer’s not saying 'this is exactly why I’m not giving you the job.' They’re just saying ‘you didn’t get the job’ or hiring people and letting them go once their background check comes in.”

More: Wisconsin's criminal expungement rules keep needed workers out of jobs, study says

Sprecher works with Urban League to host the free expungement clinic each month, an event Urban League Senior Vice President Edward Lee said is funded in part by grants from the City of Madison and Dane County. Her legal team consults with roughly two dozen people who attend each clinic to determine whether they're eligible for expungement, a pardon or both.

Olivia lucked out. She was 21 when she was charged and asked about expungement before her sentencing. Olivia said lawyers who looked at her case earlier this month said she might be able to eliminate the felony charge from her record or apply for a pardon if she chooses, but they still needed to review more details from her case before making a final call.

Still, Olivia said her previous lawyer never mentioned expungement while handling her case five years ago, and she only knew to bring it up because her mom reminded her to.

“He didn’t seem like he cared about it, either. They just wanted me to plea out," Olivia said. “I said it, but did my voice matter?”

Not everyone is as lucky. Sprecher said she sees at least one person at each clinic who served their sentence and wants to clear their record, only to find out they were too old to qualify or missed the window to ask for expungement before their sentencing.

The best Sprecher can do is sign them up for Google alerts in case anything changes in state law.

“It’s a hard conversation to have,” she said.

Will expungement laws change anytime soon?

State lawmakers on both sides of the aisle support loosening Wisconsin's strict expungement laws. Rep. David Steffen, R-Green Bay, introduced three bills to do so since 2019, the first two of which passed the Assembly with overwhelming bipartisan support.

However, both died in the Senate at the hands of an obscure Republican Party rule that requires 17 GOP senators to support a bill before it can advance for a floor vote, Steffen said in April.

The latest bill, which Steffen co-authored with Sen. Rachael Cabral-Guevara, R-Appleton, would allow people convicted of a non-violent, low-level felony or misdemeanor to apply for expungement regardless of their age as long as they have no previous felony convictions. Those who qualify could apply for expungement a year after completing their sentence, meaning they wouldn't have to ask before their trial.

Some restrictions would remain. For instance, the bill would allow a sentencing court to declare a person's record ineligible for expungement, select minor crimes would be exempt from expungement consideration, and each person could only request one expungement. People could submit a second petition for expungement if their first were to be denied, but they would have to wait two years and pay a $100 fee the second time around.

There's a chance this version could stall, too. Some of Steffen's Republican colleagues said at a public hearing in April they worried loosening expungement laws could reinforce crime, or thought the one-year waiting period was too short compared to Wisconsin's neighbors.

But Steffen is optimistic it could finally pass, despite the concerns. Britt Cudaback, spokeswoman for Democratic Gov. Tony Evers, said the bill has Evers' support, and Steffen is hopeful a recent shakeup among Republicans in the Senate could deliver him the votes needed to expand expungement eligibility.

Nicole Walentowski-Domokos, an aide to Steffen, said his office is in discussions with Senate officers to build support. But she also said they don't have a "clear sense of the timeline" on the bill.

"Our hope would certainly be to have it move forward this fall, but we don’t have an indication either way at this point if that will be the case," she added.

Meanwhile, Olivia's kids still need to be up for school at 6 a.m.

“I've been going through hell for five years now," Olivia said. "All because someone I thought I was friends with decided to do something when I drove them somewhere."

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This article originally appeared on Milwaukee Journal Sentinel: Expungement reform remains elusive in Wisconsin but reform could come