One of the controversial trends in state legislative initiatives is permitting people convicted of crimes to have their criminal records expunged. Having a conviction record expunged means, essentially, it no longer exists. Expungement laws are often referred to as Second Chance Laws, but not all Second Chance laws allow expungement.
Consider, for example, the difference between a new trio of bills in New Jersey, as reported by the new website, NJ.com, and the Second Chance law in Indiana:
- The New Jersey bills (S3306, S3308, and S3307) strengthen ban the box legislation around expungement; cut the waiting period from five years to three for expunging a juvenile record; and increase expungement opportunities, respectively. In the case of S3307, the expansion allows petitioners to expunge more offenses, especially within a certain timeframe, and/or reducing the eligibility waiting period for expungement, under specific conditions.
- Indiana’s Second Chance law, Indiana Code 35-38-9, allows those convicted of certain crimes to request that their court records be sealed (access restricted to only justice organizations or the individuals to whom the record relates), also under specific conditions—the charges being dropped or reversed on appeal, payment of restitution or fines, and/or remaining out of trouble. Indiana’s Second Chance Law only restricts access to criminal records It does not forever erase or expunge the criminal history.
Both types of legislative initiative are designed to reduce, and optimally prevent, employment discrimination. Although their mechanism may be different, they both prevent employers from determining whether or not a person was convicted of a crime in the past.
Social justice advocates argue that convicted criminals are prevented from becoming productive citizens when their past activities prevent them from getting jobs. Victim’s rights advocates say that criminals should pay for what they have done.
The trend in America appears to be toward more “forgiveness” for criminal acts, whether through case expungement or record sealing. This underscores the need for companies to have a complete picture of an individual, including not only criminal record checks but also references and other information, before they make a decision.