By A.J. Wagner
Every sentence is a life sentence. A convicted criminal defendant may get probation or a prison term but, either way, when he goes to apply for a job he gets the same treatment for the rest of his life.
No distinction is made for the crime committed either. A shoplifting is as bad as a murder, is as bad as a drug possession, is as bad as a kidnapping to employers who refuse to look beyond the record.
A former felon is just a felon. It might be 10, 20 or 30 years since the crime, often a youthful indiscretion that has not been repeated, but employers have no exception for time. There is an unfortunate attitude that rehabilitation does not exist, there is no acknowledgment that people mature.
And employers are not the only ones keeping the former criminal down. A convicted person never hears about these at sentencing, but he will be burdened with a large number of additional sanctions called “collateral sanctions” that will keep him from jobs, licenses, voting, public positions, scholarships, constitutional rights, college admission, jury duty and much more. There are more than 400 collateral sanctions in Ohio law; more than a third of those are permanent.
Not all 400 sanctions apply to every crime but it is difficult to determine which sanctions apply to which crime. Each crime has its own set of laws and rules that hamper the felon from building a future. Kimberly R. Mossoney and Cara A. Roecker published an article in the University of Toledo Law Review listing Ohio’s collateral sanctions that took eight months of painstaking research to compile.
Many of these sanctions can apply to misdemeanors such as assaults and drunk driving as well as felonies.
For these reasons, it is important to know how to expunge a criminal record. Expungement is not available for every crime, but where it is available it can help. If an expungement is granted, the court will order all official records pertaining to the criminal case sealed and will dismiss the charges in the case. The proceedings in the case will be considered not to have occurred except that if the defendant is convicted of a new crime the seal will be removed and the conviction reinstated.
To obtain an expungement, a person must apply to the court where the crime was handled and put up $50 for court costs. An investigation will be done to determine if the person qualifies for the expungement.
The first thing an investigator will determine is whether the crime committed by the applicant rules out an expungement. Expungement is not available for, among other things, first and second degree felonies, crimes of violence, driving under the influence, crimes against minors and sex offenses.
A determination must be made as to whether this is the first and only crime of the individual. Expungement is not available to those who have committed more than one crime unless all the crimes were committed at the same time or within a short period of time. If a new crime is pending, the application will be denied.
The applicant cannot get an expungement until after one year has expired since the completion of the sentence if it is a misdemeanor and three years if it is a felony. Completion of sentence occurs at the end of probation, post release control or imprisonment, whichever is later.
The court will conduct a hearing at which the judge must determine if the offender has been sufficiently rehabilitated, if the prosecutor has any legitimate objections and the judge must weigh the interests of the applicant in having the records sealed against the legitimate needs, if any, of the government to maintain those records. If the judge finds in favor of the applicant on all of these standards, the record will be sealed.
Under slightly different rules a record can also be sealed when an arrest or a charge does not end up with a conviction.
So what if a convicted criminal can’t get an expungement? What happens to that person who has been a clean, productive citizen for 30 years but committed more than one crime or a violent crime that excludes him from an expungement?
I suggest to defendants in this position that they apply for clemency with the Ohio Parole Authority. The Parole Authority, upon application, will investigate an individual to determine if they have been crime-free for an extended period of years and are deserving of a pardon. The pardon is up to the governor, but the Parole Board makes the recommendation. The record isn’t sealed, but a pardon releases an individual from collateral sanctions, which might be all the difference for an employer.
It is a rule of good writing that a sentence should not run on. The same rule should apply to criminal justice.
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.
A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.