The Wisconsin Supreme Court decides cases that can have life altering changes to lots of people.  They recently decided a case that did just that – State v. Lickes. In this case the Court made drastic changes to the ability of a young person’s chance at having a “fresh start without the burden of a criminal record and a second chance at becoming law-abiding and productive members of the community.” That wording is from a case – State v. Hemp – that was decided just 7 short years ago.

You may not be aware of this, but there’s a way that young people (under 25) that commit certain offenses can get those offenses removed from their record. While not diminishing the seriousness of crime, a mistake made as a teen or a young adult can have far-reaching consequences for somebody. It can make it harder to get a job, a bank loan, or many other things most people take for granted.

Wisconsin has a process called “expungement” that lets young people get certain minor offenses removed from their record. And the case the Wisconsin Supreme Court heard recently was about the legal requirements for that to happen.

Here’s the core of the argument.

The prosecution argued that the person looking for expungement needs to perfectly comply with all restrictions placed by the courts and the Department Of Corrections. There can’t be any missteps, no matter how minor. And in the end, it shouldn’t matter if the person’s probation officer, the Department Of Corrections, or even the court thinks the person deserves expungement.

The defense argued that the conditions of probation that must be complied with in order to obtain expungement are the conditions ordered by the Court, not the much more restrictive standard conditions set forth by the Department of Corrections. The defense also argued that even if the phrase “conditions of probation” includes conditions set by DOC, circuit courts nonetheless have discretion to determine that an individual “satisfied [his] conditions of probation” despite having violated one or more conditions.

I agree with the defense.

The problem with an absolute standard is that people who wind up on probation almost never start as perfect people. We also need to consider that probation is much, much more than “just keep your nose clean.” Paying for gas with a credit card – something most people do every day without thinking – is typically a probation violation. The level of restriction is severe, with opportunities galore for the person to mess up.

This means that it’s not uncommon for there to be some problems when somebody is released on probation. Drug and alcohol offenders are highly likely to have a relapse, and within the system probation officers have tools to respond properly and help those people get clean. Keeping in mind that these people aren’t actually committing crimes by relapsing, there’s a chance – with appropriate help and therapy – that they can leave these issues in the past.

And that’s what expungement is all about. It’s a recognition that what somebody did in the past as a young person is just that – in the past. At the point they’re asking for expungement they’ve completed their probation and done the hard work of getting their lives back on track. Does it really make sense to deny all that hard work because they had a relapse in the beginning?

I would say “no”. But the majority of the Supreme Court in Wisconsin said “yes” – so that’s the legal standard right now.

If you think that the court’s ruling is nonsensical, I would encourage you to write your local state legislators and let them know. Your voice could make a difference.

And this also shows the importance of having a good attorney. Many people on probation are people that shouldn’t be there in the first place – and might not be if they’d had a good lawyer. If you or someone you love is ever facing any sort of criminal charges, give me a call for a consultation. You’ll be glad you did!

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