Kokomo Tribune; Kokomo, Indiana

August 27, 2012

HAYDEN: Arrest, conviction records live forever in digital age

How long should criminal record follow someone?

By Maureen Hayden
Tribune columnist

— INDIANAPOLIS – Last year, the Indiana Department of Correction released more than 19,000 offenders back into communities around Indiana.

That seems like a staggering number, doesn’t it? But thousands of men, women and juveniles are incarcerated in DOC facilities every year, then later released after they serve their time.

Many will live with a lifelong punishment of a criminal record that will make it very difficult for them to find a job.

Should they have thought of that before they committed their crime? Some people will argue that. But our state constitution says our criminal justice system must be rooted in the principles of reformation and not vindictive justice.

That’s why there are some state legislators on both sides of the aisle who are interested in finding a fix for a relatively young state law that allows people with years-old, low-level, non-violent offenses to shield that information from potential employers.

More than 1,700 Hoosiers have used the 2011 law to get court orders that seal those old records; in doing so, they’re no longer obligated to check the box on an employment application that asks if they’ve ever been arrested or convicted.

The intention of the law was to give people who’ve made stupid mistakes a second chance if they could show they’d straightened back up. But the problem in this 21st century digital age is that arrest and conviction records live on and on.

Third-party data collectors who buy and sell criminal records by the bulk aren’t yet required, under the state law, to update the information they provide to employers during background checks. That provision doesn’t kick in until next July.

During a hearing in the Statehouse last week, two of the biggest private data collectors threatened to challenge the state law in court. One part of their argument is that Indiana’s fractured court system makes it difficult – and therefore expensive for them – to chase down those court orders sealing those old records.

State Rep. Jed McMillin, a Brookville Republican and a former prosecutor, favors the 2011 law and wants to find a way to make it work. That may mean the state would create some kind of centralized registry of court records that third-party data collectors would pay to access.

Or it may mean that Indiana could mirror what some other states have done with their “second chance” laws: giving judges more discretion to expunge the criminal records of reformed offenders. Instead of just shielding the records from public view, as the law does now, those records would be erased – as if they were wiped away.

Still, the reality is that information in this information age is nearly impossible to erase. The 2011 law, for example, doesn’t cover the digital archives of newspapers where stories on arrests and convictions are plentiful.

The larger issue has to do with how long someone should be saddled with a criminal offense.

Earlier this spring, the U.S. Equal Opportunity Commission issued new guidelines to employers on when and how they should evaluate a job applicant’s past criminal record, including the nature of the offense, how long ago it happened, and whether it has any relevance to the job.

In brief, the EEOC told employers to stop taking such a hard line and start taking a more case-by-case approach. That may be the “second chance” that thousands of Hoosiers need.

• Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana, including the Kokomo Tribune. She can be reached at maureen.hayden@indianamediagroup.com.