Some see troubles with Indiana's second-chance law

August 24, 2012

Indiana lawmakers are discovering there are challenges in implementing a new state law designed to give people a chance to have old low-level criminal conviction records sealed by a judge.

The law allows thousands of Indiana residents to ask a judge to seal information about those convictions from employers and others. But county clerks told the Criminal Law and Sentencing Policy Study Committee in Indianapolis on Thursday that they don't have the staff to comply with the law, and commercial criminal history providers say parts of the law could be illegal.

The law, which took effect a year ago, allows police to see the records, but they are off-limits to non-criminal justice uses.

State police, so far, have received 1,700 court orders to seal criminal records.

But several county clerks testified that it is difficult to comply with changing all the records, especially ones on microfilm or paper, The Journal Gazette reported Friday. They will need to hire additional staff and restrict access to records until they can be reviewed. The clerks also are concerned they could be sued for damages if they didn't redact the information properly.

Committee members felt clerks were already protected from legal liability in the law, but agreed to clarify it.

Businesses that specialize in doing criminal background checks for private employers and already have data on file that the law seeks to shield say they have a problem with the law as it exists. Chris Lemens, executive vice president and general counsel for the website backgroundchecks.com, told committee members that if the law stays as is, the industry would have no choice but to challenge its constitutionality.

Lemens said any attempt to regulate the truthful reporting of information could be unconstitutional under the First Amendment. He first said the law needs to apply to only current Indiana residents. As written, the law would cross state lines and affect employers in another state running background checks on a person who once lived in Indiana but now lives elsewhere. Providers would not be allowed to include certain convictions on that criminal history report.

He also said the law prohibits disclosure of a criminal case with no conviction, which commonly involves a dismissal. But he pointed to the federal Fair Credit Reporting Act that conflicts, saying arrests can be reported for a certain number of years.

Staff attorneys were directed to look into legal questions and how other states are handling similar issues. Several more committee meetings are scheduled.



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