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Expunction Dysfunction

| July 6, 2017

Last week, the Wisconsin Supreme Court issued a ruling on a case involving expunction that inadvertently highlights a significant problem.  Expunction is a court order that seals the contents of the file. The result is the public cannot see the details of a criminal case including who the defendant is.  Right now, Wisconsin law requires a judge to make a decision about expunction at the time of sentencing.  Even though the statutes lay out specific conditions, the judge is also free to add on more conditions beyond those required by statute.  Since the statutory minimums are somewhat vaguely worded, the judge is also allowed to determine if the conditions have been met with very little guidance.

That brings us to Lazaro Ozuna, the defendant in the case at hand.  As a 17-year-old, he pled guilty to two misdemeanors and was placed on probation.  As Wisconsin law requires, the sentencing judge made a determination on expunging his record at the time of sentencing.  At the end of the probationary period, Ozuna’s agent submitted to the court a single page report that indicated Ozuna had successfully completed probation and that Ozuna had violated the terms of his supervision by receiving an underage drinking ticket.  Based on the agent’s report, the court, without a hearing, denied Ozuna expunction for failing to comply with the terms of court’s conditional order for expunction.  Wisconsin’s Supreme Court agreed with the judge.

Ozuna, without saying so, shows the absurdity of Wisconsin’s requirement that expunction be decided at sentencing.  If the expunction decision had come at the end of his sentence, rather than the beginning, the court, the state, the defendant, and the victim would have all been in a better position to discuss the idea of giving Ozuna an expunction.  Each could have addressed the judge with facts about Ozuna’s life after a conviction rather than being in the position to guess about the future and then rely solely on a single, uncontestable report.

Wisconsin’s expunction law is deficient in many regards.  The term itself is not defined anywhere in statute save the banking code.  There is not even agreement on what the proper term is (the court’s ruling refers to it as “expungement” while the dissent uses the word “expunction.”)  However, those are minor issues compared to the clumsiness of the procedure required by statute and the vagueness caused.  State v. Ozuna is a wakeup call for reforming expunction.



THOMAS LYONS entered the legal field after receiving an undergraduate degree from the University of Illinois and a law degree from Marquette University. Working in offices in Kewaunee and Sheboygan Counties, Tom’s practice focused primarily on criminal defense, juvenile, and mental health law. Switching to the world of policy, Tom started as a legislative aide to a member of the Wisconsin State Assembly, followed by a State Senator, and for a brief time Governor Scott Walker before joining Right on Crime on 2017.