Miscellaneous

Expungement Enthusiasts

By Anne Skove, Esq.

At first glance, the 10th Circuit ruling in the BATF case looks like a Second Amendment case. It has all the ingredients: laws about domestic violence perps' rights to bear arms, Wyoming, the BATF, a state AG, and involves advocates pro and con.

In fact, this case is about expungement. What is expungement? It seems obvious -- it's an erasure of past wrongs, a clean slate, a second (maybe third or more) chance. In real life, expungement works (or doesn't) in mysterious ways. It's a tangle of paperwork, time, obscure procedures, and somewhat random legislation.

How obscure and random does it get? Example: former convicts convicted of certain (but not other) crimes, having served their time, may be able to get jobs in shoe stores but not barber shops, or vice-versa. But of course it varies by state, and the state probably doesn't know what its own collateral consequences are, even as it rushes headlong into the well-funded re-entry craze. "Kafkaesque" is an entirely over-used term but it certainly does these procedures justice.

Margaret Colgate Love is doing very interesting work in this area. She's laid out the issues in her marvelously wonky book, "Relief from the Collateral Consequences of a Criminal Conviction: A State-by-State Resource Guide," available from Hein. Anyone who is a fan of state-by-state surveys will fall in love with Love's book. She examines pardons, expungement/sealing, and other ways to escape the often unknown collateral consequences of crimes, all of which set the state for true re-entry.

Love is also working with law students around the country to create a catalog of collateral consequences for each state. We talk the re-entry talk (don't we?) but again, most states (much less defendants) have no idea what the complete litany of collateral consequences for a given offense is. That makes "knowing, voluntary, and intelligent" pleas a little less so.

But back to the Wyoming case that is but is really not about guns! The 10th Circuit Court of Appeals helped states define "expunge." The panel found that the BATF was correct in denouncing Wyoming's procedure for restoring firearms rights to misdemeanants in domestic violence cases. That's because the so-called expunging allowed the old misdemeanor to be brought up for purposes of sentencing.

The court concluded that expungement can only describe "a state procedure that *completely* removes the effects of the misdemeanor conviction in question." (Note: we used asterisks around "completely" because we do not know how to underline -- which is how the opinion reads -- in html. But you get the idea.)

The case is State of Wyoming v. BATF, 07-8046 (August 26, 2008). See also Wyoming Loses Federal Gun Case, Ben Neary, AP/Jackson Hole Star-Tribune (August 28, 2008).

Full post as published by court-o-rama.org on August 28, 2008 (boomark / email).