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Expungement

We are an incarceration society; 1 out of every 100 American adults is in jail or prison.  The vast majority of those people are going to get out of jail or prison some day, and it would seem that any intelligent penal theory would attempt to smooth their re-entry back into society, to do what was necessary to protect society from them while at the same time ensuring that they could become productive members of society.

As the defendant in State v. J.G. found out, that's not the way it works.

J.G. was convicted of aggravated assault back in 1984.  She had the conviction expunged in 1997.  That would no longer be possible; although aggravated assault is only a fourth-degree felony, the expungement statute was amended in 2000 to disqualify relief for any "crime of violence," of which aggravated assault is one. 

Unfortunately, that wasn't the end of her problem.  She was employed by a school board as a maintenance worker, and some time ago our state legislature, fearful of the prospect of school children being preyed upon by felons, passed a law, RC 3319.39, prohibiting a board from employing anyone who had been convicted of certain crimes. 

Did I say "felons"?  Actually, no; it also bars employment for someone convicted of misdemeanor assault, or even 4th degree misdemeanor domestic violence.  And if you're thinking that it wouldn't apply to a maintenance worker, think again.  The statute used to apply only to "a person responsible for the care, custody, or control of a child."  Back in 1995, the Akron School Board tried to fire Ralph Peete because he'd been convicted of public indecency, another offense which is normally a misdemeanor, twenty-one years earlier.  Peete worked as a custodian for five hours a day, with his shift beginning at the same time as school let out.  The trial court held that he wasn't responsible for the care, custody, or control of children, so the statute didn't apply to him.  The court of appeals reversed, torturing up various scenarios in which Peete might conceivably come into contact with children, but the legislature was so chastened by the near-miss that it amended the statute so that it applied to anyone and everyone employed by a board.

But you're saying, "Why should this be a problem for J.G.?  After all, she had her conviction expunged."  Well, back in 1992 the legislature amended the expungement statute so that it doesn't apply to school board employees covered by the law described above.  And it amended 3319.39 so that the fact that a conviction was sealed was evidence that the person had a conviction which would disqualify them from employment. 

This is where J.G.'s attorney did some nifty lawyering.  The only way to let J.G. keep her job was to get rid of the conviction.  Complicating that wasthe fact that, because of the expungement, the conviction was sealed.  So the lawyer made two motions, the first to unseal the conviction, and the second to vacate the guilty plea.  With the aid of a sympathetic judge, and the fact that the State never got around to replying to the motion until five days after it had been granted, mission accomplished:  J.G.'s conviction is no more, and she can keep her job.  Of course, this simply restores the situation to the status quo ante before the plea, and there's a slight element of risk in that:  the original indictment, and the one J.G. would have to stand trial on, is for felonious assault.  Then again, good luck to the State on successfully prosecuting that a quarter century after it occurred.

When I first read the case last week, I felt as I expressed it yesterday, that it was a good result marred by some bad reasoning, in particular the appellate court's use of a procedural issue -- the State's failure to timely respond to the motion -- as a means of avoiding the substantive issue of whether the motion should have been granted.  But there are times when you have to say, this is so stupid, the law is such an ass, that we will do whatever we can to avoid that particular result.  This was one of those times.

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