INDIANAPOLIS — A year ago, a group of conservative and liberal legislators joined forces to pass a law aimed at making it easier for a person with a long-ago, low-level charge or conviction to get a job.
This year, they may have to fight to keep the law intact.
They fear language, tagged onto a related bill, that changes a single word — from “shall” to “may” — will undo the intent of the state’s new criminal records shield law.
On Tuesday, the state Senate voted to support that amendment, which gives judges more discretion in deciding who has the legal right to shield a past criminal record from a future employer.
Supporters of the change say that discretion is needed to protect the public.
Opponents say judges, who are elected to office, may not have the political courage to grant any shield requests for fear their decisions will come back to haunt them.
The fight is over the criminal-records shield law passed late in the 2011 session, with support from conservative and liberals who dubbed it the “second chance” bill.
It allows people arrested or convicted of a nonviolent Class D felony or misdemeanor to petition a court to close off access to those records to all but law enforcement. A number of conditions have to be met first, including an eight-year waiting period during which the person has to stay out of trouble, before a petition can be filed and granted. Sex offenders aren’t eligible.
Rep. Jud McMillen, R-Brooksville, a former prosecutor in his first year in the House, supports the shield law and opposes the amendment that gives judges greater discretion in granting the records-shield petition. He’s vowed to remove the amendment, tagged onto one of his bills, before the legislation comes up for a final vote.
“The current law removes a barrier to employment for people who have cleaned up their acts and allows them to get back involved in the employment sector,” McMillen said. “It helps people get back to work sooner and off the ranks of the unemployed.”
Federal law prohibits employers from using a criminal record as an automatic disqualifier for most jobs. But McMillen said the reality is that most employers are averse to hiring someone with any kind of criminal record.
The current law allows people who have been granted the records shield to not have to disclose that past arrest or conviction to an employer.
That doesn’t sit well with state Sen. Richard Bray, R-Martinsville, who is also a former prosecutor.
“Frankly, I’m more interested in protecting the public than I am in protecting criminals,” said Bray. He argues that employers have the right to know about a job applicant’s past.
He said giving judges the discretion to deny a records-shield petition — even if all the conditions in the current law are met — will likely result in fewer petitions granted.
Critics of his amendment have told him that judges will be fearful of making the wrong call: shielding the record of someone with an old Class D theft charge, for example, who later is accused of stealing from an employer.
So in his amendment, he added that judges who deny a records-shield petition must explain their reason in writing.
“Judges should have the discretion to deny the petition,” Bray said. “We’re paying them $120,000 a year. I should hope they’d use good judgment.”