“I don’t care really where I work,” he says. “I just want to work. It might not be as bad if the economy wasn’t so shaky, but now….” His voice trails off.
“I can’t become a proud, responsible citizen in America if I’m not given the chance.”
Burwinkel, 27, could be like any number of job seekers in the Tristate, except for one thing: His record includes a theft conviction, a crime for which he served about three months in jail. “It hurts every time I come back from an interview, because they say, ‘you have a theft? No job.’ “I’m still doing time, it feels like.”
Burwinkel’s situation isn’t unique. About 650,000 people are released from prison each year in the United States, according to the Legal Action Center, a non-profit organization based in New York. Many advocacy groups — particularly those that deal with recovering alcohol and drug addicts — are pushing for more lenient expungement laws for non-violent offenders as a way to help them gain employment and avoid becoming repeat offenders.
The problem likely will only get worse. A 2008 study by the Pew Center on the States found that for the first time in history, more than one in every 100 adults in America are in jail or prison.
Ohio has a law that allows residents convicted of certain crimes, such as misdemeanor theft, to seal their records. This expungement removes the crime from background records of the type many employers check when hiring new workers.
In fact, Ohio’s law generally is more lenient than the expungement laws of many states.
Although criminal defendants in most states can petition to have their records cleansed in cases where charges were dropped or there was an acquittal, many of them don’t provide an option for convicts who serve their time, as Ohio does.
“We literally allow you to take a conviction off your record,” explains Paul Laufman, attorney and former president of the Greater Cincinnati Criminal Defendant Lawyers Association.
While the decision to offer a convict the expungement option rests solely in the hands of the presiding judge, Laufman says that’s often not a problem, so long as the convict hasn’t been found guilty of an excluded, nonexpungable crime such as one involving sex or violence.
“Most judges, I think, are relatively open to the idea of expungement,” he says.
But that’s a long way from a free pass.
Ohio’s expungement law has a strict “first offender” clause.
That means that a person with more than one offense isn't allowed to seal his or her record. Ever. Period.
And the law is slowly getting tighter. According to Laufman, some crimes that used to qualify for expungement once the perpetrator had completed his or her sentence are now nonexpungeable. He offered as an example the case of aggravated assault, a fourth-degree felony. It’s a step down from felonious assault, a non-expungeable crime, and was frequently used by defense attorneys as a pleabargaining tool.
“We were litigating that for a couple of years,” he says about the tactic.
But the Ohio Legislature made aggravated assault a non-expungeable offense, leaving many former convicts unable to take the step they had pleaded for in their trials. The Ohio Supreme Court rejected an appeal to the new law, essentially saying expungement is a privilege, not a right, says Laufman.
This doesn’t sit well with Burwinkel, whose record includes six offenses ranging from the theft, in 2004, to a minor seat-belt infraction in 2007. He said he served time in 2004, and paid fines and served probation for other violations in 2005 and 2006.
Burwinkel admits that he made bad choices, some while under the influence of drugs and alcohol. But after more than a year of being clean, he says he wants to make a new start.
If only the record weren’t hanging over his head.
“I can’t help it that a lot of lawmakers and politicians (in favor of tightening expungement laws) didn’t make wrong choices in their past; that’s all good and well. But let me join you as a good citizen and not as a person that didn’t care at one time.”
But the “no exceptions” nature of the expungement law means that the rehabilitated repeat offender has little choice, as Laufman notes.
“It’s almost always an employment issue,” he says of the clients who come to him seeking an expungement. “My first question is, ‘is this the only trouble you’ve been in in your life?’ If they say, ‘Well, I had a DUI when I was 19 years old and was a silly college kid.’ They’re disqualified.”
Despite the inability to remove the career-damaging record from his past, Burwinkel is trying to keep positive. He hopes to land a full-time job and advance his education, he says, and he emphasizes that he’s not going to give up.
“I have mouths to feed, I have rent to pay,” Burwinkel says. “If I lay down and don’t go to work, that’s saying I don’t care about my kids, I don’t care about myself.”
Burwinkel’s case could be considered a cautionary tale, one in which the instant gratification and indiscretions of youth lead to mistakes that stay around far past the rush of young age.
Or it could be as open-and-shut as Laufman’s comment on repeat offenses: “I tell clients, ‘One mistake is one mistake. A couple of mistakes is a criminal record.’ ”
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