Criminal and Juvenile Records Expungement Update Joshua Esmay

Criminal and Juvenile Records Expungement Update Joshua Esmay Andrea Palumbo Funding provided by Jay and Rose Phillips Family Foundation The Council on Crime and Justice

Context: Increased Importance of Criminal Records

Increased Records Creation Currently, 1 in 26 Minnesotans are under correctional control – in prison or jail, or on parole or probation. Minnesota has the 8 th highest rate in the country. An estimated 1 in 4 Minnesotans has some type of criminal record.

IN 1982, 1 IN 98 MINNESOTANS WERE UNDER CORRECTIONAL CONTROL, 380% INCREASE. Source: pewstates. org, The Long Reach of American Corrections Minnesota

Access Some juvenile and most adult criminal records are public indefinitely. Law enforcement, courts, BCA, other state agencies, data harvesters, private databases, media.

Use of Records, Stigma Do you conduct criminal background checks for any job candidates? Note: n = 347. Not sure” responses were excluded from this analysis. Slide adapted from January 22, 2010 SHRM presentation titled: Background Checking: Conducting Criminal Background Checks

Collateral Sanctions department of human services –PCA’s, Hospitals, Child Care, etc. department of health board of behavioral health & therapy board of barber & cosmetologist examiners department of corrections county community corrections board of peace officer standards & training board of accountancy department of education board of teaching board of social work board of dentistry department of labor and industry federal aviation commission department of homeland security

Department of Human Services Background Studies Direct care to vulnerable people, Disqualifying periods from 7 years to a lifetime Misdemeanor theft to wrongfully obtaining benefits to felony assault Preponderance of the Evidence Juvenile Records

Racial Disparities In Minnesota, African American individuals comprise 35. 4% of the incarcerated population and 4. 6% of the general population.

Racial Disparities In 2011, blacks in Minnesota were 6. 4 times more likely than whites to be arrested for marijuana possession – over two times the national average, while research shows that illegal drug usage is roughly equal between racial groups.

Current Law

WHAT ARE CRIMINAL RECORDS? Bureau of Criminal Apprehension (BCA) Minnesota Court Information System (MNCIS) Police Department City Attorney Sheriff’s Department County Attorney State Attorney General Department of Corrections Department of Human Services Private data-miners Private theft databases

Basics of Expungement Law Court-ordered sealing of government-held records Not destruction of a record Sealed records may be opened for future investigation and prosecution, and for background checks for law enforcement positions.

Four Types of Criminal Expungement in MN (in a nutshell) § Minn. Stat. § 299 c. 11 “administrative” seals law enforcement & BCA. § Minn. Stat. § 609 A “statutory” seals all agency records. § Inherent Authority (partial expungment) State v. MDT seals only court records absent “appropriate circumstances”. § Juvenile Delinquency Minn. Stat. § 260 B. 198, sub. 6.

Minn. Stat. § 299 C. 11: Return of Records Arrest but no charge or Charge but dismissal prior to a formal finding of probable cause and § No felony or gross misdemeanor conviction within the ten years prior to the arrest at issue.

STATUTORY EXPUNGEMENT (YESTERDAY) Minn. Stat. § 609 A. 02 Subd. (3) only included: 1. Certain controlled substance offenses. 2. Juveniles prosecuted as adults. 3. Certain criminal proceedings not resulting in conviction. § All charges in the case resolved entirely in the petitioner’s favor without any plea or admission of guilt

STATUTORY EXPUNGEMENT (TODAY= YESTERDAY + ADDITIONS) All categories that used to qualify for statutory expungement still do (“Yesterday”). Today, Minn. Stat. § 609 A. 02 Subd. (3) has expanded to include: 4. Stays of Adjudication & Diversion; 1 year after completion of sentence if crime free 5. Convictions for petty misdemeanors & misdemeanors; 2 years after discharge of sentence if crime free 6. Gross misdemeanors; 4 years after discharge of sentence if crime free 7. Select non-violent felonies; 5 years after discharge of sentence if crime free

WHAT FELONIES ARE COVERED? 50 non-violent felonies from the 2 lowest levels of the Sentencing Guidelines, including: § 5 th degree drug possession and sale § Criminal damage to property if less than $1000 § Aggravated forgery § Various fraud offenses § Check forgery if less than $2500 § Theft if less than $5000

WHAT ABOUT JUVENILE RECORDS? Old Law, Minn. Stat. § 260 B. 198 subd. 6: The court “may expunge an adjudication of delinquency at any time that it deems advisable. ” In re Welfare of J. J. P. in 2013 determined that this only allowed for sealing of actual court order adjudicating delinquency.

NEW EXPUNGEMENT LAW JUVENILE RECORDS Clarifies that 260 B. 198 Subd. (6) includes all records relating to the arrest and delinquency proceedings.

STATUTORY EXPUNGEMENT EXPANSION Minn. Stat. § 609 A. 02 Subd. 3 DOMESTIC VIOLENCE/SEXUAL ASSAULT “does not apply if the crime involved domestic abuse or sexual assault, as defined in section 518 B. 01, subdivision 2, or to violation of an order for protection under section 518 B. 01, subdivision 14, a harassment restraining order under section 609. 748, subdivision 6, a violation of section 609. 749, or a violation of section 629. 75. This paragraph expires on July 15, 2015. ” No New Legislation in 2015 - this will expire

BURDEN OF PROOF, STANDARD “expungement of a criminal record is an extraordinary remedy to be granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of: (1) sealing the record; and (2) burdening the court and public authorities to issue, enforce, and monitor an expungement order. ” 609 A. 03 Subd. 5 12 Factors added.

12 FACTORS (1) the nature and severity of the underlying crime, the record of which would be sealed; (2) the risk, if any, the petitioner poses to individuals or society; (3) the length of time since the crime occurred; (4) the steps taken by the petitioner toward rehabilitation following the crime; (5) aggravating or mitigating factors relating to the underlying crime, including the petitioner's level of participation and context and circumstances of the underlying crime; (6) the reasons for the expungement, including the petitioner's attempts to obtain employment, housing, or other necessities;

12 FACTORS (7) the petitioner's criminal record; (8) the petitioner's record of employment and community involvement; (9) the recommendations of interested law enforcement, prosecutorial, and corrections officials; (10) the recommendations of victims or whether victims of the underlying crime were minors; (11) the amount, if any, of restitution outstanding, past efforts made by the petitioner toward payment, and the measures in place to help ensure completion of restitution payment after expungement of the record if granted; and (12) other factors deemed relevant by the court.

STATUTORY EXPUNGEMENT Sealing Without Petition “If the prosecutor agrees to the sealing of a criminal record, the court shall seal the criminal record for a person described in section 609 A. 02, subdivision 3, without the filing of a petition unless it determines that the interests of the public and public safety in keeping the record public outweigh the disadvantages to the subject of the record in not sealing it. ”

ACCESS TO SEALED RECORDS 609 A. 03 Subd. 7 Law Enforcement Agencies: ex parte court order required for resolved in favor cases. All other expunged cases, including convictions, may be opened and shared between LEAs without court order for LE purposes (investigations, prosecution, sentencing or probation). Other Executive Agencies: DHS, Board of Teaching, and Dept. of Education may have access for purposes of background checks unless expungement order is directed at them. Notice requirement varies Victims: upon request if substantially related to matter for which victim is before the court

WHAT ABOUT PRIVATE DATABASES? Sec. 4. Minnesota Statutes 2012, section 332. 70, is amended by adding a subdivision to read: Subd. 3 a. Deletion of expunged records. If a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record.

WHAT ABOUT EMPLOYER LIABILITY? Minn. Stat. § 181. 981 AND added to 609 A. An employee’s criminal history cannot be introduced as evidence if: (1) the duties of the position of employment did not expose others to a greater degree of risk than that created by the employee interacting with the public outside of the duties of the position or that might be created by being employed in general; (2) the offense had been expunged or pardoned; or (3) the record is of an arrest or charge that did not result in a criminal conviction.

Emerging Issues

Diversion Programs Before January 1: Treated as case resolved in petitioner’s favor No filing fee After January 1: Specifically named in statute with waiting period Filing fee required

Stay of Imposition – Felony or Not? Minn. Stat. 609. 13 Subd. 1(2): Felony conviction is deemed to be for a misdemeanor if the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence. State v. Franklin: holding implies it’s a misdemeanor but footnote implies it’s a felony (A 13 -1129, MN Supreme Court, March 11, 2015)

Time Without A Conviction Diversion & Stay of Adjudication requires time without a new charges since completion All other offenses require no new conviction since discharge of sentence § Subsequent convictions? § Multiple offenses?

Other emerging issues • No petition required in certain cases with prosecutor agreement and notification (Minn. Stat. 609 A. 025) • Unclear exactly how this works • DHS requires service of petition • DWI/DUI convictions • • Theoretically possible to expunge Domestic assault/Sexual assault exception due to expire on July 15

Alternatives Tips Resources

What good is a partial expungement? Benefits of a judicial records expungement: § Still may be useful for minor offenses that have not been reported to the BCA § The order is better than nothing, and if it is well drafted, could help your client with job interviews, housing applications, etc. § Write your own proposed order. Make it persuasive. § Update the BCA records. Send a demand letter to the BCA with the expungement order. Minn. Stat. § 13. 01, § 13. 04 § Safe Hiring – limits employer’s liability. Minn. Stat. § 181. 981

The BCA Fix

Alternatives to Expungement Agency Relief Work with the remedies available through the agency that may have issued an adverse decision your client. § Department of Human Services/Department of Health Disqualification Appeals (Minn. Stat. § 245 C; DHS Fair Hearings, Minn. Stat. § 256. 045; OAH Hearings (Minn. R. 1400. 510 -1400. 8400) § Professional Board Licensure Appeals (varies based on board) § Public Housing/ Section 8 Denial Appeals Write letters to employer explaining reasons and benefits of plea bargain.

Alternatives to Expungement Pardon Extraordinary Minn. Stat. § 638 http: //www. doc. state. mn. us/boardofpardons/default. htm (Board of Pardons website) MN Board of Pardons may grant a “pardon extraordinary” 5 -10 years after discharge of sentence. Benefit: sets aside and nullifies the conviction; eliminates DHS/MDH disqualifications based on convictions; seals public BCA record and adds “pardoned” note to file. Drawback: does not seal the record.

Other Tips Always ask for DHS records to be expunged: If not included in the expungement order DHS can access the expunged record and will receive notice of its existence when they request BCA records. See. § 245 C. 08 and § 609 A. 03 subd. 7 a, When case was resolved in your clients favor the burden is on the state to show a “unique or particularized harm to the public”. State v. RHB 821 NW 2 d 817 (Minn. 2012) § Advise clients to collect evidence early: Denial letters, job application log, character letters, treatment certificates. § Help client take responsibility and don’t re-litigate the case

Council on Crime and Justice Support for People with Records CRIMINAL RECORDS INFORMATION (612) 353 -3024 records@crimeandjustice. org Criminal Records Seminars: First Tuesday of each month at the Minneapolis Urban League. Second Chance Saturdays: Third Saturday of each month.

Contact Info Josh Esmay, Advocacy Director Council on Crime and Justice esmayj@crimeandjustice. org Andrea Palumbo, Staff Attorney Council on Crime and Justice palumboa@crimeandjustice. org